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l01- //99 IMAGED Co- IV SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs VS. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant 01-vit-&rfi IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVA3§1 • ? N NO. 2011-CV-9485-CV =? ._. CIVIL ACTION - LAW - ° N -? o JURY TRIL DEMANDED w 0 -r -n c-i ORDER AND NOW, this day of r1t 2012, pursuant to the Petition to Relinquish Jurisdiction filed by the Petitioner, IT IS ORDERED AND DECREED that jurisdiction in the above-captioned matter be relinquished to Cumberland County, Pennsylvania. The Prothonotary of Dauphin County shall transfer all docketed materials to the Prothonotary of Cumberland County. FEB i hereby certiv%? mat the foreF tq is a fits and correct copy of the original aw. Drni4+tre+ t?rer Distribution: Jeffrey B. Engle, Esq Nicole Cohen, Esq. M C0 cu -TJ CJ) BY THE COURT: -< iV r ?? :tp > c-, a? J. 512Market Street, Millersburg, PA 17061 Briggs Law Firm, 300 Walnut Street, Philadelphia, PA 19106 4 I C& e75 PD ATT`/ Date: 2/13/2012 Time: 02:01 PM Page 1 of 3 Filed: Subtype: Comment: Physical File: Y Appealed: N Status History Pending 10/3/2011 Closed 2/13/2012 Judge History Date Judge Reason for Removal 10/3/2011 No Judge, Administrative 12/2/2011 Bratton, Bruce F. Current Payments Receipt Date Type Shaffer & Engle Law Offices, LLI 261667 10/312011 Civil Filing Plaintiff Name: Dicostanzo, Sarah Address: Phone: Home: Employer: Litigant Type: Comment: parent of minor child Attorneys Engle, Jeffrey B Plaintiff Name: Dicostanzo, Andrew J Address: Phone: Home: Employer: Litigant Type: Comment: parent of minor child Attorneys Engle, Jeffrey B Dauphin County Complete Case History Case: 2011-CV-09485-CV Sarah Dicostanzo, etal. vs. Outback Steakhouse Of Florida 10/3/2011 Civil Work: (Primary attorney) Work: (Primary attorney) User: LGARCIA Amount 145.50 Total 145.50 SSN: DOB: Sex: Send notices: Y Send Notices SSN: DOB: Sex: Send notices: Y Send Notices Date: 2/13/2012 Dauphin County Time: 02:01 PM Complete Case History Page 2 of 3 Case: 2011-CV-09485-CV Sarah Dicostanzo, etal. vs. Outback Steakhouse Of Florida Defendant Name: Outback Steakhouse Of Florida SSN: Address: DOB: Sex: Phone: Home: Work: Employer: Send notices: Y Litigant Type: Comment: Attorneys Briggs, Norman W (Primary attorney) Send Notices Register of Actions 10/3/2011 New Civil Case Filed This Date. No Judge, Filing: Complaint Paid by: Shaffer & No Judge, Engle Law Offices, LLC Receipt number: 0261667 Dated: 10/3/2011 Amount: $145.50 (Check) For: Dicostanzo, Andrew J (plaintiff) Plaintiff: Dicostanzo, Sarah Attorney of No Judge, Record: Jeffrey B Engle Plaintiff: Dicostanzo, Andrew J Attorney of No Judge, Record: Jeffrey B Engle AOPC MONTHLY CIVIL COURT No Judge, STATISTICAL REPORT DATA (AGING PURPOSES - CIVIL ACTION) Other Tort Complaint filed. No Judge, AOPC MONTHLY CIVIL COURT STATISTICAL REPORT DATA 10/5/2011 Complaint: Sheriffs Return filed stating No Judge, service was completed. So answers J.R. Lotwick, Sheriff. to Outback Steakhouse Of Florida on 10/5/2011; Assigned to Dauphin Co Sheriffs Office. Service Fee of $52.00. 10/25/2011 BriggsLaw Offices, LLC, by Norman W. No Judge, Briggs, Esquire enters appearance on behalf of All Defendants. See Praecipe, filed. Preliminary Objections of Defendant, No Judge, Outback Steakhouse of Florida, LLC, to Plaintiffs Complaint, filed. Memorandum of Law in Support of No Judge, Preliminary Objections of Defendant, Outback Steakhouse of Florida, LLC, to Plaintiffs' Complaint, filed. 11/21/2011 Plaintiffs' answer to defendant's No Judge, preliminary objections to plaintiffs' complaint, filed. Memorandum of law in support of No Judge, plaintiffs' answer to defnedant's preliminary objections to plaintiffs' complaint, filed. 12/1/2011 Certificate of Readiness for Pretrial Motion No Judge, filed by counsel for defendant(s). User: LGARCIA Date: 2/13/2012 Dauphin County Time: 02:01 PM Complete Case History Page 3 of 3 Case: 2011-CV-09485-CV Sarah Dicostanzo, etal. vs. Outback Steakhouse Of Florida Register of Actions 12/2/2011 Judge assigned to case. Bratton, Bruce F. 12/6/2011 Hearing scheduled for (Hearing Bratton, Bruce F. 01/04/2012 02:00 PM) See Order filed copies dist by chambers. 12/7/11 1/5/2012 Hearing scheduled for (Hearing Bratton, Bruce F. 01/26/2012 12:00 PM) See Order filed copies dist by chambers. 1/6/12 1/6/2012 Hearing result for Hearing held on Bratton, Bruce F. 01/04/2012 02:00 PM: Hearing Rescheduled See Order filed 1/31/2012 Hearing result for Hearing held on Bratton, Bruce F. 01/26/2012 12:00 PM: Hearing Held See Order filed In consideration of Defendant's Bratton, Bruce F. Preliminary Objections to Plaintiffs' Complaint, Plaintiffs' Respnse thereto and having held argument on the Objections on January 26, 2012, it is hereby ORDERED as follows: See Complete Order filed copies dist by chambers. 2/1/12 2/8/2012 Petition to relinquish jurisdiction, filed. No Judge, 2/10/2012 Pursuant to the Petition to Relinquish Bratton, Bruce F. Jurisdiction filed by the Petitioner, IT IS ORDERED AND DECREED that jurisdiction in the above captioned matter be relinquished to Cumberland County, Pennsylvania. The Prothonotary of Dauphin County shall transfer all docketed materials to the Prothonotary of Cumberland County. See ORDER, filed. Copies Dist. 02/10/12 2/13/2012 The above case is hereby Transfer to the Bratton, Bruce F. Court of Common Pleas of Cumberland County. ****NO MORE ENTRIES CASE Bratton Bruce F TRANSFERRED**** , . O THE COURT OF COMMON B 1 VQf,2EAS FEB I hereby cert that the f re ing is a t true ?1Fg 111 10" of a iainal filed. User: LGARCIA lerk of Stephen E. Farina Prothonotary OFFICE OF ggpTHONOTARY Front & Market Streets Harrisburg, PA 17101 (717) 780-6520 David D. Buell, Prothonotary Cumberland County Court House Hanover & High Streets Carlisle, Pa 17013 February 13, 2012 IN RE: Sarah Dicostanzo & Andrew J Dicostanzo Vs. Outback Steakhouse of Florida, LLC Dauphin County Dkt. No. 2011 CV 9485 CV Cumberland County Dkt No. Dear Sir/ Madam: By Order of February 10, 2012 by the Honorable Bruce F. Bratton., Judge The above matter has been transferred to the Court of Common Pleas of Cumberland County. I am, accordingly, sending originals of all the papers herewith. I Will appreciate the return of the attached receipt address to the Attention: of Ms. Lisandra Garcia. Very truly yours, Stephen E. Farina Prothonotary County of Dauphin BRIGGS LAW OFFICE, LLC By: NORMAN W. BRIGGS, ESQUIRE Attorney I.D. No.: 60940 300 Walnut Street Philadelphia, PA 19106 (215) 925-4632 SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiff(s) vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant(s) Attorney for Defendant Outback Steakhouse of Florida, LLC COURT OF COMMON PLEAS DAUPHIN COUNTY NO. 2011-cv-9485-CV ORDER AND NOW this day of , 2011, upon consideration of the Preliminary Objections filed on behalf of Defendant, Outback Steakhouse of Florida, LLC, it is hereby ORDERED and DECREED that Defendant's Preliminary Objections are SUSTAINED, and that ¶30, ¶30-I, and ¶33 of Plaintiffs' Complaint are stricken with prejudice. BY THE COURT: D J. IMAr1=r BRIGGS LAW OFFICE, LLC By: NORMAN W. BRIGGS, ESQUIRE Attorney I.D. No.: 60940 300 Walnut Street Philadelphia, PA 19106 (215) 925-4632 SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiff(s) vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant(s) ,c-•t PRELIMINARY OBJECTIONS OF DEFENDANT. OUTBACK STEAKHOUSE OF FLORIDA, LLC, TO PLAINTIFF'S COMPLAINT Defendant, Outback Steakhouse of Florida, LLC by (hereinafter "Outback Steakhouse") and through its attorneys, Briggs Law Office, LLC, preliminarily object to Plaintiff's Amended Complaint pursuant to PA R.C.P. 1028(a)(1-6) and state as follows: 1. This lawsuit arises out of an alleged incident that occurred at the Harrisburg location of Outback Steakhouse on or about October 25, 2009. (See copy of Plaintiff's Complaint attached as Exhibit "A"). 2. Plaintiffs assert that Carmine J. DiCostanzo was injured when his middle finger on his right hand was caught in a doorjamb. 3. Plaintiffs allege that Outback Steakhouse was negligent, careless, and Attorney for Defendant Outback Steakhouse of Florida, LLC COURT OF COMMON PLEAS DAUPHIN COUNTY NO. 2011-cv-9485-CV ?A- reckless in its conduct, and that this conduct caused his injuries. LEGAL ARGUMENT 4. Pa.R.C.P. 1028(a)(3) states that preliminary objections may be filed by any party to any pleading if there is insufficient specificity in the pleading. 5. PA. R.C.P. 1019(a) states that the material facts on which a cause of action or defense is based shall be stated in a concise and summary form. 6. In Count I, Plaintiff asserts that "[t]he injuries sustained by Plaintiffs' minor child were caused by the negligence, carelessness, and recklessness of the Defendant...." See Plaintiff's Complaint, Exhibit A, at Paragraph 30. 7. Additionally, Plaintiff asserts that Outback Steakhouse "otherwise conducted itself in a negligent, careless, and reckless manager" [sic]. See Plaintiff's Complaint, Exhibit A, at Paragraph 30(i). 8. The Complaint asserts that "[s]olely as a result of the negligence, carelessness and recklessness of Defendant, Plaintiffs' minor child has been obligated to receive medical attention and care to expend various sums of money for injuries suffered...." See Plaintiff's Complaint, Exhibit A, at Paragraph 33. 9. Count I of Plaintiffs' Complaint fails to allege how Defendant Outback Steakhouse conducted itself in a reckless manner. 10. A Complaint must not only give defendant notice of what the claim is and the grounds upon which it rests, but formulate the issues by pleading the facts essential to support the claim. Alpha Tau Omega -2- Fraternity v. The University of Pennsylvania, 318 Pa. Super. 293, 464 A.2d 1349 (1983). The material facts upon which the cause of action is premised must be plead with sufficient specificity so as to set forth the prima facie elements of the claim alleged. Feingold v. Hill, 360 Pa. Super. 539, 521 A.2d 33, appeal denied, 515 Pa. 607, 529 A.2d 1081 (1987). 11. Moreover, the Court in Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), determined that plaintiffs are precluded from including boilerplate allegations of negligence in complaints. 12. The general, non-specific allegations of recklessness in paragraphs 30, 30(i), and 33 in Plaintiffs' Complaint leave the Defendants in the present matter powerless to prevent Plaintiff from alleging new and different theories of negligence after the running of the statute of limitations, Id. at 602. 13. Under Pennsylvania law, an actor's conduct is reckless if "he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." Daniel v. Wyeth Pharmaceuticals, Inc., 15 A.3d 909, 929 (Pa.Super. 2011)(quoting Restatement (Second) of Torts, §500). 14. An assertion of reckless conduct will be stricken if there are no facts pleaded to sustain it. Musgrove v. Com., 64 Pa. D. & C.2d 371, 373 (C.P. 1973). -3- 15. Plaintiffs' Complaint provides no facts supporting the assertion that Defendant's alleged conduct meets Pennsylvania's "recklessness" standard, as opposed to ordinary negligence. Id. 16. To permit the Plaintiff to include general, non-specific allegations of recklessness would require the Defendant to prepare to defend against every possible cause of action that might fall within the ambit of negligence. Clearly this is an impossible burden upon Defendant. Farmer v. Rhoads, 43 Pa. D 8s C.3d 393 (Pa.Com. Pl. 1986). WHEREFORE, Defendant Outback Steakhouse of Florida, LLC, respectfully request this Honorable Court to sustain its preliminary objections and enter an order in the Form attached, striking Plaintiff's references to "recklessness" as found in paragraphs 30, 30(i), and 33 from Plaintiffs' Complaint with prejudice. RESPECTFULLY SUBMITTED, 9?2 NORMAN W. BRIGGS, ESQUIRE Attorney for Defendant Outback Steakhouse of Florida, LLC Dated: October 24, 2011 -4- BRIGGS LAW OFFICE, LLC By: NORMAN W. BRIGGS, ESQUIRE Attorney I.D. No.: 60940 300 Walnut Street Philadelphia, PA 19106 (215) 925-4632 SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiff(s) VS. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant(s) Attorney for Defendant Outback Steakhouse of Florida, LLC COURT OF COMMON PLEAS DAUPHIN COUNTY NO. 2011-cv-9485-G'V MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY OBJECTIONS OF DEFENDANT, OUTBACK STEAKHOUSE OF FLORIDA, LLC, TO PLAINTIFFS' COMPLAINT Defendant, Outback Steakhouse of Florida, LLC (hereinafter "Outback Steakhouse"), by and through their attorneys, Briggs Law Office, LLC, preliminarily object to Plaintiffs' Complaint pursuant to PA R.C.P. 1028(a) and state as follows: 1. MATTER BEFORE THE COURT This case involves a claim for injuries that Plaintiff, Carmine J. DiCostanzo, allegedly suffered while dining at the Harrisburg location of Defendant Outback Steakhouse. At the time of the alleged accident, it is claimed Plaintiff Sarah DiCostanzo was accompanying her minor child, Carmine J. DiCostanzo, into the restroom when the child's finger got caught in the door jamb. Plaintiffs allege that his injuries are a result of negligence, carelessness, and recklessness on behalf of Outback Steakhouse. Moving Defendant requests the deletion of Plaintiff's references to "recklessness", as found in paragraphs 30, 30(i), and 33, from Plaintiffs' Complaint with prejudice. II. STATEMENT OF FACTS This action was commenced by Plaintiffs against Defendant Outback Steakhouse by the filing of a complaint on October 3, 2011. See copy of Plaintiff's Complaint attached as Exhibit "A". Plaintiff Carmine J. DiCostanzo allegedly suffered an injury to his middle finger on his right hand when he got it caught in a restroom door on Defendant's premises. Count I of Plaintiffs' Complaint makes numerous references to the alleged reckless conduct of Defendant Outback Steakhouse. See Plaintiffs' Complaint, Exhibit A, at in paragraphs 30, 30(i), and 33. Plaintiff's Complaint, however, does not aver a factual basis for the allegation that Plaintiff's injuries were a result of recklessness on behalf of Defendant Outback Steakhouse. III. ARGUMENT 1. Lack of Specificity The paragraphs of Plaintiffs' Complaint alleging recklessness should be stricken for lack of specificity, failure to comply with a rule of court. Pennsylvania Rule of Civil Procedure 1028(a)(2) permits a trial court to strike off a pleading duty to lack of conformity to rule of law or court. Pa. R. C. P. 1028(a)(2). Subpart 3 of the same Rule permits a trial court to strike off a pleading for lack of specificity. Pa.R.C.P. 1028(a)(3). Plaintiff is required to allege in the Complaint all of the facts that he will need to prove in order to recover on his claims of negligence against Defendant Outback Steakhouse. Moreover, he must have alleged sufficient facts to allow Outback Steakhouse the opportunity to prepare its defenses and investigate the nature of his claims. Baker v. Rangos, 229 Pa. Super. 333, 324 A.2d 498 (1974). The complaint must be sufficiently specific so as to enable the party served to prepare a defense. Pa.R.C.P. 1019(a). Here, Plaintiff has failed to plead with the requisite factual specificity. In Count I, Plaintiff asserts that Outback Steakhouse's reckless conduct caused Carmine J. DiCostanzo's injury. See Plaintiffs' Complaint, Exhibit A, at in paragraphs 30 and 33. Additionally, Plaintiff asserts that Outback Steakhouse "otherwise conducted itself in a negligent, careless and reckless manager [sic]". See Plaintiffs' Complaint, Exhibit A, at Paragraph 30(i). Plaintiff's Complaint, however, fails to set forth how these vague allegations of recklessness resulted in the Plaintiff's injuries. From the Complaint, Outback Steakhouse is unable to determine what alleged action on its behalf rises to the level of recklessness. Under Pennsylvania law, an actor's conduct is reckless if "he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." Daniel v. Wyeth Pharmaceuticals, Inc., 15 A. 3d 909, 929 (Pa. Super. 2011) (quoting Restatement (Second) of Torts, §500). An assertion of reckless conduct will be stricken if there are no facts pleaded to sustain it. Musgrove v. Com., 64 Pa. D. & C.2d 371, 373 (C.P. 1973). A Complaint must not only give defendant notice of what the claim is and the grounds upon which it rests, but formulate the issues by pleading the facts essential to support the claim. Alpha Tau Omega Fraternity v. The University of Pennsylvania, 318 Pa. Super. 293, 464 A.2d 1349 (1983). The material facts upon which the cause of action is premised must be plead with sufficient specificity so as to set forth the prima facie elements of the claim alleged. Feingold v. Hill, 360 Pa. Super. 539, 521 A.2d 33, appeal denied, 515 Pa. 607, 529 A.2d 1081 (1987). Plaintiffs' Complaint fails to meet this simple standard. No facts have been pled which demonstrate an "unreasonable risk of physical harm... which is substantially greater than that which is necessary to make conduct negligent". Daniel, 15 A.3d at 929. Aside from bare allegations that Defendant Outback Steakhouse was on notice of the door's alleged dangerous condition, Plaintiffs' Complaint contains no factual averments which would sustain a claim of recklessness. See Plaintiffs' Complaint, Exhibit A, at Paragraphs 16- 17. Accordingly, references to Defendant Outback Steakhouse's supposed recklessness should be stricken from Plaintiffs' Complaint. 2. Boilerplate Pleadings It is clearly stated that grounds for Preliminary Objections exist in Pa.R.C.P. 1028 which provides as follows: Preliminary Objections may be filed by any party to any pleading and are limited to the following grounds: (3) insufficient specificity in a pleading; Pa.R.C.P. 1019(a) further states that the material facts on which a cause of action or defense is based shall be stated in a concise and summary form. In the present matter, Plaintiff does not. identify how Outback Steakhouse "otherwise conducted itself in a negligent, careless, and reckless manager [sic]". See Plaintiffs' Complaint, Exhibit A, at Paragraph 33. The court in Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), determined that plaintiffs are precluded from including boilerplate allegations of negligence in complaints. The general, non-specific allegations of paragraph 33(i) in the Plaintiffs' Complaint leaves the Defendant in the present matter powerless to prevent Plaintiffs from alleging new and different theories of negligence after the running of the statute of limitations. Id at 602. To permit a plaintiff to include general, non-specific allegations would require the defendants to prepare to defend against every possible cause of action that might fall within the ambit of negligence. Farmer v. Rhoads, 43 Pa. D. 8v C.3d 393 (Pa.Com.Pl. 1986). Clearly this is an impossible burden upon the Defendant in the above matter. In summary, boilerplate allegations of negligence are insufficient to fulfill the fact pleading requirements of the Pennsylvania Rules of Procedure. IV. RELIEF REQUESTED The moving Defendant, Outback Steakhouse of Florida, LLC, respectfully request this Honorable Court to sustain its Preliminary Objections and enter an Order in the Form attached, striking Plaintiffs' references to "recklessness" as found in paragraphs 30, 30(i), and 33 from Plaintiffs' Complaint with prejudice. RESPECTFULLY SUBMITTED, NORMAN W. BRIGGS, ESQUIRE Attorney for Defendant Outback Steakhouse of Florida, LLC Dated: October 24, 2011 VERIFICATION NORMAN W. BRIGGS, ESQUIRE verifies that he is an the attorney for Defendant, Outback Steakhouse of Florida, LLC, in the within action and verifies that the statements made in the foregoing Preliminary Objections to Plaintiffs' Complaint are true and correct to the best of his knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. je?7 NORMAN BRIGGS, ESQUIRE Attorney for Defendant Outback Steakhouse of Florida, LLC Dated: October 24, 2011 SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs VS. F OUTBACK STEAKHOUSE 0 0 M, LL , Defendant IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW JURY TRIL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEC?& SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEES DAUPHIN COUNTY LAWYER REFERRAL SERVICE :2 --{ -?- .r. 213 North Front Street= o FZ1 Harrisburg PA 17101- r ' o r`' -< (717) 232-7536 -? 51 '- ,y -! N.,, TI CONCERNING MEDIATION OF ACTIONS PENDING BEFORE y THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY The Judges of the Court of Common Pleas of Dauphin County believe that mediation of lawsuits is a very important component of dispute resolution. Virtually all lawsuits can benefit in some manner from mediation. The Court has adopted Dauphin County Local Rule 1001 to encourage the use of mediation. This early alert enables litigants to determine the best time during the life of their lawsuit for a mediation session. The intent of this early alert is to help the parties act upon the requirement to consider good faith mediation at the optimal time. The Dauphin County Bar Association provides mediation services and can be reached at 717-232-7536. Free mediation sessions for pro bono cases referred by MidPenn Legal Services are available through the DCBA. AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mis adelante on ias siguientes piginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despuds de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando on la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqua en contra suya. Se le advierte de quo si usted falls de tomar acci6n coma se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada on la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mis aviso adicional, Usted puede perder dinero o propiedad u otros derechos importantes pare usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 An adequate supply of forms containing the bilingual notices required by these Rules shall be furnished by the Dauphin County Bar Association to the office of the Prothonotary and shall be available for use by litigants and their attorneys. AVISO REFERENCES A LA MEQ191aN DE LAS ACC ONES PENDIENTES ANTM LA CORTE DE SOPLICAS OMUNES DEL CON ADO DE DAUPHIN Los jueces de la corte de s6plicas comunes del condado de Dauphin creen que la mediaci6n de pleitos es un componente muy importante de la resoluci6n del conflicto. Virtualmente todos los pleitos pueden beneficiar de cierta manera de la mediaci6n. La code ha adoptado la regla local de condado de Dauphin 1001 para animar el use de la mediacion. Esta alarma temprana permite a litigantes determiner la mejor dpoca durante la vida de su pleito pars una sesion de la mediacion. El intento de esta alarma temprana es actuar sobre la mediaci6n de la buena fe en el tiempo 6ptimo. La asociaci6n de la barra del condado de Dauphin proporciona servicios de la mediacion y se puede alcanrar en 717-232-7536. La sesion libre de la mediaci6n para los favorables casos del bono se refinio por MidPenn que los servicios juridicos estbn disponibles con el DCBA. An adequate supply of forms containing the bilingual notices required by these Rules shall be furnished by the Dauphin County Bar Association to the Office of the Prothonotary and shall be available for use by litigants and their attorneys. Jeffrey B. Engle, Esquire SHAFFER & ENGLE LAW OFFICES 512 Market Street Millersburg, PA 17061 717-692-2345 * phone 717-692-3554 * fax jeff@shafferengle.com SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintffs vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA No a6 I I C J q yg-SC? CIVIL ACTION - LAW JURY TRIL DEMANDED COMPLAINT AND NOW, comes the Plaintiffs, by and through counsel, Shaffer & Engle Law Offices, LLC, more specifically Jeffrey B. Engle, Esquire, who files this Complaint and, in support thereof, avers the following: 1. Plaintiff', Sarah DiCostanzo, is an adult individual residing at 29 Privet Drive, Etters, Pennsylvania 17319. Carmine J. DiCostanzo is the mother of the minor child 2. Plaintiff Sarah DiCostanzo . , , , C- ?u 3. Plaintiff, Andrew J. DiCostanzo, is an adult individual residing at 29 Prix-. Drive , T_ Y CZ) Etters, Pennsylvania 17319. ;:z W 1 4. Plaintiff,.Andrew J. DiCostanzo, is the father of the minor child, Carmine J. DiCostanzo. 5. Carmine J. DiCostanzo is a minor child under the care and control of his parents, Plaintiffs Sarah DiCostanzo and Andrew J. DiCostanzo. 6. Defendant, Outback Steakhouse of Florida, LLC, is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with a registered office at c/o CT Corporation Systems, 116 Pine Street, Suite 320, Harrisburg, PA 17101. COUNT I - NEGLIGENCE 7. The allegations contained in paragraphs 1 - 6 are incorporated herein by reference as though fully set forth. 8. At all material times, Defendant operated, supervised and controlled the Outback Steakhouse Restaurant located at 3527 Union Deposit Road, Harrisburg, Dauphin County, Pennsylvania 17109. 9. At all material times, Defendant acted by and through its dully authorized agents, servants, workmen and/or employees, acting within the scoping of their authority and employment and in the course of Defendant's business. 10. At all material times, Defendant had under its care, supervision, control, maintenance, and/or was responsible for the door to the restroom used by patrons at the restaurant. 11. On October 25, 2049, Plaintiffs were dining at Defendant's restaurant. 12. While dining at the restaurant, Plaintiffs' minor child, Carmine J. DiCostanzo, had occasion to use the restroom at Defendant's restaurant. 13. Plaintiff, Sarah DiCostanzo, accompanied the minor child, who was age 3 at the time of the accident, to the restroom. 14. While entering the restroom, the minor child caught his right middle finger in the door jam. 15. Plaintiffs' minor child suffered damage to his right middle finger as a result of having been caught in the door jam. See attached Exhibit 1. 16. At the time of the accident, the manager of Defendant's restaurant approached the Plaintiffs and stated "that door closes too quickly" and "this has happened before" or words to this effect. 17. Plaintiffs have subsequently learned that there had been a prior accident to another patron as a result of the same door closing too quickly. 18. The minor child was treated for his injuries at Pinnacle Health that same date for an open fracture with deep laceration to the distal tip of the finger. 19. The emergency room treatment that the minor child received on the day of the accident was included x-rays. See the examination and treatment outlined on Exhibit 2 attached hereto. 20. The minor child then received follow-up treatment at the Orthopedic Institute of Pennsylvania on October 27, 2009, November 6, 2009, and December 18, 2009. See copies attached hereto as Exhibit 3. 21. It is believed and therefore averred, that the minor child has also experienced some nerve loss as a result of the incident. 22, The minor child was seen, in an attempt to ascertain the extent of nerve loss, on January 8, 2010, by Wellspan Medical Group and Wellspan Neurology Peds. See Exhibit 4. 23. On October 25, 2009, the restroom was open for use by customers in the Defendant's restaurant, and it was the duty and responsibility of the Defendant, its authorized agents, servants, workmen and/or employees, to keep and maintain the bathroom door in a safe condition for use by its customers. 24. On October 25, 2009, and for a period of time prior thereto, there existed a dangerous condition in that the function of the door, the door control arm, or other mechanisms related to the operation of the door, were in a condition of defect in the form of a failure to properly control the speed and weight of the door to the restroom. 25. On October 25, 2009, at the time of the accident, Defendant, its authorized agents, servants, workmen and/or employees, and more specifically, its manager on duty that day, were already aware of the defective condition of the door and failed to take corrective measures to eliminate the danger to customers. 26. Defendant specifically knew of the existence of the defect with this door prior to Plai.ntiff's injury, and Defendant was obligated to remedy, repair and eliminate the defect or to warn the Plaintiff of its existence, 27. if Defendant did not know of the defect, they should have reasonably known and foreseen such defect. 28. Defendant negligently failed to repair the door or maintain in proper working condition. 29. Defendant negligently failed to provide any warning, signage, or other notification of the condition of the defective door, such that it would provide notice to customers of the danger of this door. 30. The injuries sustained by Plaintiffs' minor child were caused by the negligence, carelessness and recklessness of the Defendant in that: a. it failed to maintain the door properly by allowing the defect to exist; b. it failed to use due care and to employ reasonable skill in the performance, and maintenance of its duties; c. it knew or should have known of the defect and of the dangerous condition it caused and, nevertheless, permitted the door to remain in an unsafe and suitable and dangerous condition; d. it failed to use reasonable prudence in the care and maintaining the door in a safe condition; e, it failed to exercise reasonable care to inspect and/or discover the cause of the defect in the door; f. it failed to warn the Plaintiffs of the defect; g. it permitted the door to remain in an unreasonably dangerous, unsuitable and unsafe condition, having actual and constructive notice of the defect; h. it failed to correct, remedy, repair and/or eliminate the defect; and i. it otherwise conducted itself in a negligent, careless and reckless manager. 31. Solely as a result of Defendant's negligence, the Plaintiffs' minor child has suffered injuries which are serious and maybe permanent, including, but not limited to, loss of feeling in the tip of the middle finger which suffered injury, along with nerve damage which may be permanent. 32. As a result of the Defendant's negligence, Plaintiffs' minor child has undergone severe physical pain and mental anguish and will continue to endure same for an indefinite time in the future, to his detriment and loss. 33. Solely as a result of the negligence, carelessness and recklessness of Defendant, Plaintiffs' minor child has been obligated to receive medical attention and care and to expend various sums of money for injuries suffered, and may be obligated to continue to expend such sums for an indefinite period of time in the future. 34, As a result of the injuries, Plaintiffs' minor child may have sustained permanent diminution in the ability to feel the tip of the finger and enjoy life's pleasures in that said condition may result in his inability to engage in some activities that would have been available prior to the incident. WHEREFORE, Plaintiffs respectfully request judgment in their favor and against Defendant in an amount in excess of the mandatory arbitration amount, plus interest and costs. Respectfully submitted, Dated; SHAFFER & ENGLE LAW OFFICES, LLC Jeffrey' Erigle, u Attorney ID #76 44 512 Market Street Millersburg, PA 170 (717) 692-2345 Attorney for Plaintiffs VERIFICATION I verify that the averments in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4944, relating to unsworn falsification to authorities. Dated: 930 li( Dated: q131 /If 0 arah i CERTIFICATE OF SERVICE NORMAN W. BRIGGS, ESQUIRE certifies that a true and correct copy of the Preliminary Objections were served on counsel of record named below by the electronic filing system and upon all unrepresented parties by regular mail, on October 24, 2011. Jeffrey B. Engle, Esquire Shaffer & Engle Law Offices 512 Market Street Millersburg, PA 17061 BRIGGS LAW OFFICE, LLC NORMAN W. BRIGGS, ESQUIRE Attorney for Defendant, Outback Steakhouse of Florida, LLC Dated: October 24, 2011 IMAGED r-J c' Jeffrey B. Engle, Esquire o -- SHAFFER & ENGLE LAW OFFICES c o C:) , -. 512 Market Street -a •e s -n'r Millersburg, PA 17061 -- ? f 717-692-2345 * phone '. -?o ; c) ; 717-692-3554 * fax v jeff@shafferengle.com r N A SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs VS. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 2011-CV-9485-CV CIVIL ACTION - LAW JURY TRIL DEMANDED PLAINTIFFS' ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW, this eday of November, 2011, comes the Plaintiffs, by y and through their attorney, SHAFFER & ENGLE LAW OFFICES, LLC, and herein Answer Defendant's Preliminary Objections, and in support thereof, avers as follows: 1. Defendant's Preliminary Objection at averment (1) is simply a restatement of an averment contained in Plaintiffs Complaint and does not require a response. 2. Defendant's Preliminary Objection at averment (2) is simply a restatement of an averment contained in Plaintiffs Complaint and does not require a response. 3. Defendant's Preliminary Objection at averment (3) is simply a restatement of an averment contained in Plaintiffs Complaint and does not require a response. 4. Defendant's Prelininary Objection at (4) is a recitation of Ra.R.C.P. 1028(a)(3) and does not require a response. Defendant's Prelininary Objection at (5) is a recitation of Ra.R.C.P. 1019(a) and does not require a response. 6. Defendant's Preliminary Objection at averment (6) is a restatement of an averment contained in Plaintiffs Complaint and does not require a response. 7. Defendant's Preliminary Objection at averment (7) is a restatement of an averment contained in Plaintiffs Complaint and does not require a response. Defendant's Preliminary Objection at averment (8) is a restatement of an averment contained in Plaintiffs Complaint and does not require a response. 9. Denied. Plaintiffs averment at (9) is a legal conclusion drawn by Defendant and not shared by Plaintiff. Plaintiffs Complaint sufficiently sets out the course of conduct, or more specifically Defendant's failed course of conduct which was reckless given the notice they had of the condition of the door and their employees admission that the dangerous condition of the door had already caused an injury to another patron and yet the Defendant still failed to fix the door and eliminate this known danger. 10. Defendant's averment at (10) is statement of case law and does not require a response. However, to the extent that Defendant is inferring that Plaintiff has failed in its Complaint to plead with sufficient specificity, Plaintiff denies this inference and points to the Complaint itself. 11. Defendant's averment at (11) is another statement of case law and does not require a response. Again, however, to the extent that Defendant is inferring that Plaintiffs Complaint contines boilerplate allegations of negligence this is denied, and Plaintiff points to the Complaint itself and its detailed account of the facts, dates and events. 12. Denied. The specific paragraphs mentioned by Defendant, 30, 30(i) and 33 are all supported within the four corners of the Complaint to provide Defendant's with the ability to understand the case against them and prepare their defense. 13. Defendant's averment at (13) is statement of case law and does not require a response. 14. Defendant's averment at (14) is statement of case law and does not require a response. 15. Denied. Plaintiffs Complaint contains specific allegations of Defendant's recklessness to constitute negligence. Defendant's objection is itself a boilerplate response which fails to address or respond in any substantive way to the averments contained in Plaintiffs Complaint. WHEREFORE, Plaintiffs respectfully request that This Honorable Court dismiss Defendant's Preliminary Objections. Respectfully submitted, SHAFFER & ENGLE LAW OFFICES, LLC Dated: // / I ? / 77el / Jeffrey gV, E$qi Attorn y ID 476644 512 Market Street Millersburg, PA 17 (717) 692-2345 Attorney for Plaintiffs SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 2011-CV-9485-CV CIVIL ACTION - LAW JURY TRIL DEMANDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiffs' Answer to Defendant's Preliminary Objections to Plaintiff's Complaint was sent by U.S. Mail first class to the following: Norman W. Briggs, Esquire 300 Walnut Street Philadelphia, PA 19106 Date: LO-M- I I lk"C,-, ??? Melissa Wise, Paralegal to Jeffrey B. Engle, Esquire SHAFFER & ENGLE LAW OFFICES 512 Market Street Millersburg, PA 17061 (717) 692-2345 N O Jeffrey B. Engle, Esquire - l SHAFFER & ENGLE LAW OFFICES C- 70 o -W-1 - 77 c) C 512 Market Stree t ., ?c; Millersburg, PA 17061 r -o o 717-692-2345 * phone r} -,.1 C' 717-692-3554 * fax jeff@shafferengle.com N A SARAH DICOSTANZO and IN THE COURT OF COMMON PLEAS ANDREW J. DICOSTANZO, DAUPHIN COUNTY, PENNSYLVANIA Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs NO. 2011-CV-9485-CV vs. OUTBACK STEAKHOUSE OF CIVIL ACTION - LAW FLORIDA, LLC, Defendant JURY TRIL DEMANDED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW, this Zg- day of November, 2011, comes the Plaintiffs, by and through their attorney, SHAFFER & ENGLE LAW OFFICES, LLC, and herein Answer Defendant's Preliminary Objections pursuant to Pa. Rules of Civil Procedure 1028, and in support thereof, avers as follows: 1. ISSUE Whether Plaintiffs Complaint contains sufficient specificity as required by Ra.R.C.P. 1028(a)(2) 0 Suggested Answer in the Affirmative. II. ARGUMENT In response to Plaintiffs Complaint filed October 3, 2011, Defendant, Outback Steakhouse of Florida, LLC, filed Preliminary Objections and a Memorandum of Law in Support of Preliminary Objections. In these documents Defendant's allege that Plaintiffs have failed to plead in their Complaint with specificity as required by Pa.R.C.P. 1028(a)(2). Defendant also requests deletion of "recklessness" from Plaintiffs Complaint with prejudice. This matter arises out of a visit by Plaintiffs to Defendant's restaurant wherein the Defendant's minor child, accompanied by his mother, visit the restroom in Defendant's restaurant and suffered serious injury to his middle finger when the door closed on it. Plaintiffs learned through Defendant's employees that they were already aware of the problem with the door when Defendant's child was injured because another patron had suffered an earlier injury as a result of the doors malfunction and yet the door had not been fixed. With regard to sufficiency of a pleading, as stated by the Court in Unified, ...in pleading its case, the complaint need not cite evidence but only those facts necessary for the defendant to prepare a defense. Unified Sportsmen of Pennsylvania v. Pennsylvania Game Com'n (PGC) 950 A.2d 1 120, Cmwlth. 2008. The purpose of the pleadings is to place a defendant on notice of the claims upon which he will have to defend. City of Netin Castle v. Uzamere, 829 A.2d 763, Cmwlth. 2003. Pennsylvania Rule of Civil Procedure 1019(b) provides: "Malice, intent, knowledge, and other conditions of the mind may be averred generally." An example of a condition of the mind that may be averred generally is wanton conduct. See Amrnlung v. City of Chester, 224 Pa. Super. 47, 302 A.2d 491, 4.97 (1973)citations and marks omitted) (explaining `'Under Pa. R.C.P. No. 1019(b), (m)alice, intent, knowledge, and other conditions of mind may be averred generally. Wantonness, being in principle a state of mind, has been regarded as included in this rule."). Because recklessness is also known as `'wanton and willful misconduct,'' "recklessness" is a condition of the mind that may be averred generally. With respect to "reckless", the Court in Archibald looked to the Restatement (Second of Torts in explaining the distinction between Reckless and Intentional Conduct: Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from the facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which cannot be said to intend the harm in which his act results, and, f urther provides: The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Archibald v. Kemble, 971 A.2d 513, Superior Court, PA 2009, citing Restatement (Second of Torts § 500 cmt. f (1965). In the case at issue, not only has the Plaintiff met the burden as illustrated in Unified of pleading those facts necessary for the Defendant to prepare a defense, but Plaintiff has also provided in the Complaint the dates on which the events occurred, what those events were, the acts or omissions which occurred as a result of the condition of the door, the knowledge Defendant's Manager had of this door prior to Plaintiffs child being injured and information as to the injury sustained. Additionally, the facts as included specifically in Plaintiffs Complaint provide Defendant with the infonmation necessary to form his defense and also serve to prove Defendant's claim that Plaintiffs Complaint is Boilerplate is baseless. With regard to Defendant's request that "reckless" should be stricken from Plaintiffs Complaint, there is no valid support for this request in Plaintiffs Preliminary Objections or Memorandum of Law in Support. Further, Plaintiff has alleged recklessness to the standard as required pursuant to Pa.R.C.P. No. 1019(b), in that "recklessness" is a condition of the mind that may be averred generally. III. RELIEF REQUESTED Plaintiff asks this Honorable Court to dismiss Defendant's Preliminary Objections along with Defendant's request to strike Plaintiffs references to "recklessness" as found in paragraphs 30, 30(1) and 33 with prejudice. IV. CONCLUSION Plaintiffs Complaint contains sufficient information to enable Defendant to understand the charges and formulate a defense as required by Pa.R.C.P. 1028(a)(2). There is no basis for striking "reckless" as requested by Defendants as it has been sufficiently averred as required pursuant to Pa.R.C.P. No. 1019(b). Wherefore, Defendant's preliminary objection that Plaintiffs Complaint fails to plead with sufficient specificity should be dismissed along with Defendant's request to strike Plaintiffs references to "recklessness" as found in paragraphs 30, 30(i) and 33 with prejudice. Respectfully submitted, SHAFFER & ENGLE LAW OFFICES, LLC Dated: ` ti? /7, a t( Millersburg, PA 17061 (717) 692-2345 Attorney for Plaintiffs SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE, J. DICOSTANZO, Plaintiffs Vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 2011-CV-9485-CV CIVIL ACTION - LAW JURY TRIL DEMANDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiffs' Answer to Defendant's Preliminary Objections to Plaintiff's Complaint was sent by U.S. Mail first class to the following: Norman W. Briggs, Esquire 300 Walnut Street Philadelphia, PA 19106 Date: I&L:?Xtw?1- Melissa Wise, Paralegal to Jeffrey B. Engle, Esquire SHAFFER & ENGLE LAW OFFICES 512 Market Street Millersburg, PA 17061 (717) 692-2345 rA Supreme Court of Pennsylvania Court of Common Pleas Civil Cover Sheet County S E C T I 0 N !a? For Prothotlowly Use 0111y: dt Docket No: t 011 Cv gS CV The iralur'pt alion collected on this ,faro is used solely fctr coati c'r;li,7rrtistratiot7 12urposes, This orm sloes r?nt t .,., j /rtr»rr i??u.-/ e??a•?rir•:? Fe1'»Jc rtste tfoc no itl??i?l" !?r'7t )f+7't' lY? Pe f73llrl e"? l)71 lL7li% or r111es ofG'O1dr1"r. C mencement of Action: Complaint ? Writ of Summons ? T'ransfer from Another Jurisdiction ? Petition ? Notice of Appeal ? Declaration of Taking Lei l Plaintiff's Nam oc Lea Dele id nt's Na ul? ? Check here 'p ?a F re a Sel -Represente(l Pro Se) Litigant Name of Plaintiff/Appellant's Attorney: Are money damages es requested? : ZYes El N y g V 1 1 Dollar Amount Requested: within arbitration limits (Check one) outside arbitration limits is this a Class Action Suit? ? Yes ?f, No S E C T I 0 N Nature of the Case: Place an "X" to the left of the ONE case category that most accurately describes your PRIJhIARYCASE. Ifyou are inaking more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) ? Intentional ? Malicious Prosecution ? Motor Vehicle ? uisance CONTRACT (do not include Judgtnews) ? Buyer Plaintiff ? Debt Collection: Credit Card ? Debt Collection: Other CIVIL APPEALS Administrative Agencies ? Board of Assessment ? Board of Elections ? Dept. of Transportation ?5( Premises Liability _ _ ? Zoning Board ? Product Liability (does not include mass fort) ? Employment Dispute: ? Statutory Appeal: Other Slander/Libel/ Defamation Discrimination Ot?e??. ? ? Employment Dispute: Other Judicial A eals pp - ? MDJ - Landlord/Tenant - _..._._! ? l ? MDJ - Money Judgment B MASS TORT ? Asbestos ? Tobacco ? Toxic Tort - DES ? Toxic Tort - Implant ? Toxic Waste ? Other: Ot ier. ? Other: REAL PROPERTY ? Ejectment ? Eminent Domain/Condemnation ? Ground Rent ? Landlord/Tenant Dispute ? Mortgage Foreclosure ? Partition ? Quiet Title PROFESSIONAL LIABLITY ? Dental ? Legal ? Medical ? Other Professional: Pa. R. C.: P. 205.5 ? Other: 2/2010 11 SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. CV?'I?S Cv CIVIL ACTION - LAW JURY TRII. DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 NOTICE CONCERNING MEDIATION OF ACTIONS PENDING BEFORE THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY i The Judges of the Court of Common Pleas of Dauphin County believe that mediation of lawsuits is a very important component of dispute resolution. Virtually all lawsuits can benefit in some manner from mediation. The Court has adopted Dauphin County Local Rule 1001 to encourage the use of mediation. This early alert enables litigants to determine the best time during the life of their lawsuit for a mediation session. The intent of this early alert is to help the parties act upon the requirement to consider good faith mediation at the optimal time. The Dauphin County Bar Association provides mediation services and can be reached at 717-232-7536. Free mediation sessions for pro bono cases referred by MidPenn Legal Services are available through the DCBA. AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 An adequate supply of forms containing the bilingual notices required by these Rules shall be furnished by the Dauphin County Bar Association to the office of the Prothonotary and shall be available for use by litigants and their attorneys. AVISO REFERENCES A LA MEDIACON DE LAS ACCIONES PENDIENTES ANTES LA CORTE DE SOPLICAS COMUNES DEL CONDADO DE DAUPHIN Los jueces de la corte de suplicas comunes del condado de Dauphin creen que la mediaci6n de pleitos es un componente muy importante de la resoluci6n del conflicto. Virtualmente todos los pleitos pueden beneficiar de cierta manera de la mediaci6n. La code ha adoptado la regla local de condado de Dauphin 1001 para animar el use de la mediaci6n. Esta alarma temprana permite a litigantes determiner la mejor epoca durante la vida de su pleito para una sesi6n de la mediaci6n. El intento de esta alarma temprana es actuar sobre la mediaci6n de la buena fe en el tiempo 6ptimo. La asociaci6n de la barra del condado de Dauphin proporciona servicios de la mediaci6n y se puede alcanzar en 717-232-7536. La sesion libre de la mediacion para los favorables casos del bono se refinio por MidPenn que los servicios juridicos estan disponibles con el DCBA. An adequate supply of forms containing the bilingual notices required by these Rules shall be furnished by the Dauphin County Bar Association to the Office of the Prothonotary and shall be available for use by litigants and their attorneys. Jeffrey B. Engle, Esquire ' SHAFFER & ENGLE LAW OFFICES 512 Market Street Millersburg, PA 17061 717-692-2345 * phone 717-692-3554 * fax jeff@shafferengle.com c.n QQ SARAH DICOSTANZO and IN THE COURT OF COMMON PLEAS ANDREW J. DICOSTANZO, DAUPHIN COUNTY, PENNSYLVANIA Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs NO. a()1 ( C\ j g q g S CV VS. OUTBACK STEAKHOUSE OF CIVIL ACTION - LAW FLORIDA, LLC, Defendant JURY TRIL DEMANDED COMPLAINT AND NOW, comes the Plaintiffs, by and through counsel, Shaffer & Engle Law Offices, LLC, more specifically Jeffrey B. Engle, Esquire, who files this Complaint and, in support thereof, avers the following: 1. Plaintiff, Sarah DiCostanzo, is an adult individual residing at 29 Privet Drive, Etters, Pennsylvania 17319. 2. Plaintiff, Sarah DiCostanzo, is the mother of the minor child, Carmine J. DiCostanzo. 3. Plaintiff, Andrew J. DiCostanzo, is an adult individual residing at 29 Privet Drive, Etters, Pennsylvania 17319. 4. Plaintiff, Andrew J. DiCostanzo, is the father of the minor child, Carmine J. DiCostanzo. 5. Carmine J. DiCostanzo is a minor child under the care and control of his parents, Plaintiffs Sarah DiCostanzo and Andrew J. DiCostanzo. 6. Defendant, Outback Steakhouse of Florida, LLC, is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with a registered office at c/o CT Corporation Systems, 116 Pine Street, Suite 320, Harrisburg, PA 17101. COUNT I - NEGLIGENCE 7. The allegations contained in paragraphs 1 - 6 are incorporated herein by reference as though fully set forth. 8. At all material times, Defendant operated, supervised and controlled the Outback Steakhouse Restaurant located at 3527 Union Deposit Road, Harrisburg, Dauphin County, Pennsylvania 17109. 9. At all material times, Defendant acted by and through its dully authorized agents, servants, workmen and/or employees, acting within the scoping of their authority and employment and in the course of Defendant's business. 10. At all material times, Defendant had under its care, supervision, control, maintenance, and/or was responsible for the door to the restroom used by patrons at the restaurant. 11. On October 25, 2009, Plaintiffs were dining at Defendant's restaurant. 12. While dining at the restaurant, Plaintiffs' minor child, Carmine J. DiCostanzo, had occasion to use the restroom at Defendant's restaurant. 13. Plaintiff, Sarah DiCostanzo, accompanied the minor child, who was age 3 at the time of the accident, to the restroom. 14. While entering the restroom, the minor child caught his right middle finger in the door jam. 15. Plaintiffs' minor child suffered damage to his right middle finger as a result of having been caught in the door jam. See attached Exhibit L 16. At the time of the accident, the manager of Defendant's restaurant approached the Plaintiffs and stated "that door closes too quickly" and "this has happened before" or words to this effect. 17. Plaintiffs have subsequently learned that there had been a prior accident to another patron as a result of the same door closing too quickly. 18. The minor child was treated for his injuries at Pinnacle Health that same date for an open fracture with deep laceration to the distal tip of the finger. 19. The emergency room treatment that the minor child received on the day of the accident was included x-rays. See the examination and treatment outlined on Exhibit 2 attached hereto. 20. The minor child then received follow-up treatment at the Orthopedic Institute of Pennsylvania on October 27, 2009, November 6, 2009, and December 18, 2009. See copies attached hereto as Exhibit 3. 21. It is believed and therefore averred, that the minor child has also experienced some nerve loss as a result of the incident. 22. The minor child was seen, in an attempt to ascertain the extent of nerve loss, on January 8, 2010, by Wellspan Medical Group and Wellspan Neurology Peds. See Exhibit 4. 23. On October 25, 2009, the restroom was open for use by customers in the Defendant's restaurant, and it was the duty and responsibility of the Defendant, its authorized agents, servants, workmen and/or employees, to keep and maintain the bathroom door in a safe condition for use by its customers. 24. On October 25, 2009, and for a period of time prior thereto, there existed a dangerous condition in that the function of the door, the door control arm, or other mechanisms related to the operation of the door, were in a condition of defect in the form of a failure to properly control the speed and weight of the door to the restroom. 25. On October 25, 2009, at the time of the accident, Defendant, its authorized agents, servants, workmen and/or employees, and more specifically, its manager on duty that day, were already aware of the defective condition of the door and failed to take corrective measures to eliminate the danger to customers. 26. Defendant specifically knew of the existence of the defect with this door prior to Plaintiff's injury, and Defendant was obligated to remedy, repair and eliminate the defect or to warn the Plaintiff of its existence. 27. If Defendant did not know of the defect, they should have reasonably known and foreseen such defect. 28. Defendant negligently failed to repair the door or maintain in proper working condition. 29. Defendant negligently failed to provide any warning, signage, or other notification of the condition of the defective door, such that it would provide notice to customers of the danger of this door. 30. The injuries sustained by Plaintiffs' minor child were caused by the negligence, carelessness and recklessness of the Defendant in that: a. it failed to maintain the door properly by allowing the defect to exist; b. it failed to use due care and to employ reasonable skill in the performance, and maintenance of its duties; c. it knew or should have known of the defect and of the dangerous condition it caused and, nevertheless, permitted the door to remain in an unsafe and suitable and dangerous condition; d. it failed to use reasonable prudence in the care and maintaining the door in a safe condition; e. it failed to exercise reasonable care to inspect and/or discover the cause of the defect in the door; f. it failed to warn the Plaintiffs of the defect; g. it permitted the door to remain in an unreasonably dangerous, unsuitable and unsafe condition, having actual and constructive notice of the defect; h. it failed to correct, remedy, repair and/or eliminate the defect; and i. it otherwise conducted itself in a negligent, careless and reckless manager. 31. Solely as a result of Defendant's negligence, the Plaintiffs' minor child has suffered injuries which are serious and maybe permanent, including, but not limited to, loss of feeling in the tip of the middle finger which suffered injury, along with nerve damage which may be permanent. 32. As a result of the Defendant's negligence, Plaintiffs' minor child has undergone severe physical pain and mental anguish and will continue to endure same for an indefinite time in the future, to his detriment and loss. 33. Solely as a result of the negligence, carelessness and recklessness of Defendant, Plaintiffs' minor child has been obligated to receive medical attention and care and to expend various sums of money for injuries suffered, and may be obligated to continue to expend such sums for an indefinite period of time in the future. 34. As a result of the injuries, Plaintiffs' minor child may have sustained permanent diminution in the ability to feel the tip of the finger and enjoy life's pleasures in that said condition may result in his inability to engage in some activities that would have been available prior to the incident. WHEREFORE, Plaintiffs respectfully request judgment in their favor and against Defendant in an amount in excess of the mandatory arbitration amount, plus interest and costs. Respectfully submitted, SHAFFER & ENGLE LAW OFFICES, LLC Dated: 3? l Jeffrey X. Engle, qi Attorney ID #76644 / 512 Market Street Millersburg, PA 17015 (717) 692-2345 Attorney for Plaintiffs VERIFICATION I verify that the averments in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Dated: / Dated: 1?3 1 /if /Aarah *Itiajnhzi61,PI;aiint?iff EX?18 • EXHIBIT ACCT#=00100115487 TRANSCRIBED DATE=10/26/2009 10:12 UDN= 2745539 DICOSTANZO, CARMINE J RM#: MRN: 910-00-3704 CASE: 00100115487 DOB: 12/09/2005 ADM: 10/25/2009 PinnacleHealth System P.O. Box 8700 Harrisburg, PA 17105-8700 CONSULTATION REPORT Date of Dictation: 10/25/2009 Date Dis: CHIEF COMPLAINT: Right finger laceration. HISTORY: This is a 3-year-old male who slammed his right long finger in a door earlier today sustaining an open fracture with a deep laceration to the distal tip of the finger. He comes to the emergency department for evaluation. X-rays were obtained and Orthopedics was consulted. The patient is in extreme distress over his finger and he is crying. He is very difficult to examine. PAST MEDICAL HISTORY: Patient was premature and has some sort of lung disorder from that. PAST SURGICAL HISTORY: None. SOCIAL HISTORY: He is 3, lives with his family. FAMILY HISTORY: Noncontributory. REVIEW OF SYSTEMS: No chest pain, headache, abdominal pain, shortness of breath. Having musculoskeletal complaints. FINDINGS: Physical exam: Well appearing male. Examination of the right long finger, there is a complete avulsion of the nail. There is a laceration extending over the entire dorsal aspect. of the fingers about 2 cm distal to the nail extending into the volar surface of the finger. On further examination the nail bed is involved. The nerves appear to be intact. The vessels were not visualized; however, the patient has capillary refill distal tip of the finger. Sensation can not be assessed secondary to the patient's distress and the need for Anesthesia to do a thorough exam. ASSESSMENT: A 3-year-old male with a right distal phalanx tuft fracture which is open and a nail avulsion. PLAN: The patient was given conscious sedation so an exam and treatment could be done. The wound was thoroughly irrigated and cleaned with Betadine. The field was prepped sterilely and the nail was completely removed. I then proceeded to use 4-0 Chromics to sew the nail bed back to together, then used 4-0 Maxon absorbable sutures to sew the skin. We then reapproximated the nail sewing this underneath the matrix with a 4-0 Maxon suture. The wound was then dressed with Xeroform, 4 x 4's and a soft, bulky dressing. It was buddy taped to the index finger for support. The patient was awakened from anesthesia. The patient's family was informed that he should take antibiotics at home for five days. He will follow up with Dr. Frankeny in Clinic within a week. He should keep his dressing on until his follow up. They were told that his sutures are absorbable and they will not have to be remov r' were told the risks of possible necrosis of the dista er secondary to the severity of injury. They understand th understand that the nail may Institute of Pennsylvania (Dr. Frankeny) who was the physician on call. He was given additional Keflex 250 mg per 5 cc for 7 days, 1 teaspoon PO bid. This is empirically. Tylenol or Motrin were recommended for the pain for the parents. Again he is being discharged. DISPOSITION: DIAGNOSTIC IMPRESSION: Fracture and laceration of the distal tuft of the right long finger with nail disruption. Your attention is invited to Dr. Johnson, the orthopedic resident, for a more concise idea of her description of the procedure that she did and her recommended followups as well. Patient: DICOSTANZO, CARMINE J c: Signed by GUTIERREZ MD, JULIAN on 25-Nov-2009 14:27:12 -0500 ---------------------- JULIAN GUTIERREZ, MD DD: 11/25/2009 2767771 DT: 11/25/2009 /bjh D#. ER REPORT ER REPORT ER REPORT PINNACLEHEALTH System Radiology Imaging Report MRM 910003704 SSN: 910003704 ADM: 000100115487 DOB: 12/09/2005 AGE: 3Y BED: HER- PTCLAS S: E HER REASON: Trauma NAME: DICOSTANZO, CARMINE 29 PRIVET DR ETTERS, PA 17319 ORD DR: GUTIERREZ, JULIAN ORD#: 90001 ATT DR: GUTIERREZ, JULIAN PCP: UNKNOWN, DR COMMENTS: blue 4 ***Final Report*** HARRISBURG DIAGNOSTIC DEPARTMENT PROCEDURE: DIA - 1252 - HAND MIN 3V RIGHT PROCEDURE DATE: Oct 25 2009 8:06PM ACCESSION#: 6327090 EXAM: Portable right hand, 3 views at 1954 hours History: Distal right middle finger injury with door. Result: There is considerable soft tissue deformity of the distal right middle finger with a displaced avulsion involving the tuft of the distal phalanx. The fracture fragment is distracted from the distal phalanx by approximately 3 mm. There is no additional acute fracture. There is no evidence of dislocation. IMPRESSION: 1. Considerable soft tissue deformity with displaced tuftal fracture of the right middle finger as described above. 2. Although no ER preliminary impression was provided, the PACS audit trail infers that the orthopedics department was consulted. DICTATED: (10/26/2009 08:47AM) TRANS: (LJK/PS) ON: 10/26/2009 09:18 INTERPRETED AND REVIEWED BY: BRIAN W. HARRIS PH.D., M.D. ELECTRONICALLY SIGNED: 10/26/2009 09:18 In the event of any questions regarding this report, a Quantum Radiologist can be reached by phone at 932-8030. Study interpretation provided by Quantum Imaging $ Therapeutic Associates. If you have received this document by facsimile, the information contained in this transmission is privileged and confidential. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, or copy of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately at: 1-717-782.3240. Printed: October 26, 2009 9:17 AM ? i 5 ?? r Patient MRN: 404413 Date: 10-27-2009 Description: Office Visit Category. Transcription Provider ID:EEE85654-561 B-4964-A358-OECO6743F503 Orthopedic Institute of Pennsylvania (717)761-5530 Patient: Carmine Dicostanzo Physician: John R. Frankeny, II, M.D. Office: Powers Avenue DOB: 12-09-2005 Date: 10-27-2009 CHIEF COMPLAINT: I saw Carmine for evaluation of his right middle finger. HISTORY OF COMPLAINT: He apparently was at Outback Steakhouse and got his right middle finger jammed in a door. He was seen in the emergency room and had the finger sewn up by our resident and he presents for evaluation. He is in no obvious discomfort. REVIEW OF SYSTEMS: The patient's review of systems, past medical history, family history, and social history have been recorded and reviewed. PHYSICAL EXAM: On examination he has a wound that is well repaired. His nail has been replaced. He has ecchymosis, but intact vascularity of the skin. DIAGNOSTIC TESTS: X-rays reveal a tuft fracture of the middle phalanx. IMPRESSION: Open fracture near traumatic amputation right middle finger. PLAN: Mom had a number of questions related to prognosis. A young boy his age should have a complete recovery. His nail may look funny for awhile, but ultimately his function will be fine without restriction. He has absorbable sutures in his fingers so hopefully we will not have to remove those, He will wear a dressing non adherent until I see him again in about 10 days for wound check. JRF/bam cc: Robert Coldren, M.D. via fax 100/100d W280'01 6002 01 ^aN M ON xej Sd3MOd d10 Patient MRN: 404413 Date: 11-20-2009 Description: Office Visit Category: Transcription Provider ID:EEE85654-561B-4964-A35$-OECO6743F503 Orthopedic Institute of Pennsylvania (717)761-5530 Patient: Carmine DiCost nzo DOB: 12-09-2005 Physician: John R. Frankerly, 11, M.D. Date: 11-20-2009 Office: 3399 Tdndle Road CHIEF COMPLAINT: Carmine presents today for evaluation of his finger. REVIEW OF SYSTEMS: The patient's review of systems, past medical history, family history, and social history have been recorded and reviewed. PHYSICAL EXAM: On examination the nail is still intact. The sutures are loosening. The wound is healed nicely. Finger is in good alignment. IMPRESSION: Crush injury right middle finger. PLAN: I will check him in a month. Dressings are optional at this point in time. JRF/bam cc: Robert Coldren, M.D. via fax V00/Z00d Wd95:g0 OIOZ 8 ref L98GOZ6 X2J SUMOd d10 Patient MRN: 404413 Date: 11-06-2009 Description: Office Visit Category: Transcription Provider ID:EEE65654-561B4964-A358-OECO6743F503 Orthopedic Institute of Pennsylvania (717)761-5530 Patient: Carmine Dicostanzo DOB: 12-09-2005 Physician: John R. Frankeny, il, M.D_ Date: 11-06-2009 Office: 3399 Trindle Road CHIEF COMPLAINT: I saw Carmine for follow up of his right middle finger. PHYSICAL EXAM: On examination he has a wound that is healing well. He has no warmth or erythema. The nail is still intact. DIAGNOSTIC TESTS: X-rays demonstrate the distal phalanx still in good alignment. IMPRESSION: Crush injury right middle finger PLAN: We will place him in band-aids only. I will see him in a couple of weeks and really free him up. His parents will change his band-aids each day. JRF/bam cc: Robert Coldren, M.D. via fax MA00d W1251!60 6002 9[ AON Z980M xe3 Sd3Md d10 Patient MRN: 404413 Date: 12-18-2009 Description: Office Visit Category: Transcription Provider ID:EEE85654-5618-4964-A358-OECO6743F503 Orthopedic Institute of Pennsylvania (717)761-5530 Patient: Carmine DiCostanzo DOB: 12-092005 Physician: John R. Frankeny, It, M.D_ Date: 12-18-2009 Office: 3399 Trindle Road CHIEF COMPLAINT: Carmine presents today with his mother. He seems to be using the hand normally. REVIEW OF SYSTEMS: The patient's review of systems, past medical history, family history, and social history have been recorded and reviewed. PHYSICAL EXAM: On examination he has a nail that seems to be growing in normally at the base. There is a deformity closer to the tip. He seems to have no restriction. DIAGNOSTIC "T"ESTS: X-rays show excellent healing of the distal phalangeal fracture. IMPRESSION: Distal phalangeal fracture healing. PLAN: 1 will see him back again in three months for clinical exam. He will need no x-ray at that point In time. I ,reassured mom that he should get ail of his sensation back overtime as a young man his age should have a nice regeneration of nerve function. It is of course difficult to assess in someone his age, but i don't see it as a major issue. JRF/bam cc: Robert Coldren, M.D. via fax V00/100d Wd55:V0 0402 9 Uer L981OZ6 xed R MOd d10 .??`? 1A J Wellspan Medical Group WellSpan Neurology - Peds 370 St Charles Way York, PA 17402 (717)851-5503 Jan 8 2010 1:43PM Patient CARMINE DICOSTANZO MRN 002001716 Birth Date 12/09/2005 Encounter: Jan 6 2010 2:45PM Assessment • Finger injury (959.5); right third digit - from just proximal to cuticle- distally Orders Follow-up appointment as needed. Coun/Edu Counseling/Coordination of Care: Greater than 50% of the visit was spent in counseling or coordination of care. Total visit was 60 minutes. Chief Complaint - CARMINE is a 4 year old male with complaints of injured 3rd digit of right hand UPI Question as to whether or not the middle finger had any nerve damage due to the injury he had suffered on Oct 25, 2009. Apparently, mother was initially informed by the surgeon that the nerve had been severed, and a follow up by an orthopedic surgeon apparently suggested that there had been no nerve damage, but with an apparent suggestion that if there had been, this would likely grow back. Parents are confused as to whether or not there truly is nerve damage. Carmine has not specifically complained that it hurts him. Parents are not sure what he feels (mom would touch the tip of the finger and apparently he did not react), but in generally as he is quite active, it is hard to catch him off guard, as he remembers that this was the "owwee" finger. Parents are concerned more with what he feels since they have not indicated that he will not use the finger in his daily play. Fingers were stuck near the hing of a closing door as he was walking out of the the bathroom of Outback Steakhouse. Apparently the distal 25% tip was involved (including the whole nail) and the finger was hanging from a piece of skin. This was repaired at Harrisburg ER. Allergies No Known Drug Allergies. Family Ux Nonapplicable. ROS BEYOND WHAT MAY BE MENTIONED IN HPI: GENERAL: Denies any problems within category. EYES: Denies any problems within category. EARS/NOSE/THROAT: Denies any problems within category. RESPIRATORY: Denies any problems within category except chronic lung disease.. CARDIAC: Denies any problems within category. MUSCULOSKELETAL: Denies any problems within category. GASTROINTESTINAL: Denies any problems within category. Wellspan Medical Group WellSpan Neurology - Peds 370 St Charles Way York, PA 17402 (717)851-5503 Jan 8 2010 1:43PM Patient CARMINE DICOSTANZO MRN 002001716 Birth Date 12/09/2005 Encounter: Jan 6 2010 2:45PM PSYCHOLOGICAL: Denies any problems within category. NEUROLOGICAL: Question of decreased sensation at the tip of third digit of right hand ENDOCRINE: Denies any problems within category. GENITOURINARY: Denies any problems within category. HEMATOLOGIC/LYMPHATIC: Denies any problems within category. Vital Signs Neurology Pediatrics Recorded by Taylor, Melissa L on January 06,2010 03:03 PM Height: 97.75 cm, Weight: 14.9 kg, BMI: 15.59, BSA: 0.63 BP: 87/60 mmHg LUE SIT HC: 50.5 cm HR: 110 b/min ; Physical Exam General exam: Pleasant nondysmorphic 4-year-old male in no apparent distress. HEENT: Normocephalic atraumatic. Mucous membranes are moist. Throat is clear. Tonsils are normal in size and not inflamed. No lymphadenopathy. Lungs: clear to auscultation. Heart: S 1-S2 present; regular rate and rhythm -- no murmurs appreciated. Abdomen: Non-tender, nondistended with normoactive bowel sounds. GU deferred. Neurologic examination: Skin: No neurocutaneous findings. Mental status: Cognition was appropriate to age. Cranial nerves: Pupils are equal, round, reactive to light and accommodation. No afferent pupillary defect. Visual acuity was grossly normal. Funduscopic examination was difficult to perform due to poor patient cooperation. Visual fields are full to confrontation. Extraocular movements are full without any evidence of primary or secondary nystagmus. Both horizontal and vertical saccades are normal with normal smooth pursuit. Face was symmetric. Tongue and uvula are midline. Bilateral normal shoulder shrug testing was normal. Motor: Normal tone. No pronator drift. Normal bulk with no evidence of atrophy. Strength was 5/5 in all 4 extremities in all muscle groups tested. Focused motor examination in the right third digit indicated no difficulty with flexion at the PIP or DIP joints nor extension of those respective joints. A focus sensory examination utilizing pinprick without visualization by the child indicated withdrawal grossly equivalent as that to his neighboring fingers on the distal finger pads. Sensory examination on lateral and medial sides were not able to be gauged accurately due to poor patient cooperation. Other modalities tested included fine touch, but not temperature nor vibration due to Wellspan Medical Group WellSpan Neurology - Peds 370 St Charles Way York, PA 17402 (717)851-5503 Jan 8 2010 1:43PM Patient CARMINE DICOSTANZO MRN 002001716 Birth Date 12/09/2005 Encounter: Jan 6 2010 2:45PM poor patient cooperation. DTRs were 2+ in all 4 extremities. Toes were downgoing bilaterally. Cerebellar exam: Finger-to-nose was normal without any elements of dysmetria. Gait exam: Normal arm swing during walking and running. No frank ataxia. Romberg was negative. Developmental Pregnancy was complicated by mother having a right uterine hemorrhage and subsequent birth at 30 weeks gestation with some breathing difficulties and neonatal intensive care unit hospitalization for 3 months requiring breathing and feeding assistance. He did develop jaundice during his hospitalization. His overnight hospital sedation his surgeries are related to asthma and his finger accident. He has a history of asthma and chronic lung disease for which he takes daily medications. Development: Though he sat upright without support on time, he learned to walk at 16 months and was able to say mama and dada by 18 months of age. The rest of his milestones were achieved on time he did have early intervention from 3 months to 2 1/2 years of age. There are no reported regressions. Signature Electronically signed by : William S Benko M.D.; 01/06/2010 4:07 PM EST. Wellspan Medical Group WellSpan Neurology - Peds 370 St Charles Way York, PA 17402 (717)851-5503 Jan 8 2010 1:43PM Patient MRN Birth Date Encounter: Message January 06, 2010 CARMINE DICOSTANZO 002001716 12/09/2005 Jan 6 2010 2:45PM James Mosher, MD 2025 Technology Pkwy. Suite 108 Mechanicsburg, PA 17050 Dear Dr. Mosher: I had the pleasure of seeing CARMINE DICOSTANZO for a neurological consultation on Jan 06, 2010 accompanied by his parents who provide the history. As you know, he is a 4 year-old, with a question of sensory nerve damage after a accidental near amputation injury of the right third distal portion of the digit of his right upper extremity just proximal to the cuticle -- distally. Thank you for making available for my review the orthopedic notes. A focused sensory examination showed grossly present response to nonvisualized pin prick examination evidenced by withdrawal, as well as comments of the pain he felt. Other modalities were more difficult to test such as temperature, vibration, though fine touch was felt to be grossly normal. The rest of the neurologic examination was nonfocal, including all motoric aspects of fine finger movement. Discussion with the parents indicated that this he most likely experienced a regrowth of the nerve that may explain why he did not have sensory modalities intact immediately following the reattachment surgery, but within weeks to months afterwards, he regained this feeling. Though this is not 100%, a nerve conduction study in a 4-year-old focusing only on the distal portion of the third digit would likely not be logistically feasible -- as agreed by the parents. In detail, it was explained to the parents that at least at the distal finger pad of the third digit, he did accurately since pain. Whether or not he senses less pain on either the lateral or the medial aspects of the distal third digit, is quite difficult to discern in this 4 year 1-month-old child. Parents understand this, as there is primary concern appears to be whether or not he would injure himself if he did not feel pain. Follow-up as needed. Please see the details of his visit below. In the meantime, thank you for allowing me to share in CARMINE's care. Sincerely yours William Benko. 0 DAUPHIN COUNTY TWELFTH JUDICIAL CERTIFICATE OF READINESS C OURT OF C MMONIPLEAS ------ --------------------------- - ------------------------- Effective: Rev. (1), February 2011 INSTRUCTIONS: This form shall be used for the assignment of Pretrial Motions (Preliminary Objections, Motions for Judgment on the Pleadings, Motions for Summary Judgment, Divorce Special Relief and Contested Civil Motions) and the listing of a case for Arbitration, Non jury Trial or Jury Trial. File the original and one copy of this form with the Prothonotary's Office. This Certificate of Readiness must be personally signed by the filing counsel of record or the filina Dro se Dartv. (Use reverse side if necessary. DO NOT ABBREVIATE PARTIES.1 PLAINTIFF(S): ..? Sarah & Andrew Dicost nz gents of Minor arminP rte,; DEFENDANT(S): ? ? .? Outback Steakhouse of Florida LLC ADDITIONAL DEFENDANT(S): : DOCKET NUMBER: 2011-cv-9485-cv A. PRETRIAL MOTIONS (Complete Sections A and G of the Certificate of Readiness) ..? •• (2 Preliminary Objections ? Judgment on the Pleadings ? Summary Judgment ? Divorce Special Relief ? Contested Civil IVC?lons Is oral argument requested? W YES ? NO (See Dauphin County Local Rule 211) (if oppoS e(l) 12 Title and date of filing of matter to be assigned: 10 2 4? 1 1 , © I hereby certify that the matter is ready for dispos Ion t accordance with the Pennsylvania Rules of Civil Procedure and the Dauphin County Local Rules. B. ARBITRATION (Complete Sections B, E, F and G of the Certificate of Readiness) ? I hereby certify that the amount in controversy is $50,000 or less, and that this case is ready in all respects for disposition by a Board of Arbitration. This matter will be heard by a Board of Arbitration at the time, date, and place specified by the Chair of the panel, but, if one or more of the parties is not present at the hearing, the matter may be heard at the same time and date before a Judge of the Court without the absent party or parties being present. 1 also realize that there is no right to a trial de novo on appeal from a decision entered by a Judge. C. NON-JURY CIVIL TRIAL (Complete Sections C, E, F and G of the Certificate of Readiness) ? 1 hereby certify that all discovery in the case has been completed and that the case is ready in all respects to be assigned to a judge for a non jury civil trial in accordance with the Pennsylvania Rules of Civil Procedure and the Dauphin County Local Rules. D. CIVIL JURY TRIAL (Complete Sections D, E, F and G of the Certificate of Readiness) ? I hereby certify that all discovery in the case has been completed; that I have made reasonable inquiry of all counsel and/or pro se parties to ensure that all necessary parties, attorneys, and witnesses will be available and that they are available; that serious settlement negotiations have been conducted; and that the case is ready in all respects for trial, all in accordance with the Pennsylvania Rules of Civil Procedure and the Dauphin County Local Rules. i understand that this case will be listed for a jury trial for the next trial term in accordance with the timelines found in the annual court calendar. I further understand that sanctions may be imposed upon me by the Court for the filing of an improper Certificate of Readiness listing a case for jury trial. Has this case previously been certified for trial? ? Yes, date previously certified: ? No, never previously certified E. TYPE OF CASE AND ESTIMATED TRIAL LENGTH ? Contract ? Medical Malpractice ? Motor Vehicle Accident ? Products Liability ® Premises Liability ? Other Malpractice ? Other Type of Case: Estimated Trial Time: days F. MEDIATION ? Pursuant to Dauphin County Local Rule 1001, 1 hereby certify that mediation has been previously pursued car that the topic of mediation was discussed by not only counsel with their clients but also by all counsel and/or pro se parties and rejected only after good faith consideration. G. COUNSEL: (List names, addresses and telephone numbers of all counsel and check appropriate box to designate listing counsel) Plaintiff(s): Jeffrey Engle Shaffer & Telephone Number: (717) 692-2345 qle Law Offices Listing Counsel Email Address: Jpff@shafferengle.com Defendant(s): Norman Briggs & Briggs Law Telephone Number: (609) 390-9600 offices Listing counsel Email Address: nbriggs@thebriggslaw.com Additional Defendant(s): Telephone Number: ? Listing Counsel Email Address: VERIFICATION: I, the undersigned listing counsel or pro se party, hereby acknowledge that sanctions may be imposed upon me for the improper filing of this Certificae f Re diness and that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to tut tie I further certify that I will immediately serve a s I and/or pro se parties with a copy of this Certificate of Readiness. II a8` '1 Date Signature of Listing Counselor Pro Se Party (Read Verification First) M 9 Elf th e '&1? r r-,ff William T. Tully Solicitor Dauphin County 101 Market Street Harrisburg, Pennsylvania 17101-2079 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff e`v 0 -77 JacklQuigfan Chief Depu6) Michael W. ffnehart Assistant Chief Deputy SARAH & ANDREW DICOSTANZO, Commonwealth of Pennsylvania PARENTS OF MINOR CHILD CARMINE DICOSTANZO VS County of Dauphin OUTBACK STEAKHOUSE OF FLORIDA LLC Sheriff s Return No. 2011-CV-09485-CV And now: OCTOBER 5, 2011 at 8:36:00 AM served the within COMPLAINT upon OUTBACK STEAKHOUSE OF FLORIDA LLC by personally handing to BOB SERSCH 1 true attested copy of the original COMPLAINT and making known to him/her the contents thereof at C/O CT CORPORATION SYSTEMS 116 PINE ST, SUITE 320 HBG PA 17101 CUSTOMER SERVICE REPRESENTATIVE AND PERSON IN CHARGE AT TIME OF SERVICE. So Answers, Sheriff of Dauphin County, Pa. Deputy: DARIN S SHERFEY Plaintiff: SARAH & ANDREW DICOSTANZO, PARENTS OF MINOR CHILD CARMINE DICOSTANZO Ay- P IVI? ?? ?r BRIGGS LAW OFFICE, LLC By: NORMAN W. BRIGGS, ESQUIRE Attorney I.D. No.: 60940 300 Walnut Street Philadelphia, PA 19106 (215) 925-4632 Attorney for Defendant Outback Steakhouse of Florida, LLC SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, COURT OF COMMON PLEAS DAUPHIN COUNTY Plaintiff(s) NO. 2011-cv-9485-CV VS. OUTBACK STEAKHOUSE OF FLORIDA, LLC, \ Defendant(s) ENTRY OF APPEARANCE csr Kindly enter my appearance on behalf of all Defendants in the above-captioned matter. Date: October 19, 2011 4- NORMAN W. BRIGGS, ESQUIRE Attorneys for Defendant Outback Steakhouse of Florida, LLC . A(:i ;lft? Logo, "-L-Ili Copies i1 aKDuied Date ?Z ?< ( I- !A als SARAH DICOSTANZO and ANDREW DICOSTANZO, Parents Of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs, V. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant. AND NOW, this It IN THE COURT OF COMMON PLEAS, DAUPHIN COUNTY, PENNSYLVANIA : CIVIL ACTION NO. 2011 CV 9485 ORDER ::c? C} ; TP, -1 CD cry C", day of December, 2011, upon consideration of Defendant's Preliminary Objections to Plaintiff's Complaint and Plaintiff's Answer thereto, argument n the Objections is scheduled for 201, at in Courtroom 5, 3`d Floor, Dauphin County Courthouse, 101 Market Street, Harrisburg, Pennsylvania. BY THE COURT: iruce rF.Bratton-,, J. Distribution: The Hon. Bruce F. Bratton Joanne Kohn, Court Reporter Jeffrey Engle, Esq., 512 Market St., Millersburg, PA 17061 Norman Briggs, Esq., 100 Walnut St., Philadelphia, PA 19106 COPWP -s I r r iiaui d A Date l !J ! ?? :> R?t? IMAGED SARAH DICOSTANZO AND ANDREW IN THE COURT OF COMMON PLEAS DICOSTANZO, parents of the minor child DAUPHIN COUNTY, PENNSYLVANIA CARMINE J. DICOSTANZO, Plaintiffs vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC., Defendant ORDER : NO. 2011-CV-09485-CV ' N Ga CIVIL ACTION - LAW ? "' Cn W -t- AND NOW, this ? day of January, 2012, due to the unavailability of the Court and with the agreement of all parties, the argument on Defendant's Preliminary Objections to Plaintiff's Complaint and Plaintiff's Answer thereto previously scheduled for January 4, 2012 is hereby RESCHEDULED to Thursday, January 26, 2012 at 12:00 Noon, Courtroom No. 5, Dauphin County Courthouse, 101 Market Street, Harrisburg, Pennsylvania 17101. BY THE CO T: uce F. Bratton, Judge Distribution: The Honorable Bruce F. Bratton Jeffrey Engle, Esquire, 512 Market Street, Millersburg, PA 17061 Nicole R. Cohen, Esquire, 300 Walnut Street, Philadelphia, PA 19106 Led Date Z vY SARAH DICOSTANZO and ANDREW DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs, V. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant. IN THE COURT OF COMMON PLEAS, DAUPHIN COUNTY, PENNSYLVANIA CIVIL ACTION a a ? -a • ? z --? -? nom. rn ?jj 2011 CV 9485 NO . =C-) -a C71 r" ORDER -? r cn fr t AND NOW, this .)I _ day of A Mi-._, 2012, in consideration of Defendant's Preliminary Objections to Plaintiffs' Complaint, Plaintiffs' Response thereto and having held argument on the Objections on January 26, 2012, it is hereby ORDERED as follows: 1. Defendant's Preliminary Objection in the nature of a motion to strike paragraph 30(i) of Plaintiffs' Complaint as containing boilerplate language and general allegations of negligence in violation of the requirements set forth in Connor v. Allegheny General Hospital, 529 A.2d 1081 (Pa. 1983), is SUSTAINED; 2. Defendant's Preliminary Objection in the nature of a motion requesting a more specific pleading as to the factual allegations regarding "recklessness" is OVERRULED. The allegations of the Complaint, if presented to a trier of fact, must only be sufficient for the finders of fact to determine, after hearing all of the evidence, whether or not Defendant's conduct was or was not such a deviation from the acceptable standard of care as to constitute recklessness. BY THE C RT: Bruce F. Bratton, J. Distribution: The Hon. Bruce F. Bratton Jeffrey Engle, Esq., 512 Market St., Millersburg, PA 17061 Norman Briggs, Esq., 300 Walnut St., Philadelphia, PA 19106 114 BRIGGS LAW OFFICE, LLC By: NORMAN W. BRIGGS, ESQUIRE Pa (i 12 P11 i Attorney I.D. No.: 60940 ? R tD } ,a { { 300 Walnut Street ?? t?i S ERLA! ?? LVA E y for Defendant Outback Philadelphia, PA 19106 house of Florida, LLC (215) 925-4632 SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiff(s) vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant(s) COURT OF COMMON PLEAS CUMBERLAND COUNTY : NO. 2012-01199 DEFENDANT OUTBACK STEAKHOUSE OF FLORIDA, LLC'S ANSWER AND NEW MATTER Defendant, Outback Steakhouse of Florida, LLC, by and through its attorneys, Briggs Law Office, LLC, responds to Plaintiff's Complaint as follows: 1. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 2. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 3. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 4. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 5. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 6. Admitted. COUNT I 7. Answering Defendant incorporates by reference its responses to T1-6 as though fully set forth at length herein. 8. Denied as stated. It is admitted that Answering Defendant operated an Outback Steakhouse restaurant located at 3527 Union Deposit Road, Harrisburg, Dauphin County, Pennsylvania 17109. 9. Denied as a conclusion of law for which no response is required. 10. Denied as a conclusion of law for which no response is required. 11. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 12. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 13. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. -2- t 14. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 15. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 16. Denied. 17. Denied. 18. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 19. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 20. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 21. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 22. Denied. After reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 23. Denied as a conclusion of law for which no response is required. 24. Denied as a conclusion. of law for which no response is required. 25. Denied as a conclusion. of law for which no response is required. -3- I 26. Denied. 27. Denied as a conclusion of law for which no response is required. 28. Denied as a conclusion. of law for which no response is required. 29. Denied. It is denied that there was any dangerous or defective condition relating to the restroom door at the time of the incident. 30. (a-h) Denied as a conclusion of law for which no response is required. To the extent the allegations contained within this paragraph are deemed other than conclusions of law, it is denied that Answering Defendant acted in <)- negligent, reckless, and/or careless manner. On the contrary, Answering Defendant acted in a reasonably prudent manner, and with all due care, under the circumstances. The remaining allegations are denied, because after reasonable investigation;, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 31. Denied as a conclusion of law for which no response is required. To the extent the allegations contained within this paragraph are deemed other than conclusions of law, said allegations are denied, because after reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 32. Denied as a conclusion of law for which no response is required. To the extent the allegations contained within this paragraph are deemed other than conclusions of law, said allegations are denied, because after reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. -4- 33. Denied as a conclusion of law for which no response is required. To the extent the allegations contained within this paragraph are deemed other than conclusions of law, said allegations are denied, because after reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. 34. Denied as a conclusion of law for which no response is required. To the extent the allegations contained within this paragraph are deemed other than conclusions of law, said allegations are denied, because after reasonable investigation, Answering Defendant does not possess sufficient information to admit or deny the allegations contained within said paragraph. Strict proof is otherwise demanded at the time of trial. WHEREFORE, Defendant, Outback Steakhouse of Florida, LLC demands judgment in its favor and against the Plaintiff along with costs of this action. NEW MATTER 35. Plaintiffs fail to state a cause of action upon which relief can be granted. 36. Plaintiffs' cause of action is barred by the applicable Statute of Limitations. 37. Plaintiffs' cause of action is barred and/or limited by the Pennsylvania Comparative Negligence Act, 42 Pa. C. S.A. §7102 et seg. 38. Plaintiffs' cause of action is barred by the Doctrine of Assumption of Risk. 39. Plaintiff's injuries were caused in whole or in part by individuals and/or entities which the Answering Defendant had no control over, and/or right to control. 40. There was no dangerous or defective condition located on Answering Defendant's premises. -5- 41. The alleged dangerous and defective condition was open and obvious. 42. Plaintiff's injuries were caused by a lack of supervision by Plaintiff/ Parents. COUNTERCLAIM Defendant Outback Steakhouse of Florida, LLC. V. Plaintiffs Sarah DiCostanzo and Andrew Dicostanzo 43. The allegations contained in paragraphs 1-42 are :incorporated herein by reference as thought fully set forth. 44. Although Defendant denies the existence of any defective condition present at Outback on the date in question, to the extent said condition existed, the negligence and carelessness of Plaintiff Sarah DiCostanzo and Plaintiff Andrew Dicostanzo actually and proximately caused the minor Plaintiff' Carmine Dicostanzo's injuries. 45. Although Defendant denies the existence of any defective condition present at Outback on the date in question, given the Plaintiff's age, Plaintiffs Sarah and Andrew DiCostanzo knew or should have known that the minor Plaintiff would need appropriate warning and assistance with the door in question. 46. Although Defendant denies the existence of any defective condition present at Outback on the date in question, Plaintiffs Sarah and Andrew DiCostanzo had the opportunity to provide Plaintiff with appropriate assistance and failed to do so thereby causing injury to the minor Plaintiff's right middle finger.. 47. Although Defendant denies the existence of any defective condition present at Outback on the date in question, Plaintiffs Sarah and Andrew DiCostanzo failed to reasonably supervise their minor child thereby causing injury to the minor Plaintiffs right middle finger. -6- WHEREFORE, Defendant Outback Steakhouse of Florida, LLC: demands judgment in its favor and against the Plaintiff's Sarah and Andrew DiCostanzo, along with costs, attorneys' fees, and all other relief that the Court deems just. BRIGGS LAW OFFICE, LLC x1-5 Dated: March 9, 2012 By: .? NORMAN . BRI , Esquire Attorney for Defendant Outback Steakhouse of Florida, LLC -7- Jeffrey B. Engle, Esquire OF THE FROlH Pj r SHAFFER & ENGLE LAW OFFICES 1013 yAR S !All 2205 Forest Hills Drive, Suite 10 PH y: 06 Harrisburg, PA 17112 CUNBERLANL) COUNt y 717-545-3032 * phone PENNSYLVANIA 717-545-3083 * fax jeff(dDshafferengle.com SARAH DICOSTANZO and IN THE COURT OF COMMON PLEAS ANDREW J. DICOSTANZO, CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs NO. 2012-01199 CIVIL TERM vs. OUTBACK STEAKHOUSE OF CIVIL ACTION — LAW FLORIDA, LLC, : Defendant JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANT'S NEW MATTER WITH COUNTERCLAIM 1.-35. These are the Defendant's responses to the Plaintiffs' complaint and require no response. RESPONSE TO NEW MATTER 35.42. Denied. The Defendant states conclusions of law for which no response is required. However, to the extent that a response is required, the Defendant's defenses stated in paragraphs are all inapplicable to the instant matter. PLAINTIFFS' RESPONSE TO DEFENDANT'S COUNTERCLAIM 43. Neither admitted nor denied. This is a paragraph of inclusion. 44. Denied. The Defendant states a conclusion of law for which no response is required. However, to the extent that a response is required, it is specifically denied that any act of carelessness or negligence caused the injuries of the Minor Plaintiff, Carmine DiCostanzo. 45. Denied. The Defendant states a conclusion of law for which no response is required. However, to the extent that a response is required, it is specifically denied that the Minor Plaintiffs parents, Sarah and Andrew DiCostanzo, should have known that the Minor Plaintiff would need an appropriate warning and assistance with the door in question. Further, the Defendant, through its acts of carelessness, negligence and recklessness created a hazardous condition on their property which should have been corrected for its invited guests. 46. Denied. The Defendant states a conclusion of law for which no response is required. However, to the extent that a response is required, it is specifically denied that the Plaintiffs parents, Sarah and Andrew DiCostanzo, had the opportunity to provide the Minor Plaintiff with appropriate assistance and failed to do so. 47. Denied. The Defendant states a conclusion of law for which no response is required. However, to the extent that a response is required, it is specifically denied that the parents of the Minor Plaintiff, Sarah and Andrew DiCostanzo, failed to reasonably supervise their minor child. (BOTTOM OF THIS PAGE INTENTIONALLY LEFT BLANK) WHEREFORE, the Plaintiffs, Sarah DiCostanzo and Andrew J. DiCostanzo, parents of the minor child, Carmine J. DiCostanzo, respectfully request that This Honorable Court deny the Counterclaim of the Defendant Outback Steakhouse of Florida, LLC. Respectfully submitted, SHAFFER & ENG E W OF ES, LLC Dated: Jeffrey Attor y 64 2205 Forest Hills riv , Suite 10 Harrisburg, PA (717) 545-3032 Attomey for Plaintiffs SARAH DICOSTANZO and IN THE COURT OF COMMON PLEAS ANDREW J. DICOSTANZO, CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs NO. 2012-01199 CIVIL TERM vs. OUTBACK STEAKHOUSE OF CIVIL ACTION — LAW FLORIDA, LLC, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Plaintiffs' Response to Defendant's New Matter with Counterclaim was sent via U.S. Mail first Class to the following: Nicole Cohen, Esquire Briggs Law Office, LLC 400 Market Street Suite 730 Philadelphia, PA 19106 Date: J eff SH ER N E OFFICES 2205 Forest Hit Dr' , Suite 10 Harrisburg, PA 17112 Attorney for Plaintiff Jeffrey B. Engle, Esquire Attorney LD. No. 76644 SHAFFER & ENGLE LAW OFFICES, LLC OCT -14 AN11: 2205 Forest Hills Drive, Suite 10 C U M S R L A t,i 3 is al:1 i Harrisburg, PA 17112 PENNSYLVANIA 717-545-3032 *phone 717-545-3083 *fax jeff(7shafferengle.corn SARAH DICOSTANZO and : IN THE COURT OF COMMON PLEAS ANDREW J. DICOSTANZO, : CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, • CARMINE J. DICOSTANZO, Plaintiffs : NO. 2012-01199 • vs. OUTBACK STEAKHOUSE OF : CIVIL ACTION—LAW FLORIDA, LLC, Defendant : JURY TRIAL DEMANDED MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 42 PA.R.C.P. $4003.1 AND NOW, this %n day of October, 2013, comes the Plaintiffs, by and through Counsel, Shaffer & Engle Law Offices, LLC and respectfully avers as follows: 1. On or about October 3, 2011, a Complaint was filed in the above-captioned matter by the Plaintiffs. This matter was initially filed in Dauphin County and later transferred to Cumberland County by agreement of the parties and Order of Court. 2. The Complaint filed in this matter has a count of negligence, the negligence count avers that the Defendant's were careless and reckless with regard to the maintenance of a door contained in their facility located at the Outback Steakhouse location at 25 Gateway Drive, Mechanicsburg, Cumberland County, Pennsylvania. 3. After the filing of a Complaint and the Answer filed by the Defendants, the parties have engaged in discovery in good faith. 4. It is believed and therefore averred, that a dispute arose as to the discoverability of prior Complaints received by the Outback Steakhouse regarding "finger pinch incidents" on the inside of the restroom doors. (See copy of Motion to Compel pursuant to Pa.R.Civ.Pro §4003.1, 42 Pa.C.S.A. filed on February 13, 2013.) 5. It is believed and therefore averred, that based upon the Motion to Compel, The Honorable Judge Edward Guido scheduled a Hearing on March 5, 2013 at 3:00 p.m. 6. It is believed and therefore averred, that subsequent to the hearing on the Motion to Compel and the argument of counsel for both parties, This Honorable Court issued an Order dated March 5, 2013, which required the Defendants to provided a list of all complaints and/or incidents involving "finger pinch" matters for the five (5) years prior to October 25, 2009 (the date of the incident). (See copy of Court Order dated March 5, 2013 attached hereto as Exhibit 7. Since the date of this Honorable Court's Order, it is believed and therefore averred that the Defendant has provided the Plaintiffs with a list of incidents that have occurred for the five (5) years prior to October 25, 2009. (See copy of correspondence and attachment dated April 22, 2013 attached hereto as Exhibit "2"). 8. Since the list of incidents have been provided to the Defendants, the Defendants have additionally requested a copy of the complaints filed in each one of the matters listed by the Defendants in their court-ordered response. (See copy of correspondence dated May 21, 2013 with the Defendant's counsel, Nicole Cohen, Esquire attached hereto as Exhibit"3"). 9. It is believed and therefore averred, that since May 21, 2013, the Defendants have yet to receive copies of all fifty-four (54) complaints pursuant to the normal course of Discovery. 10. It is believed and therefore averred, that counsel has been working together well and various inquires have been made along the way through email. (See copy of correspondence dated June 12, 2013 attached hereto as Exhibit "4"). 11. However, it is believed and therefore averred, that the Defendants have yet to receive the items requested in the Discovery request made subsequent to the Court's Order of March 5, 2013. 12. It is respectfully requested that This Honorable Court set forth a Scheduling Order for compliance by the Defendants with the discovery request made by the Plaintiffs. WHEREFORE, Plaintiffs respectfully request that This Honorable Court set forth a Scheduling Order pursuant to their Motion to Compel Production of Documents. Respectfully submitted, Dated:/U /Agilid7 Jeffrey :. g =, :qui e SHAFFER & EN( LE . AW OFFICES Attorney ID #766 Shaffer & Engle Law Offices, LLC 2205 Forest Hills Drive, Suite 10 Harrisburg, PA 17112 717-545-3032*phone SARAH DICOSTANZO and IN THE COURT OF COMMON PLEAS OF ANDREW J. DICOSTANZO, CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, : CARMINE J. DICOSTANZO, Plaintiffs - v. NO. 2012-1199 CIVIL TERM OUTBACK STEAKHOUSE OF - FLORIDA, LLC, CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this 5th day of March, 2013 , the Defendant shall provide .Plaintiffs with a list of all complaints and/or incidents involving finger-pinch matters for the five years before October 25, 2009 . If -the Defendant feels that it would be unduly burdensome to try to search its records fol- all such incidents, it may comply with this Order by providing Plaintiffs with a copy of all complaints filed in court against it for the five years before October 25, 2009. The information to be provided within 45 days of today' s date. By the Court, C) c z Edward E. Guido, J. Zrn °' ter- z= '0r-n --+© 1ffrey B. Engle, Esqurie <c) .. =...fl Attorney for Plaintiffs )>c7 mc cpt: S H A F F E R _ E N G L E Jeffrey B.Engle,Esquire jeff@shafferengle.com LAW OFFICES , LLC Elisabeth K.H.Pasqualini,Esquire elisabeth@shafferengle.com Millersburg Office: 2205 FOREST HILLS DRIVE,SUITE 10 512 Market Street HARRISBURG,PENNSYLVANIA 17112 Alyssa H.Knisely,Esquire Millersburg,PA 17061 alyssa @shafferengle.com Telephone:(717)545-3032 Fax:(717)545-3083 Allen Shaffer,Esquire _ (1927-2009) www.shafferengle.com www.pennfamilylawyers.com L April 22, 2013 Nicole R. Cohen, Esquire Briggs Law Office, LLC 400 Market Street Suite 730 Philadelphia, PA 19106 Re: DiCostanzo v. Outback Steakhouse of Florida,LLC No. 2011-cv-9485-CV Dear Attorney Cohen: Please be advised that I have received and reviewed your list of incidents involving finger pinch matters for the five (5) years before October 25, 2009 pursuant to Judge Edward E. Guido's Order dated March 5, 2013. I am hereby requesting additional information regarding this list: 1. Copy of the original complaint filed in each matter; 2. The docket number, Court of filing, and date of filing, if not included in the complaint; 3. The name and address of the Plaintiff, if not included in the complaint; and 4. The name and address of the Plaintiff's attorney, if not included in the complaint. If you would, kindly provide this information to me within thirty(30) days of receipt. You may certainly provide the document to me in PDF form via email if it is easier for you. Sincerely, SHAF• " • : b 1 ,LA I •FFICES Jeffr- :. 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C ^ 7 a7 7 7...w»7 to N a a) N "7'fc 7 W a 7 CO 7'7 (D _' a s 3.7 a 3 7 3 3'3•a s C1 7 t0 7 a a n 3 a maao, ° am a ° a ° a °o °ooap° o0yao° ma�� aN °oan� m � aa7g _(°A ° 77a 0 O 3 0 0 p0 $ , 3 7 y. 0 0 3 7-7°p y l .y. 3 a a a a CO3 � a ° 30^ 3 a• o°a 3 o 0 ° °o 0 3 3 3 3 o p o ., a °o 00 0 W 0. 0 0 a o a m 0 a N • 0 N o F. S H A F F E R _ E NG LE Jeffrey B.Engle,Esquire jeff@shafferengle.com LAW OFFICES , LLC Elisabeth K.H.Pasqualini,Esquire elisabeth@shafferengle.com Millersburg Office: 2205 FOREST HILLS DRIVE,SUITE 10 512 Market Street HARRISBURG,PENNSYLVANIA 17112 Alyssa H.Knisely,Esquire Millersburg,PA 17061 alyssa @shafferengle.com Telephone:(717)545-3032 Fax:(717)545-3083 ,' , 1 ( t ,, Allen Shaffer,Esquire k_' t--, ' 'L le (1927-2009) www.shafferengle.com www.pennfamilylawyers.com Nicole R. Cohen, Esquire May 21, 2013 Briggs Law Office, LLC / 400 Market Street, Suite 730 Philadelphia, PA 19106 Re: DiCostanzo v. Outback Steakhouse of Florida,LLC No. 2011-CV-9485 Dear Attorney Cohen: Pursuant to your email dated May 14, 2013,please find enclosed herein a check in the amount of$1,512.00 that will represent payment of the fifty-four(54)files that you have indicated will need to be retrieved from storage. Please provide me with a copy of the complaint for each file. Out of caution, I would ask that you maintain the files from storage as I may need additional information from any one of the respective files in the future. With regard to the files that have been purged, kindly provide me with the following: 1. The docket number; 2. The court of filing; 3. The plaintiffs attorneys name; 4. The caption; and 5. A contact number for the Plaintiffs attorney. Kindly note that any combination of the above will be sufficient for the files that have been purged. Please consider this ongoing discovery. Sincerely, SHAFF - 4:;. A W OFFICES Jeffr.y .I n! - squire JBE/vjs Enclosure C: Client EXHIBIT 5 z 9009 I, �" SHAFFER&ENGLE LAW OFFICES,LLC MID PENN BANK GENERAL ACCOUNT 3/2Y1$1ON•'atET I.*170dt 512 MARKET STREET Ninxinf°P°O"b.k..1 MILLERSBURG,PA 17061 60-880-313 . (4 r U i G )THE if-- — V ( �'�Z- — qoF " - ( O e A�'` ' w i = i, I K_ Ls-' DOLLARS 4. A 8 7`3 --� / r�®®D GNA RE (! 1t e o" "009009,,' 1:0 3 L 30880 71: 2 50 346IN41(' :if Engle osri: Jeff Engle ant: Wednesday, June 12, 2013 3:08 PM • 'Nicole Cohen' abject: FW: Dicostanzo tole- Please provide me with a status update on the requested documents from the 54 files requested. Also,the availability of information on the files that have been purged that was requested in my email below on May 14, 2013. gards, Efrey B. Engle, Esquire affer&Engle Law Offices,LLC irrisburg Office: Millersburg Office: )5 Forest Hills Drive,Suite 10 I 512 Market Street I Millersburg,PA 17061 rrisburg,PA 17112 PHONE(717)692-2345 I FAX(717)692-3554 [ONE(717)545-3032 I FAX(717)545-3083 is email contains PRIVILEGED and CONFIDENTIAL INFORMATION intended only for the use of the recipient named above. information may contain confidential information protected by the attorney-client or other legal privilege and/or may be )tected by state and federal laws,including,without limitation,the provisions of the Health Insurance Portability and countability Act of 1996 (HIPAA),which prohibit unauthorized disclosure.If you are not the intended recipient,you are .eby notified that any use or dissemination of this information is strictly prohibited.If you have received this email in error, ase immediately notify the sender by reply email at the address provided above or by contacting Shaffer&Engle at 717-545- �2 and delete this message without copying.Thank you. his is a client of the firm of Shaffer&Engle Law Offices,LLC,you are hereby notified that official action(s) requested by ail may not be acted upon unless you speak to an attorney personally. ►m: Nicole Cohen [mailto:ncohen( thebriggslaw.com] nt: Tuesday, May 14, 2013 12:32 PM : Jeff Engle 'Amy Forczek' bject: RE: Dicostanzo f: :re are 54 files that have not been purged. Wells Fargo keeps all files dating 6 months back, so November, 2012 through the sent. The rest need to be retrieved from storage and it is$28.00 per file. As such, please remit payment totaling $1512.00 at it earliest convenience. Once we retrieve the files we will be able to provide the requested information and a copy of the nplaint for each file. ole R. Cohen, Esquire ggs Law Office,LLC Market Street to 730 ladelphia,PA 19106 -925-4632(ph) -925-1611 (f) Roosevelt Boulevard EXHIB to 201 rmora,NJ 08223 9-390-9600(ph) 9-390-5950(f) om: Jeff Engle [mailto:Jeff@ shafferengle.com] nt: Tuesday, May 14, 2013 9:46 AM Nicole Cohen ibject: Re: Dicostanzo cole- In the ones that have been purged, kindly see if you can provide me with a docket number, court of filing, uintiffs attorney name, or contact number. Any combination of the above will be sufficient. ff nt from my iPhone i May 13, 2013, at 4:48 PM, "Nicole Cohen" <ncohen @thebriggslaw.com>wrote: Yes I did. All files that closed over 7 years ago are destroyed. The others will cost$to be retrieved. I am in the process of narrowing down the Complaints that are not older than 7 years and totaling the cost of retrieval. Once I have a total cost, I will advise. Thanks. Nicole R. Cohen, Esquire Briggs Law Office,LLC 400 Market Street Suite 730 Philadelphia,PA 19106 215-925-4632(ph) 215-925-1611 (f) 110 Roosevelt Boulevard Suite 201 Marmora, NJ 08223 609-390-9600(ph) 609-390-5950(f) 2 lff Engle Dm: Nicole Cohen [ncohen @thebriggslaw.com] nt: Wednesday, June 12, 2013 3:30 PM Jeff Engle rbject: Read: Dicostanzo tachments: ATT69234.txt .ur message ro: Nicole Cohen Subject: FW: Dicostanzo Sent: 6/12/2013 3:08 PM s read on 6/12/2013 3:28 PM. 1 SARAH DICOSTANZO and : IN THE COURT OF COMMON PLEAS ANDREW J. DICOSTANZO, : CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, CARMINE J. DICOSTANZO, • Plaintiffs : NO. 2012-01199 vs. • OUTBACK STEAKHOUSE OF : CIVIL ACTION—LAW FLORIDA, LLC, Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion to Compel Production Documents was served by means of United States mail, first class, postage prepaid, upon the following: Nicole R. Cohen, Esquire 400 Market Street, Suite 730 Philadelphia, PA 19106 Attorney for Defendant Dated: (b 7'tv - Jeffrey B/'n t e, SHAFF R & E I G W OFFI ES Attorney ID #76644 Shaffer & Engle Law ► ces, LLC 2205 Forest Hills Drive, Suite 10 Harrisburg, PA 17112 717-545-3032*phone 3 SARAH DICOSTANZO and : IN THE COURT OF COMMON PLEAS ANDREW J. DICOSTANZO, : CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, • CARMINE J. DICOSTANZO, Plaintiffs : NO. 2012-01199 ' rn c vs. rr, OUTBACK STEAKHOUSE OF : CIVIL ACTION—LAW - FLORIDA, LLC, r— Defendant : JURY TRIAL DEMANDED �. a c; c? RULE TO SHOW CAUSE AND NOW, this 7 day of October, 2013, it is hereby ordered and decreed that Defendant has PO days to show cause why Plaintiff's Motion to Compel Discovery should not be granted. BY THE C T Edward Guido, Judge Itribution frey B. Engle, Esquire 2205 Forest Hills Drive, Suite 10, Harrisburg, PA 17112 cole R. Cohen, Esquire 400 Market Street, Suite 730, Philadelphia, PA 19106 C;Cf79/12 1£S Mat "-Min BRIGGS LAW OFFICE, LLC By: NICOLE R. COHEN, ESQUIRE Attorney I.D. No.: 204015 400 Market Street, Suite 730 Attorney for Defendant Outback Philadelphia, PA 19106 Steakhouse of Florida, LLC (215) 925-4632 SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff(s) NO. 2012-01199 ; w Vs. OUTBACK STEAKHOUSE OF FLORIDA LLC w CD max• � --a�M : �--•� -sue .;.,, 1=71 * CD Defendant(s) ,, C-) ; .;r-C:) DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL Defendant, Outback Steakhouse of Florida, LLC (hereinafter "Outback"), by and through its attorneys, Briggs Law Office, LLC, hereby files this Opposition to the Motion to Compel , and in support thereof avers the following: Response to Plaintiff's Averments 1. This paragraph refers to a document that speaks for itself. 2. This paragraph refers to a document that speaks for itself. 3. This paragraph refers to a document that speaks for itself. 4. This paragraph refers to a document that speaks for itself. 5. This paragraph refers to a document that speaks for itself. 6. This paragraph refers to a document that speaks for itself. 7. Admitted. Defendants have complied with the Court's Order dated March 5, 2013. 8. This paragraph refers to a document that speaks for itself. 9. Denied as stated. On August 9, 2013, Defendant provided six (6) prior incident reports pursuant to Plaintiff's Request for Production of Documents - Set III. (See Correspondence dated August 9, 2013 attached hereto as Exhibit "A"). 10. This paragraph refers to a document that speaks for itself. 11. Denied as stated. On August 9, 2013, Defendant provided six (6) prior incident reports pursuant to Plaintiff's Request for Production of Documents - Set III. (See Correspondence dated August 9, 2013 attached hereto as Exhibit"A"). 12. Defendant hereby requests that the Scheduling Order grant Defendant at least ninety (90) days for the rest of the production of documents pursuant to Plaintiff's supplemental requests. Defendants Statement of Facts 13. On August 9, 2013, Defendant sent correspondence to Plaintiff advising that Bloomin'Brands, the parent company for Outback, was going through some corporate changes with its TPA and claims administration. As such, the retrieval of the prior incident reports has been significantly delayed. In good faith, however, Defendant did produce to Plaintiff the six (6) prior incident reports that were retrieved before the corporate changes went into effect. (See Exhibit "A" attached hereto). 14. The August 9, 2013 correspondence to Plaintiff also confirmed that Defendant will continue to produce the additional documents as they are received from corporate. In other words, Defendant will not wait until all documents have been received before producing to Plaintiff. Instead, Defendant will act timely in producing to Plaintiff whatever it can as earliest as possible. 15. Due to the corporate changes and claims administration at Bloomin' Brands, counsel for Defendant has not yet been advised of any particular time frame with which it can expect to receive the requested documents. 2 16. As argued in Defendant's original opposition to Plaintiff's Motion to Compel, Plaintiff's request Plaintiff's request is burdensome. 17. To date, Defendant has complied with this Court's Order dated March 5, 2013 and has made a good faith effort to comply with Plaintiff's supplemental request made after Defendant complied with the March 5, 2013 Order. 18. Defendant hereby requests that the Scheduling Order grant Defendant at least ninety (90) days for the rest of the production of documents pursuant to Plaintiff's supplemental requests. 19. Defendant will agree, however, to continue to produce to Plaintiff any and all incident reports as they are received by counsel in a timely fashion. WHEREFORE, Outback Steakhouse respectfully joins in Plaintiff's request for This Honorable Court to set forth a Scheduling Order; however, Defendant also requests that This Honorable Court not limit Defendant's time for production to less than ninety (90) days. BRIGGS LAW OFFICE, LLC 17 / Dated: October 18, 2013 By: kg �� A- NICOLE R. COHEN, ESQUIRE Counsel for Defendant Outback Steakhouse 3 VERIFICATION Nicole R. Cohen states that she is authorized to make this statement on behalf of Defendant, that the facts set forth in the preceding Opposition to Plaintiff's Motion to Compel are true and correct to the best of her knowledge, information and belief, and that the statements set forth herein are subject to 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. Dated: October 18, 2013 J� oe"L Nicole R. Cohen, Esquire BRIGGS LAW OFFICE, LLC By: NICOLE R. COHEN, ESQUIRE Attorney I.D. No.: 204015 400 Market Street, Suite 730 Attorney for Defendant Outback Philadelphia, PA 19106 Steakhouse of Florida, LLC (215) 925-4632 SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff(s) NO. 2012-01199 vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendants) The undersigned certifies a true and correct copy of Outback Steakhouse of Florida's Opposition to Plaintiff's Motion to Compel was served via first-class mail, postage prepaid, upon the following on the date set forth below: Jeffrey B. Engle, Esquire Shaffer & Engle Law Offices 2205 Forest Hills Drive Suite 10 Harrisburg, PA 17112 Dated: October 18, 2013 EXHIBIT `A' Page 1 of 1 'Nicole Cohen From: Nicole Cohen [ncohen @thebriggslaw.com] Sent: Friday, August 09, 2013 3:25 PM To: 'Jeff Engle' Subject: Dicostanzo v. OBSH Attachments: part 1 - prior files from Dorine.pdf Jeff Outback is in the process of some corporate changes thereby causing further delays regarding retrieval of prior complaints, etc. Before the change went into affect, however, my client was able to produce the findings from the first box retrieved from archies. As such, attached please find 6 prior incident reports pursuant to Plaintiffs requests for production of documents-set III. Defendant amends its responses to Plaintiffs discovery to include same. The claims referenced in the attached incident report were never litigated. As such, there is no Plaintiffs counsel information or docket to provide at this time. I will continue to send additional documents pursuant to this same discovery request as I receive them. Nicole R. Cohen, Esquire Briggs Law Office,LLC 400 Market Street Suite 730 Philadelphia,PA 19106 215-925-4632(ph) 215-925-161.1 (f) 110 Roosevelt Boulevard Suite 201 Marmora,NJ 08223 609-390-9600 (ph) 609-390-5950 (fl 10/18/2013 l2.fei2oo7 s4T 11:04 FAA 449 448 0854 OUTBA46 STEAMICtISE 3950 IdjO-0L ;� 07 ttnt Frs►-D�V S ALDTI.N/Wm TPLrTjaf f112�1=JQia 1-GIa P.44/06 f•66 s :+d Par.y Admie!lalt�tian 'IOsjuT ITM.Timlew?} x'Y4gOTJ'1<BtK 0)J��,Ip{C. ' 1 S FARM 9"t}BE'6&TLKmb 2Y-MAt1yAC} ' Tk �m rNedoyta!!}!o Q{In3n(0ulw)c$Lg&l04uJopleg �vnst.. j CUSTOM;�C'mEvT IM fi+unc a 4wt V; _ A ess' i 7': pt a7na way-( — . c u7 xvv var o�, p—r ucP� r+f pre uct: �.-•� .�!"_.�. OW Ille>ty 0 �1[1C(1C CerC pl"n 120 L7917f t _ ' 7 Cora ib Ysr f oil t o silly F o yos! Q Y6 :' ��cJ an up ►e qn pr de►tie+ � Ztfi'Q S tltt4rtf f!s LO ! : nuo Y3 kqur WII "I Lv! WLIIZV In it i -Y4 yecs qlaeurl $0 a a�P =01 maawger commViom C.'Warwal F=a1pam .ax. cnn�t� sECrxo� ONLY I»WCIDRNT WAS AV ., A Or, � 06 c0 1il: t nma o uaa ms ec c ro vx tie s�e'p yee a a ea:Fktiq 1 S .12pig JZICCLO a ao�s a sq 4oSOpan TPA WCQ+WB efFrYOlr. p tY S SoauLR AUG tJ] T 'd L08L"StIls 3I83 >1089100 Wd6I l S 8002 62 2nd 01/16/2009 28:87 18665548958 XTBACK STEAKHOUSE PAGE @1 Third Party A.du nUtnation TIUS REPORT IS TIN PROPMUYOF OU'IBA.CK STFAKHOUSF,INC. FO]ftM TO BE COWLETM BY MANACIE L TMs.roan is h1led out at tbo requev vf0utbackStsakhousv Legal counsel 5 E, l� CUSTOMER INCIDENT REPO ua NuAbe:r. r t 1 U Flame L6, ff I Lc Date,TmV of J=ident 10 1 G -1.6 Name of injured�airtyI Address: 153 - d TeWhme:I•iame G l /3 7- Work ) Age of ittjat'ed party: I—3Q `" 5 ' = vps Locatim of Incident: rte ja fv r e r2 f Y3BSC ' Win. CL V, '-Wl A,f, P-- / G"f� .A C ry 7` 6 EGtaim in,oives a ovat trrodud i*nl y praduc : - How many of product so7rl`( lease fhx product mix) Af claim wolves object to food; Mo saw it? Do you give the abject? Rmduot and 4 lierlVmZar name. .Est414-alimitn amber.fs�ndinvoke) L Was i�and taketl fi m scene? A (', Where takes? Describe 4uy -- WSChoVia �nSt.• .,;. WiWess: Name Na= ,A.Uxen Address City,ST ZIP Cky, S`l:ZIP ' Phow( ) - - Did azy LzMloyees witness itacideW7 RUORTED BY; RFPORT D TO: Y ( MGR.ON DUTY riot);'Poi—r-T` MGR,HOME PHONE ) 2 —t x� Mamgcr ca ads:(i�dicafa r¢mcal aid��',atc.y _ COMPLETE TM SFEnON ONL3lIk'MID ENT WAS,A FALL Cond tion oftloor; Weatlrr conditions: Who kispeaed fbor? Last the of axes ims ectiori or>ox to incident xlam et Joyee : Type of shoes:Flats Sandals Heels(indicate haigiA) Hoofs ~.. Shoe sod coz'op4sition: :Pi XA.SE FAX REPORT TO(8 0)288-9Q19 (AN 0 NUMB A CO PY 0 1<TM JD AYs•S CHWU)LE} f ACHO 7 IA INSURANCE SERVICES ICES TIM WORT IS TM PROPERTY Old O TNACK S'TEAIME,INC.OPERA'YIM iFORM TO BS COMMETIM]BY 14ANAM OUSTC}IvM NMENT RIVORT D�tc�'�ime of ltioi ! 1Vama of' erred ,- Addreaas Tel neee1Yri 6l� Wz C3 ff d M Alm of. �`. Lssa aXkLoWa'E T� tfdYS n .tww wslv+�x,a aa+t Ra►du r axe arm raducc$ON � a�z ra,�car,n �t�a�t In Tvrs a� �food: i►�i�say!rP �---- Dvy�rg lau+ta tha Qbl�trt? - E Wisi6ma -.*U ib04 sweat invoke) — �as- urai rakczy.fzom sccnt? � Wha.:►ra tak�u ' WitaaSe: Nxma --- - —--- -- -- Mine . � T ELF ciy,ST w -- - -- - I� ACS wiAaeaa' c� ' Mls CJ:►itL tint: 1 ar WMV� Ott: 100*if ald£ar e. ' COhtl'�.�1° �ECTX�til�t t)r4LV# `j iCll? 1C'�1ffAS FALL tics, cor: w teiKtr cvr� Lis of rcxa i eet�an� T cider: a�+ lgYoe . e of th�a:Ftaz� �£+r� cnzc#�i BQ+ass Shoe sole 6 4 osia PLWIM FAX*S ? 0 tw S 61; s wctum A'CdpY ar my PAY'S SCMY )n Wachovta Insurance Snrvico. SAM 2 2 2008 TO/to �9td 3SnOHXV3 LS >f3CS1ft0 69�9p,c�8T9 65,'TZ 800Zf6ZlT9 ', f i� ', ',� !•. �. ..•.yam-..,... k ILIAV trtsttRMCP a RIsx MANAG 3PECtAL Rf31C St3E{VICt'S THIS W01T is TO PROPRR'1`Y•s0k--,:.0UTB,ACK•STEAKJiOUSE,IN C. FORM TO BB COMPIX. %D BY MANAGER T9ij Torre is mitd ow ai Uu roqut4l of tlull&ak SivAlKhoust legal eoOntol U flit N umber. Phonic Datorrimc oflacident: " -AM Phi NameoflWi3red ps rt 'Ad dress' Tole hotte,HoMe QA WOlk A90 of• nred art 0 Lflcatton bf Incidotl[t � React' lion• -, l claim involver a aor! -mfgol-idento product: linty m a ul ofpra dvct cold lease f ax product mix): If claim Involves 0 U 3a La od, Wbo saw itr: Do Z#U have Ilre ob el? Product and Su lierl'ettdor same: EstobliBAmens member: iexd Invoice)rr� :ti Wes iA ured laken from sl:arwI j '' '1 fie re-take a? Describe injury-. W ltuess: N amo N ame A4dress Addr >I>l ' City, ST ZIP .City,S T ZIP Pf�ansf • ..Phone �� • t)id any employees witness incident? ItEPOR7ZD EYi REPORTED TOt V2 MOR,0 AUTY(P in Yt 9GR,KOME PHONE BE SURE WR KNQW WHO )Ei biDIXV Till; INCIDENT WITH THE CLA-- ANTE S anagor comment s:(indic`le if meal paid tarfetC.) COMPLETR THIS SECTION ONLYIF INCIDENT WAS A FALL Conditloo of floor: Weather ccnditions: Who lna lsetad floor? Last limo of area Inspection ptior to incidonf name em• `V Type of shoes;Irlgts Sandals Heels indicate W ht Boots shoo sole com oaition: PLEASE FOX REPOR T AND THE DAY'S SCUD TO ( 1 3)288-to 14 b oft Be pkad 8/98 1 'd 6l.0j5tL985 �SOOHIVKS XOVoino lad 80180 UOU-01-dlS .7: l T.PO REPORT IS TOR PROPERTY OF OMACKMA IMUSE J ORM TO BE COMPLEMD BY MANAIMR This pis Mod but stihe iKucat o£OaibackSmglebause,luo.legalwt=et CUSTOMRINCEDENT REPORT Unit Number: Store�li,Qds P�iatte; (561)'195-6b63 Royal PAhm Beam IFL 33411 ]3at.UTims of 7noi,nt !kf A Nama of W=ed Pmt y: t �„ Addrrss: TcI na:Home �{, ) $3 �• Work ' A m of• 'g*— LocetfottoLUlddmt: 53v FUE u �nG hy-r 6,,rvni r` t claim in�mtvas a ood rod��ct-ideal' rodu :; Row Hain O md;wsold 6vkasef=M rlrec!7mpr I c?atnr tnvo es nb actin uad: R�]rn raw ft? Do have rho o&W? .Product atui SuppUurNendor name: �stabttshmew mnibexr send ft mice Was iii Bred taken from.scene? Where C&m? Demcn'be in' w tncsa: Name 9=0 Address Addoss MLST ZIP _Qy,ST W Phono t Phone Did aa1 emplo ss witnss imident? IMPORTED Ily; REFORM TO: MM ON D•i3T7t rin PR.ONZ: 1 n ' Ivlana cau�,ments; indiestc if meal aid for etc.} c, Ct'1 COAII'LEFE TMS Sr=IOK ONLYIP INCIDENT NVAS A PALL Conditian of door: W'eatbcr=ditions; Wbc' meted floor? fit. IAA tfmo of atoa inspection plior to ieidont Ilmo C Ioyce: w Tzer.of shoes;mats saudeb Recls indica4ohei t Boab3 49 Shoe wlo soul osikon: MAY PLRASE FAX MOAT TO(613)788-8019 TOjTo 35Vd Z9ZLSCoL143 S zzlU 60OULL1SO r. DAVIS B iL DWIN INSURANCE&RISK MANAGEMENT THIS REPORT lS THE PROP)RTY OF OUTRACK STI=AKHOUSE FORM TO BE COMPLETED SY MANAGER WS ftM U 0W Out at the Xfgtmt of OUdwrk Steakhouse Ugd Counsd CUSTOMER INCIDENT REPORT Unit Number: Phone: ) DatelTlms oftrltrident: 7 10 foq I r A 1PM Name of iii ured Party: Address: JZZ rtsbv 17 Telephone: Homo (-.t-L Work: ( } Aga of Injured Party: �5 S Location of Incident: Dev rlption: Ce bltach�t :, �• :farVirts° Product&SupplieTNendor Name: Was injured taken from sctne? Where taken? Desoribe Injury: Witness: giant-, ALI po#&L Name: ; •Address:�2 j �ea.,� �� Address: ; City, ST, Zip; , l- CRY, ST,Zi• : Phone: Ot } ,I Phone: Did any emptoyees witness the incident? REPORTED BY: -REPORTED TO: • , MGR.ON DUTY{Print: �' a J MGR. HOME PHON15:e7a1 -zog 147,q Manager Comments: (indicate-if meal pals for, etc..) Condition of floor: Weather Conditions: Who Inspected floor? � Last time of aroe inspection prior to incident(name wployee): Type of shoot: Flags Sandals Heels(indicate height) gn its Shoo sole corn osition: Jeffrey B. Engle, Esquire Or- r THE Pr;O7Nu"l G') 41: if Attorney I.D. No. 76644 20 1 3 R JY 2 I PM 14. 8 f SHAFFER& ENGLE LAW OFFICES,LLC 2205 Forest Hills Drive, Suite 10 CUMBERLAND COUNT, Harrisburg,PA 17112 PENNSYLVANIA 717-545-3032 *phone 717-545-3083 *fax jeff @ sh afferengle.com SARAH DICOSTANZO and : IN THE COURT OF COMMON PLEAS ANDREW J. DICOSTANZO, : CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, • CARMINE J. DICOSTANZO, Plaintiffs : NO. 2012-01199 • vs. OUTBACK STEAKHOUSE OF : CIVIL ACTION—LAW FLORIDA, LLC, Defendant : JURY TRIAL DEMANDED TO THE HONORABLE EDWARD E. GUIDO, JUDGE OF SAID COURT: UNCONTESTED MOTION TO SET DISCOVERY SCHEDULING ORDER, 42 PA.R.C.P. 4003.1; CUMB.CO. LOCAL RULE 208.3(a) AND NOW, this`L' day of November, 2013, comes the Plaintiffs, by and through Counsel, Shaffer& Engle Law Offices, LLC and respectfully avers as follows: 1. On or about October 3, 2011, a Complaint was filed in the above-captioned matter by the Plaintiffs. This matter was initially filed in Dauphin County and later transferred to Cumberland County by agreement of the parties and Order of Court. 2. The Complaint filed in this matter has a count of negligence, the negligence count avers that the Defendant's were careless and reckless with regard to the maintenance of a door contained in their facility located at the Outback Steakhouse location at 25 Gateway Drive, Mechanicsburg, Cumberland County, Pennsylvania. 3. After the filing of a Complaint and the Answer filed by the Defendants, the. parties have engaged in discovery in good faith. 4. It is believed and therefore averred, that a dispute arose as to the discoverability of prior Complaints received by the Outback Steakhouse regarding "finger pinch incidents" on the inside of the restroom doors. (See copy of Motion to Compel pursuant to Pa.R.Civ.Pro §4003.1, 42 Pa.C.S.A. filed on February 13, 2013.) 5. It is believed and therefore averred,that based upon the Motion to Compel, The Honorable Judge Edward Guido scheduled a Hearing on March 5, 2013. 6. It is believed and therefore averred, that subsequent to the hearing on the Motion to Compel and the argument of counsel for both parties, This Honorable Court issued an Order dated March 5, 2013, which required the Defendants to provided a list of all complaints and/or incidents involving "finger pinch"matters for the five (5) years prior to October 25, 2009 (the date of the incident). 7. Since the date of this Honorable Court's Order, it is believed and therefore averred that the Defendant has provided the Plaintiffs with a list of incidents that have occurred for the five (5) years prior to October 25, 2009. 8. Since the list of incidents have been provided to the Defendants, the Defendants have additionally requested a copy of the complaints filed in each one of the matters listed by the Defendants in their court-ordered response. 9. It is believed and therefore averred, that since May 21, 2013, the Defendants have yet to receive copies of all fifty-four(54) complaints pursuant to the normal course of Discovery. 10. A Motion to Compel Production of the fifty-four(54) complaints was filed and served upon opposing counsel on or about October 4, 2013. 11. This Honorable Court issued a Rule to Show Cause upon the Defendant by Order dated October 9, 2013 granting the Defendant twenty(20) days to respond. 12. The Defendant filed a Response on or about October 18, 2013. In the Response it indicates that the Defendant is in agreement with a scheduling order, however, not to limit the production of the additional documents to less than ninety (90) days. 13. The Plaintiffs have sought the concurrence of the Defendant, and the Defendant is not opposed to the entry the Scheduling Order in the form attached hereto. WHEREFORE, the Plaintiffs respectfully request that This Honorable Court enter the uncontested Scheduling Order for the discovery requested by the Plaintiffs in the form attached hereto. Respectfully submitted, Dated: /492A/ Jeffrey. 'n e se -,_ SH• " ER& ENG E L• W OFFICES Attorney ID #7664• Shaffer & Engle Law Offices, LLC 2205 Forest Hills Drive, Suite 10 Harrisburg, PA 17112 717-545-3032*phone SARAH DICOSTANZO and : IN THE COURT OF COMMON PLEAS ANDREW J. DICOSTANZO, : CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, • CARMINE J. DICOSTANZO, Plaintiffs : NO. 2012-01199 • vs. OUTBACK STEAKHOUSE OF : CIVIL ACTION—LAW FLORIDA, LLC, Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Uncontested Motion To Set Discovery Scheduling Order was served by means of United States mail, first class, postage prepaid, upon the following: Nicole R. Cohen, Esquire 400 Market Street, Suite 730 Philadelphia, PA 19106 Attorney for Defendant Dated: l( Z/� i 37 Jeffre /r gl •sq•ire SHAFFER& E ,G LAW OFFICES Attorney ID #7..A 4 Shaffer& Engle Law Offices, LLC 2205 Forest Hills Drive, Suite 10 Harrisburg, PA 17112 717-545-3032*phone SARAH DICOSTANZO and : IN THE COURT OF COMMON PLEAS ANDREW J. DICOSTANZO, : CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, CARMINE J. DICOSTANZO, • Plaintiffs : NO. 2012-01199 vs. • OUTBACK STEAKHOUSE OF : CIVIL ACTION—LAW FLORIDA, LLC, Defendant : JURY TRIAL DEMANDED =r�ra cr>r ry cJ SCHEDULING ORDER , AND NOW, this ay of AM Y ter 1b?f L,2013, it is hereby ordered and decreed that Defendant has ninety (90) days from October 18, 2013 to provide the Plaintiffs with the documents requested in their discovery request dated May 21, 2013. Failure to abide by this Order may result in court sanctions, such as fines, attorney's fees, court costs, filing fees, and such other relief as the Court deems fair and appropriate. BY THE COURT EDWARD E. GUIDO, JUDGE Distribution /Jeffrey B. Engle, Esquire 2205 Forest Hills Drive, Suite 10, Harrisburg, PA 17112 i Nicole R. Cohen, Esquire 400 Market Street, Suite 730, Philadelphia, PA 19106 4;es ,'led ///,?-7/ 31 l Iii !1:P, 20 Ft! 3: ,iM Y\LMHU L ',.. PENNSYLVANIA Jeffrey B. Engle, Esquire SHAFFER& ENGLE LAW OFFICES 2205 Forest Hills Drive, Suite 10 Harrisburg, PA 17112 717-545-3032 jefash afferen t;le.com SARAH DICOSTANZO and : IN THE COURT OF COMMON PLEAS ANDREW J. DICOSTANZO, : CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, • CARMINE J. DICOSTANZO, Plaintiffs : NO. 2012-01199 • vs. OUTBACK STEAKHOUSE OF : CIVIL ACTION—LAW FLORIDA, LLC, Defendant : JURY TRIL DEMANDED MOTION TO COMPEL PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 42 Pa.R.C.P. 4003.1 AND NOW, this 20th day of March, 2014, come the Plaintiffs Sarah DiCostanzo and Andrew J. DiCostanzo on behalf of their minor child, Carmine J. DiCostanzo, by and through their attorney Jeffrey B. Engle, Esquire of Shaffer and Engle Law Offices, and respectfully requests that this Honorable Court compel Defendant, Outback Steakhouse of Florida, LLC, to answer a supplemental discovery request and in support thereof avers as follows: 1. A complaint was filed on or about October 3, 2011. The parties have been engaged in pre-trial discovery. 2. The essence of the Plaintiffs' complaint is that the Defendant was negligent in the manner it maintained their restroom door and acted recklessly because they were aware of the possibility of the incident reoccurring and did nothing to ameliorate the problem. 3. Plaintiffs served a supplemental discovery request upon the Defendant on January 7, 2013 via email, the request in relevant part reads as follows: "I would like to ascertain if prior complaints have been received by Outback Steakhouse (in general) regarding finger pinch incidents on the hinge side of their restroom doors. I believe I was clear in my prior request, however, after discussing the matter briefly in court, I wanted to reiterate that request." 4. Defendant replied in an Answer on January 11, 2013 via telecopier and ordinary mail, the answer reads as follows: Q7. Please advise if prior complaints have been received by Outback Steakhouse (in general) regarding finger pinch incidents on the hinge side of their restroom doors. A. Objection. The above request is irrelevant and not reasonably calculated to lead to the discovery of relevant, admissible evidence, thereby exceeding the scope of discovery set forth in the Pennsylvania Rules of Civil Procedure. Without waiving same, corporate headquarters does not have a code/database that would allow them to search for finger pinch incidents on the hinge side of their restroom doors. 5. Plaintiffs attempted to resolve this issue in good faith. 6. The Plaintiffs filed a Motion to Compel on February 13, 2013. 7. A discovery conference was conducted before the Honorable Edward E. Guido on March 5, 2013, which resulted in the Court issuing an order requiring the Defendant's to provide a list of all finger pinch complaints received by Outback Steakhouse of Florida, LLC for five (5) years prior to the Plaintiffs incident on October 25, 2009 within 45 days. (See Exhibit "1" at p. 8). 8. The Defendants provided a list of 54 finger pinch incidents at various locations throughout the United States that occurred at Outback Steakhouses on or about March 13, 2013. (See Exhibit "1" at p. 9). 9. As a result of the list provided, the Plaintiffs requested a copy of all complaints that were listed in the Defendant's response on April 22, 2013. (See Exhibit "1" p. 10). 10. The Defendant did not immediately provide the materials requested, however, a second Motion to Compel was filed on or about October 4, 2013. 11. The second Motion resulted in a mutually-agreeable scheduling order being entered by the Court on or about November 22, 2013. The Defendant has since complied with the request of the Defendants and provided the internal complaints. (See Exhibit "1"; Sets One and Two at pp. 11-40). 12. The Plaintiffs are seeking additional information regarding some of the incident reports. Specifically, those which appear to be substantially similar to the incident sub judice. The information regarding those incidents was initially sought via email on March 3, 2014 and followed by a written letter dated March 7, 2014. (See Exhibit "1", pp. 1-3). 13. The Plaintiffs are specifically seeking the following: Can you advise as to the type of door, manufacturer, type of control arm, model, serial number for each door in both Sets One and Two? (See Exhibit "1" at p. 2, paragraph 5) 14. It is believed and therefore averred, that the request is reasonably calculated to lead to the discovery of admissible evidence. Pa.R.Civ.P. 4003.1(a)(b). Discovery should be liberally allowed with respect to any matter, not privileged which is relevant to the cause being tried. George v. Schirra, 814 A.2d 202, 205 (Pa.Super. 2002). 15. Instantly, there is ample evidence to suggest that the Defendant was aware that its restroom doors could have caused injury. However, it is unknown at this point whether the doors in question(Sets One and Two) are, in fact, similar to the door in the case sub judice. 16. There is evidence of record which suggests that the form, fit and finish of all Outback Steakhouse doors are the same. (See Deposition testimony of Michelle Shivers, owner/manager of the Outback Mechanicsburg location; Exhibit "1" pp. 41-42). 17. It is believed and therefore averred that the Plaintiff would be able to prove through an investigation by its expert that if the doors in some or every case supplied in Sets One and Two are similar to the instant case, then the Defendant was on notice of the defect and acted recklessly. (See Plaintiffs' expert report generally, attached hereto as Exhibit "1" at pp. 43-47). 18. It is believed and therefore averred, that the Plaintiffs' request for supplemental discovery on the doors in Sets One and Two is reasonably calculated to the lead to the discovery of admissible evidence. 19. Further, the Plaintiffs expert could limit the scope of the additional locations provided for door accidents if the Plaintiffs were made aware of whether or not the doors in some or all other cases are the same or substantially similar. (See Exhibit "1" pp. 51-57; Defense counsel's letter of June 12, 2012 identifies the type/model of door and manufacturer of the control arm; this is sufficient for the instant request, See Exhibit "1" p. 3). 20. It is believed and therefore averred that this Honorable Court has the authority to compel the Defendant to answer pursuant to Pennsylvania Rule of Civil Procedure 42 Pa.R.C.P. §4003.1 (a) which states a party is permitted to obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. 21. Finally, it is believed and therefore averred that Courts have the power to impose sanctions upon non-compliant parties pursuant to 42 Pa.R.C.P. §4019. Plaintiffs are not requesting sanctions, however, that determination is as always left to the Court. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] WHEREFORE, Plaintiffs respectfully request that this Honorable Court dismiss Defendant's objection to Plaintiffs' supplemental discovery request and order Defendant to answer the supplemental discovery request, requesting additional information as to each door in Sets One and Two as supplied by Outback Steakhouse in regard to finger pinch incidents. Respectfully submitted, SHAFFER& ENGLE LAW OFFICES, LLC Dated: 3/7-6 Jeffrey : ,.le/" •uire Attorn-y ID #76644 2205 Forest Hills Driv-, - • e 10 Harrisburg, PA 17112 (717) 545-3032 Attorney for Plaintiffs SH A F F E R E N G L E Jeffrey B.Engle,Esquire jeff@shafferengle.com L AW F F I C E S , L L 1. Elisabeth K.H.Pasqualini,Esquire eisabeth @shaflerengle.com Millersburg Office: 2205 FOREST HILLS DRIVE,SUITE 10 512 Market Street HARRISBURG,PENNSYLVANIA 17112 Alyssa H.Knisely,Esquire Millersburg,PA 17061 alyssa @shafferengle.com Telephone:(717)545-3032 Fax:(717)545-3083 Allen Shaffer,Esquire (1927-2009) www.shafferengle.com www.pennfamilylawyers.com March 7,2014 Attorney Nicole R. Cohen Briggs Law Office, LLC 400 Market Street Suite 730 Philadelphia, PA 19106 RE: Ongoing Discovery Requests; Dicostanzo v.Outback Steakhouse of Florida,LLC; 2011-cv-9485-CV; Cumberland County Court of Common Pleas Nicole: The purpose of this letter is to formalize and outline my prior email request for further discovery materials relative to past incidents involving your client at various stores throughout the United States. (See copy of email dated March 3,2014 attached hereto for reference). As you are aware,the basis for my client's suit against Outback is that they were negligent in the manner the restroom door was maintained and further, that they were reckless in that the Defendant was aware of the issue and did nothing to fix or ameliorate the concern. (See generally Complaint filed October 3,2011). My client made a supplementary discovery request on January 7,2013 via email which provided: I would like to ascertain if prior complaints have been received by Outback Steakhouse(in general) regarding finger pinch incidents on the hinge side of their restroom doors. I believe 1 was clear in my prior request,however,after discussing the matter briefly in court,I wanted to reiterate that request. (See Plaintiffs Motion to Compel filed February 13,2013). In response to my client's request,your client objected on the basis that the request was not relevant or reasonably calculated to lead to the discovery of relevant,admissible evidence,thereby exceeding the scope of the discovery set forth in the Pennsylvania Rules of Civil Procedure. Without waving same,corporate headquarters does not have a code/database that would allow them to search for finger pinch incidents on the hinge side of their restroom doors. Id. at paragraph 3 of the Motion to Compel. As I recall,you also further asserted that prior incidents from other locations are not"substantially similar." (See correspondence dated February 7,2013). EXHIBIT 1 1 Page 2 of 3 Following a discovery conference on this issue on March 5,2013,before the Honorable Edward E. Guido,an order was entered on the same date that required to Defendants to provide a list of all complaints and/or incidents involving"finger pinch"matters for the five(5)years prior to October 25,2009(the date of the incident sub judice). (See Order of Court dated March 5,2013 attached hereto). A list of fifty-four(54)incidents was provided to the undersigned on or about April 22,2013. (See copy of list attached hereto for reference). By letter dated April 22,2013,my client requested additional information based upon that list provided. To wit: 1) A copy of the original complaint filed in each matter; 2) The docket number,Court of filing,and date of filing,if not included in the complaint; 3) The name and address of the Plaintiff,if not included in the complaint;and 4) The name and address of the Plaintiffs attorney,if not included in the complaint. The requested materials were not immediately forthcoming and second motion to compel production was filed on October 4,2013. That motion by Plaintiffs resulted in a mutually agreeable scheduling order dated November 26,2013,which provided that the Defendants had 90 days from October 18,2013 to provide the materials requested by the April 22,2013 letter. The Defendants have since provided my office with additional discover/which appears to be incident reports to the insurance carrier similar to the one formulated in my client's incident. Among those reports,I have identified several that appear to be substantially similar to the case sub judice. In response to those additional reports provided,the Plaintiffs have sought via email dated March 3, 2014 as follows: Can you advise as to the type of the door,manufacturer,type of control arm,model,and serial number for each door in both Sets One and Two? (See email and reports identified as Sets One and Two attached for reference). Based upon the initial concerns outlined by your client in its response to the first motion to compel and your letter of February 7,2013,I am specifically attempting to identify whether the doors in each of the prior incidents are of a similar form,fit and finish to the door in this case. Further,my understanding from the deposition of Michelle Shivers,the manager/partner of the Outback,Mechanicsburg location indicated that "corporate"designates all the interior finishes to be used at every location,including doors. (See Notes from Shivers'deposition on February 8,2013 at p. 11). As you know, it is my expert's contention that this is not simply a!heavy door case." Rather,that a finger pinch guard should be installed on these doors where they are of a certain weight and have a closure mechanism that can exert an extreme PSI on an appendage when it is placed into the hinge. It would appear to me,therefore,that knowledge as to the type of door,manufacturer,type of control arm,and serial number for each door/arm is extremely relevant and probative of the Defendant's mental state and awareness of this potential for harm. (See my expert's opinion dated October 12,2012; 8 pages with attachments). You have previously provided me with the identical information for the Mechanicsburg location that I am seeking for each of the other incidents specified. (See copy of correspondence dated June 12,2012 with attachments; 7 pages). I fail to see how it is unduly burdensome when corporate presumably controls the type of door and control arm being utilized at each and every store across the U.S.. 2 Page 3 of 3 I would propose that your office either provide me with similar information on the incidents selected or stipulate that the type/model door used in every location is a"solid core wood, stain grade"with a"Norton 1600 Series"control arm. Kindly reconsider your prior objection and provide me with the additional materials sought in my request of March 3, 2014. I will await your formal response. Be `egar e,:, . Je y : n� e, '� Copy: File Client i 3 if Engle m: Nicole Cohen[ncohen @thebriggslaw.comj it: Tuesday, March 04, 2014 4:14 PM Jeff Engle Oct: Dicostanzo v.OBSH esponse to Plaintiff's additional discovery requests set forth in the email correspondence dated March 3, 2014, endant objects. Defendant objects on the grounds that these requests are burdensome and irrelevant.These uests are not calculated to lead to the discovery of admissable evidence, and seek information outside the scope liscovery as permitted by the Pennsylvania Rules of Civil Procedure. his time, Defendant has complied with the Judge's Order dated November 26,2013. At this time,we would like nove forward with the Motion to Dismiss Punitive Damages. nk you for your attention to this matter. )1e R. Cohen, Esquire gs Law Office,LLC Market Street 730 idelphia,PA 19106 925-4632(ph) 925-1611(f) Roosevelt Boulevard 201 mora,NJ 08223 390-9600(ph) 390-5950(f) n:Jeff Engle[mailto:Jeffeshafferengie.com) t: Monday, March 03, 2014 12:22 PM Nicole Cohen 4ndrew DiCostanzo ject: ortance: High le-I've attached hereto several of the incident reports from various Outback locations. I would like to schedule a time to k to the managers of each facility in both sets of incidents I've provided. There are at least three in Set One that I would like we my investigator visit in order to take photos and make observations. Perhaps,we could schedule a time for a review of e sites after speaking to the respective managers? jou advise as to the type of the door,manufacturer,type of control arm,model,and serial number for each door in both One'and Two? await your responses on my request to conduct an interview(phone only)of the managers at each location listed in Sets and Two. rds, 1 4 Efrey B. Engle, Esquire affer&Engle Law Offices,LLC rrisburg Office: Millersburg Office: 15 Forest Hills Drive,Suite 10 1 512 Market Street 1 Millersburg,PA 17061 rrisburg,PA 17112 PHONE(717)692-2345 ; FAX(717)692-3554 ONE(717)545-3032 1 FAX(717)545-3083 s email contains PRIVILEGED and CONFIDENTIAL INFORMATION intended only for the use of the recipient named above. information may contain confidential information protected by the attorney-client or other legal privilege and/or may be tected by state and federal laws,including,without limitation,the provisions of the Health Insurance Portability and :ountability Act of 1996(HIFAA),which prohibit unauthorized disclosure.If you are not the intended recipient,you are eby notified that any use or dissemination of this information is strictly prohibited.If you have received this email in error, ise immediately notify the sender by reply email at the address provided above or by contacting Shaffer&Engle at 717-545- 2 and delete this message without copying.Thank you. his is a client of the firm of Shaffer&Engle Law Offices,LLC,you are hereby notified that official action(s)requested by. dl may not be acted upon unless you speak to an attorney personally. 2 5 2013-Feb-07 12:45 PM Gene Cortese ESQ 2159251611 2/3 11■1('C'- 1 1 t-1 ()1,1?F( ( _._+ February 7,2013 VIA TELECOPIRR AND ORDINARY MAIL ' Jeffrey B.Engle,Esquire . Shaffer&1041.e Law Offices 512 ttarket Street Millersburg,PA 17061 Re: DiCostanso v. Outback Steakhouse of Florida,L:.0 No. 2011.ov-94854V Dear Mr. Engle: I am In receipt of your correspondence Febrrtazy 5, 20 regarding the below discovery request and response. I disagree with your argl , ant regarding relevance. Prior incidents are only relevant if the incident 0 substantially aimiler. Other Outback locations will have different brands of do. e (as stated in our prior discovery response A6. January 11, 2013), differ=ant door arms, different age of the door, different lay out cf the restaurant, e .. The potential prior incidents from other locations are not asuubetantielly ••' = •under the law and are not relevant or admissible. Kiev .,.., _0 , =.= Inc. 455 Pa.Stperr. 256, 687£24 1157(Pa.S: . 1997) I That being said,the more pertinent issue here is that C orate is unable to search for prior Eger»pinch Incidents at other locations, Th re is no way to, condtuct a search based on Plaintiffs request (Q7 as stated belo '). If you would like to file a Motion or seek judieial intervention, then please fe free to do so. Please let me know as_soon as possible If you plan to take tba. roue so that I can push.bao' the Moro.to Dismiss Punitive Damages.... if you 0 file a Motion, however, the response from Defentdant will be the same in front ,f a Judge as it is to you; corporate 13as no way to narrow down incident rep to pursuant to Plaintiff%request(Q7 as stated below). Q7, Please advise if prior complaints have been reoeiv by Outback Steakhouse (in general) regarding finger pinch incidents on hinge aide of their restroom doors. A. Objection. The above request is irrelevant and lot reasonably calculated to lead to the discovery of relevant, admissible e, dance, thereby exceeding the scope of discovery set forth in the Pennsy'dvanl Rules of Civil Procedure. Without waiving same, corporate headquarters d s not have a code!database that would allow them to search for finger pinch'• 0ide.uts on the hinge side of their restroom doors. 'At this time,please advise if you intend to file a Motion wi regard to the above request. If so, please advise if you would have any a jeetion to the adjournment of the Motion pending for February 15,2013. I I Q RoCeitvsLT 5OLH YARD •Surrr 201 •MARNORA,NUJ 09223 •C609)390.200 •1'AX: (0051 390•5950 300 WIwNUT enteEr •FHILAD6LPNIA, PA 19105 •(210)925.4532 •Fax:(2I e2 925.16 I 1 W W,TN2@RIGOSIAw.00M I 6 2013-Feb-07 12:45 PM Gene Cortese ESQ 2159251611 3/3 `hank you for your prompt attention to this matter. Very Yo a NICOLE R. CCHEN Dec]DlirtoJ.8 peof2.7.9013 • I , I , . I www.meoniaaau►w.eoM 7 SARAH DICOSTANZO and IN THE COURT OF COMMON PLEAS OF ANDREW J. DICOSTANZO, ,CUMBERLAND COUNTY, PENNSYLVANIA. Parents of the Miner Chilr , CARMINE J. DICOSTANZO, .. ' _ . Plaintiffs : v. NO. 2012-1199 CIVIL TERM OUTBACK STEAKHOUSE OF FLORIDA, LLC, CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this 5th day of March, 2013: the Defendant shall provide ,Plaintiffs with a list of all complaints and/or incidents involving finger-pinch matters for the five rears before October 25, 2009. If`the Defendant feels that it .—'would be ..unduly burdensome to try to search its records for all such incidents, it may comply with this Order by providing Plaintiffs with a copy of all complaints filed in court against it for the five years before October 25, 2009. The information to be provided within 45 days of today's date. By the Court, Uj 31-11 E war E. Guido, J. p rip Jffrey B. Engle. Esquiie < .$ o Attorney for Plaintiffs 321'0_ 14 °rq Nicole R. 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S>> s = - 3:r R.: ? ..3•xxa -.�-_=a" 9I o07 c 7 a m 0 3 m 3'_ 'D 3 3 3 O a 3 3 3 3 1z1=-. = a2-= ,3 3 ' 5, 00 _' _QQ.. g 7 i 3'M g a c'.a S I §' a$ a . o a i a a 7. m a g r, 54 3 g a5• "da magn g , 8 ,9, 96-18g,,1 gR° a gaa$ 8 . E8° °s4 ' Ef_a1D o R . l IS I 1 s ag € g • 13 fiI 3 g. 07,81.• 0 g 1 11' ! 1a , g 1 $ m I. g a . 3 3 la g la o i 8 , i i - g o I • 3 a a I I g I . 11 Iii i i � i III 1 a 1 I 1 i 1 � � I 1 m ' I 9 SHAFFER E ' G °' E Jeffrey B.Engle,Esquire T�v jeia shafferengle.com LAW OFFICES 5 LLC Elisabeth K.H.Pasqua!ini,Esquire elisabeth @shafferengle.com Millersburg Office:. 2205 FOREST HILLS DRIVE,SUITE 10 512 Market Street HARRISBURG,PENNSYLVANIA 17112 Alyssa H.Knisely,Esquire Millersburg,PA 17061 a!yssa©shaferengle.com Telephone:(717)545-3032 Fax:(717)545-3083 Allen Shaffer,Esquire (1927-2009) www.shafferengle.corn www.pennfamilylawyers.com April 22,2013 Nicole R. Cohen,Esquire Briggs Law Office,LLC • 400 Market Street Suite 730 Philadelphia,PA 19106 Re: DiCostanzo v.Outback Steakhouse of Florida,LLC No.2011-cv-9485-CV Dear Attorney Cohen: • Please be advised that I have received and reviewed your last of incidents involving finger pinch matters for the five(5)years before October 25,2009 pursuant to Judge Edward E. Guido's Order dated March 5,2013. I am hereby requesting additional information regarding this list: 1. Copy of the original complaint filed in each matter; 2. The docket number,Court of filing,and date of filing,if not included in the complaint; 3.. The name and address of the Plaintiff,if not included in the complaint;and 4. The name and address of the Plaintiffs attorney,if not included in the complaint. If you would,kindly provide this information to me within thirty(30)days of receipt. You may certainly provide the document to me in PDF form via email if it is easier for you. Sincerely, SHAF"'" ' '- e I LA , ' IFFICES �• / Jeffr- .B•gle,'E 4uir- JBE/vjs . Enclosure C: File Client 10 ., . .....-s.:-.\-,...'x... 0): , s � rv, . } .r t`1 ', t # ;y0.4y . t tiY - ' 4.4ierriiii 4.,''_,..„ -• 'y Ott '� jj v {i , , ti r te a,'' Who ocavie \ 1d rte• et �;, 1. : �qp'^-• t Fns-a S .141131. Ole" 1f � ST QAi .+.."'*‘ Ditt 4 4e„R 4A *i ,,� .,,.X14 iel'' , 044.1 ul t OS , • G4 ", Iv,. � . s - �t� T WW {iyF yV1�.�) . � 1 1 1i1 _w/ Q ,, ,. a /_ /At tittle tiu5" 1 . «.. 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Was ,; , , ,tom scene? .4 IF W babe 1 I `,..? Doe% ,L.,,-: ..--- . Awn- ',lb Nam..■...---...117•1111...... . .When: X' . NOW .• •••••■■■•••••••••ffisiS.:• .... . I■ 1..... ik-, • ,, ,,t i PhOn0(_ • ,. . '•::.: v+ ••......,, •' WOW Incitione. ik :i ....... :,::.•: .. . vAiraia--dmwmirez‘mai ,1 Lt. • ... - maw Fill 4, ---13Iara.vP:It:=.4 '-,p,.11,1; 1,, 1 Nora 1,....„ ___ - , - -, r- ,,.-, If,, ,, • • 41140. . lox. ••••■■■ 411111=111M, _ . . . ...........S .011MAIL........4CIIONTEGS OPIUM?JNO:ONNT WAN A PAU : • • . • CalleiCS officer . wader,- .,, ; ' . . W h.....o ..........._.-.....-----.--,----i------,idad .. ...;.. Last**Mai , -,,,• •0-to io nt am ,,• • .. : .----- ..e..N nod, - "C. ;"' ■,, , e Sefftke . ......- ___,________ - ,,,:... ----- . .- -,----..rr,7t7sols .. =AU ICAlt WORT TO 013)28841119 APR 201007. : ,• " . (414DINCIMMACOPY orris avra acargia . . • . • • ' . .. . . .. "• •. ' :•:. :•.::.... ::....,......:. V., . • • • .• • .. . , . . . i.w.,,..w.,:„....i.;.,Z1.1;t1.5.4.1.1:,,t.:;.41.,:it:t.t..:*;../:0::•.■:.):.:N.:.....,...-■:•.:4.....,•'.•••■•.::.%..'.'.....:,:•.:A:N.;,...•.4,...}....x,..:4:4••;,,A,s.e,t,tg,....„3„t,,,.:,,s,31?:.,1,A:,h,,:geaAi",g.gxal ., • ..•. ,,,,. Set 2 - Page 2 21 •: L r INFONET..OSr To "INFONE'i-0$16<oeltnsurancetnioawachovia.cona, costiaswanoeinM @wacho:rie. gym> ac 03/14/200811:46 PM boo Subject Ciueet Incident Oisin!Conn entitydame: Outback UnitMumber: 1025 Phone: 863-295-9800 Datexncident: 3/14/08 10:55 AM: PM InjuredName: Maureen Renick Address: 2057 Bonniedale Drive City: Heibrook State: OH PhoneHome: (937)848-6235 PhoneWork: ( 937)474-8648 Ageinjured: 56 Locatiolcident: Ladies Restroom Description: Customer was coming out of restroom and slipped as she was opening-the door and went to brace herself and caught her finger in the door. The door then slammed on her finger resulting in a cut. IdentifyProduct: Productdold: Who5awOb j ect: PtOductName: HatablishmentNumber: InjurdTakenFromecene: No PlaceTakenTo: Describexnjury: About an inch long deep cut on the front of middle finger on left hand. WitnesslName: WitnesslAddress: Witneseleity: WitneeelPhone: ( ) Witness2Name: Witness2Address: Witness2C!ity: • Witness2Phone: ( ) HmployeeeWitnessRocident: No ReportedTy: Jenny MacDonald ReportedTo: Lauren Caotes ManagerOnnDuty: Lauren Cootes ManagerPhone: (863) 412 2221 ManagerComments: No employees witnessed this accident and when it ooauxred, the restaurant was close to empty so there were no customers who witnessed the incident either. I want out to the bar and spoke to the woman and she had wrapped her finger in a green bar towel. When she unwrapped the towel I could see a deep out on her finger. x offered her bandaids and neosporin, but she and her friends said they were going to the hospital to see if she needed stitches. • Floor Condition: dry WeatherCondition: Rainy FloorinspectedBy: Lauren Calcites FOR Manager I Las tFlcorZnapection: Brand Schlander 10:50 PM t/�dto+tla insurance • TypeofShoe: Flats ���,� � — FallBhoeHeight: • 'SnoeComposition: Rubber sneakers • Set 2- Page 3 22 - . . • . • • ' •'''- . . . ,,. . . . • ' . . . , . - ••• .• .,--:,,."--,,-,. ...f.- - - ',•-i„....,p.lr-git,h-,-,..,t,,,4,,,,,liker,'",•_4.4 .i,0 im its i• ' Tanya.a"MIS REPORT le THE PROPERTY OF OUTBACE STEAKHOUSE Tel 813 2871938 FORM TO BE COMPLETED BY MANAOSR •. •,-. tAir kric It MI ins ei 11,1I MING Of Ornbrek*WANG kW MOW CUSTOMER INCIDENT REPORT 111 thiltAtai . pt: 10349 phone 66o —, --oo.......— RgtEIme of a . . 1 • Ithilrik A Kim_ of I 6_ re - ,, ir 0 • offiRres • • .., . „ Add'', .i;• , MIMI ) gi . 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' ',1'. 11,-,1•' 't:Ts)'(4`114.fri'-0/ ' ' *.t, VI.i.1 Af 4c-114,Kik' Iti,IN, 7t'7.)1,1rACII. 1.4•4 d'fl f4611 Mjito.41■ticV, ,Irty.11S t.4..,,,p, * zli 1 t.1 vrl',..4{..4,Ftit .itSYliirti$W1-41,41;4titiV J.U.A.,Pti,tetRkk1PRIK*7 ,•jii.e._., ..Fr 1."Fp_p.,,,-.._, Atir-4; rt ••<I 47.1r;I;`,,, `,"'74YATirilafttM;Vit#1353at"fe-r0.:1'70':,,',7;1;:1L.4-11.1{141.4/1M11,f411414f,,, ::;.: !0v .... i,,,!, ,,, ,,,,,,, ,_,..... , ,r. , „.„... 4.1e-,,,,,Tr 4 . ••')' 1) N ' ii, • . J g 1.)-';.;5;q4t144;11'ThA fiA.i./Yr., ■,To.,tkU.■,,.1,,,?,41,...)1•,:;:.1:t. ViC47"11?takill.e.liU CI.1-4MM. .-71:t:/laYARICILITz.),11-,J41!4.4:,D',1 ',• leLSOiZ ,, 4 44 31,Cl'i■Ilt1117,j-trLIT-M:14W'C4002615tIttaVg.4,44%4•,.;1.41.t4 ' 41.1tZT151At'Alvtt '.' ' .4. , ::. PLEASE PAX RIEPOttf TO 1S1S)288-8010 ' PAY 14 nff . ;:,.... ,.. d... vortoov$2.,- urieli Stilt West Cyprese Sfroal P.41). (lox 2$3211 tamps.Pi. lift/ 41014711101 x OAR likilegotte iurorice Products! .-=---==• t Insured by Mt briny fiederto govemnumtAgeo---- o3-71------1—ivipy Lose Value Nola-Deposit of or Giiororit_Qiiy_aBook_otAny_BookAMITh7N-0__J ---= --- ,--- Set 2 - Page 5 2d - ti5 s A S•`+•4' .t,,s,,,, i. °s','t, �+ tiFr /Z 219 lfiiL xi 7 • '�� Y'-'-'f!/'k'''-..,R,is+ ..-'�.4 At 9!`aUG•.. �. r fir ,it `r` a' k Y� -ofd ``� �_. f Y *-/ 4_"41\jiror t1 Mir ,, A � . + �+ iiiirsoir: 411#174 irmtt .,.. - „,:omitip, ,.,.**0. /f • r r! . �A 1t4 fi` . /I "'�f maM. +yY.f' .. w.+�•;•ov(�s a.,., r, / (p A _ - ' i gi,-,8 � • J .,4W Dab M ' � r mfiy t 48 .. Wftifittreoypitt...._ .. iRr 11p xR '^`.� qtr:= itill .ale DAYS 8 tx 1 Set 2 Page 6 !'4. . N 1 ks 25 Wiffingilia TINS REPORT IS TM pitonRrY OF OUTBACK SUAIGI)JSE FORM TO BE COMPLETED EYMANAO ` W :40z0 r This foals MINI meat t erovedofOutback s ouse,Jaa•1a1 oa$e1 CUSTOMER INCIDENT REPORT e TOE r ,� Omit Number: s tore 'li 1 ■ '7 , ■ .. _k a PTa ae: _ 3$6.445.62gO 9s 11 ► '"`!'� > Sii7 Iii_ i Adch+eae: - _ :_. V" : Ik____ '.'": .� T. .J,, ::dome C.1.. . ° .- • - ;? 'jM1.1ratV:II Age Qturod IMP elb . : ., . Location of scident: f,is irr.r►' 1N►M..�O►t+!► �+ k IIIIIIIIIIIIIIII •,., ,!iLon: •. il►r■-• ` . '. ' aka _ ■ '.: "riiM M !'is ra MME "VirA. ari it 0 aft t4:t+olwu a ,,, , „ , I- -.-+;.f9 , /r, How • 3o •mkt sold ' . , r... rah*:involves object infood: Who saw la Do • havetha E., ea 1 Product ant .:1,.•,, ,endor nano: r ' :,,,. number: mid - Was ux dt from Whew tom? � ,,4-,�,. �. � y. . di* fir )*teats: sane T.e a. of%s ..ElR sale Address• Address p I" STVP t,L1 ST ZIP 0 Did , , _, „, , •-.svltnessinaldetet? w,. ∎i;.1 4riin 'J r' !'t•07 _ uu w ' w y ..,,1a:' , r ; ED TO, �,�t 11.1/ a V WEL ON DVTN W % ►'r�"'�I ,r ci' HO :r• P ON II 1 Ail op , . , COQ: >,. Meld I , fbr eta ■1 1.111111 1.1. . 11, granill .1 ar111111111■4114 Ili 111111111 111111.1111111111110111111 O r , _;TE TMS SECTION ONLY XFJNC t, m WAS A FAIL C.,. 'w of float: Weeks'condi, s: I Lad tneof Site ,J•,aeon! ■ _or t0'J•dent 1151110 '.J1, I ._e: i'.Of ,1 :Plats Sandals Heels indicate lei:J Boots 1 Shoe sole „,n, PLEAS FAX REPORT TO . 3 280019 ' 4<s :�*A at ' 1 CY''s\ ‘ i \ \s „---cy...u..3 u.= .•(t ` - C g rt,t ' 1. �s::;.,;,..; , b;,,a :,,,x:..:..,.,.••.•..,..,••... •r..r...... .. .... .Set 2 - Page 7 26 a l� h hF � e� �rtit aq4 • z it WAONOVA INSURANCE SERVICE`S THIS REPORT IS THE PROPERTY OF OUTBACK STEAKHOUSE,INC.OPERATIONS FORM TO BECOMPLBTSD BYMANAGEIt CUSTOMER INCIDENT REPORT Unit Number: r _.�. Phone 1 Date/Time of Incident: '"' 1ri:likL� Name of' 'ured• /��il►� Address: , . �l s: 11� T. :Home na!,rrkin / _ Work Age_of in3taed party: Location of , �1�j 1 Lek_bit Involves a oad roduet-idsn, pl�duct: i mot+ muij ofd+ pradrMtSeMfpTease, cproauci �Tfchins ubtd or Wks saw It? c n ape to pb sat i P r o d u c t and ender'nanic SM hlislimmnt number:(sod hwolca). Was"ured taken from scene? Where taken? DOSCZI'be Witness: Name Name Address Address' • Yt ST 7 ' • a Ionia ST ZIP • • Phone Did _,,. 'l , '. .ideat? 11!11F REPORTED BY MGR.ON DUTY t: AfiotnnEWMIL Mater comments: indicate if meal 'd for etc. COMPLETE THIS SECTION ONLY IF INCIDENT WAS A FALL Condition of floor: Weather conditions: Who ip ed floor? t e o freins eotion or to aiden earn Dams Hels insicate t pe of shoes:Flats Sand __-- Shoe sole co.. ••sitio PLEASE FAX REPORT TO(813)2884819 (AND INCLUDE A COPY OF THE DA?S SCREMILa) Set 2 - Page 8 27 ebb 751 10iB p.1 BALDW • X14 DAVIS OUTBACK pK{�ioUSE &RISK a� OF pogr isrRRF Logo B 7tftJ FORM TO BE PA' p © e T L° d couneel tRR CID NT R R • Phone. r •, 15 �ICd 1 In �o 1 ' ' Unit Number ..P dress. •Horns �' � �M��'' ins. 1' .e• i 'tired Psi ' 1, fie' >e Of• °n of tnaident: ° x 4" I ' Mori' lon' }• ` ...--.�--- -- .--------- . tertkisndurKan : mteker7 Wdt�• . PrsdU 11 8u s J Wail ,• taken from scene `, Describe`n u �� � Add s: Addss: or sT . tn incident? i ' . 4 t • •- phone: Did 4 , • r. , c;.>' " • RepORISDro'• "�Ntln e Ma „ a 0N GR.Home�Pt1R'i'aD BY: 1 � �. �> Print; l Id for eta• r .� 4 tpDit.0 DUB if meet Cf !msn ' - t,ew -- -. � y ' ! • • ? y � S; �a��•\!• .•..` "I'-'•'.;" f':� C 'Me'• other� O �ft iW.Aki Ac;•t'S t• - . \ t ` `,' � z ° ' .4 . . o a v�t-{ .4,; � "`t"�' i r ` incident nano' • ;z ,t '' ■ , : ' , or to rt p t ly■ ,, Heeis indioa$ , C ,� � quh.aSr,L..•'' •!K il}U ', _ @-n v e •�� '`1, ��i�ti' � j4�t CR�` qr 1 \ 28 '�, ,..1,x ,;',3;� v`, ,s ,\, et2-Page 9 1 _ • • +` +k WC AWN $ A4 z THIS REPORT IS THE PROPERTY OF OUTBACK STEAKHOUSE,INC. •�� •. POEM TO RE COMPLETED RY MAK AGEE `:. >Y' Thu form Is filial oat at the re4aarl of NINO attukheutr legal*lung' .�t�,`,<�I .ti 5k '4 yl' Unit.Number; 9 10 Phone t+ -�'a1"GO+ t3;"; ;,`4` DatetTine of incident; `IFo7 t ; t? AM/ '';<,.:,,.',` Name of jeredparty m.lG4, t �, • .. 4.4 Address: 2. Z 8. 1 `-r� N . • w a :, Tots'!tone:Roma L ' :2• - ' •0..... work( ) • A 'of urd 1 ' ,: *.. ?' ocaibe of Incident: A•$ R : . r• Deco I!ton: .J_ _ • .. r. _ ^.. ,. . . dttipt� • ciatee Web,/!:.Feed produce•fd,.A pt*sdrert: _ __.s_-- NOW Mart ieradnet mid(plcortlax product mix):.. _ I F}`Maim Mrolves ohet tsfoA: Who ear ief Dv,�yia have the ob ect? Product aid S a lierNolsdor oasts: .,,.. E'=tadfialtrsest number: soled invoice Was -1 taken from scene? U Where taken? Describe m'' • :.a t . i INIMArdas• CIL ..Y1 Illairagrie !+. Whneas: Name Name Address Address City,STZIP C .STEWP • Phone( • Phone Did and empinxeee Witeesa-Incident? r-__- IMPORTED BM `+.". .�Mil:_ REPORTED UN rnlill f a„. ., MGR.ON DUTY(Print: .4.i M GR.Roma PHONE-L;<. .; . RE SURE W. KNOW WRO HANDLED THE INCIDENT WITH THE CLAMANT! Maeaber.eomaments:(tadlcatc iWmeatp _ aid for etc.) r COMPLETE THIS SECTION ONLYIF INCIDENT WAS A FALL • • Condition of floor: . Wea ,er conditions: .Who inattactad itoor? Last Cline ofarea Ins tl ce clan odor to incident name eel,to ee.): • 1'YDe of SbCeS:Fiaty Sandal Heeta(htdteaie-be ght1 Soots • wr•tl YYwl.lM/��1.�1We � w+.w+Y-w-�• Shoe sole corn osblon: • PLEASE AX R -P R AND THE OATS SCHEDULE TO(S13)2184019 � � . a bist art' 'R ?Zrd& Ei. `£`'',`:;`,` .• • SEA' 2 4 Z001 6,,• Set 2 - Page 10 29 illeallanirememossimawarrom........ .•,:!:3.A-s,w., 0- ,r, ' - : ''''',. .,!:.,,ViZfi,:P'..;-4,1'." ';':,•:.$4i.l'AVt't - . 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'''. .,, ')' ',''',',21',':,;' j',.%iVi,tg''..A.. l':::;••,7,iili4 ht':\,,\•01,;,, ,\, :::':..ViAiii. 41,,)'C't ..7,..1." :, SntityName: Outback UnitNumber: 4118 , ..'....;:,...-.,..-4xi..., -,V■;kv'-IWY,ftW,'"el: Phone: 803-788-9800 DateIncident: 9/20/07 9pm *WM: PM lajuredNames Leura Oripp Address: 321 Green Drive City: Williston State: SC PhoneNome: 803-671-4408 . •:::.':.::::.::::5:::.t.fritiiitP-,. - PhoneWork: ( ) Agenjured: 17ish LocationInaiderit: restroont Description: Siammed finger in door of restroom 021ttatiCe. Skinned fingers /dentityProduct: Productitold 3 .•.%'..0 '" ' iThoSawObject: •. ., ::•::*. i ProduotName: Sstablishmentamber: ,.:` '', ..,, InjurdTakenFromScene a No PlaceTakenTo; ,04 DesoriteInjury: skin missing on two fingers and very sore WitneasiName: WitnesslAddress: SitnesolCity: WitneselPhone: ( I Witn0002NaMe2 •:,..-it-r, t ,,q Witness2Addrese: Witnessa2Cityt %C\ Witness2Phone: ( ) tt4463.7i EmployeesWitnessAccident: No ReportedSy: Jared Sallow :104 :-..1...v.s.r ReportedTog Gwen VanToorenburg A01 ManagazOnDuty: Gwen VanToorenburg wamagerPhone: 0034192606 ,ctic4,1 NanagerComments: Could move her fingers and said she thought she would be okay. 1 gave her a certificate for her next visit as well as an ice pack avd ..g,,..n... some gauze to take with her '''...1.1. PloorCondition: 1.1o4 WeatherConditicau /....4"1.4 )'loorinspectedry: LastPloorrnspection: FallShoiNeight: ShoeComposition: . i::.:,........, 1:.:::.....?.;. .:.:.:::...::.: ::•:::::.;,;. 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' •, x 6;,4 • THIRD PARTY ADMINISTRATION THIS REPORT IS TOE morgrtav OF OUTBACK STEAKHOUSE,Live:, FORM 70 ISS CON,IPLETSO BY MANAGER This Sims la Nod oft at the Nom otOuttealt kealthattat lee towel MR Nththor Pheá •••• Osteilke o headed: , .,•r211.1r, t'f05 • Name aiiiitAXI L , Address: Lip DIN g- . .1•••■•••• Tigephane:Hosito Work - - . Loestionotheldent: DM. • !•• -11111 • elaia a havoints a naiad-Meat &et: I Mika WM di a g MI* debt&Mbar IN of: Who saw hit Prodaat and S or/readoriaawe . Eatabliskaaare lumbar:(sod Was**red taken*am sane? Whetatakeel nose:Now Name • /dues • Address Cky,ST ZIP ST DP PhOn. ) Pima Of d b MOWS Ifiziditiat7 ATM ,11111111:41.,Me. -REPORTED BY: rtiVelratnir 0.A•'• • . 4 4 MGR.TIONEPTIONE MGR. I DUTY 1 THE CLAIMANT! SE SURE WE KNOWWII0 TIANDLEfi ME moan MU " tit •ootrinent:(indbito W I aid tor,co. • COMA TITIS SECTION ONLY IF Prawn WAS A PAU Coed n°fiber: %Olio aondithas: area• clam prtt o hoiloot name Wee „Imo'shoes:Pi* --------,--iadkaSe Boots Shoosols ,,,Gam PLEA E F REPORT AND E DA SC,EDkILETO &talon 2,Pap 6 JAN 16 us Set 2 - Page 13 32 F E3-OF i HR 'E � 20114 MAR 20 P H 3: 5 CUMBERLAND COUNTY Y PENNSYLVANIA SARAH DICOSTANZO and : IN THE COURT OF COMMON PLEAS ANDREW J. DICOSTANZO, CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, CARMINE J. DICOSTANZO, • Plaintiffs : NO. 2012-01199 vs. OUTBACK STEAKHOUSE OF : CIVIL ACTION—LAW FLORIDA, LLC, Defendant : JURY TRIL DEMANDED CERTIFICATE OF GOOD FAITH ATTEMPTS TO RESOLVE DISCOVERY DISPUTE The undersigned counsel for the Plaintiff certifies that counsel for the above parties have been unable to reach an agreement concerning this dispute, and as reasons, state: 1. That on March 3, 2014, respective'counsel exchanged emails regarding the additional items requested by the Plaintiffs. 2. Plaintiffs' counsel made a good faith attempt to resolve the issue by sending Defendant's counsel, Nicole R. Cohen, Esquire a supplemental letter dated March 7, 2014 in which he spelled out in great detail the history of the case and why the request appears relevant. (See letter attached without attachments, marked as Exhibit"1"). i 3. By letter dated March 17, 2014, opposing counsel formally stated her client's opposition to the request and indicated that the Defendant would not provide the requested materials or responses. (See letter attached hereto as Exhibit "2"). 4. As of the present date, the Plaintiff has not yet received the supplemental discovery requested. Respectfully submitted, SHAFFER&ENGLE LAW OFFICES, LLC Dated: , , 0 / /4 I /A ._ Jeffrey t. +fig , ' s• ire Attor •y ID #76644 2205 Forest Hills D Suite 10 Harrisburg, PA 17112 (717) 545-3032 Attorney for Plaintiffs S H ` + "` F E R &TE N G E Jeffrey B.Engle,Esquire ,,��++ cc yY jeff@shafferengle.com LAW OFFICES►7 9 I LI C Elisabeth K.H.Pasqualini,Esquire elsabeth@shafferengie.com Millersburg Office: 2205 FOREST HILLS DRIVE,SUITE 10 512 Market Street HARRISBURG,PENNSYLVANIA 17112 Alyssa H.Knisely,Esquire Millersburg,PA 17061 alyssa@shafferengle.com Telephone:(717)545-3032 Fax:(717)545-3083 Allen Shaffer,Esquire (1927-2009) www.shafferengle.com www.pennfamilylawyers.com March 7,2014 Attorney Nicole R. Cohen Briggs Law Office,LLC 400 Market Street Suite 730 Philadelphia,PA 19106 RE: Ongoing Discovery Requests;Dicostanzo v.Outback Steakhouse of Florida,LLC; 2011-cv-9485-CV;Cumberland County Court of Common Pleas Nicole: The purpose of this letter is to formalize and outline my prior email request for further discovery materials relative to past incidents involving your client at various stores throughout the United States. (See copy of email dated March 3,2014 attached hereto for reference). As you are aware,the basis for my client's suit against Outback is that they were negligent in the manner the restroom door was maintained and further, that they were reckless in that the Defendant was aware of the issue and did nothing to fix or ameliorate the concern. (See generally Complaint filed October 3,2011). My client made a supplementary discovery request on January 7,2013 via email which provided: I would like to ascertain if prior complaints have been received by Outback Steakhouse(in general) regarding finger pinch incidents on the hinge side of their restroom doors. I believe I was clear in my prior request,however,after discussing the matter briefly in court,I wanted to reiterate that request. (See Plaintiffs Motion to Compel filed February 13,2013): In response to my client's request,your client objected on the basis that the request was not relevant or reasonably calculated to lead to the discovery of relevant,admissible evidence,thereby exceeding the scope of the discovery set forth in the Pennsylvania Rules of Civil Procedure. Without waving same,corporate headquarters does not have a code/database that would allow them to search for finger pinch incidents on the hinge side of their restroom doors. Id.at paragraph 3 of the Motion to Compel. As I recall,you also further asserted that prior incidents from other locations are not"substantially similar." (See correspondence dated February 7,2013). EXHIBIT 1 BRIGGS LAW OFFICE, -LLC March 17, 2014 VIA E-MAIL Jeffrey B. Engle, Esquire Shaffer & Engle Law Offices 512 Market Street Millersburg, PA 17061 Re: DiCostanzo v. Outback Steakhouse of Florida, LLC No. 2011-cv-9485-CV Dear Mr. Engle: Below is Defendant's response to your discovery request outlined in correspondence dated March 7, 2014. Objection. On advice of counsel, the answering Defendant objects to this interrogatory on the grounds that it is overbroad and unreasonably burdensome. Furthermore,this request is not relevant and seeks information not calculated to lead to the discovery of admissible evidence, and seeks information outside the scope of discovery permitted by the Pennsylvania Rules of Civil Procedure. Without waiver of same, Outback has used many different hardware specs over the years. The Norton 1600 series is a popular brand but it is not an exclusive spec among all Outback locations. Thank you for your attention to this matter. Very truly yours, /s/ NICOLE COW EN NICOLE R. COHEN EXHIBIT 110 ROOSEVELT BOULEVARD•SUITE 201 390-9600.FAx: (609)390-5950 400 MARKET STREET,SUITE 730•PHI 25-4632.FAx: (215)925-1611 SARAH DICOSTANZO and : IN THE COURT OF COMMON PLEAS ANDREW J. DICOSTANZO, : CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs : NO. 2012-01199 vs. OUTBACK STEAKHOUSE OF : CIVIL ACTION—LAW FLORIDA, LLC, Defendant : JURY TRIL DEMANDED CERTIFICATE OF SERVICE I, Jeffrey B. Engle, Esquire, do hereby certify that on this date, I served a true and correct copy of the Certificate of Good Faith Attempts, in the above-captioned matter, upon the following individuals by first class mail, postage prepaid, addressed as follows: Nicole R. Cohen, Esquire Briggs Law Office, LLC 400 Market Street Suite 730 Philadelphia, PA 19106 Date: 34.1//y A. � AI° ,� Jeffrey ." Attorney ID #7..44 2205 Forest Hills ! • • -, Suite 10 Harrisburg, PA 17112 (717) 545-3032 Attorney for Plaintiffs SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2012 -01199 : CIVIL ACTION — LAW : JURY TRIL DEMANDED ORDER Upon consideration of the Defendant's Motion to Dismiss and Direct Answer, it is this Av-64 day of /'17Aj , 2014, it is, hereby ORDERED, that the Defendant produce a response to the Plaintiff's Supplemental Discovery Request, vsiikiiim dor. Or in the alternative, hereby ORDER a discovery conference to be set for ? c 449t I day of ■ �.asd y ourthouse. *3 • , 2014 at /it 30 /pm at the Cumberland County /l-)PI t 4 . 2 .40/ SL stribution: Jeffrey B. Engle, Esq. Nicole R. Cohen, Esq. nettitik 3/agpY ,Judge 2205 Forest Hills Drive, Suite 10, Harrisburg, PA 17112 *717 - 545 -3032 *717 - 545 -3083 (F) jeff@shafferengle.com 400 Market Street, Suite 730, Philadelphia, PA 19106 f ti cJ u BRIGGS LAW OFFICE, LLC By: NICOLE R. COHEN, ESQUIRE Attorney I.D. No.: 204015 ZO )`4AR 3 ! PH 2: L3 1'`t+ Cs 400 Market Street, Suite 730 Philadelphia, PA 19106 (215) 925 -4632 U M B E R L AND cAtto c ey for Defendant Outback P �€ S `(LVA r ouse of Florida, LLC SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiff(s) vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant(s) : COURT OF COMMON PLEAS : CUMBERLAND COUNTY : NO.2012 -01199 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL Defendant, Outback Steakhouse of Florida, LLC (hereinafter "Outback "), by and through its attorneys, Briggs Law Office, LLC, hereby files this Opposition to the Motion to Compel , and in support thereof avers the following: Response to Plaintiff's Averments 1. This paragraph refers to a document that speaks for itself. 2. This paragraph is a conclusion of law for which no response is re quired. To the extent that this paragraph is determined not to be a conclusion of law, answering defendant denies any negligence or reckless conduct. 3. This paragraph refers to a document that speaks for itself. 4. This paragraph refers to a document that speaks for itself. 5. This paragraph is a conclusion of law for which no response is re quired. 6. This paragraph refers to a document that speaks for itself. 7. This paragraph refers to a document that speaks for itself. 8. This paragraph refers to a document that speaks for itself. 9. This paragraph refers to a document that speaks for itself. 10. This paragraph refers to a document that speaks for itself. 11. Admitted. 12. This paragraph refers to a document that speaks for itself. 13. This paragraph refers to a document that speaks for itself. 14. This paragraph is a conclusion of law for which no response is re quired. 15. This paragraph is a conclusion of law for which no response is re quired. 16. Admitted in part. Michelle Shriver's deposition is accurately paraphrased in this paragraph. Defendant responded to an additional discovery request dated March 7, 2014, however, that "...Outback has used many different hardware specs over the years. The Norton 1600 series is a popular brand but it is not an exclusive spec among all Outback locations." (See correspondence dated 3.17.14 attached to Plaintiff's Motion as Exhibit "2 "). 17. This paragraph is a conclusion of law for which no response is re quired. To the extent that this paragraph is determined not to be a conclusion of law, answering defendant denies any notice, negligence or reckless conduct. Defendants Statement of Facts 18. In Plaintiff's March 7, 2014 correspondence sent to Defendant, Plaintiff claims that the information sought is relevant because his expert is claiming "that a finger pinch guard should be installed on these doors where they are of a certain weight and have a closure mechanism that can exert an extreme PSI on an appendage when it is placed in its hinge." (See correspondence dated 3.7.14 attached to Plaintiffs Motion as Exhibit "1 "). 19. Plaintiff's liability expert report does not mention the weight of the door in question, nor does it discuss the type of closer mechanism in question or how either of those two specs would play a role in this incident. (See Plaintiff's liability expert report attached to Plaintiff's Motion). 2 20. Plaintiffs liability expert report simply concludes that finger guards were available that would have prevented this injury. (See Plaintiffs liability expert report attached to Plaintiff's Motion). 21. Plaintiffs liability expert report does not mention the PSI that the door in question would or could exert on the date in question. (See Plaintiffs liability expert report attached to Plaintiff's Motion). 22. Plaintiffs liability expert report does not mention the specs of the door in question at all except by attaching installation instructions as printed from the Norton website. (See Plaintiffs liability expert report attached to Plaintiffs Motion). 23. Since Plaintiffs expert report does not address any relevance of the type of door, type of control arm, model or serial number of the door in question with regard to causation of the incident in question, than that exact information of other doors at other Outback locations would also be irrelevant. 24. In response to Plaintiff's initial supplemental discovery requests dated December 19, 2012, Defendant Outback has already responded: Q6. Advise if some, any or all Outback franchises anywhere in the U.S. utilize the sold core wood, stain grade door and the Norton 1600 Series control arm identified in your letter of June 12, 2012 in their facilities for either one or both of their restroom doors. A. Answering defendants standard specification for the public restroom doors, men's and women's, in all Outback Steakhouse units is a solid core wood door. There is no particular door manufacturer specified. The restroom door hardware package includes automatic closers. Over the years there have been many different hardware product manufacturers specified for new construction. Closers are also replaced at the local level as part of normal, routine maintenance. Norton is a common brand and is likely found in many units, though not in all. (See Defendant's correspondence to Plaintiff dated 1.11.13 attached hereto as Exhibit "A "). 25. Defendant again responded to an additional discovery request dated March 7, 2014 (a year and a half after the same initial request), stating that "...Outback has used many different hardware specs over the years. The Norton 1600 series is a popular brand but it is not an exclusive spec among all Outback locations." (See Plaintiffs Exhibit "1 "). 3 26. Prior incidents are admissible only if the prior accident is sufficiently similar to the incident involving the plaintiff which occurred under sufficiently similar circumstances Valentine v. Acme Markets, Inc., 455 Pa.Super. 256, 687 A.2d 1157 (Pa.Super. 1997). 27. The information sought in Plaintiff's recent request will not describe the age of the door, the position of the door arm, the layout of the restaurant, what kind of wear and tear was on the door in question or the circumstances surrounding the incident with detail (beyond what has already been provided in the incident report) . It, therefore, cannot show that prior incidents are substantially similar to the present matter. 28. Plaintiff's initial discovery request for Complaints or incident reports of prior finger pinch incidents at other Outback locations was extremely burdensome for Outback and took Defendant over a year to retrieve, organize and ultimately produce the discovery sought. 29. The prior incidents in Plaintiff's Set One and Set Two were never litigated against Defendant. 30. The prior incidents in Plaintiff's Set One and Set Two date as far back as 2006. 31. As stated above, the closers are replaced at the local level as part of normal, routine maintenance. 32. Plaintiff's counsel clarified that his request is seeking information "on the door as of the date of the incident. If there was no change in the door, the response should state that. In which case, then I would ask for the information as of today (as it's the same door)." (See email correspondence from Plaintiff's counsel dated 3.3.14 attached hereto as Exhibit “B”). 33. Since the Norton 1600 series is not an exclusive spec among all Outback locations and repairs or replacements are made at the local level, the investigation to determine the type of door and closing mechanism at the time of the prior incidents set forth 4 in Set One and Set Two is unduly burdensome and may require investigations, including but not limited to, numerous interviews of former Outback employees. WHEREFORE, Outback Steakhouse respectfully submits that Plaintiff's Motion to Compel should be denied in full, and for such further relief as to this Honorable Court seems just. Dated: March 26, 2014 By: BRIGGS LA OFFICE, LLC NICOLE R. COHEN, ESQUIRE Counsel for Defendant Outback Steakhouse 5 VERIFICATION Nicole R. Cohen states that she is authorized to make this statement on behalf of Defendant, that the facts set forth in the preceding Opposition to Plaintiff's Motion to Compel are true and correct to the best of her knowledge, information and belief, and that the statements set forth herein are subject to 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. Dated: March 26, 2014 .)t,& 056 Nicole R. Cohen, Esquire BRIGGS LAW OFFICE, LLC By: NICOLE R. COHEN, ESQUIRE Attorney I.D. No.: 204015 400 Market Street, Suite 730 Philadelphia, PA 19106 (215) 925-4632 SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Attorney for Defendant Outback Steakhouse of Florida, LLC : COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiff(s) : NO. 2012-01199 vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant(s) The undersigned certifies a true and correct copy of Outback Steakhouse of Florida's Opposition to Plaintiff's Motion to Compel was served via first-class mail, postage prepaid, upon the following on the date set forth below: Jeffrey B. Engle, Esquire Shaffer &, Engle Law Offices 2205 Forest Hills Drive Suite 10 Harrisburg, PA 17112 Dated: March 26, 2014 BRIGGS LAW OFFICE, LLC By: NICOLE R. COHEN, ESQUIRE Attorney I.D. No.: 204015 400 Market Street, Suite 730 Philadelphia, PA 19106 (215) 925 -4632 Attorney for Defendant Outback Steakhouse of Florida, LLC SARAH DICOSTANZO. and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, : COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiff(s) : NO.2012 -01199 vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant(s) THIS MATTER having come before the Court upon the Motion of Plaintiff, and upon the Opposition thereto, with supporting exhibits on behalf of Defendant Outback Steakhouse of Florida, LLC; and the Court having considered all papers filed herein; IT IS on this day of , 2014, upon consideration of Plaintiff's Motion and Defendant's Opposition and any other appropriate responses thereto, and for good cause shown, it is ORDERED and DECREED that Plaintiff's Motion is DENIED in its entirety. EXHIBIT `A' BRIGGS LAW OFFICE January 11, 2013 VIA TELECOPIER AND ORDINARY MAIL Jeffrey B. Engle, Esquire , Shaffer es Engle Law Offices 512 Market Street Millersburg, PA 17061 Re: DiCostanzo v. Outback Steakhouse of Flori No. 2011-cv-9485-CV Dear Mr. Engle: Please see below with regard to your recent supplemental discovery requests sent via email correspondence on December 19, 2012 and January 7, 2013. Q 1. Please advise if Outback, as a general corporate entity, and not the particular location in Mechanicsburg, has a Safety Department or such other similarly named entity that advises all its individual restaurants or franchises on safety protocols at individual locations. A. Objection. The above request is vague and ambiguous in that it does not adequately define "safety department" and/or "safety protocols". Without waiving same, all managers and employees of Outback have an ongoing responsibility to examine and inspect the restaurant. The entire restaurant is inspected regularly by Outback employees during business hours. When a condition needs to be rectified, it is reported to the manager. Defendant reserves the right to amend this response up until the time of trial. Q2. Please provide the name, address and phone number of the person in charge of such department. A. See Answering Defendant's response to Q1 above. .Q3. Please provide the name, address and phone number of the person responsible for receiving any and all "Incident Reports" similar to the ones provided in this case for Outback Steakhouse. A. N/A. There is not one person designated with the duty of receiving any and all "Incident Reports" similar to the ones provided in this case. Instead, the Incident Reports are retrieved by a centralized fax system and the employees at Wells Fargo have an ongoing duty to unload them depending on the time and date of the fax, the nature of the claim, etc. Q4. Are there any safety manual, memos, written protocols, directives or other documentation provided by such person named above or by Outback Corporate to its individual franchises, in particular the one in Mechanicsburg? 400 MARKET STREET • SUITE 730 • PHILADELPHIA, PA I 9106 • (2 1 5) 925-4632 • FAx: (2 I 5) 925-1611 110 RoostvEL-r BOULEVARD • 2ND FLOOR • MARMORA, NJ 08223 • (609) 390-9600 • FAx: (609) 390-5950 WWW.THEBRIGG$LAW.COM BRIGGS LAW OFFICE A. Please see attached. Q5. Please provide a list of the memos, manuals, directives or other materials provided to Outback franchises from Corporate Headquarters- for instances "Food Preparation and Service", "Interior Design and Lighting", "Service Standards", etc. A. Please see attached, pp.2-3. Q6. Advise if some, any or all Outback franchises anywhere in the U.S. utilize the sold core wood, stain grade door and the Norton 1600 Series control arm identified in your letter of June 12, 2012 in their facilities for either one or both of their restroom doors. A. Answering defendants standard specification for the public restroom doors, men's and women's, in all Outback Steakhouse units is a solid core wood door. There is no particular door manufacturer specified. The restroom door hardware package includes automatic closers. Over the years there have been many different hardware product manufacturers specified for new construction. Closers are also replaced at the local level as part of noimal, routine maintenance. Norton is a common brand and is likely found in many units, though not in all. Q7. Please advise if prior complaints have been received by Outback Steakhouse (in general) regarding finger pinch incidents on the hinge side of their restroom doors. A. Objection. The above request is irrelevant and not reasonably calculated to lead to the discovery of relevant, admissible evidence, thereby exceeding the scope of discovery set forth in the Pennsylvania Rules of Civil Procedure. Without waiving same, corporate headquarters does not have a code/database that would allow them to search for fmger pinch incidents on the hinge side of their restroom doors. At this time, Defendant would like to amend its discovery responses to include the above information and reserves the right to introduce it at the time of trial. Furthermore, proprietor Michelle Shivers is available for deposition on Wednesdays, Thursdays or Fridays from 10:00am through 12:00pm. Counsel is available on January 18, 2013 or January 23, 2013 for same Please advise as to your availability for the above deposition. Thank you for your prompt attention to this matter. Very truly yours, NICOLE R. COHEN Doc ID ltr to J. Engle of 1-11-13 WVVW.THEBRIGG5LAW.COM EXHIBIT `B' From: Jeff Engle [Jeff @shafferengle.com] Sent: Monday, March 03, 2014 2:37 PM To: Nicole Cohen Subject: RE: Follow Up Flag: Follow up Flag Status: Red Nicole- As to the first question, I'm looking for the information on the door as of the date of the incident. If there was no change in the door, the response should state that. In which case, then I would ask for the information as of today (as it's the same door). Next, I'm looking to possibly locate and speak to the manager that was employed on the date of the incident and actually authored the report. I'm seeking clarification on some items in each report. Understandably, folks move on and there may be no information regarding their current whereabouts and they may not recall the incident even if their memories are refreshed with the report. Thanks for clarifying. Regards, Jeff Jeffrey B. Engle, Esquire Shaffer & Engle Law Offices, LLC Harrisburg Office: Office: 2205 Forest Hills Drive, Suite 10 Harrisburg, PA 17112 PHONE (717) 545 -3032 I FAX (717) 545 -3083 FTC log Bo Millersburg 512 Market Street I Millersburg, PA 17061 PHONE (717) 692 -2345 I FAX (717) 692 -3554 This email contains PRIVILEGED and CONFIDENTIAL INFORMATION intended only for the use of the recipient named above. The information may contain confidential information protected by the attorney- client or other legal privilege and /or may be protected by state and federal laws, including, without limitation, the provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which prohibit unauthorized disclosure. If you are not the intended recipient, you are hereby notified that any use or dissemination of this information is strictly prohibited. If you have received this email in error, please immediately notify the sender by reply email at the address provided above or by contacting Shaffer & Engle at 717- 545 -3032 and delete this message without copying. Thank you. If this is a client of the firm of Shaffer & Engle Law Offices, LLC, you are hereby notified that official action(s) requested by email may not be acted upon unless you speak to an attorney personally. SARAH DICOSTANZO and IN THE COURT OF COMMON PLEAS OF ANDREW J. DICOSTANZO , CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiff V. NO. 2012-1199 CIVIL TERM OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 29th day of April, 2014, by agreement of the parties, hearing on the Motion to Compel Discovery is continued generally to give the parties the opportunity to work out an amicable resolution. We will reschedule the hearing at the request of either party. By the Court, Edward E. Guido, J. Elisabeth Pasqualini, Esquire For the Plaintiff Nicole R. Cohen, Esquire For the Defendant srs MCD r � FFiCE J HONG 20111 MAY 29 Ail 8: 54. CUMBERLAND COUNTY PENNSYLVANIA SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2012-01199 : CIVIL ACTION — LAW : JURY TRIL DEMANDED REQUEST TO RELIST MOTION TO COMPEL AND NOW, this �07 day of May, 2014, come the Plaintiffs Sarah DiCostanzo and Andrew J. DiCostanzo on behalf of their minor child, Carmine J. DiCostanzo, by and through their attorney Jeffrey B. Engle, Esquire of Shaffer and Engle Law Offices, and Nicole Cohen of the Briggs Law Office, LLC for the Defendant, Outback Steakhouse of Florida, LLC and requests that the Court convene another status conference on the Plaintiffs' Motion to Compel of March 20, 2014 and in support thereof, states as follows: 1. A motion to compel discovery was filed by the Plaintiffs on or about March 20, 2014. The subject of the motion was the determination of the form, fit, and finish of the restroom doors and the control arm used in particular locations identified in prior complaints received by the Defendants and submitted to their insurance carrier. 2. A discovery conference was scheduled before the Honorable Judge Edward E. Guido on April 29, 2014. 3. The Parties were advised to attempt to resolve the discovery dispute, however, have been unable to do so. Defendants are unwilling to stipulate that all restroom doors, including the form, fit and finish are the same or substantially similar. 4. The Plaintiffs are seeking to discover information regarding information about the specific doors included in the internal complaints sent by the respective Outback Steakhouses set forth in Sets 1 and 2 attached to the Motion to Compel filed on March 20, 2014 and incorporated herein by reference. (See Attachment; pp. 11- 40). 5. It is believed and therefore averred, that the proper identification of the form, fit and finish of each door involved in several restroom door "finger pinch" incidents at the various Outback Steakhouses across the U.S. bears heavily on the intent (ie: negligence, recklessness and/or carelessness) of the Defendants and therefore, whether the issue of punitive damages may exist as a factual issue for the finder of fact to ascertain. Discovery should be liberally allowed with respect to any matter, not privileged which is relevant to the cause being tried. George v. Schirra, 814 A.2d 202, 205-206 (Pa.Super 2002) (The purpose of pre-trial discovery is to accumulate information and evidence, to determine the relevance to trial of information obtained in the discovery process and to plan trial strategy). 6. The Plaintiffs are seeking to identify from the Defendant the following regarding the restroom doors provided from the Defendant's own internal complaints: A) Are any or all the doors at the respective Outback Steakhouses identified comprised of a solid wood core, stain grade and a hardwood, such as oak? Please identify which door(s). B) Please provide the respective dimensions of the doors contained in Sets 1 and 2, including length (height), width and thickness. Please specify the dimensions for each respective door. C) How do the respective doors open, "outwardly" or "inwardly?" Please specify for each door(s). D) Do any or all doors have hinges? Please identify which door(s). E) Please identify which side the hinges are on as one would face the door from the outside? Please identify which door(s). F) Do any of the doors have a hinge guard? In other words, are any/all hinges and gaps between any of the respective doors and the frames of the doors exposed? Please identify which door(s). G) Are any or all doors controlled by a control arm apparatus? Please identify which door(s) and the make and model of the control arm apparatus on each respective door. H) Where is the control arm located on each respective door, the inside or outside of the door? Please identify which door(s). WHEREFORE,.the Plaintiffs respectfully request that this matter be relisted for a discovery conference and determination by the Court as to the discoverability of these items pursuant to Pa.R.Civ.P. 4003.1, 42 Pa.C.S.A. and the establishment of a time frame for the Defendants to respond to same, if so ordered. Dated: G Z /l fei SHAFFER & ENGLE LAW OFFICES, LLC Jeffrey V Engle, Esquir PA BAR ID. No. 7664 2205 Forest Hills Drive, Suite 10 Harrisburg, PA 17112 (717) 545-3032 Attorney for Plaintiffs SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 2011 -CV -9485 -CV CIVIL ACTION — LAW Defendant JURY TRIL DEMANDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing "REQUEST TO RELIST MOTION TO COMPEL" was served by means of United States mail, first class, postage prepaid, upon the following: Dated: Nichole Cohen, Esquire 400 Market Street Suite 730 Philadelphia, PA 19106 (q Jeffrey,: 'wife, Es • SHAFFER & ENG W OFFICES 2205 Forest Hills D ,e, Suite 10 Harrisburg, PA 17112 (717) 545-3032 3 JE_SM 1 'v �Kr- -)-ti ?oh JUN -6 Pl 3: ^J CUMBERLAND COUNTY PENNSYLVANIA SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2012-01199 : CIVIL ACTION — LAW : JURY TRIL DEMANDED ORDER Upon consideration of the Plaintiffs' Request to Relist the Plaintiffs' Motion to Compel; a IT IS HEREBY ORDERED that a discovery conference is scheduled for (� day of , 2014 at Cumberland County Courthouse. '1,0077i% G 1 D / Distribution: i' 3a 44011/PM in Courtroom #3 of the EDWARD E. GUIDO, J. Chambers: Edward E. Guido, J. ./Jeffrey B. Engle, Esq. 2205 Forest Hills Drive, Suite 10, Harrisburg, PA 17112 ✓1Qicole Cohen, Esq. 400 Market Street, Suite 730, Philadelphia, PA 19106 yes /r2ttf.ck., '�it-l'Y SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child', CARMINE J. DICOSTANZO, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA OUTBACK STEAKHOUSE OF FLORIDA,: LLC, CIVIL ACTION - LAW Defendant •NO. 2012-1199 CIVIL TERM IN RE: PLAINTIFFS' MOTION TO COMPEL ORDER OF COURT AND NOW, this 27th day of June, 2014, after hearing argument, Plaintiffs' Motion to Compel is granted. Defendant shall provide the information requested with regard to the doors involved in the twenty-seven incidences set forth in the attached Exhibit A. By the Court, Edward E. Guido, J. ✓ Jeffrey B. Engle, Esquire 2205 Forest Hills Drive, Suite 10 Harrisburg, PA 17112 Fo the Plaintiffs Nicole Cohen, Esquire 400 Market Street, Suite 730 Philadelphia, PA 19106 For the Defendant :lfh Copies PeLaILEL toP 6 /Pi Unit/Store Number Solid Wood Core? Yes Hard Wood? Yes or no Dimensions Hgt x width x thickness How does it open- In or Out? Hinges? Yes or No Which side are hinges on -Right or left? Hinge . guard? Yes or No Control Arm? Yes or No Make/Model of control arm? Where is arm located? Inside or Outside the Door 14-4701 11-0454 1130 0455 3633 29-0711 3950 4766 1414 1025 1036 0 1040 3723 1902 0310 4118 8-3458 4150 1261 3449 3446 1029 1414 1049 3445 1518 3518 Jeffrey B. Engle, EsquireAttorney LD. 76644 $ ` '���T 1i ,lO ji t �{ SHAFFER & ENGLE LAW OFFICES 2314 JUL 3 54 2205 Forest Hills Drive, Suite 10 CUMBERLAND COUNT Harrisburg, PA 17112 PENNSYLVANIA Phone *(717)-545-3032 Fax *(717) 545-3083 jeff@shafferengle.com SARAH DICOSTANZO and : IN THE COURT OF COMMON PLEAS ANDREW J. DICOSTANZO, : CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, CARMINE J. DICOSTANZO, : Plaintiffs : NO. 2012-01199 vs. OUTBACK STEAKHOUSE OF : CIVIL ACTION—LAW FLORIDA, LLC, Defendant : PETITION FOR CLARIFICATION Vls4 AND NOW this da y of (,�11 , 2014, come the Plaintiffs Sarah DiCostanzo and Andrew J. DiCostanzo on behalf of their minor child, Carmine J. DiCostanzo, by and through their attorney Jeffrey B. Engle, Esquire of Shaffer and Engle Law Offices, and respectfully avers as follows: 1. The Plaintiff's filed a Motion to Compel against the Defendant's for specifics relating to twenty-seven (27) identified incidents relative to doors at the Outback Steak Houses across the United States on or about March 20, 2014. 2. A relisted hearing was held on this matter on June 27, 2014 at which time this Honorable Court granted the relief requested, which was the specifics of the doors in all twenty- seven(27) incidents that were similar to the incident in the instant matter. (See Order of June 24, 2014 with attachment). pp 3. It is believed and therefore averred, that there is no specification as to a date on the Order upon which the requested information in the attached exhibit is to be completed by the Defendants. 4. The Undersigned attempted to set a date for completion of the discovery ordered in this matter, however he has not received any reply from opposing counsel in this regard. 5. By reference, the last Motion to Compel that was filed by the Plaintiffs requesting copies of any and all incidents of"finger pinch matters," this Honorable Court entered an Order providing that the Defendants were to provide such information within forty-five (45) days of the date of the Order. (See copy of Order dated March 5, 2013). WHEREFORE, it is respectfully requested that this Honorable Court provide clarification to its Order and specify a time period in which the Defendants are to provide its responses requested by the Plaintiffs' Motion to Compel. Respectfully submitted, SHAFFER& ENGLE LAW OFFICES, LLC Dated: 7(3t Jeffrey :. /r Attorney ID ° 6644 2205 Forest 'ills P ve, Suite 10 Harrisburg, ' • 17112 (717) 545-3032 Attorney for Plaintiffs SARAH DICOSTANZO and IN THE COURT OF COMMON PLEAS OF ANDREW J. DICOSTANZO, CUMBERLAND COUNTY, PENNSYLVANIA Parents of the Minor Child, . CARMINE J. DICOSTANZO, .• Plaintiffs .• • • V. . OUTBACK STEAKHOUSE OF FLORIDA, : LLC, CIVIL ACTION - LAW Defendant NO. 2012-1199 CIVIL TERM IN RE: PLAINTIFFS ' MOTION TO COMPEL ORDER OF COURT AND NOW, this 27th day of June, 2014, after hearing argument, Plaintiffs ' Motion to Compel is granted. Defendant shall provide the information requested with regard to the doors involved in the twenty-seven incidences set forth in the attached Exhibit A. By the Court, 4$;; ? • Edward E. Guido, J. ✓Jeffrey B. Engle, Esquire 2205 Forest Hills Drive, Suite 10 Harrisburg, PA 17112 Nicole Cohen, Esquire 400 Market Street, Suite 730 Philadelphia, PA 19106 • For the Defendant C") r--.:. _. c <<3 rrl .�' C r!--. .opies PPLviLE-ct._ ......til p Q//if r'-=- v =1, 1, xc, - c; _ , --I Cat r. L O `o v o E c M 3s0 0 L O u w O d O 2 a1 NC. coG C fa 0 Z O L.. �`• O u° a• L > . N v r r. 0) v 0 z = mOO CUO M ro G.) v c O s C ' 3 L � M1• a) L 40 O co } z v O. O O in N Q) O 3 O 0 = o x N C O w V, ) X a E '0 3 O -• c L v oO a o v N a) } c)- 17 O a) O I- 0 0 • > O > U a L, oGi r♦ a CO V) .AN O u) E Om u1 en O, Li, Lc) )-4 N M V N 0 O .4t V01 lC rq marO N tct Ot VI CO C 3 c1 LO Cr) N O O O N G1 M N ac, O .7 O to VI Z N O M N M '•i .--i ♦-1 r1 M r1 0 rt CO .ri m M M SARAH DICOSTANZO and : IN THE COURT OF COMMON PLEAS OF ANDREW J. DICOSTANZO, : CUMBERLAND COUNTY, PENNSYLVANIA Parents of the MinOr CARMINE J. DICOSTANZO, - • Plaintiffs : V. : NO. 2012-1199 CIVIL TERM •• . OUTBACK STEAKHOUSE OF FLORIDA, LLC, : CIVIL ACTION - LAW Defendant : JURY TRIAL DEMANDED • ORDER OF COURT AND NOW, this 5th day of March, 2013, the Defendant shall provide .Plaintiffs with a list of all complaints and/or incidents involving finger-pinch matters for the five years before October 25, 2009. If the Defendant: feels that it ' .would be unduly burdensome to try to search its records for all such incidents, it may comply with this Order by providing Plaintiffs with a copy of all complaints filed in court against it for the five years before October 25, 2009. The information to be provided within 45 days of today's date. By the Court, aC., c=, -DM cAs ov rn 144 Edward E. Guido, J. gcl cm —18 4ffrey B. Engle, Esqurie r-tin Attorney for Plaintiffs "0 CI MC tz) --(1 Nicole R. Cohen, Esquire 4:0 Attorney for Defendant CF1 srs kALt. 4', fr;f441,44144WW, tk.11111 • CERTIFICATE OF SERVICE I, Victoria J. Smith, Legal Assistant, do hereby certify that on this date, I served a true and correct copy of the Petition for Clarification, in the above-captioned matter, upon the following individuals via first class mail: Nicole R. Cohen, Esquire Briggs Law Office, LLC 400 Market Street Suite 730 Philadelphia, PA 19106 Date: 7/,51 Jq t A11. Victoria J. S Legal Assist.rt 2205 Forest Hills Drive, Suite 10 Harrisburg, PA 17112 (717) 545-3032 SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2012-01199 : CIVIL ACTION— LAW ORDER Cia Upon consideration of the Defendant's Motion to Dismiss and Direct Answer, it is this q 44'day of , 2014, it is, hereby ORDERED, that the Defendant produce a response to the Plaintiff's Supplemental Discovery Request, within ~ r days of June 27, 2014. D' tribution: effrey B. Engle, Esq. ‘ole R. Cohen, Esq. �SES 112-aiifk g/s/iY ,Judge 2205 Forest Hills Drive, Suite 10, Harrisburg, PA 17112 *717-545-3032 *717-545-3083 (F) jeff@shafferengle.com 400 Market Street, Suite 730, Philadelphia, PA 19106 Jeffrey B. Engle, Esquire SHAFFER & ENGLE LAW OFFICES 2205 Forest Hills Drive, Suite 10 Harrisburg, PA 17112 717-545-3032 * phone 717-545-3083 * fax jeff@shafferengle.com PJLED-OF F OTHE PROT1101` 0 TA Y 2014 SEP 12 P11 Li: 05 CUMBERLANDcoUNTY PENtis yLvANIA SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2012-1199 CIVIL TERM CIVIL ACTION—LAW JURY TRIAL DEMANDED PLAINTIFFS' ANSWER TO DEFENDANTS' MOTION TO HAVE ITS REQUESTS DEEMED ADMITTED AND NOW, thisfj. day of September, 2014, comes the Plaintiffs, by and through their attorney, SHAFFER & ENGLE LAW OFFICES, LLC, and herein Answer Defendants' Motion to Have Its Requests Deemed Admitted, and in support thereof, avers as follows: 1. Admitted. 2. Admitted with clarification. It is admitted that the Plaintiffs alleged in their Complaint that the child's finger was caught in the door jamb. (See Complaint at averments 14 and 15). The "door jamb" is the area immediately adjacent to the door and the frame. 3. Admitted. 4. Admitted. 5. Admitted with clarification. The Plaintiffs' are in the process of completing the responses. The undersigned has been in contact with his clients and would anticipate a response within the next twenty (20) days. Further, the undersigned was not served with a copy of the Defendant's Motion pursuant to Cumberland County Local Rule 208.2(d) seeking either concurrence or opposition to the Defendant's Motion. C.C.R.P. 208.(d). Had the undersigned been provided with a copy prior to filing, he would have advised opposing counsel that responses would be forthcoming. Thus, avoiding the waste of scant judicial resources. 6. Admitted with clarification. The Rule speaks for itself. However, the Defendant has omitted the language that specifically provides that the court may provided a "longer time as the court may allow" to respond to such requests for admissions. Again, had the Defendant served a copy of their Motion upon the Plaintiffs prior to its filing, they would have sought additional time to respond. 7. Admitted with clarification. There was only the brief email exchange that is attached to Defendant's Motion. However, had Plaintiffs been aware that a Motion was going to be filed, the undersigned would have provided more explanation to the Defendants and sought additional time. 8. Admitted. See responses to averments 5-7. 9. Admitted. See Plaintiffs' response to averment 7 above. 10. Admitted. Id. 11. Admitted with clarification. A response is forthcoming and the Defendant would have been so advised had the content of its motion been provided prior to its filing. 12. Denied. Defendant's Motion should be denied for failing to comply with C.C.R.P. 208.2(d). WHEREFORE, Plaintiffs respectfully request that This Honorable Court deny the Defendant's Motion to Have Requests for Admissions Deemed Admitted pursuant to Defendant's failure to comply with Local Rule 208.2(d). NEW MATTER- MOTION TO EXPAND TIME TO RESPOND 13.Averments one (1) through twelve (12) set forth herein are incorporated by reference as if set forth below in full. 14. Pursuant to Rule 4014(b), the Plaintiffs seek an additional twenty (20) days from date of this Court's Order to provide their responses to the Defendant's Request for Admissions. 15. Opposing counsel, Nicole Cohen, has been provided with copy of the Plaintiffs' New Matter- Motion to Expand Time to Respond and concurs with such request. See Local Rule 208.2(d). WHEREFORE, Plaintiffs respectfully request that This Honorable Court grant the Plaintiffs' Motion to Expand Time to Respond to Defendant's Request for Admissions. Respectfully submitted, SHAFFER & ENGLE LAW OFFICES, LLC Dated: Jeffrey B. gi-, Attorney ID #76644 2205 Forest Hills Driv Harrisburg, PA 171.12 (717) 545-3032 Attorney for Plaintiffs uite 10 SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2012-1199 CIVIL TERM CIVIL ACTION — LAW JURY TRIAL DEMANDED AMENDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiffs' Answer to DefendantsMotion to have its Requests Deemed Admitted was sent by U.S. Mail first class to the following: Date: Nicole R. Cohen, Esquire C/O Briggs Law Office, LLC 400 Market Street, Suite 730 Philadelphia, PA 19106 1.Jeffreys 41 e • - ad Attorney ID 6.44 2205 Forest Hil Dr' e, Suite 10 Harrisburg, PA 17112 (717) 545-3032 Attomey for Plaintiffs CZ• ) ▪ --11 SARAH DICOSTANZO and ANDREW J. DICOSTANZO, Parents of the Minor Child, CARMINE J. DICOSTANZO, Plaintiffs vs. OUTBACK STEAKHOUSE OF FLORIDA, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2012-1199 CIVIL TERM CIVIL ACTION — LAW JURY TRIAL DEMANDED ORDER AND NOW, this act) day of , 201V, based upon the Defendant's Motion to Have Requests for Admissions Deemed Admitted and Plaintiffs' Request to Expand Time to Respond; IT IS HEREBY ORDERED AND DECREED THAT Defendant's Motion is DENIED and the Plaintiffs Motion to GRANTED. Plaintiffs shall file their responses to Defendant's Request for Admissions within days of this Order. Distribution: BY THE COURT EDWARD E. GU DO, J. Jeffrey B. Engle, Esquire 2205 Forest Hills Drive, Suite 10, Harrisburg, PA 17112 Nicole Cohen, Esquire 400 Market Street, Suite 730, Philadelphia, PA 19106 cop;es 4/t/,ti L N) -0 C) N)