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HomeMy WebLinkAbout12-4563c Stephen G. Held, Esquire Attorney ID# 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax : (717) 233-3029 E-mail: Heldfthhrlaw.com F ILtE0-OEP t; fir THE PROTHONOTX~ 'i 2012 JUL 23 AM 11: 54- CUMBERLAND COUNTY PENNSYLVANIA Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 2012 '- LtCJto S CI V? Civil Action (XX) Law Barbara Misicko and David Misicko, her Chalit's Thai Bistro Husband 5103 Carlisle Pike 6 Bretz Circle Mechanicsburg, PA 17050 Shermans Dale, PA 17090 versus Plaintiffs & Address Defendant & Address PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue A Writ of Summons in the above-captioned action. X Writ of Summons Shall be issued and forwarded to ( )Attorney (XX)Sheriff Stephen G. Held Esquire Handler Henning & Rosenberg, LLP 1300 Lingl stown Road Suite 2 9kv Harrisburg PA 17110 Sign ure of Attorney (717) 238-2000 Supreme Court ID No. 72663 Name/Address/Telephone No. of Attorney Date: July 18, 2012 S ? 10) lo, spA a kA? ??g WRIT OF SUMMONS TO THE ABOVE-NAMED DEFENDANT: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAIT` AGAINST YOU. Date: ( ) Check here if reverse is used for additional informat PROTHON. - 55 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY ~~tr of ~ambrr! ~~~ ~ : ~.. ,.~~ ~~~ ~ 11 AUK 17 AF1 9~ I ~` ~F_t~td5YL1!ANiA c)F~IC~ AF'hE SHERIFF Barbara Misicko (et al.) Case Number vs. Chalit's Thai Bistro 2012-4563 SHERIFF'S RETURN OF SERVICE 08/08/2012 07:01 PM -Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on Augu t 8, 2012 at 1901 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Chant's Thai Bistro, by making known unto Laurie McKechnie, Manager for Chalit's ai Bistro at 5103 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17050 its contents an at the same time handing to her personally the said true and correct copy of the same. ~ ~. TIM C C, DEPUTY SHERIFF COST: $38.00 August 09, 2012 SO ANSWERS, RON R ANDERSON, SHERIFF (c) Ceun;ySuite Sheriff, Te!ecsolt. Inc. FAFILESUients\3050 Donegal'6050 Current\3050,698\3050.698,pmi.wpd Revised. 3/29/13 8 36AN1 Daniel K. Deardorff, Esquire T MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER "'f )A 0 D401Z C, � MARTSON LAW OFFICES 2013 MAR, 28 AM 9: 3 1 I.D. 17837 10 East High Street CUMBERLAND CoUt4l-y Carlisle, PA 17013 PENNSYLVANIA (717) 243-3341 Attorneys for Defendants BARBARA MISICKO and, IN THE COURT OF COMMON PLEAS OF DAVID MISICKO, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2012-4563 CIVIL ACTION-LAW CHALIT'S THAI BISTRO, Defendant JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Enter the appearance of MARTSON LAW OFFICES on behalf ofthe Defendant in the above matter and issue a rule upon the Plaintiffs to file a Complaint within twenty(20)days from service thereof or suffer judgment of non pros. Defendant hereby demands a twelve juror jury trial in the above captioned action. MARTSON LAW OFFICES B �. Daniel K. Deardorff, Esquire I.D.No. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: Attorneys for Defendant RULE AND NOW,this day of N ovv t�x '2013,a Rule is issued upon the Plaintiff to file a Complaint within twenty(20) days fro`m service hereof. Prothonotary CERTIFICATE OF SERVICE 1,Ami J.Thumma, an authorized agent for Martson Law Offices,hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle,PA, first class mail, postage prepaid, addressed as follows: Stephen G. Held, Esquire HANDLER, HENNING& ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 MARTSON LAW ICES B JGI,i J. mma Ten East High Street Carlisle, PA 17013 (717)243-3341 Dated: tt� PROTf{p p� TAR OUP'��RC P ENNS yL A�Oq�T Y Stephen G. Held, Esquire I.D. No. 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiffs Fax : (717) 233-3029 E-mail: Held @HHRLaw.com BARBARA MISICKO & DAVID MISICKO, her IN THE COURT OF COMMON PLEAS OF Husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO.: 2012-4563 CIVIL V. CHALIT'S THAI BISTRO, CIVIL ACTION - LAW Defendant 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. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 717-249-3166 Stephen G. Held, Esquire I.D. No. 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiffs Fax : (717) 233-3029 E-mail: Held @HHRLaw.com BARBARA MISICKO & DAVID MISICKO, her IN THE COURT OF COMMON PLEAS OF Husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO.: 2012-4563 CIVIL V. CHALIT'S THAI BISTRO, CIVIL ACTION - LAW Defendant 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 accion dentro de los proximos veinte (20) dias despues de la notificacion 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 reclamacion 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 0 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 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 717-249-3166 Stephen G.Held(PA 72663) HANDLER,HENNING&ROSENBERG,LLP 1300 Linglestown Road Harrisburg,PA 17110 Ph. 717.238.2000 Attorneys for Plaintiffs Fax 717.233.3029 held @hhrlaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARBARA MISICKO & DAVID MISICKO,: her husband, Plaintiffs V. No. 2012 -4563 Civil CHALIT'S THAI BISTRO, Defendant COMPLAINT AND NOW, come Plaintiffs, Barbara & David Misicko ("Mr. & Mrs. Misicko"), by and through her attorneys, HANDLER,HENNING&ROSENBERG,LLP, by Stephen G. Held, Esq., and bring forth this Complaint against Defendant, Chalit's Thai Bistro ("Defendant"), and aver as follows: 1. Mrs.Misicko is an adult individual and citizen of the Commonwealth of Pennsylvania currently residing with her husband, Mr. Misicko, at 6 Bretz Circle, Shermans Dale,Perry County, Pennsylvania. 2. Mr.Misicko is an adult individual and citizen ofthe Commonwealth ofPennsylvania currently residing with his wife, Mrs. Misicko, at 6 Bretz Circle, Shermans Dale, Perry County, Pennsylvania. 3. At all times material hereto, Mr. &Mrs. Misicko were lawfully married as husband and wife. 4. Defendant is,upon information and belief, a limited liability corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its principle place of business at 5103 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. 5. At all times material hereto,Defendant was in ownership,possession,management, and control of the premises known as Chalit's Thai Bistro, located at 5103 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania(the"Premises"). 6. At all times material hereto, Plaintiffs were business invitees upon said Premises. 7. At all times material hereto,Defendant,who had exclusive control of the Premises, had allowed the foyer floor to become and remain in a wet and slippery condition as a result of other invitees tracking in water from the rain outside. 8. At all times material hereto, there were no warning signs posted on the Premises warning of the unsafe condition of the wet and slippery floor. 9. On or about August 16, 2010, at about 4:00 p.m., Mrs. Misicko was entering the Premises when she slipped on the wet floor, which caused her to fall harshly upon the ground and resulted in personal injuries as detailed more specifically hereinafter. 2 COUNT I-NEGLIGENCE Barbara Misicko v. Chalit's Thai Bistro 10. All prior paragraphs are incorporated herein as if set forth fully below. 11. At all times material hereto,Defendant was in ownership,possession,management, and control of the Premises and was responsible for maintaining its safe condition. 12. The occurrence of the aforementioned incident and the resulting injuries to Mrs. Misicko were caused directly and proximately by Defendant's negligence,acting through its agents, servants, or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: a. In causing or permitting the floor of the Premises to become and remain in a wet and slippery condition, thereby posing an unreasonable risk of injury to Mrs. Misicko and to other persons lawfully upon the premises; b. In failing to make a reasonable inspection of the Premises which would have revealed the existence of the dangerous condition posed by the wet floor, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; C. In failing to ensure the floors at the Premises were maintained in a safe condition to prevent injury to Mrs. Misicko and other persons lawfully upon the Premises; d. In failing to post a warning sign or device in the area of the wet floor 3 so as to notify customers of the dangerous condition on the floor of the Premises; e. In failing to clean the water from the floor or properly and adequately clean the water from the floor of the Premises so as to avoid the situation in which Mrs. Misicko slipped and fell; and f. In failing to maintain the floor in a reasonably safe condition that would prevent a customer from slipping and falling. 13. Defendant had actual knowledge or should have known through the exercise of ordinary care and diligence that the floor in the area where Mrs. Misicko fell, was in a wet and slippery condition. 14. As a direct and proximate result of the negligence of Defendant's negligence, Mrs. Misicko has: a. sustained injuries including,but not limited to,headaches and injuries to her back. b. undergone physical pain,discomfort and mental anguish and she will continue to endure the same for an indefinite period of time in the future, to her detriment and loss, physically, emotionally, and financially; C. been compelled,in order to effect a cure for the aforesaid injuries,to expend sums of money for medicine and medical attention, and will be required to expend more of the same for the same purposes in the future, to her detriment and loss; 4 d. been, and will in the future be, hindered from attending to her daily duties to her detriment, loss,humiliation and embarrassment; and e. suffered, and will in the future suffer, a loss of life's pleasures. WHEREFORE, Plaintiff, Barbara Misicko, seeks damages from Defendant, Chalit's Thai Bistro, in an amount in excess of compulsory arbitration limits of Cumberland County. COUNT II- LOSS OF CONSORTIUM David Misicko v. Chalit's Thai Bistro 15. All prior paragraphs are incorporated herein as if set forth fully below. 16. As a direct and proximate result ofDefendant's negligence,Mr.Misicko has suffered a loss of consortium,society,and comfort from his wife,Mrs.Misicko,and he will continue to suffer a similar loss in the future. 17. As a direct and proximate result of Defendant's negligence, Mr. Misicko has been compelled, in order to effect a cure for his wife's injuries, to expend money for medicine and medical attention and he will be required to expend money for the same purposes in the future, to his detriment and loss. 5 WHEREFORE,Plaintiff,David Misicko,seeks damages from Defendant,Chalit's Thai Bistro, in an amount in excess of compulsory arbitration limits of Cumberland County. Respectfully Submitted, HANDLER,HENNING&ROSENBERG,LLP Dated: May 6, 2013 By: Ste We d (PA 72663) 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Ph. 717.23 8.2000 Fax 717.233.3029 held @hhrlaw.com Attorneys for Plaintiffs 6 VERIFICATION The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to counsel by us and information which has been gathered by counsel in the preparation of this lawsuit. The language of the document is of counsel and not our own. We have read the document and to the extent that it is based upon information which we have given to counsel, it is true and correct to the best of our knowledge, information and belief. To the extent that the contents of the document are that of counsel, we have relied upon our counsel in making this Verification. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: Barbara Misicko David Misicko Stephen G. Held, Esquire Attorney ID#72663 HANDLER,HENNING & ROSENBERG, LLP 1300 Linglestown Road,Suite 2 Harrisburg, PA 17110 Telephone: (717)238-2000 Attorney for Plaintiffs Fax : (717)233-3029 E-mail: Held@hhrlaw.com BARBARA MISICKO and DAVID IN THE COURT OF COMMON PLEAS MISICKO, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 201.2-4563 CHALIT'S THAI BISTRO, CIVIL ACTION -LAW Defendant CERTIFICATE OF SERVICE On this 7"' day of May, 2013, 1 hereby certify that a true and correct copy of Plaintiffs'Complaint was served upon the following by depositing same in the United States Mail, in Harrisburg, Pennsylvania: Daniel K. Deardorff, Esquire MARTSON, DEARDORFF, WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 Attorney for Defendant HANDL ,HENNING & ROSENBERG,LLP Stephen G. squire I.D. No.: 72 fff Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY a Y MISICKO & MISICKO, W/H Vs. n NO. 2012 4563 CHALIT' S THAI BISTRO moo CERTIFICATE CD PREREQUISITE TO SERVICE OF A SUBPOENA '— PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena(s) for documents and things pursuant to Rule 4009 .22 DANIEL K DEARDORFF, ESQUIRE certifies that : 1 . A Notice of Intent to Serve the Subpoena(s) with a copy of the subpoena (s) attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena(s) is sought to be served, 2 . A copy of the Notice of Intent, including the proposed subpoena (s) is attached to this certificate, 3 . No objection to. the subpoena (s) has been received, and 4 . The subpoena(s) which will be served is identical to the subpoena (s) which is attached to the Notice of Intent to Serve the Subpoena (s) . Date: 04/29/13 DANIEL K DEARDORFF, ESQUIRE 10 E HIGH ST CARLISLE, PA 17013 717-243-3341 ATTORNEY FOR DEFENDANT INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA PA 19135 (215) 335-4907 By: Dawn Smith MLR File #: M410365 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MISICKO & MISICKO, W/H Vs . CHALIT' S THAI BISTRO No. 2012 4563 TO: STEPHEN HELD, ESQ (PLAINTIFF) NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 DEFENDANT intends to serve a subpoena (s) identical to the one (s) attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Date: 04/08/13 DANIEL K DEARDORFF, ESQUIRE 10 E HIGH ST CARLISLE, PA 17013 ATTORNEY FOR DEFENDANT INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA, PA 19135 (215) 335-4907 By: Tara Yeager Enc (s) : Copy of subpoena (s) Counsel return card File # : M410365 Wr-T-'�LT[i C"an . - : COUNry OF CUMBERLAND MISICKO & MISICKO, W/H Vs . File No. 2012 4563 CHALIT' S THAI BISTRO ORIGINAL X-RAYS REQUESTED MEDICAL BILLING REQUESTED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 GOOD HOPE FAM PHYSICIANS, 1830 GOOD HOPE RD, ENOLA PA 17025 G TO: (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you &r-e ,ongf ed-,.by- the court to produce the following domments or, S1_E'-"E`3`%tTA%C1r-m-1j A-DDEND"ILTINIF at MEDICAL LEGAL REPRODUCTION§,(AV­ r';C_ssJ940 DI'STON ST. _ PHILA. , YK You may deliver or mail legible copies of the doctments or produce things requested t,� this subpoena, together with the certificate of ccnpliance, to the party making thi_z request at the address listed above. You have the right to seek. in advance the rea7,onablE cost of r:)reoaring the copies or pr-Aucing 4-L le things soua-"t if you fail to produce the dcK,-jn-pnts or things required by this subpoena within twenty (20) day s after its service, the party serving thi�-, subpoena may seek a court orcje.- cm. pelling you to cm 1 with if t. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWINGS PERSON: NAME: DANIEL K DEARDORFF, ESQ ACORESS: 10 E HIGH ST eAR14GLE, PA 17013 TELEPHONE: 215-335-3212 SUPREME COURT ID ATTORNEY FOR: DEFENDANT BY THE M410365-01 A 0 Prothorpotary/Clerk, Civil Divi S;on DATE- Seal he Court Deputy (Eff. 1/97) ADDENDUM TO SUBPOENA MISICKO & MISICKO, W/H Vs . No. 2012 4563 CHALIT' S THAI BISTRO CUSTODIAN OF RECORDS FOR: GOOD HOPE FATM PHYSICIANS ANY AND ALL RECORDS , FILMS , BILLS-, INPATIENT, OUTPATIENT AND ER RECORDS FROM 8/1/90 TO PRESENT. PERTAINING TO: NAME: BARBARA MISICKO ADDRESS : 6 BRETZ CIR SHERMANSDALE PA DATE OF BIRTH: 12/21/53 SSAN: XXXXX9792 ORIGINAL X-RAYS REQUESTED MEDICAL BILLING REQUESTED pROVIDE A LIST OF FILMS FOR PRIOR APPROVAL CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RECORD CUSTODIAN - COMPLETE AND RETURN I RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. NO DOCUMENTS AVAILABLE. I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX) : RECORDS PATIENT BILLING X-RAYS RECORDS / XRAYS have been destroyed Date Authorized signature for GOOD HOPE FAM PHYSICIANS CUMBERLAND M410365-01 SIGN AND RETURN THIS PAGE w FAFILES\Clients\3050 Donegal\3050 Cuuentl3050.698\3050.698.ansl.wpd Revised: 5/31/13 10 25A Daniel K. Deardorff, Esquire Z rG MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER , MARTSON LAW OFFICES ' `' I.D. 17837 10 East High Street Carlisle, PA 17013 ;; (717) 243-3341 Attorneys for Defendants BARBARA MISICKO and, IN THE COURT OF COMMON PLEAS OF DAVID MISICKO, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2012-4563 CIVIL ACTION - LAW CHALIT'S THAI BISTRO, Defendant JURY TRIAL DEMANDED DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT TO: BARBARA MISICKO and DAVID MISICKO, her husband, and their attorney, STEPHEN G. HELD, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY(20)DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW comes Defendant, CHALIT'S THAI BISTRO, by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and hereby responds to Plaintiffs' Complaint as follows: 1-3. After reasonable investigation, the Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of this averment. 4-5. Admitted. 6. It is denied that Plaintiffs were business invitees. To the contrary, the Bistro was closed and there was a "Closed" sign on the door. Plaintiffs had trespassed into the premises thinking it was another business. 7-9. Denied pursuant to Pa. R.C.P. 1029(e). COUNT I -NEGLIGENCE Barbara Misicko v. Chalit's Thai Bistro 10. Paragraphs 1 through 9 of this Answer are incorporated herein. I1-14. Denied pursuant.to Pa. R.C.P. 1029(e). WHEREFORE, Defendant demands judgment in its favor and dismissal of Plaintiffs' Complaint with prejudice. COUNT II - LOSS OF CONSORTIUM David Misicko v. Chalit's Thai Bistro 15. Paragraphs 1 through 14 of this Answer are incorporated herein. 16-17. Denied pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendant demands judgment in its favor and dismissal of Plaintiffs' Complaint with prejudice. NEW MATTER 18. The averments set forth in paragraphs 1 through 17 are incorporated by reference as though fully set forth herein. 19. If the Plaintiff suffered the injuries alleged herein,which is denied,then recovery is barred by Plaintiff's assumption of the risk of any such injuries. 20. If the Plaintiff suffered the damages alleged herein, which is denied, then those damages were caused in whole or in part by her own negligence and recovery is barred or diminished in accordance with the provisions of the Pennsylvania Comparative Negligence Act. 21. Plaintiff s action is barred by the applicable statute(s) of limitations. 22. If Plaintiff has suffered any injuries or damages,which is denied,then it is believed and therefore averred that some or all of the alleged injuries or damages that were caused in whole or in part by the negligence of one or more third persons for whose conduct Defendant is not responsible. 23. At the time of the alleged accident, Plaintiff Barbara Misicko was carelessly and negligently running into the premises and by this conduct assumed the risk of injury. WHEREFORE, Defendant demands judgment in its favor and dismissal of Plaintiffs' Complaint with prejudice. MARTSON LAW OFFICES By �- Daniel K. Deardorff, Esquire I.D. No. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: , 13 /2 G/ 3 Attorneys for Defendant VERIFICATION The foregoing Answer with New Matter is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel,it is true and correct to the best of my knowledge,information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. 4 Chalit Kijchareo F:\FILES\Clients\3050 Donegal\3050 Current\3050.698\3050.698.ansl.wpd CERTIFICATE OF SERVICE I, Ami J. Thumma,an authorized agent for Martson Law Offices,hereby certify that a copy of the foregoing Answer with New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 MARTSON LAW OFEICES By Ami J. ThUma Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: C+ TH P E RO ot40 TA R Y 2013 JUN 12 PH 1 5 6 CUMBERLAND COUNTY Stephen G. Held PENNSYLVANIA Attorney ID#72663 HANDLER, HENNING& ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiffs Fax : (717)233-3029 E-mail: Held @hhriaw.com BARBARA MISICKO and DAVID IN THE COURT OF COMMON PLEAS MISICKO, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2012-4563 CIVIL ACTION - LAW CHALIT'S THAI BISTRO Defendants PLAINTIFFS' REPLY TO NEW MATTER AND NOW, comes the Plaintiffs, Barbara Misicko and David Misicko, by and through their attorney, HANDLER, HENNING & ROSENBERG, LLP, by Stephen G. Held, Esq., and responds to the Defendant's allegations of New Matter as follows: 18. This Paragraph is one of incorporation to which no response is required. 19. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of'amplification, Plaintiff did not assume the risk of any injuries. 20 This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is denied that Plaintiff was negligent and therefore the i r Pennsylvania Comparative Negligence Act neither bars nor diminishes a recovery. 21. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is denied that Plaintiffs' action is barred by the applicable Statute of Limitations. 22. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, all of Plaintiff's injuries or damages were caused in whole by the negligence of Defendant. 23. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is denied that Plaintiff, Barbara Misicko was carelessly and negligently running into the premises and also denied that if Plaintiff was running into the premises, this was not an assumption of risk of injury. WHEREFORE, Plaintiffs demand judgment in their favor against Defendants. Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP By: .J%. W t hen G. Held, Esquire Supreme Court I.D. # 72663 1300 Linglestown Road Harrisburg, PA 17110 held _hhrlaw.com (717) 238-2000 DATED: 61 boll 3 Attorney for Plaintiff INN Handler Henning & Rosenberg LLP Attorneys at Law F VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 (c) Stephen G. Held, Esquire, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to unsworn falsification to authorities. St G. Held, Esquire Date: 6/10/2013 1300 LINGLESTOWN ROAD,SUITE 2 1 HARRISBURG,,PA 17110 717 238 2000 1 f 717 233 3029 1 toll free 800 422 2224 1 www.hhriaw.com Carlisle 717 2412244 1 Hanover 717 630 8200 1 Lancaster 717 4314000 1 York 717 845'7800 Stephen G. Held Attorney ID#72663 HANDLER, HENNING& ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717)238-2000 Attorney for Plaintiffs Fax : (717)233-3029 E-mail: Held @hhrlaw.com BARBARA MISICKO and DAVID IN THE COURT OF COMMON PLEAS MISICKO, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2012-4563 CIVIL ACTION - LAW CHALIT'S THAI BISTRO Defendants CERTIFICATE OF SERVICE On 6/10/13, 1 hereby certify that a true and correct copy of Plaintiffs' Reply To New Matter was served upon the following by depositing same in the United States Mail, in Harrisburg, Pennsylvania: Daniel K. Deardorff, Esq. MARTSON, DEARDORFF, WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 HANDLER HE NING & ROSENBERG, LLP Dated:6/10/13 St hen G. Held IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MISICKO & MISICKO n c -r{ Vs. NO. 2012 4563Wm ' CHALIT'S THAI BISTRO S -a - ; rso �C7 CERTIFICATE -� Q` ° , CD PREREQUISITE TO SERVICE OF A SUBPOENA o o rte-., .... _. PURSUANT TO RULE 4009.221 As a prerequisite to service of a subpoena(s) for documents and things pursuant to Rule 4009 .22 DANIEL K DEARDORFF, ESQUIRE certifies that : 1 . A Notice of Intent to Serve the Subpoena(s) with a copy of the subpoena(s) attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena(s) is sought to be served, 2 . A copy of the Notice of Intent, including the proposed subpoena (s) is attached to this certificate, 3 . No objection to the subpoena (s) has been received, and 4 . The subpoena(s) which will be served is identical to the subpoena (s) which is attached to the Notice of Intent to Serve the Subpoena(s) . Date: 09/12/13 DANIEL K DEARDORFF, ESQUIRE 10 E HIGH ST CARLISLE, PA 17013 717-243-3341 ATTORNEY FOR DEFENDANT INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA PA 19135 (215) 335-4907 By: Dawn Smith MLR File #: M414267 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MISICKO & MISICKO Vs. CHALIT'S THAI BISTRO No. 2012 4563 TO: STEPHEN HELD, ESQ (PLAINTIFF) NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 DEFENDANT intends to serve a subpoena(s) identical to the-one (s) attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Date: 08/21/13 DANIEL K DEARDORFF, ESQUIRE 10 E HIGH ST CARLISLE, PA 17013 ATTORNEY FOR DEFENDANT INQUIRIES SHOULD BE ADDRESSED TOt. MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA, PA 19135 (215) 335-4907 By: Tara Yeager Enc (s) : Copy of subpoena (s) Counsel return card File #: M414267 COrMNWEALTH OF PENNSYLVANIA COUNTY OF MISICKO & MISICKO Vs . File No. 2012 4563 CHALIT' S THAI BISTRO , MEDTCAL SUBPOENA TO PRODUCE DOCUMENTS OR 1 TH NOS BILLING REQUESTED FOR DISOOVERY PURSUANT TO RULE 4009.22 SANFORD & ROUDMM,, 1845 CENTER ST, CAMP HILL PA 17011 TO: (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED ADDEADUM at MEDICAL LEGAL REPRODUCTIONS(,Acyjgjs)4940 DISSTON ST. , PHILA. , PA You may deliver or mail legible copies of the documents or produce things requested b� this subpoena, together with the certificate of cernpliance, to the party making thi request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days -after its service, the party serving thi, subpoena may seek a court ordei- cxrnpe l l i ng you to ca, l y with it. THIS SUBPOENA WAS ISSUED AT THE REQUIEST OF THE FOLLOWING PERSON: NAME: DANIEL K DEARDORFF, ESQ ADDRESS: _ 10 E HIru GT 17013 TELEPHONE: SUPREME COURT I D # 215-335-3212 ATTORNEY FOR: DEFENDANT BY THE COURT: M414267-01 �WT Proth ar Clerk, Civil Division DATE: , .-7c�`3 Sea of the court a tin a 8 j7 Deputy (Eff. 7/97) ADDENDUM TO SUBPOENA MISICKO & MISICKO Vs . No. 2012 4563 CHALIT' S THAI BISTRO CUSTODIAN OF RECORDS FOR: SANFORD & ROUMM ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: BARBARA MISICKO ADDRESS : 6 BRETZ CIR SHERMANSDALE PA DATE OF BIRTH: 12/21/53 SSAN: XXXXX9792 MEDICAL BILLING REQUESTED CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RECORD CUSTODIAN - COMPLETE AND RETURN [ ] RECORDS AREATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. [ l NO DOCUMENTS AVAILABLE: I hereby certify that a thorough search .has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX) : ( ) RECORDS ( ) PATIENT BILLING ( ) X-RAYS ( ) RECORDS / XRAYS have been destroyed Date Authorized signature for SANFORD & ROUMM CUMBERLAND M414267-01 * * * SIGN AND RETURN THIS PAGE C0 xtiV,-MEAT—T-: OF ; YLV NDA ODUNPY OF CUMBERLAND MISICKO & MISICKO Vs . Fi le No. 2012 4563 CHALIT' S THAI BISTRO SUBPOENA TO PRODUCE DOCUMENTS ORD BILLING REQUESTED FOR DISCOVERY PURSUANT TO RULE 4009.22 PRISM CTR SPINE & PAIN, 175 LANCASTER BLVD BOX 2028, MECHANISBURG PA 17 TO: (Nr,e of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or SEE gs: —A-D at +MEDICAL LEGAL REPRODUCTIONS(AlKbs t940 DISSTON ST. , PHILA. , PA You may deliver or mail legible copies of the documents or produce things requested t� this subpoena, together with the certificate of compliance, to the party making thi_ request at the address listed above. You have the right to seek in advance the rea.onable cost of preparing the dies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving thii subpoena may seek a court ordei- cxxmpe l l i ng you to caT p l y with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: DANIEL K DEARDORFF, ESQ ADDRESS:_ 10 F HIGH ST elARL19fiE, -A 17013 TELEPHONE: 215-335-321 SUPREME OOURT ID # ATTORNEY FOR: DEFENDANT BY THE COURT: M414267-02 ws.� but L 77- _ T / Prot tar lark, Civil Division DATE' �' �J , Sealilof the Court Deputy (Eff. 7/97) y ADDENDUM TO SUBPOENA MISICKO & MISICKO Vs . CHALIT' S THAI BISTRO No. 2012 4563 CUSTODIAN OF RECORDS FOR: PRISM CTR SPINE & PAIN ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: BARBARA MISICKO ADDRESS : 6 BRETZ CIR SHERMANSDALE PA DATE OF BIRTH: 12/21/53 SSAN: XXXXX9792 MEDICAL BILLING REQUESTED CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RECORD CUSTODIAN - COMPLETE AND RETURN [ ] RECORDS ARE ATTACHED HERETO. I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. [ ] NO DOCUMENTS AVAILABLE. I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX) : ( ) RECORDS ( ) PATIENT BILLING ( ) X-RAYS ( ) RECORDS / XRAYS have been destroyed Date Authorized signature for PRISM CTR SPINE & PAIN CUMBERLAND M414267-02 * * * SIGN AND RETURN THIS PAGE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, MISICKO & MISICKO 5. © �= Vs. a NO. 2012 4563 can N , CHALIT'S THAI BISTRO CERTIFICATE ' G .- PREREQUISITE TO SERVICE OF A SUBPOENA '7 PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena (s) for documents and things pursuant to Rule 4009 .22 DANIEL K DEARDORFF, ESQUIRE certifies that : 1. A Notice of Intent to Serve the Subpoena (s) with a copy of the subpoena (s) attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena (s) is sought to be served, 2 . A copy of the Notice of Intent, including the proposed subpoena(s) is attached to this certificate, 3 . No objection to the subpoena(s) has been received, and 4 . The subpoena (s) which will be served is identical to the subpoena (s) which is attached to the Notice of Intent to Serve the Subpoena(s) . Date: 11/27/13 DANIEL K DEARDORFF, ESQUIRE 10 E HIGH ST CARLISLE, PA 17013 717-243-3341 ATTORNEY FOR DEFENDANT qA„JV/.. INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA PA 19135 (215) 335-4907 By: Dawn Smith MLR File #: M416369 iN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MISICKO & MISICKO Vs . CHALIT'S THAI BISTRO No. 2012 4563 TO: STEPHEN HELD, ESQ (PLAINTIFF) NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 DEFENDANT intends to serve a subpoena (s) identical to the one (s) attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon* ' the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. • Date: 11/06/13 DANIEL K DEARDORFF, ESQUIRE 10 E HIGH ST CARLISLE, PA 17013 ATTORNEY FOR DEFENDANT INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA, PA 19135 (215) 335-4907 By: Dawn Smith Enc (s) : Copy of subpoena (s) Counsel return card File #: M416369 %(\i xr7 TIl ' PENNSYLVANIA _na_n l la rI Va cowry OF CUMBERLAND • • MISICKO & MISICKO • 2012 4563 • VS. • File No. CHALIT' S THAI BISTRO • • • • SUBPOENA TO PRODUCE DOCUMENTS OR THINS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: HERITAGE DIAG CT•R (Nana of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following docuents or things: -_ **SEE _ TTACHEa ADDENDUM** ------- at Medical Legal Reproductions Inc 4940 Disston St Phila PA 19135__ (Address) You may deliver or mail legible copies of the documents or produce things requested h� this subpoena, together with the certificate of ratio l i ante, to the party making th i request at the address listed above. You have the right to seek 'in advance the rea.onablr cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court orde;- c rpelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: • NAME: DANIEL K DEARDORFF, ESQ ADDRESS: _ 10 E HIGH ST CARLISLE PA 17013 TELEPHONE: ( 21 5 ) 335-3212 SUPREME COURT ID # 1 7 R 1 7 ATTORNEY FOR: DEFENDANT BY THE COURT: Prothonotary/Clerk, Civil Division DATE: Seal •f t e Court 1 & - _ Deputy • • (Eff. 7/97) ADDENDUM TO SUBPOENA MISICKO & MISICKO Vs. No. 2012 4563 CHALIT'S THAI BISTRO CUSTODIAN OF RECORDS FOR: HERITAGE DIAG CTR ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: BARBARA MISICKO ADDRESS : 6 BRETZ CIR SHERMANSDALE PA DATE OF BIRTH: 12/21/53 SSAN: XXXXX9792 MEDICAL BILLING REQUESTED • • CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. RECORD CUSTODIAN - COMPLETE AND RETURN [ ] RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. [ ] NO DOCUMENTS AVAILABLE: i hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX) : ( ) RECORDS ( ) PATIENT BILLING ( ) X-RAYS ( ) RECORDS / XRAYS have been destroyed Date Authorized signature for HERITAGE DIAG CTR CUMBERLAND M416369-01 *** SIGN AND RETURN THIS PAGE * ** F:\FILES\Clients\3050 Donegal\3050 Current \3050:698\3050.698. msj 1.wpd Revised: 12/17/14 3:36PM Daniel K. Deardorff, Esquire MARTSON LAW OFFICES I.D. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants `1-1.4r;, i t1i; i OEC 18 Af.i 9: 1 CUMBERLAND COUNTY PENNSYL AUIJ BARBARA MISICKO and, DAVID MISICKO, her husband, Plaintiffs v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2012-4563 : CIVIL ACTION - LAW CHALIT'S THAI BISTRO, Defendant : JURY TRIAL DEMANDED MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CHALIT'S THAI BISTRO AND NOW, comes Defendant Chalit's Thai Bistro, by its attorneys, Martson Law Offices, and hereby files its Motion for Summary Judgment as follows: 1. This action arises out of an alleged slip and fall that occurred on August 16, 2010, at the restaurant of Defendant Chalit's Thai Bistro, which is located at 5103 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania ("The Premises"). 2. In her Complaint, the Plaintiff alleges that "there were no warning signs posted on the premises warning of the unsafe condition of the wet and slippery floor." (Complaint at paragraph 8.) 3. Plaintiff further alleges that after she entered The Premises, "she slipped on the wet floor, which caused her to fall harshly upon the ground and resulted in personal injuries as detailed more specifically hereinafter." (Complaint at paragraph 9). 4. Plaintiffs also allege that they were "business invitees upon said premises." (Complaint at paragraph 6.) 5. On May 31, 2013, Defendant filed an Answer with New Matter in which Defendant denied that it was negligent and denied that Plaintiffs were business invitees. Defendant specifically stated: "To the contrary, the. Bistro (The Premises) was closed and there was a "Closed" sign on the door. Plaintiffs had trespassed into the premises thinking it was another business." (Defendant's Answer at paragraph 6.) 6. The pleadings are closed in this matter. 7. Discovery is complete in this matter. 8. Pursuant to Pennsylvania Rule of Civil Procedure 1035.2, "[a]fter the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action ... which could be established by additional discovery...." 9. Defendant now moves for Summary Judgment because it is entitled to Judgment as a matter of law. 10. When determining whether a party is entitled to summary judgment, the court "view[s] the evidence and all inferences reasonably drawn therefrom in a light most favorable to the non-moving party." Seaton v. East Windsor Speedway, Inc., 582 A2d 1380, 1382 (Pa. Super. 1990). 11. Plaintiff alleges that she was an invitee at the time of the accident. 12. If the Plaintiff was a business invitee at the time of the alleged accident, Defendant owed a duty to protect her against known dangers and those dangers which might be discovered with reasonable care. Campisi v. Acme Markets, Inc., 915 A.2d 117, 119 (Pa. Super. 2001). 13. "What constitutes constructive notice must depend on the circumstances of each case, but one of the most important factors to be taken into consideration is the time elapsing between the origin of the defect or hazardous condition and the accident." Neve v. Insalaco's, 771 A.2d 786, 791 (Pa. Super. 2001.) 14. In her deposition, Plaintiff Barbara Misicko testified that her husband had dropped her off close to the front door of Defendant's restaurant and it was raining heavily at the time. She darted to the door and she was wearing Crocs, which were wet. She then went into the restaurant and slipped. She did not knowthe condition of the floor before she fell and didn't know whether it was dry or wet. (Deposition of Plaintiff Barbara Misicko at page 30, line 5 through page 33, line 6, attached hereto as Exhibit "A.") 15. In his deposition, Plaintiff David Misicko testified that it was pouring rain outside at the time and he was parking the car when he saw his wife, Barbara Misicko, dashing toward the restaurant. He then parked the car and dashed into the restaurant. He acknowledged that his shoes were wet. He further testified that he was not familiar with the condition of the floor where Plaintiff fell before she fell. (Deposition of Plaintiff David Misicko at page 6, line 23 through page 8, line 25, attached hereto as Exhibit "B.") 16. The owner of Defendant's restaurant testified in his deposition that he was in the restaurant at the time Plaintiff Barbara Misicko fell. It was raining hard outside and the restaurant had closed after lunch had been served, between 12:00 p.m. and 2:00 p.m. A sign was placed at the front door indicating that the restaurant was closed. The restaurant had not opened for dinner when Plaintiff Barbara Misicko came into the restaurant. No one had come into the restaurant after it had been closed at 2:00 p.m. The area at the door where Plaintiff fell was clean and dry. (Deposition of Chalit Kijcharoen at page 10, line 2 through page 14, line 18, attached hereto as Exhibit "C.") 17. Laura McKechnie, who was the manager of the restaurant at the time of the accident, testified in her deposition that the restaurant had been closed after lunch was served, around 2:00 p.m. and she had flipped the sign on the front door to indicate that the restaurant was "Closed." She testified that the floor in the -area of the front door was clean and dry and there was no water or rain on it. She further testified that the restaurant had not reopened when Plaintiff Barbara Misicko rushed inside and fell. Plaintiff Barbara Misicko came through the door before Laura McKechnie had an opportunity to move a mat closer to the front door. The sign on the front door indicated that the restaurant was "Closed" at the time of the accident. She had not given the Plaintiff permission to come into the restaurant when it was closed. (Deposition of Laura McKechnie at page 7, line 22 through page 11, line 3, attached hereto as Exhibit "D.") 18. Viewing the evidence in this matter in a light most favorable to the nonmoving party, there is no genuine issue of material fact that Defendant had neither actual notice nor constructive notice of any dangerous wet or slippery condition on its floor at the front door area. 19. In addition, Defendant alleges that the Plaintiff, Barbara Misicko, who slipped when she entered the restaurant, was a. trespasser at that time. 20. The Pennsylvania Supreme Court has recognized that a trespasser may recover for injuries sustained on land only if the possessor of land was guilty of wanton or willful negligence or misconduct. Rossino v. Kovacs, 718 A.2d 755 (Pa. 1998). 21. In the present case, Plaintiffs have never alleged that the Defendant willfully or wantonly injured her and only negligence has been alleged. 22. Pennsylvania law has also accepted the Restatement of Torts (2') at Section 329 which defines a trespasser as "a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise." Rossino v. Kovacs, Supra. 23. Even if the Plaintiff is an accidental trespasser, the Plaintiff's status is still that of a trespasser. Oswald v. Hausman, 548 A.2d 594 (Pa. Superior Court 1988). 24. The owner of the restaurant testified that the sign on the front door, through which Plaintiff rushed at the time of the accident, indicated that the restaurant was "Closed." (Deposition of Chalit Kijcharoen at page 9, line 4 through page 13, lines 20-24 , attached hereto as Exhibit "E.") 25. In her deposition, the manager of Defendant testified that she had flipped the sign at the front door of the restaurant on the day of the accident to indicate that the restaurant was closed and that's what the sign read when the Plaintiff rushed through the front door. (Deposition of Laura McKechnie at page 5, line 11 through page 11, line 3, attached hereto as Exhibit "F.") 26. Both the owner and the manager testified that they had not given permission to the Plaintiff to come into the restaurant at the time of the accident. (Deposition of Chalit Kijcharoen at page 17, lines 13-22; Laura McKechnie at page 10, lines 23-25, attached hereto as Exhibit "G.") 27. Plaintiff Barbara Misicko testified in her deposition that she saw no signs and was not looking for any signs as she was rushing to the front door of the restaurant because it was raining "cats and dogs." She is not disputing that there was a sign there. She could not say whether there was a sign there or not. She acknowledged that she had no permission to enter the restaurant. (Deposition of Plaintiff Barbara Misicko at page 33, line 7 through page 35, line 7, attached hereto as Exhibit "H.") 28. Plaintiff David Misicko testified in his deposition that he was not denying that there was a sign on the door that indicated that the restaurant was "Closed." (Deposition of David Misicko at page 12, line 16 through page 13, line 4, attached hereto as Exhibit "I.") 29. Viewing this evidence, that the restaurant was closed and the Plaintiffs did not have permission to enter the restaurant, in a light most favorable to the nonmoving party, there is no genuine issue of material fact that the Plaintiffs were trespassers into Defendant's premises. 30. Plaintiffs' counsel does not concur with the relief sought in this Motion. 31. No Judge has ruled on any issues in this case to date. WHEREFORE, Defendant Chalit's Thai Bistro requests that Summary Judgment be entered in its favor against Plaintiffs and that Plaintiffs' civil action be dismissed with prejudice. Dated: 19) I [g -I Respectfully Submitted, MARTSON LAW OFFICES By -e,o lc Daniel K. Deardorff, Esquire I.D. No. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant EXHIBIT "A" BARBARA MISICKO 1 A. Yes. 2 Q. Rossmoyne Business District? 3 A. Yes. It's, like, next to -- there's a 4 restaurant there. 5 Q. Isaac's? 6 A. Yes. 7 Q. It's close to Isaac's? 8 A. Um -hum. 9 Q. Did you see your family doctor over that? 10 A, They were closed. 11 Q. And how did they treat your foot? 12 A. They did an x-ray and told me that I did have 13 a little fracture and that the next day I should go to 14 OIP Institute. 15 Q. Did you go to OIP? 16 A. Um -hum. 17 Q. Yes? 18 A, Yes. 19 Q. And who did you see at OIP? 20 A. Let's see. I apologize; I can't remember his 21 name. I think it begins with K, Kline. I am so sorry; 22 I don't'remember the gentleman's name. 23 Q. Have you had any other incidents such as a 24 car accident, a fall since the incident at Chalit's? 25 A. No. 27 1 we had to get a tax number and we kept calling the IRS 2 and we'd be on the phone with them for 10 minutes and 3 they would disconnect us, and this kept happening 4 repeatedly. 5 And my husband said I know where there's an 6 Internet Cafe and he said we can go there and use the 7 Internet, get a drink and then come back. So he drove 8 to this place thinking it was an Internet Cafe. And 9 that's what brought us there. 10 Q. What bank had you been to? 11 A. Members 1st. 12 Q. And where's that located? 13 A. That was the one in Camp Hill, Camp Hill on 14 Carlisle Pike. 15 Q. So you left the bank? 16 A. Um -hum. 17 Q. You have to say yes. 18 A. Yes. Sorry. 19 Q. And your husband drove down the Carlisle 20 Pike? 21 A. Yes. 22 Q. And you went into the shopping center? 23 A. Yes. 24 Q. Now, tell me where you were when you got out 25 of the car. 1 Q. Now, going back again to August 16, 2010, you 2 had never been there before, correct? 3 A. No. 4 Q. And what was the weather like? 5 A. It was raining. We were getting a horrific 6 thunderstorm, extremely heavy rain. 7 Q. Who was driving the car? 8 A. My husband. 9 Q. And where were you sitting? 10 A. Passenger side. 11 Q. The front? 12 A. Yes. 13 Q. And you had people in the back? 14 A. Yes. 15 Q. Who were those people? 16 A. My sister and my brother. 17 Q. Not Sister-in-law, brother-in-law; they were 18 actually your sister and brother? 19 A. They are my siblings, yes. 20 Q. And what was your plan that day when you left 21 your house in the car? 22 A. My brother passed away August 10th and we had 23 to work on his estate. And we had gone -- my sister and 24 brother had a hard time getting 25 get off that afternoon. Ana we 28 1 A. I got out of the front side of the car and 2 headed towards the restaurant. 3 Q. Where was the car? Was the car in the 4 parking spot at this point? 5 A. No. My husband dropped us off close to the 6 door. 7 Q. Were you on the side closest to the door, or 8 were you on the other side of the car? 9 10 11 12 A. I was on the side closest to the door. Q. And you got out of the car? A. Yes. Q. And tell me what happened after you got out 13 of the car. 14 A. I got out of the car and I darted to the door 15 because of the horrific weather that we were having. I 16 paused, I opened the door, went in and just immediately 17 fell very hard. 18 Q. Did you see anyone go through the door before 19 you? 20 A. I was the first person through the door. 21 Q. And did your brother and sister follow you? 22 A. Yes. 23 Q. How close were they to you? 24 A. They were pretty close. 25 Q. When you opened the door, did they come 1 through with you, or did the door close and then they 2 came through? How did that work? 3 A. I don't know. I presume -- I can't quite 4 remember, but I presume that the door was still ajar as 5 I was going down. 6 Q. What kind of shoes were you wearing? 7 A. I had Crocs on that had the back strap on. 8 Q. And you had to go through the rain, Were 9 there any puddles that you went through, or don't you 10 remember? 11 A. Everything was just wet. There was, you 12 know, it was a heavy, heavy storm. 13 Q. Were your Crocs wet? 14 A. Yes. 15 Q. Were you carrying anything? 16 A. Pocketbook. 17 Q. From the time you opened the door to get out 18 of the car to the time you fell, how many seconds 19 transpired; you know, one thousand one, one thousand 20 two, one thousand three, one thousand four? Can you 21 give me an estimate? 22 A. I'm really not sure. I'm not sure; sorry. 23 Maybe 60 seconds. I'm not really sure. 24 Q. 60 seconds? 25 A. Maybe. I mean, I just darted from there to 31 1 Q. Do you know what the condition of the floor 2 was in the restaurant where you fell before you got in? 3 A. No. 4 Q. So you don't know whether that floor area was 5 dry or what? 6 A. No. 7 Q. Did you see any signs on the door that you 8 opened before you went in? 9 A. No. 10 Q. Were you looking for any signs? 11 A. No. 12 Q. Now, after you filed the Complaint in this 13 case, the restaurant I represent filed an Answer. And 14 they said that the restaurant was closed at the time and 15 was not open for business and they had a sign on the 16 door. 17 Now, when someone says I didn't see a sign, 18 it could mean they were looking and there wasn't any 19 sign there or they just didn't notice whether there was 20 a sign there or not. And what I'm getting at -- my 21 people say there was a sign on the door. Are you saying 22 that's not true? 23 A. I'm not saying that. It was coming down cats 24 and dogs. I could not tell you if there was a sign. I 25 do not know. I just know the door was unlocked. 33 1 the door. And then, you know, the door, from my 2 recollection from what I believe that I remember, the 3 door opened out so I had to pause to open the door. And 4 then I went in, and it was just, like, ice. 5 Q. Now, you're not wearing glasses today, 6 correct? 7 A. Correct. 8 Q. Do you wear contacts? 9 A. No. 10 Q. So you don't have any prescription for 11 glasses or contacts? 12 A. I have reading glasses, but they're not 13 really prescription. 14 Q. Now, you then fell as you went into the 15 restaurant. Could you tell me how you landed? 16 A. Yes. 17 Q. Sort of the mechanics of your fall. 18 A. I landed on my low back very hard. 19 Q. Where were your feet when you landed or. your 20 low back? 21 A. I do not recall. I just remember my back is 22 what hit the floor. 23 Q. Now, I take it this happened all pretty fast, 24 right? 25 A. Yes. 32 1 Q. So you're not disputing their statement that 2 there was a sign on the door? 3 A. No. I don't know. 4 Q. And they gave me the sign that they say was 5 on the door, and I sent a Xerox copy of it to your 6 attorney. So this sign I'm showing to you -- 7 A. Did not notice it, no. 8 Q. But you're not saying it wasn't on the door; 9 you're just saying you didn't see it? 10 A. I didn't see it. I don't know if it was or 11 not. All I know is the rain was coming down so hard 12 that I didn't see any sign. I couldn't tell you if it 13 was there or not. 14 Q. You had not phoned ahead to this -- or had 15 anyone phoned ahead to this restaurant to say we're 16 coming? 17 A. No. 18 Q. So I take it you had no communication with 19 the restaurant about your visit? 20 A. No. 21 Q. And you and your group hadn't received any 22 permission to come into the restaurant, I take it? 23 A. No. 24 Q. That's correct, you had not received. any 25 permission? You know, it's the double negative. Had 34 EXHIBIT "B" DAVID MISICKO 1 STIPULAT/0N 2 It is hereby stipulated by and between the 3 respective parties that signing, sealing, certification 4 and filing are waived; and that all objections except as 5 to the form of the question are reserved until the time 6 of trial. 7 8 DAVID M. MI8IcRO, called as a witness, being 9 duly sworn, was examined and testified as follows: 10 11 EXAMINATION 12 BY t1R. DEARDORFF: 13 Q. Mr. Misicko, did you hear my instructions to 14 your wife? 15 A. fes. 16 Q. Did you understand all those instructions? 17 A. Yes. 18 Q. And could you please state your full name. 19 A. David Mark Misicko. 20 Q. Have you ever testified before? 21 A. No. 22 Q. Now, you're not going to be as long as your 23 wife because my first question is, did you listen to her 24 answers to my questions? 25 A. Yes. 3 1 BY MR. DEARDORFF: 2 Q. But you remember the cruise ship incident? 3 A. I remember the cruise ship incident. 4 Q. And she said she had a car accident. Do you 5 remember that? 6 A. Oh, I do remember the car accident. 7 Q. Now, somewhere I saw a skiing accident. Do 8 you remember your wife ever having a skiing accident? 9 A. I don't remember my wife ever being on skis. 10 Q. That might have just been a mistake in the 11 records. But you do remember from time to time she'd 12 pull a muscle in her back or twist her back? 13 A. Rarely, but, yes. 14 Q. Now, the day of the accident, what's your 15 recollection as to the time? 16 A. Late afternoon is the best I'm going to be 17 able to come up with. 18 Q. So you can't put a number on it; 4:00, 3:00? 19 A. No. 20 Q. 3:30, 4:30? 21 A. I don't know. 22 Q. The weather, do you agree it was pouring? 23 A. I know I had my windshield wipers on double, 24 as fast as they could go. I'm a little fussy when I'm 25 driving, and I remember them being -- I rarely do that; 5 1 Q. Did any answer strike you as that's not right 2 or she's a little off on that? 3 A. I wish I could remember. As far as I know, 4 she has never been convicted of anything. She was 5 arrested; she was not convicted. 6 Q. Okay. And I understood that. The appeal 7 overturned, she was found innocent; but, I mean, 8 anything about the accident or her back problems or past 9 back problems, 10 A. She made it sound worse than I thought that 11 she really was as far as her back. Her back problems 12 have been infrequent. 13 Q. So you're talking about -- 14 A. But she said once or twice a year. To me 15 that was -- she hasn't twit her back out once or twice a 16 year. I thought she had told you that she would hurt 17 her back once or twice a year. I'm not sure that that's 18 what she said but I think that's what she said. 19 MRS. MISICRO: It's not really hurt; just -- 20 :4R. DEARDORFF: Well, I'm asking your 21 husband. Your testimony is on record, Mrs. Misicko. 22 THE DEPONENT: I disagree with her statement 23 that she puts her back out once or 24 the accident. I don't think 25 frequently. wice a year prior to EXHIBIT 4 1 that's why I remember it. 2 Q. Was puddling taking place, ponding; like, on 3 the roads it was raining so much there were little ponds 4 of water? 5 A. I don't recall that. 6 Q. And she testified she was the first one into 7 the restaurant. Do you recall that? 8 A. She was. 9 Q. And then her brother and sister? 10 A. They followed her. I don't know who came 11 next though. 12 Q. Did you watch her go into the restaurant? 13 A. No. 14 Q. What were you doing? 15 A. Parking the car. 16 Q. So you can't say whether, how she opened the 17 door or -- 18 A. I cannot say other than that. toy 19 recollection is that the door opens outward and that she 20 would have had to stop to open the door and then step 21 inside the restaurant. 22 Q. Did you observe her running towards the door? 23 A. Yes -- not running. Like she says, dashing. 24 I'll agree with the dash, yeah. I don't know if I've 25 ever seen Barbara run. 6 1 Q. Did the brother and sister dash too? 2 A. I wasn't paying attention to them. They were 3 in the backseat, and I know they got out of the car and 4 I was parking at that point. 5 Q. After you parked the car, did you dash into 6 the restaurant? 7 A. I got as quickly as I could from the car to 8 the restaurant, yes. 9 Q. And did your shoes get wet as you were going 10 from the car to the restaurant? 11 A. I have no idea, but I assume they did because 12 everything was -- it was teeming. 13 Q. Did you have any conversations with the 14 employees in the restaurant? 15 A. I must have. I remember speaking with the 16 both of them, and I agree with Barbara that they were 17 helpful, kind. I also remember a conversation having to 18 do with I'm looking for the Internet Cafe. I'm the one 19 who said I know where there's an Internet Cafe. That 20 was me; that was my idea. So I drove to where I thought 21 there was an Internet Cafe. Said, here it is, guys, go 22 on in. 23 So eventually after we, Barb was seated, I 24 did look around and say, did this used to be an Internet 25 Cafe. And they said, yes, it did. And I was surprised 7 1 Q. And how about the rug, do you remember seeing 2 any rug there on the floor? 3 A. There was no rug. I agree with what 4 Barbara's memory says; there was no rug on the floor at 5 the doorway. There was a rug pushed up against the back 6 wall. 7 Q. And how far was the rug from the front door? 8 A. My guess would be -- this is a guess. My 9 guess is 8 feet. 10 Q. Would it be from me to you, or farther? And 11 I'd say from me to you is maybe 6 feet. 12 A. Maybe more like -- to me there's not a lot of 13 difference between 6 and 8. Yeah, maybe -- I'll 14 compromise and say 7. It's a guess. I haven't been in 15 there since either. 16 Q. Neither you or your wife have been back to 17 that place? 18 A. No. I have not stepped in the restaurant 19 since then. I don't know. That was a long time ago. 20 Q. Did you or your wife at the scene of the 21 accident have any discussion with either employee as to 22 what happened or what caused the accident? 23 A. I don't recall having one. 24 Q. Do you remember what the employees looked 25 like? 9 1 that it was not an Internet -- I thought -- I'm looking 2 around, did I send them to the wrong door, did I pick 3 the wrong door. And so I thought -- I didn't 4 understand -- I was confused. 5 I walked in the door, Barb's on the floor on 6 the ground. And then after we took care of her, I'm 7 looking around saying this is not the place I thought it 8 was. So I was confused. 9 Q. And just so we're clear, your purpose was not 10 to go to this restaurant and have a meal? 11 A. Correct. It was to go to a different 12 restaurant and have a meal in the same location. 13 Q. Your wife said something about going to use 14 the Internet and have a drink. Does that sound about 15 right? 16 A. Yes. It used to be -- I had been in there. 17 They had four computers up on a bar platform. It was a 18 coffee house with sandwiches and pastries and you could 19 get cappuccino, regular coffees and use their -- they 20 had couches as well as computers that were up for grabs. 21 Q. And I take it you did not see your wife fall? 22 A. No, I did not. 23 Q. And you can't tell us about the condition of 24 the floor where she fell before she fell? 25 A. No. 8 1 A. I remember they were a man and a woman; black 2 hair, both of them, dark hair. I would have said of 3 Asian ethnicity. 4 Q. Do you remember what your wife said to 5 you -- or did your wife tell you how the accident 6 happened at some point? 7 A. No. At some point? No. I don't think -- I 8 guess I always assumed I knew what happened, but I don't 9 think she ever explained to me because I think I know 10 what happened. 11 Q. And what's that? 12 A. She fell as she entered into the door. 13 Q. And you went with your wife to the emergency 14 room about an hour or two later? 15 A. Yes. 16 Q. You and your wife haven't had any later 17 discussions with anyone who has an ownership or 18 supervisory position at the restaurant, have you? 19 A. No. 20 Q. And you haven't called them up and said we 21 want to talk about this accident to you? 22 A. No. 23 Q. Now, were you present when your wife gave the 24 statement here about a couple years ago? 25 A. I do not remember if I was present at this. 10 EXHIBIT "C" CHALIT KIJCHAROEN 1 Q. And there's a mailbox to the left of the - door? 3 A. Yes. 4 Q. Now I'm turning to page 2. Is that the front 5 door .,here you get into the restaurant? 6 A. 'fes. 7 Q. And it shows a mat. Is that a mat that's at 3 the front door? 9 A. 'fes. 10 Q. And then to the far left there's a sign. Is 11 that a sign that's placed on the front door about 12 whether you're open or closed? 13 A. Yes. 14 Q. And then I'm going to go to the third page. 15 Is that another picture of the front door from looking 16 from inside the restaurant out the front door? 17 A. Yes. 18 Q. And does that show the mat and the tile 19 around the entrance to the restaurant? 20 A. Yes. 21 Q. And then I'm showing you the fourth page. Is 22 chat another picture showing the inside of the front 23 door with the door open? 24 A. Yes. 25 Q. And then on the very top it shows where a 7 1 right to left to show open or closed. 2 Q. At the time of the accident, to your 3 knowledge, was the sign indicating open or closed? 4 A. It was closed. 5 (Chalit's Exhibit No. 2 was marked.) 6 BY MR. DEARDORFF: 7 Q. Now, I'm showing you Chalit Exhibit Number 2. 8 Is this a Xerox picture of what the sign looks like when 9 it indicates closed -- or let's see here -- showing, the 10 front side of the sign showing closed and the backside 11 of the sign saying, Thank. You Call Again? 12 A. Yes. 13 Q. So the part that says, Closed, that would 14 have been looking out towards the parking let? 15 A. Yes, that's correct. 16 Q. And the backside saying Thank You Please Ca11 17 Again would be looking towards the inside of the 18 restaurant? 19 A. Yes. 20 Q. Now, was there any custom or practice as to 21 when the sign was placed on the door when the restaurant 22 became open for lunch? And I think you said it opened 23 for lunch around 11. 24 A. Yes. The sign is placed on the door already. 25 Right at 11:00 the server will slide the sign just, you 1 sign is located? 2 A. Yes. 3 Q. Is that the sign indicating closed or open? 4 A. Yes. 5 Q. And then the last page, once again, is that a 6 picture going in the front door from the outside? 7 A. Yes. 6 Q. P.nd once again, on the front door there's 9 that sign to the middle left showing, Thank You -- I 10 guess that faces inside -- and Open or Closed is on the 11 outside? 12 A. Yes. 13 Q. Now, this is the way everything looked in 14 August 2010 when the accident. happened? 15 A. Yes. 16 Q. flow, we've had these pictures about the way 17 the door looks and the restaurant, and I've -- did you 16 at some point after the accident give me the actual sign 19 that was on the door the day of the accident? 20 A. Yes. 21 Q. And I'm showing you the sign, and the sign 22 has, like, little suction cups on each end? 23 A. Um -hum. 24 You have to say ye 25 A. Yep, and you just 8 1 know, to open. 2 Q. And is there any custom or practice as you 3 get close to 2:00 and the lunch crowd is over and you're 4 going to be closed, what's the custom or practice about 5 changing the sign to indicate that you're closed? 6 A. One of the servers will flip the 7 sign -- that's what we call it -- slide the sign, as 8 this one is, around 1:55, you know, or closer to 2:00. 9 Q. Does it have anything to do with who opened 10 the restaurant or who closed the restaurant as to who 11 does the flipping? 12 A. Yeah. who opened the restaurant will 13 actually, you know -- the one who flipped the sign then 14 will be the one who actually flip the sign when we close 15 at 2. 16 Q. Now, in these pictures on Exhibit 1 -- or 17 strike that question. Between 2:00 when you close for 18 lunch and 4:00 when you open for dinner, •what goes on in 19 the restaurant? 20 A. Well, the servers will be doing the cash -out 21 and then leave; and then the person who actually opened 22 for the dinner shift will come in before 4, about 3:35, 23 3:45, will come in and check, you know, what needs to be 24 done, spot cleaning and make sure everything is, you 25 know, good and ready for the dinner shift. So basically ourt Reporting Services P,O. 13o ')258-3657 ** courtreporters4u@aol.com 1 it's just walk around and see what needs to be cleaned 2 up. 3 Q. When the person who's going to open up for 4 the dinner crowd at 4, does that person do anything with 5 regard to the mat that is at the front door as people 6 walk into the restaurant? 7 A. Things will be adjusted accordingly. So 8 basically they would do the plate setup and everything; 9 and then right before 4:00 the person would come into, 10 you know, before they actually slide the door, open, 11 will check the, will check the, what you call it, the 12 cleanliness and, you know, if things need to be moved 13 because it's kind of waiting area as well so we make 14 sure that it's clean. 5o the mat, you know, maybe 15 during lunchtime gets shifted and stuff, then we can put 16 them in place. 17 Q. And where do you put the mat into place? 18 A. Right in front of the door, so basically a 19 little bit closer, you know, 20 Q. So the mat is moved closer to where the 21 doorway is? 22 A. Yes. 23 Q. Now, going back to the day this happened, 24 August 16, 2010 -- and I think it was a Monday. But, 25 Chris, how is your recollection as to the events of that 11 1 Misicko? 2 A. No. 3 Q. Had anyone else slipped and fallen? 4 A. No. 5 Q. Do you remember that day who the person was 6 who put the sign on the door and changed it from open to 7 closed when the lunch crowd was over? 8 A. It was Laura. 9 Q. And why do you remember it was Laura? 10 A. Because she was the one who actually was 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there with me, you know, when we were going to open. And then that's when we witnessed the incident. Q. And, Chris, are you sure the sign was up on the door at the time the accident happened? A. Yeah, because it has the suction cup and it's always there, and then we had a routine of open and closed. Q. And are you sure it indicated closed as designated by Exhibit Number 2? A. Yes. As I said, it was a routine that we do it every day two times -- you know, not two times. But, you know, we flip it before we open, flip it when we close between lunch and then do that for dinner as well, open and closed. Q. Okay. So on the day this happened, August 13 1 day? 2 A. It was raining all day. 3 Q. But, I mean, how good is your recollection? 4 Like, sometimes people say it was just another day, I 5 don't remember what happened. How about on this day? 6 A. It was unusual, you know. That's why, you 7 know, I remember it because, you know, it never 8 happened, you know, somebody slipped and fell. 9 Q. That had never happened before? 10 A. No. 11 Q. Now, were you there at the time the accident 12 happened? 13 A. Yes, 1 was. 19 Q. And at that point had you changed the sign to 15 indicate open? 16 A. No, not yet. I think the person came in 17 before, in between 3 to 4, so that sign was still 18 closed. 19 Q. And you were talking about the weather. How 20 would you describe the weather in that time frame when 21 the accident happened? 22 A. It was raining hard outside, but it was like 23 that since the morning, you know, as when we had lunch. 24 Q. Had anything unusual happened in the 25 restaurant that day before the accident involving Mrs. 12 1 16, 2010, you indicated it was raining hard that day? 2 A. Yes. 3 Q. Had anyone come in the front door during that 4 period between 2:00 up to the time Mrs. Misicko came in 5 that you can recall? 6 A. No, none that I can recall. 7 Q. What was the condition of the floor right at 8 the place where the mat is and the tile is as you come 9 in through the front door? Was that, by the time 10 Mrs. Misicko came in or before she came in, was that 11 area dry? 12 A. I would -- I think so. But once you open the 13 door, then the water, you know, the rain's going to come 14 in with the person, so that's what I assumed that she 15 slipped. 16 Q. But before the door was open before Mrs. 17 Misicko came in, had that area been cleaned and dried? 18 A. Yes. 19 Q. And then at the point where Mrs. Misicko came 20 in, was it at the point where you were very close to 21 opening and had moved the rug up closer to the front or 22 had the rug remained away from the front of the area? 23 A. 1 think at that time, I think Laura didn't 24 have -- because it was not the 4:00 yet. I don't think 25 that she went outside and, you know, about to flip the 14 Central Pennsylvania Court Reporting Services P.O. Box 508 Carlisle, PA 17013 ** (717)258-3657 ** courtreporters4u@aol.com EXHIBIT "D" 177 LAURA McKECHNIE 1 side of the sign that the peOpleon the inside of the 2 restaurant would see? 3 A. Yes. 4 Q. Now, Laura ole you sure that thesign 5 indicated Closed on the day of the accident? 6 A. Absolutely, yes: 7 Q. Now, how is your recollection on the day of 8 the accident? 9 A. I remember it like it wasyesterday. It was 10 something I had never seen 01 encountered beforeso I 11 can recall it very clearly. 12 Q. Had anything like this happened before where 13 someone comes in and falls at the front door? 14 A. Absolutely not. 15 Q. Now, you were working the day of the accident 16 August 16, 2010? 17 A. Yes. 18 Q. And do you rememberthe weather? 19 A. It was raining all day long. 20 Q. And you had been already opened for the lunch 21 crowd? 22 A. Yes. Yeah, we had already served our lunch 23 hours. 24 Q. Was it raining during that time? 25 A, Yes, it was., 1 condition of the floor in that area? 2 A. It was clean and dry. Nobody had come in, so '3 there was no water or rain on the ground. 4 Q. And before the Plaintiff fell, was the mat 5 approximately in that position, or had it been moved at 6 all? 7 A. The mat had not been in its proper place yet 9 because I had not gotten around to cleaning the lobby 9 area and putting the mat and chairs in their proper 10 place. 11 Q. And what's your practice with regard to the 12 front door mat before the restaurant flips to Open and 13 customers are allowed in for dinner? 14 A. It is adjusted to be closer towards the door, 15 especially when it's raining, it's abutted right up 16 against the door. Before we flip the sign, it's put in 17 its proper place, moved forward, 18 Q. Now, the time of the accident, what time did 19 you say you came in? 20 A. I come in between 3:30 and 3:45. 21 Q. And that was on the day of the accident? A. Correct. 23 Q. And how much after the time you came in did 24 the accident happen? /5 A. Not long after. 9 1 9, Had anyone fallen 31 that time? 2 Absolutely not. 3 Q. And was lunch served until about 2 p.m.? 4 A. Yes. 5 Q. And at what point did you change the sign 6 from open to closed? -7 A. Between 1:50 and 2:00. It was flipped by 8 2:00. Usually we do it 3 little bit before then. 9 Q. And on that day what occurred between the 10 closing of the restaurant and the time the Plaintiff 11 came in and fell? 12 A. Closing down for lunch, the entire restaurant 13 was cleaned, we set out our dinner plates; and then once 14 everything has been properly cleaned, the lunch crew 15 then leaves and then an opener, myself that day, comes 16 in before dinner to do any final touches on cleaning and 17 final prep for the store, or the restaurant. 19 Q. And you had come in to do chat on that day? 19 ies. 20 Q. Was it still raining at that time? 21 A. Yes. 22 o, Now, I'm showing you page 2 of Chalit Exhibit 23 Number 1 which shows the front door area. On the day of 24 the accident at thetime just before the accident, was 25 the area on the inside of the door, what was the 8 Q. But had 4:00 come at that point? 2 A. No. Q. Had it come to the point where you were going 4 to move the mat? 5 A. It was minutes before. 6 9. And did you see the Plaintiff fall on that 7 day? '8 A. I did, yes. 9 Q. Tell us what you remember. 10 A. I remember I was standing behind the counter, 11 and you can see through the window to the front door. I 12 remember a vehicle pulling up co the front of the 13 restaurant and the woman had gotten out of the vehicle, 14 ran to the front door, opened it quickly, rushed inside, 15 and then we couldn't see her anymore because she had 16 fallen. So we ran around to check on her. 17 Q. Now, the whole time that you had worked at 18 the restaurant, had it ever been an Internet Cafe? 19 A. No, 20 Q. Had you ever met the Plaintiff before this 21 accident happened? 22 A. No. e3 Q. Had you ever given her permissionto,come 24 into the restaurant at that time? 25 A. Absolutely not. Central Pennsylvania Court Reporting Services P.O. Box 508 Carlisle, PA 17013 ** (717)258:3657 ** courtreporters4u@aol.com 10 1 Q. At the time she came in, was the sign still 2 up indicating that the restaurant was closed? 3 A. Yes. 4 Q. Do you remember what occurred after she fell? 5 A. After she had fallen, both Chris and myself 6 had run to go check on her. Her husband and her friend 7 had come in around the same time and was asking to see 8 if she was okay to be stood up and moved to a chair. 9 We grabbed her ice, anything we could 10 possibly do to accommodate her at the time. We asked 11 and provided those things for her. 12 Q. Was there any discussion as to why those 13 people were there at your restaurant, meaning the lady 14 who had fell and her friends and husband? 15 A. They had mentioned several minutes after the 16 incident that they were looking to use the Internet 17 because they thought that we were an Internet Cafe. 18 Q. Are Internet services offered at the 19 restaurant? 20 A. No. 21 Q. Did the Plaintiffs, meaning the lady who fell 22 and her husband, and the other people, did they stay for 23 a meal? 24 A. No. 25 Q. Have you had any contact with the Plaintiff 11 1 A. Messiah College. 2 Q. What degree were you going for? 3 A. Public Relations. 4 Q. And how far did you go with that? 5 A. One year. 6 Q. So that would have put you to 2008. So you 7 started working for Chalit's 2009? 8 A. Yes. 9 Q. When you were hired, were you hired as a 10 manager? 11 12 13 14 15 A. No. Q. What were you hired as? A. Server, Q. And then when did you become manager? A. I do not recall the exact time, but not long 16 after I was hired. 17 Q. In August of 2010, you were a manager at that 18 time? 19 A. Yes. 20 Q. Just a question about the sign that we're 21 referring to, the actual sign we have here and there's 22 photographs we've marked, have you ever forgotten to 23 switch the sign? 24 A. No. 25 Q. Never forgotten that? 13 1 or her family since the day of the accident? 2 A. No. 3 MR. DEARDORFF: That's all I have, Laura. 4 Thanks. 5 EXAMINATION 6 BY MR. HELD: 7 Q. Good morning, ma'am. My name again is 8 Stephen Held. You were here when I took Mr. Chalit's 9 deposition. 10 A. Yes. 11 Q. So you sort of know the drill. I have some 12 just general questions, a little bit of background. Did 13 you go to high school? 14 A. I did, yes. 15 Q. Where did you go? 16 A. Harrisburg Christian School. 17 Q. And that's where? 18 A. Llnglestown. 19 Q. Did you graduate there? 20 A. Yes. 21 Q. What year? 22 A. 2007. 23 Q. Did you go to college at all? 24 A. Some college, yes. 25 Q. Where did you go? 12 1 A. No. 2 Q. Okay, What are your usual hours at working 3 at Chalit's? 4 A. My hours that I work? 5 Q. Yeah. 6 A. It varies every week. Typically I work every 7 single day at least one of the shifts. Most of the time 8 I do work doubles, but every week is different so I 9 cannot give you a definite answer. 10 Q. How many days a week is the restaurant open? 11 A. Six. 12 Q. It's closed Sunday? 13 A. Correct, 14 Q. So you do occasionally work Saturdays as 15 well? 16 A. Oh, yeah, absolutely. 17 Q. And do you remember what time you got in on 18 August 16th, 2010? 19 A. After 3:30, before 3:45. 20 Q. Had you been there long before this event 21 with Mrs. Misicko and her fall happened? 22 A. No more than ten minutes. 23 Q. Okay. in your years working as a manager at 24 Chalit's, have you ever seen people come in early before 25 the store is open? 14 Central Pennsylvania Court Reporting Services P.O. Box 508 Carlisle, PA 17013 ** (717)258-3657 ** courtreporters4u@aol.com EXHIBIT "E" CHALIT ?'KIJCHAROEN 1 Q. And there's a mailbox to the left of the 2 door? 3 A. Yes. 4 Q. Now I'm turning to page 2. Is that the front 5 door where you get into the restaurant? 6 A. Yes. 7 Q. And it shows a mat. Is that a mat that's at ? the front door? 9 A. Yes. 10 Q. And then to the far left there's a sign. Is 11 that a sign that's placed on the front door about 12 whether you're open or closed? 13 A. Yes. 14 Q. And then I'm going to go to the third page. 15 Is that another picture of the front door from looking 15 from inside the restaurant out the front door? 17 A. Yes. 18 Q. And does that show the mat and the tile 19 around the entrance to the restaurant? 20 A. Yes. 21 Q. And then I'm showing you the fourth page. Is 22 that another picture showing the inside of the front 23 door with the door open? 24 A. Yes. 25 Q. And then on the very top it shows where a 7 1 right to left to show open or closed. 2 Q. At the time of the accident, to your 3 knowledge, was the sign indicating open or closed? 4 A. It was closed. 5 (Chalit's Exhibit No. 2 was marked.) 6 BY MR. DEARDCRFF: 7 Q. Now, I'm showing you Chalit Exhibit Number 2. a Is this a Xerox picture of what the sign looks like when 9 it indicates closed -- or let's see here -- showing, the 10 front side of the sign showing closed and the backside 11 of the sign saying, Thank You Call Again? 12 A. Yes. 13 Q. So the part that says, Closed, that would 14 have been looking out towards the parking lot? 15 A. Yes, that's correct. 16 Q. And the backside saying Thank You Please Call 17 Again would be looking towards the inside of the 19 restaurant? 19 A. Yes. 20 Q. Now, was there any custom or practice as to 21 when the sign was placed on the door when the restaurant 22 became open for lunch? And I think you said it opened 23 for lunch around 11. 24 A. Yes. The sign is placed on the door already. 25 Right at 11:00 the server will slide the sign just, you 1 sign is located? 2 A. Yes, 3 Q. Is that the sign indicating closed or open? 4 A. Yes. 5 Q. And then the last page, once again, is that a 6 picture going in the front door from the outside? 7 8 A. Yes. Q. And once again, on the front door there's 9 that sign to the middle left showing, Thank You -- I 10 guess that faces inside -- and Open or Closed is on the 11 outside? 12 A. Yes. 13 Q. Now, this is the •way everything looked in 14 August 2010 when the accident happened? 15 A. Yes. 16 Q. Now, we've had these pictures about the way 17 the door looks and the restaurant, and I've -- did you 19 at some point after the accident give me the actual sign. 19 that was on the door the day of the accident? 20 A. Yes. 21 Q. .And I'm showing you the sign, and the sign 22 has, like, little suction cups on each end? 23 A. Um -hum. 24 Q. You have to say y 25 A. Yep, and you just 8 1 know, to open. 2 Q. And is there any custom or practice as you 3 get close to 2:00 and the lunch crowd is over and you're 4 going to be closed, what's the custom or practice about 5 changing the sign to indicate that you're closed? 6 A. One of the servers will flip the 7 sign -- that's what we call it -- slide the sign, as 8 this one is, around 1:55, you know, or closer to 2:00. 9 Q. Does it have anything to do with who opened 10 the restaurant or who closed the restaurant as to who 11 does the flipping? 12 A. Yeah. Who opened the restaurant will 13 actually, you know -- the one who flipped the sign then 14 will be the one who actually flip the sign when we close 15 at 2. 16 Q. Now, in these pictures on Exhibit 1 -- or 17 strike that question. Between 2:00 when you close for 18 lunch and 4:00 when you open for dinner, what goes on in 19 the restaurant? 20 A. Well, the servers will be doing the cash -out 21 and then leave; and then the person who actually opened 22 for the dinner shift will come in before 4, about 3:35, 23 3:45, will come in and check, you know, what needs to be 24 done, spot cleaning and make sure everything is, you 25 know, good and ready for the dinner shift. So basically ourt Reporting Services P.O. Bo )258-3657 ** courtreporters4u@aol.com • 1 it's just walk around and see what needs to be cleaned 2 up. 3 Q. When the person who's going to open up for 4 the dinner crowd at 4, does that person do anything with 5 regard to the mat that is at the front door as people 6 walk into the restaurant? 7 A. Things will be adjusted accordingly. So 8 basically they would do the plate setup and everything; 9 and then right before 4:00 the person would come into, 10 you know, before they actually slide the door, open, 11 will check the, will check the, what you call it, the 12 cleanliness and, you know, if things need to be moved 13 because it's kind of waiting area as well so we make 14 sure that it's clean. So the mat, you know, maybe 15 during lunchtime gets shifted and stuff, then we can put 16 them in place. 17 Q. And where do you put the mat into place? 18 A. Right in front of the door, so basically a 19 little bit closer, you know. 20 Q. So the mat is moved closer to where the 21 doorway is? 22 A. Yes. 23 Q. Now, going back to the day this happened, 24 August 16, 2010 -- and I think it was a Monday. But, 25 Chris, how is your recollection as to the events of that 11 1 Misicko? 2 A. No. 3 Q. Had anyone else slipped and fallen? 4 A. No. 5 Q. Do you remember that day who the person was 6 who put the sign on the door and changed it from open to 7 closed when the lunch crowd was over? 8 It was Laura. 9 Q. And why do you remember it was Laura? 10 A. Because she was the one who actually was 11 there with me, you know, when we were going to open. 12 And then that's when we witnessed the incident. 13 Q. And, Chris, are you sure the sign was up on 14 the door at the time the accident happened? 15 A. Yeah, because it has the suction cup and it's 16 always there, and then we had a routine of open and 17 closed. 18 Q. And are you sure it indicated closed as 19 designated by Exhibit Number 2? 20 A. Yes. As I said, it was a routine that we do 21 it every day two times -- you know, not two times. But, 22 you know, we flip it before we open, flip it when we 23 close between lunch and then do that for dinner as well, 24 open and closed. 25 Q. Okay. So on the day this happened, August 13 1 day? 2 A. It was raining all day. 3 Q. But, I mean, how good is your recollection? 4 Like, sometimes people say it was just another day, I 5 don't remember what happened. How about on this day? 6 A. It was unusual, you know. That's why, you 7 know, I remember it because, you know, it never 8 happened, you know, somebody slipped and fell. 9 Q. That had never happened before? 10 A. No. 11 Q. Now, were you there at the time the accident 12 happened? 13 A. Yes, I was. 14 Q. And at that point had you changed the sign to 15 indicate open? 16 A. No, not yet. I think the person came in 17 before, in between 3 to 4, so that sign was still 18 closed. 19 Q. And you were talking about the weather. How 20 would you describe the weather in that time frame when 21 the accident happened? 22 A. It was raining hard outside, but it was like 23 that since the morning, you know, as when we had lunch. 24 Q. Had anything unusual happened in the 25 restaurant that day before the accident involving Mrs. 12 1 16, 2010, you indicated it was raining hard that day? 2 A. Yes. 3 Q. Had anyone come in the front door during that 4 period between 2:00 up to the time Mrs. Misicko came in 5 that you can recall? 6 A. No, none that I can recall. 7 Q. What was the condition of the floor right at 8 the place where the mat is and the tile is as you come 9 in through the front door? Was that, by the time 10 Mrs. Misicko came in or before she came in, was that 11 area dry? 12 A. I would -- I think so. But once you open the 13 door, then the water, you know, the rain's going to come 14 in with the person, so that's what I assumed that she 15 slipped. 16 Q. But before the door was open before Mrs. 17 Misicko came in, had that area been cleaned and dried? 18 A. Yes. 19 Q. And then at the point where Mrs. Misicko came 20 in, was it at the point where you were very close to 21 opening and had moved the rug up closer to the front or 22 had the rug remained away from the front of the area? 23 A. I think at that time, I think Laura didn't 24 have -- because it was not the 4:00 yet. I don't think 25 that she went outside and, you know, about to flip the 14 Central Pennsylvania Court Reporting Services P.O. Box 508 Carlisle, PA 17013 ** (717)258-3657 ** courtreporters4u@aol.com EXHIBIT "F" LAURA McKECHNIE 1 STIPULATIONS 3 1 Q. And was there any custom or practice about 5 2 it is ::^.eraby stipulated by and bet:aeen the 2 putting up a sign for that period of time when the 3 respective parties that signing, sealing, certification 3 restaurant was closed? 4 and filing are waived; and that all objections except 3s 4 A. Yes. The sign was flipped to say Closed. 5 to the form of the question are reserved until the time 5 Q. And who would do that flipping? 6 of trial. 6 A. On that particular day? Myself. 7 7 Q. And why did you do it that day? 8 LAVRA E. McKECRNIE, called as a witness, 8 A. Because I was the opener for the restaurant 9 being duly sworn, was examined and testified as follows: 9 that day. 10 10 Q. And are you sure you flipped it to Closed? 11 EXAMINATION 11 A. Yes, absolutely. 12 BY 11R. DEARDORFF: 12 Q. Now, just some background ground again. I'm showing 13 Q. Laura, please give us your full name. 13 you the exhibit called Chalit. 1 that was presented when 14 A. Laura Elizabeth Mc6echnie. 14 Chris was testifying. The first page, does that show 15 Q. what's your age, Laura? 15 what the restaurant looked like on the day of the 16 A. 25. 16 accident back in August 2010? 17 Q. And where do you live? 17 A. Yes. 16 A. My address? 18 Q. And page 2, does that show what the front 19 Q. Yes. 19 door area looked like from the outside looking in? 20 A. 4263 Nantucket Drive, Mechanicsburg, PA 20 A. Yes. 21 17050. 21 Q. And does that show the sign on the door that 22 Q. Laura, are you employed by Chalit's Thai 22 indicates whether the restaurant is open or closed? 23 Bistro? 23 A. Yes. 24 A. Yes. 24 Q. And page 3, does that show the front door 25 Q. How long have you worked there? 25 area from the inside of the restaurant? 1 A. Almost five years. 4 1 A. Yes. 6 2 Q. And what's your -- what is your current 2 Q. Does page 3 show the mat that there's been 3 position? 3 some discussion about? 4 A. Manager. 4 A. Yes. 5 Q. And you know we're here because of an 5 Q. And page 4, does that again show the inside 6 accident that happened involving Mrs. Misicko back on 6 of the front door area? 7 August 16, 2010? 7 A. Yes. 8 A. Yes. 8 Q. And page 5, does that show the door area 9 Q. what was your position back on that date? 9 looking in from the outside? 10 A. Manager. 10 A. Yes. 11 Q. Now, just some general questions about the 11 Q. And to the left it shows the sign that 12 restaurant -- or 1 should ask you, what does your job as 12 indicates whether the restaurant is open or closed? 13 manager involve? 13 A. Yes. 14 A. A little bit of everything. I serve, I host, 14 Q. Laura, were you there when these pictures 15 1 schedule, I train. 1 do everything, 15 were taken? 15 Q. Do you help to open and close the restaurant? 16 A. No, not that 1 recall. 17 A. Yes. 17 Q. And I've marked as Chalit Number 2 a Xerox 18 Q. Do you help to clean and inspect the 19 copy of the actual sign, and I have the actual sign 19 restaurant? I9 here. Is this the sign that was up in the restaurant on 20 A. Yes. 20 the day of the accident? 21 Q. Now, going back to August 16, 2010, was the 21 A. Yes. 22 schedule, as indicated by Chris, lunch 11 to 2 p.m. and 22 Q. And it shows what it looks like when it says 23 the restaurant was closed 2 p.m. until 4 .m, then 23 Closed? 21 dinner from 4 p.m. until 9 p.m. EXHIBIT 24 A. Yes. 25 A. Correct. 25 Q. On page 1. And page 2 would be the other P.Q. Box Reporting Services 3657 *• courtreporters4u@aol.com 1 side of the sign that the people on the inside of the 2 restaurant would see? 3 A. Yes. 4 Q. Now, Laura, are you sure that the sign 5 indicated Closed on the day of the accident? 6 A. Absolutely, yes. Q. Now, how is your recollection on the day of 8 the accident? 9 A. I remember it like it was yesterday. It was 10 something I had never seen or encountered before so I 11 can recall it very clearly. 12 Q. Had anything like this happened before where 13 someone comes in and falls at the front door? 14 A. Absolutely not. 15 Q. Now, you were working the day of the accident 16 August 16, 2010? 17 A. Yes. 18 Q. And do you remember the weather? 19 A. It was raining all day long. 20 Q. And you had been already opened for the lunch 21 crowd? 22 A. Yes. Yeah, we had already served our lunch 23 hours. 24 Q. Was it raining during that time? 25 A. Yes, it was. 7 1 condition of the floor in that area? 2 A. It was clean and dry. Nobody had come in, so 3 there was no water or rain on the ground. 4 Q. And before the Plaintiff fell, was the mat 5 approximately in that position, or had it been moved at 6 all? 7 A. The mat had not been in its proper place yet 8 because I had not gotten around to cleaning the lobby 9 area and putting the mat and chairs in their proper IC place. 11 Q. And what's your practice with regard to the 12 front door mat before the restaurant flips to Open and 13 customers are allowed in for dinner? 14 A. It is adjusted to be closer towards the door, 15 especially when it's raining, it's abutted right up 1E against the door. Before we flip the sign, it's put in 17 its proper place, moved forward. 10 Q. Now, the time of the accident, what time did 19 you say you came in? 20 A. I come in between 3:30 and 3:45. 21 Q. And that was on the day of the accident? 22 A. Correct. 23 Q. And how much after the time you came in did 24 the accident happen? 25 A. Not long after. 9 1 Q. Had anyone fallen at that time? 2 A. Absolutely not. 3 Q. And was lunch served until about 2 p.m.? 4 A. Yes. 5 Q. And at what point did you change the sign 6 from open to closed? 7 A. Between 1:50 and 2:00. It was flipped by 8 2:00. Usually we do it a little bit before then. 9 Q. And on that day what occurred between the 10 closing of the restaurant and the time the Plaintiff 11 came in and fell? 12 A. Closing down for lunch, the entire restaurant 13 was cleaned, we set out our dinner plates; and then once 14 everything has been properly cleaned, the lunch crew 15 then leaves and then an opener, myself that day, comes 16 in before dinner to do any final touches on cleaning and 17 final prep for the store, or the restaurant. 18 Q. And you had come in to do that on that day? 19 A. Yes. 20 Q. was it still raining at that time? 21 A. Yes. 22 Q. Now, I'm showing you page 2 of Chalit Exhibit 23 Number 1 which shows the front door area. On the day of 24 the accident at the time just before the accident, was 25 the area on the inside of the door, what was the 8 1 Q. But had 4:00 come at that point? 2 A. No. 3 Q. Had it come to the point where you were going 4 to move the mat? 5 A. It was minutes before. 6 Q. And did you see the Plaintiff fall on that 7 day? 8 A. I did, yes. 9 Q. Tell us what you remember. 10 A. 1 remember I was standing behind the counter, 11 and you can see through the window to the front door. I 12 remember a vehicle pulling up to the front of the 13 restaurant and the woman had gotten out of the vehicle, 14 ran to the front door, opened it quickly, rushed inside, 15 and then we couldn't see her anymore because she had 16 fallen. So we ran around to check on her. 17 Q. Now, the whole time that you had worked at 18 the restaurant, had it ever been an Internet Cafe? 19 A. No. 20 Q. Had you ever met the Plaintiff before this 21 accident happened? 22 A. No. 23 Q. Had you ever given her permission to come 24 into the restaurant at that time? 25 A. Absolutely not. 10 Central Pennsylvania Court Reporting Services P.O. Box 508 Carlisle, PA 17013 ** (717)258-3657 ** courtreporters4u®aol.com 1 Q. At the time she came in, was the sign still 2 dp indicating that the restaurant was closed? 3 A. Yes. 4 Q. Do you remember what occurred after she fell? 5 A. After she had fallen, both Chris and myself 6 had run to go check on her. Her husband and her friend 7 had come in around the same time and was asking to see 8 if she was okay to be stood up and moved to a chair. 9 We grabbed her ice, anything we could 10 possibly do to accommodate her at the time. We asked 11 and provided those things for her. 12 O. Was there any discussion as to why chose 13 people were there at your restaurant, meaning the Lady 14 who had fell and her friends and husband? 15 A. They had mentioned several minutes after the 16 incident that they were looking to use the Internet 17 because they thought that we were an Internet Cafe, 18 Q.Are Internet services offered at the 19 restaurant? 20 A. No. 21 Q. Did the Plaintiffs, meaning the Lady who fell 22 and her husband, and the other people, did they stay for 23 a meal? 24 A, No, 25 Q. Have you had any contact with the Plaintiff 11 1 A. Messiah College. Q. What degree were you going for? 3 A. Public Relations, 4 Q. And how far did you go with that? 5 A. One year. 6 Q. So that would have put you to 2000. So you 7 started working for Chalit's 2009? 9 A. Yes, 9 Q. When you were hired, were you hired as a 10 manager? 11 A. No. 12 Q. What were you hired as? 13 A. Server. 14 Q. And then when did you become manager? 15 A. I do not recall the exact time, but not long 16 after I was hired. 17 Q. In August of 2010, you were a manager at that 18 time? 19 A. Yes. 20 Q. Just a question about the sign that we're 21 referring to, the actual sign we have here and there's 22 photographs we've marked, have you ever forgotten to 23 switch the sign? 24 A. No. 25 Q. Never forgotten that? 13 1 or her family since the day of the accident? 2 A. No. 3 MR. DEARDORFF: That's all I have, Laura. 4 Thanks. 5 EXAMINATION 6 BY MIS. HELD: 7 Q. Good morning, ma'am. My name again is 8 Stephen Held. You were here when I took Mr. Chalit's 9 deposition. 10 A. Yes, 11 Q. So you sort of know the drill. I have some 12 just general questions, a Little bit of background. Did 13 you go to high school? 14 A. I did, yes. 15 Q. Where did you go? 16 A. Harrisburg Christian School. 17 Q. And that's where? 19 A. Ling1estown. 19 Q. Did you graduate there? 20 A, Yes. 21 Q. what year? 22 A. 2007, 23 Q. Did you go to college at all? 24 A. Some college, yes. 25 Q. Where did you go? 12 1 A. No, 2 Q. Okay. What are your usual hours at working 3 at Chalit's? 4 A. My hours that I work? 5 Q. Yeah. 6 A. It varies every week. Typically I work every 7 single day at least one of the shifts. Most of the time 8 I do work doubles, but every week is different so I 9 cannot give you a definite answer. 10 Q. How many days a week is the restaurant open? 11 A. Six. 12 Q. It's closed Sunday? 13 A. Correct. 14 Q. So you do occasionally wcrk Saturdays as 15 well? 16 A. Oh, yeah, absolutely. 17 Q. And do you remember what time you got in on 18 August 16th, 2010? 19 A. After 3:30, before 3:45, 20 Q. Had you been there long before this event 21 with Mrs. Misicko and her fall happened? 22 A. No more than ten minutes. 23 Q. Okay. In your years working as a manager at 24 Chalit's, have you ever seen people come in early before 25 the store is open? 14 Central Pennsylvania Court Reporting Services P.O. Box 508 Carlisle, PA 17013 ** (717)258-3657 ** courtreporters4u@aol.com EXHIBIT "G" CHALIT KIJCHAROEN 1 sign and check the readiness of the waiting area yet. 2 So the rug :night be a little bit like this part. 3 Q. And you're indicating the position the rug is 4 in on picture number 3 on Exhibit 1? 5 A. Yeah, um -hum. It's always at that level. 6 Q. Now, when Mrs. Misicko came in, where were 7 you positioned in the restaurant? 8 A. We were behind the counter, the cashier 9 counter. I think I was talking to Laura, something. 10 Q. And what got your attention at the time Mrs. 11 Misicko came in? 12 A. I think. I saw the, you know, people rushing 13 in and I was looking, you know, at Laura. And 14 then -- you know, because you can see because when we, 15 when we behind the counter, peripheral, you can see 16 people coming in. 17 And then it was raining hard outside so the 18 person came in and just rushing in, and what I saw again 19 was, like, I couldn't see anybody. So basically, you 20 know -- so I was, like, something's wrong. So I looked, 21 you know, not looked over, but I could see something's 22 wrong, and then the person fell. 23 Q. Do you recall what kind of footwear the 24 person who fell was wearing? 25 A. Something like Crocs, like, the plastic kind. 15 1 discussion as to whether she ever had back problems 2 before? 3 A. Yes. I think her husband mentioned that. 4 Q. Did these people; Mrs. Misicko, the lady who 5 fell, and her friends, did they stay for dinner? 6 A. No. That was not their intention to come in ? co dine. They came in just to use the Internet, which 8 we do not provide. 9 Q. Besides you seeing what happened during the 10 accident, was Laura there with you? Did she see what 11 happened? 12 A. Yes. 13 Q. Had either you or Laura given permission to 14 Mrs. Misicko or any of her friends to come in at that 15 point when the restaurant was closed and the sign was up 16 indicating it was closed? 17 A. We did not invite them. They just rushing 18 in. They just came in because we were not -- we don't 19 serve people until we're open. Until we flip the sign 20 open, then we do -- you know, because basically that's 21 the time that the kitchen is prepping as well for the 22 dinner shift. 23 MR. DEARDORFF: Okay. Chris, that's all I 24 have at this point. Now Attorney Held will ask some 25 questions of you. 1 Q. And what happened after she fell? 2 A. I think she came in with her husband and 3 another lady -- I don't know -- so they were helping her 4 up. And then what we did was that, you know, we got a 5 pack of ice and, you know, help her up. 6 So she was sitting -- there was another right 7 beside the -- when you open another door to come in, 8 then there's a little two chairs, that she was sitting 9 there. And then we grabbed her a bag of ice so that she 10 could rest and then get that to help her out. 11 Q. Did any one of the people who came in with 12 Mrs. Misicko say why they had come into your restaurant? 13 A. 1 believe he or she said that they were lost 14 and they wanted co acme in co actually use the Wi-Fi or 15 the Internet. 16 Q. Does your restaurant have Wi-Fi or Internet 17 that's available to the public? 18 A. No. 19 Q. Do you know whether the restaurant that was 20 there before you took over the area, was that an 21 Internet Cafe, do you know? 22 A. 1t was a coffee shop, and I believe they 23 might have provided the Wi-Fi 24 Q. When Mrs. Misicko f 25 there and you said you gave h 16 1 2 EXAMINATION 3 BY MR. HELD: 4 Q. Good morning. My name is Stephen Held, and I 5 represent the Plaintiffs in this incident. 6 A. Yes. 7 Q. First of all, you have'been testifying 8 already. You understand you're at a deposition, right? 9 10 11 12 A. Yes. Q. Have you ever given a deposition before? A. No. Q. I'm sure Mr. Deardorff here has explained 13 this to you; but just so we're clear, this woman to your 14 left and my right is a court Reporter. She has been 15 taking down everything that's being said. 16 A. Yes. 17 Q. And you understand that? 18 A. Yes. 19 Q. And you understand that you are under oath 20 just as if you were in a court of law. You understand 21 that? 22 A. Yes. 23 Q. Even though we're in your attorney's office? 24 A. Right. 25 Q. All right. Some questions following up ourt Reporting Services P.O. Bo " 7)258-3657 ** courtreporters4u0aol.com LAURA McKECHNIE 1 side of the sign that the people on the inside of the 2 restaurant would see? 3 A. Yes, 4 Q. Now, Laura, are you sure that the sign 5 indicated Closed an the day of the accident?, 6 A. Absolutely, yes. 7 Q. low, how is your recollection on the day of 9 the accident? 9 A. I remember it like it was yesterday. It was 10 something I had never seen or encountered before so I 11 can recall it very clearly. 12 Q. Had anything like this happened before where 13 someone comes in and falls at the front door? 14 A. Absolutely not. 15 Q. Now, you were working the day of the accident 16 August 16, 2010? 17 A. Yes. 18 Q. And do you remember the weather? 19 A. It was raining all day long. 20 Q. And you had been already opened for the lunch 21 crowd? 22 A. Yes. Yeah, •we had already served our lunch 23 hours. 24 Q. Was it raining during that time? 25 A. Yes, it was. 7 1 condition of the floor in that area? 2 A. It was clean and dry. Nobody had come in, so 3 there was no water or rain on the ground. 4 Q. And before the Plaintiff fell, was the mat 5 approximately in that position, or had it been moved at 6 all? 7 A. The mat had not been in its proper place yet 8 because I had not gotten around to cleaning the lobby 9 area and putting the mat and chairs in their proper 10 place. 11 Q. And what's your practice with regard to the 12 front door mat before the restaurant flips to Open and 13 customers are allowed in for dinner? 14 A. It is adjusted to be closer towards the door, 15 especially when it's raining, it's abutted right up 16 against the door. Before we flip the sign, it's put in 17 its proper place, moved forward. 18 Q. Now, the time of the accident, what time did 19 you say you came in? 20 A. I come in between 3:30 and 3:45. 21 Q. And that was on the day of the accident? 22 A. Correct. 23 Q. And how much after the time you came in did 24 the accident happen? 25 A. Not long after. 9 1 Q. Had anyone fallen at that time? 2 A. Absolutely not, 3 Q. And was lunch served until about 2 p.m.? 4 A. Yes. 5 Q. And at what point did you change the sign 6 from open to closed? 7 A. Between 1:50 and 2:00. It was flipped by 8 2:00. Usually we do it a little bit before then. 9 Q. And on that day what occurred between the 10 closing of the restaurant and the time the Plaintiff 11 came in and fell? 12 A. Closing down for lunch, the entire restaurant 13 was cleaned, we set out our dinner plates; and then once 14 everything has been properly cleaned, the lunch crew 15 then leaves and then an opener, myself that day, comes 16 in before dinner to do any final touches on cleaning and 17 final prep for the store, or the restaurant. 18 Q. And you had come in to do that on that day? 19 A. Yes. 20 Q. was It s,:111 raining at that time? 21 A. Yes, 22 Q. No,i, I'm showing you page 2 of Chalit Exhibit 23 Number 1 which shows the front door area. On the day of 24 the accident at the time just before the accident, was 25 the area on the inside of the door, what was the 8 1 Q. But had 4:00 come at that point? 2 A. No. 3 Q. Had it come to the point where you were going 4 to move the mat? 5 A. It was minutes before. 6 Q. And did you see the Plaintiff fall on that 7 day? A. I did, yes. 9 Q. Tell us what you remember. 10 A. 1 remember I was standing behind the counter, 11 and you can see through the window to the front door. I 12 remember a vehicle pulling up to the front of the 13 restaurant and the woman had gotten out of the vehicle, 14 ran to the front door, opened it quickly, rushed inside, 15 and then we couldn't see her anymore because she had 16 fallen. So we ran around to check on her. 17 Q. Now, the whole time that you had worked at 19 the restaurant, had it ever been an Internet Cafe? 19 A. No. 20 Q. Had you ever met the Plaintiff before this 21 accident happened? 22 A. No. 23 Q. Had you ever given her permission to come 24 into the restaurant at that time? 25 A. Absolutely nor.. 10 Central Pennsylvania Court Reporting Services P.O. Box 508 Carlisle, PA 17013 ** (717)258-3657 ** courtreporters4u@aol.com EXHIBIT "H" BARBARA MIS ICKO 1 through with you, or did the door close and then they 2 cane through? How did that work? 3 A. I don't know. I presume -- I can't quite 4 remember, but I presume that the door was still ajar as 5 I •was going down. 6 Q. What kind of shoes were you wearing? 7 A. I had Crocs on that had the back strap on. 9 Q. And you had to go through the rain. Were 9 there any puddles that you went through, or don't you 10 remember? 11 A. Everything was just wet. There was, yoU 12 know, it was a heavy, heavy storm. 13 Q. Were your Crocs wet? 14 A. Yes. 15 Q. Were you carrying anything? 16 A. Pocketbook. 17 Q. From the time you opened the door to get out 18 .of the car to the time you fell, how many seconds 19 transpired; you know, one thousand one, one thousand 20 two, one thousand three, one thousand four? Can you 21 give me an estimate? 22 A. I'm really not sure. I'm not sure; sorry. 23 Maybe 60 seconds. I'm not really sure. 24 Q. 60 seconds? 25 A. Maybe, I mean, 2 just darted from there to 31 1 Q. Do you know what the condition of the floor 2 was in the restaurant where you fell before you got in? 3 A. No, 4 Q. So you don't know whether that floor area was 5 dry or what? 6 A. No. 7 Q. Did you see any signs on the door that you 8 opened before you went in? 9 A. NO. 10 Q. Were you looking for any signs? 11 A. No. 12 Q. Now, after you filed the Complaint in this 13 case, the restaurant I represent filed an Answer. And 14 they said that the restaurant was closed at the time and 15 was not open for business and they had a sign on the 16 door. 17 Now, when someone says I didn't see a sign, 18 it could mean they were looking and there wasn't any 19 sign there or they just didn't notice whether there was 20 a sign there or not. And what I'm getting at -- my 21 people say there was a sign on the door. Are you saying 22 that's not true? 23 A. I'm not saying that. It was coming down cats 24 and dogs. I could not tell you if there was a sign. I 25 do not know. I just know the door was unlocked. 1 the door, And then, you know, the door, from my 2 recollection from what I believe that I remember, the 3 door opened out so I had to pause to open the door. And 4 then I went in, and it was just, like, ice. 5 Q. Now, you're not wearing glasses today, 6 correct? 7 A. Correct. 9 Q. Do you wear contacts? 9 A. No. 10 Q. So you don't have any prescription for 11 glasses or contacts? 12 A. I have reading glasses, but they're not 13 really prescription. 14 Q. Now, you then fell as you went into the 15 restaurant. Could you tell me how you landed? 16 A. Yes. 17 Q. Sort of the mechanics of your fall. 18 A. I landed on my low back very hard. 19 Q. Where were your feet when you landed or. your 20 low back? 21 A. I do not recall. I just remember my back is 22 what hit the floor. 23 Q. Now, I take it this happened all pretty fast, 24 right? 25 A. Yes. 32 EXHIBIT 1 Q. So you're not disputing their statement that 2 there was a sign on the door? 3 A. No. I don't know. 4 Q. And they gave me the sign that they say was 5 on the door, and I sent a Xerox copy of it to your 6 attorney. So this sign I'm showing to you -- 7 A. Did not notice it, no. 8 Q. But you're not saying it wasn't on the door; 9 you're just saying you didn't see it? 10 A. I didn't see it. I don't know if it was or 11 not. A11 I know is the rain was coming down so hard 12 that I didn't see any sign. I couldn't tell you if it 13 was there or not. 14 Q. You had not phoned ahead to this -- or had 15 anyone phoned ahead to this restaurant to say we're 16 coming? 17 A. No. 18 Q. SO I take it you had no communication with 19 the restaurant about your visit? 20 A. NO, 21 Q. And you and your group hadn't received any 22 permission to come into the restaurant, I take it? 23 A. No. 24 Q. That's correct, you had not received any 25 permission? You know, it's the double negative. Had 1 you received any permission to go in the restaurant from 2 the owner? 3 A. Didn't see anybody to talk to. We just 4 opened the door; I just opened the door. 5 Q. So the answer is no, you hadn't received any 6 permission? 7 A. Yes, because we didn't see anybody to ask. 8 Q. Now, your brother and sister then came into 9 the restaurant behind you? 10 A. Yes. 11 Q. Did either one of them fall? 12 A, No, because I was lying in their way. 13 Q. Did you see anyone in the restaurant after 14 you got in? 15 A. Yes. 16 Q. Who did you see? 17 A. Two employees. 18 Q. Did you see anyone else? 19 A. No 20 Q. So there were no customers in the restaurant 21 that you could see? 22 A. No. 23 Q. And what did you say to the two employees? 24 A. They just knew I was hurt. I laid on the 25 floor a little bit because it hurt a lot. My family 35 1 explained to these people what happened. Have you ever 2 used -- did you ever use the term that you ran into the 3 restaurant? 4 A. I don't recall. To be honest, I was in so 5 much pain that, you know, to remember a little detail 6 like that would be really hard. I was really in 7 excruciating pain. 8 Q. Well, we've pulled out some records, and I 9 don't think we have to run through all of them. But if 10 the record says, for example -- like, here's a record 11 from Dr. Zeliger's office September 23, 2010, 12 And he has in here, she reports to me that on 13 August 16, 2010 she was in a rainstorm and to get out of 14 the rain she ran into a restaurant named Chalit's Bistro 15 in which she slipped on the wet floor landing on her 16 buttocks. 17 Now, he says, she reports to me that she ran 18 in. Would that be something you would have said to 19 Dr, Zeliger? 20 A. I'm really not sure. You know, I explained 21 how I rushed into a restaurant and when I went through 22 the door it was wet and I went down and it was like 23 hitting ice. But I can't remember my exact wording to 24 any doctor that I spoke to. I don't remember exactly 25 what I said. 37 1 helped me into a chair then, and they were very kind to 2 me and brought me ice. And I put ice, had ice on my 3 back and sat there a little bit. 4 Q. Can you describe those two employees? 5 A. I'm sorry, I can't. I was in horrific pain. 6 I really do not remember their faces. 7 Q. Were they two women, two men, a man and a 8 woman? 9 A. To the best of my estimate, the best of my 10 knowledge, I think it was a man and a woman. 11 Q. Mrs. Misicko, you said you darted into the 12 restaurant, darted. 13 A. I darted to the door. 14 Q. Or darted to the door. Can you clarify that 15 or -- 16 A. Well, it was just unbelievable rain, very 17 hard, so I darted to the door to get out of the storm. 18 But then I had to pause because I had to pull the door 19 open, so I had to pause there in order to open the door. 20 Q. But you were going quickly? 21 A. I don't really recall, sorry. I just know 22 that I darted from the car to the door. I had to open 23 the door; and when I went in, it was like a sheet of ice 24 and I went down. 25 Q. Now, you've seen various doctors and you've 36 1 Q. Okay. This is sort of like the other 2 question. Like, you're not denying that you might have 3 said I ran into the restaurant to these doctors? 4 A. No, because I just don't recall. 5 Q. You're not denying it, though? 6 A. Correct. 7 Q. Do you remember what either of the employees 8 said to you at that time of the accident? 9 A. I'm sorry, I don't recall. I think my pain 10 level was so incredible that, you know, it's -- I really 11 don't remember. I just remember the pain. I remember 12 them being nice; but other than that, I don't really 13 recall. 14 Q. And I think you said they got you some ice 15 for your back? 16 A. Yes. 17 Q. And they treated you with respect? 18 A. Yes. 19 Q. But that's about all you remember? 20 A. That's all I remember, yes. 21 Q. Do you know what the two employees were doing 22 in there when you got into the restaurant? 23 A. No. 24 Q. Did your husband eventually come into the 25 restaurant too? 3B EXHIBIT "I" DAVID MISICKO 1 Q. Did you read the statement too? 2 A. I don't think I have. 3 Q. Well, you don't have to read it. 4 A. Okay. 5 Q. Your wife has seen a lot of doctors; her 6 family doctor, the doctors at Hershey, a doctor at 7 Orthopedic Institute, Dr. Zeliger, Have you gone with 8 her to all those visits concerning her back injury, or 9 some of them, or how's that? 10 A. I would say most of them. 11 Q. And how about your wife since her surgery in 12 February of 2012, do you agree with her testimony about 13 the improvement? 14 A. Yes. She is much improved since the surgery, 15 Q. And she's testified about how this has 16 impacted you, but she's able to do more since the 17 surgery around the house? 18 A. She's able to do more since the surgery. 19 Q. Where do you judge her to be? Let's say if 20 her condition is a 1 before the surgery and 10 being 21 back to normal, where do you think she is now? 22 A. 5. 23 Q. Now, you and your wife live together at home 24 up in Shermans Dale, correct? 25 A. Yes. 11 1 that said closed. I don't know, 2 Q. So you're not denying that they put a sign 3 up; you just don't know one way or the other? 4 A. I'm not denying that they put a sign up, no 5 MR. DEARDORFF: Well, thank you very much. I just wanted to clarify that. (The deposition concluded at 11:27 a.m.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 1 Q. Does anyone else live there with you? 2 A. We have a son who's a full-time student at 3 Shippensburg, so he's there when school is not in 4 session a lot of the time. Even when school is out of 5 session he still sometimes is not there. There's three 6 in the household, but he's a full-time student. 7 Q. When he's in school, does he stay there 8 overnight at Shippensburg? 9 A. Yes. He has an apartment in Shippensburg. 10 MR. DEARDORFF: I don't know; was he listed 11 as a witness, Steve? 1212 MR. HELD: I don't know. 13 MR. DEARDORFF: I think that's all I have, 14 Mr. Misicko. Ch, I do have another question. 15 BY MR. DEARDORFF: 16 Q. Mr. Misicko, I'm sorry about this. Did you 17 notice whether there was a sign or not on the front door 18 saying that the restaurant was closed? 19 20 A. Q• I did not. So just like with your wife, the people I 21 represent at the restaurant say there was a sign that 22 said closed. Are you disputing that? 23 A. Am I disputing that the restaurant -- 24 Q. That they put a sign up that said closed, 25 A. I have no idea whether they put a sign up 12 1 COMMONWEALTH OF PENNSYLVANIA 2 COUNTY OF CUMBERLAND 3 4 5 6 7 9 ) SS. I, AMY R. FRITZ, a Court Reporter Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of DAVID M. MXSICKO. I further certify that before the taking 10 of said deposition the witness was duly sworn; that the 11 questions and answers were taken down stenotype by the 12 said Reporter -Notary, approved and agreed to, and 13 afterwards reduced to computer printout under the 14 direction of said Reporter. 15 I further certify that the proceedings 16 and evidence are contained fully and accurately in the 17 notes taken by me on the within deposition, and that 18 this copy is a correct transcript of the same. 19 In testimony whereof, I have hereunto 20 inscribed my hand this 24th day of March, 2014. 11 21 22.. f n. 'ublic,`J) 14 CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Motion for Summary Judgment was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 MART ON LAW 6 CES By A A/ \A -TJ. Th a/ Ten East igh Street Carlisle, PA 17013 (717) 243-3341 Dated: IA1ifIIq F:\FILES\Clients\3050 Donegal\3050 Current \3050.698\3050.698.pra5.wpd Revised: 12/22/14 3:41PM Daniel K. Deardorff, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER" -.1": 2 2 ;a MARTSON LAW OFFICES C,LIM ERLi., , 1 Coin 'j'y I.D. 17837 PENNSYLVANIA 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants BARBARA MISICKO and, DAVID MISICKO, her husband, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 2012-4563 : CIVIL ACTION - LAW CHALIT'S THAI BISTRO, Defendant : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Attached hereto, to become part of the record, is the deposition of Barbara Misicko in support of Defendant's Motion for Summary Judgment. Dated: 1?l �` 1 Respectfully Submitted, MARTSON LAW OFFICES Daniel K. Deardorff, Esquire I.D. No. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant 1 BARBARA MISICKO and IN THE COURT OF COMMON PLEAS DAVID MISICKO, her CUMBERLAND COUNTY, PENNSYLVANIA husband, v. Plaintiffs : NO. 2012-4563 . CIVIL ACTION - LAW CHALIT'S THAI BISTRO, : Defendant JURY TRIAL DEMANDED ORIQ/NA L DEPOSITION OF: BARBARA N. MISICKO TAKEN BY: Defendant BEFORE: Amy R. Fritz, Court Reporter Notary Public DATE: March 13, 2014, 9:55 a.m. PLACE: APPEARANCES: Handler, Henning & Rosenberg 1300 Linglestown Road, Suite 2 Harrisburg, Pennsylvania HANDLER, HENNING & ROSENBERG, LLP BY: STEPHEN G. HELD, ESQUIRE FOR - PLAINTIFFS MARTSON LAW OFFICES BY: DANIEL K. DEARDORFF, ESQUIRE FOR - DEFENDANT ALSO PRESENT: David M. Misicko Central Pe nsylvania curt Reporting Services Id 1 800-863-3657 • 717-258-3657 • 717-258-0383 fax courtreporters4u @aol.com 2 DEPONENT Barbara N. Misicko INDEX TO TESTIMONY EXAMINATION By Mr. Deardorff INDEX TO EXHIBITS PAGE 3 NO. DESCRIPTION PAGE 1 Statement 41 3 STIPULATION It is hereby stipulated by and between the respective parties that signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved until the time of trial. BARBARA N. MISICKO, called as a witness, being duly sworn, was examined and testified as follows: EXAMINATION BY MR. DEARDORFF: Q. Mrs. Misicko, my name is Dan Deardorff. I represent the Defendant in this case which is Chalit's Thai Bistro. A. Um -hum. Q. I'm going to be asking you some questions. First of all, I'm going to give you a little background, introduction type thing, some rules of the game. A. Okay. Q. First, state your full name, please. A. My full name is Barbara Nace, N -a -c -e, Misicko, M -i -s -i -c -k -o. MR. DEARDORFF: Any relationship? MR. HELD: I hope not. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 BY MR. DEARDORFF: Q. Do you know any people named Charles Nace who lives in Carlisle? A. No. Q. Okay. MR. HELD: We were talking about another case and MR. DEARDORFF: We have another case with that name. THE DEPONENT: I heard that. And, no. BY MR. DEARDORFF: Q. Okay. Mrs. Misicko, have you given any testimony before on any matters? A. No. The only thing that I could think of is years ago I was protesting at TMI and I had to go to court because I was arrested for protesting. Q. Well, that answers the question as to have you ever been arrested. Were you convicted of that? A. Yes. But I went to court and I got off because -- yeah. Q. Okay. So the conviction was reversed? A. Correct. Q. Well, this is a little different. We're not in front of a judge. We're here in front of a notary and stenographer, Amy, who will take down what you say. 1 2 3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 25 5 But it is like court where you're under oath. Do you understand that? A. Yes, I do. Q. Now, the way the procedure is going to work is that I'll ask you questions, pause, and then you give me an answer. Do you understand that? A. Yes. Q. One rule we have to follow is we both can't talk at the same time. So when I'm done, I'll pause, you answer, and I'll try not to interrupt. Okay? A. Okay. Q. Another rule is that answers such as uh-huh or uh-uh are not good because they're somewhat unclear as to do you mean yes, no. So if it is a yes or no answer, just say yes or no. A. Yes. Q. Another important rule is to make sure you understand my question. So if at any point the question is unclear to you, let me know that. A. Okay. Q. If you let me know that it's unclear, I'll try and state it a different way. Another rule to remember is that we want to make sure you're feeling okay; and if you need to use. the rest room or take a break, just let me know. 6 A. Thank you. Q. Your attorney. is here;, so if you want to take a break and talk to your attorney privately, we can accommodate that too. A.. Thank ,you. Q. Do you feel well enough today that you can answer maybe an, hour or so of questions? A. .Yes. Q. Now, what's your current address? A. 6_Bretz, B -r -e -t -z, Circle; Shermans Dale, S -h -e -r -m -a -n -s, D -a -1-e, Pennsylvania, and the zip is 17090. Q. How long have you lived at that address? A. Since April 1987. .Q. .What's your date of birth? • A. 12/21/53. Q. .And your marital sttus?, A. We have been married, since October the 20th, 1984. Q. Where did you grow up? A. .I grew up in Harrisburg. Q. Did you go to Harrisburg schools? A. Yes; Susquehanna Township High School. Q. Did you graduate from Susquehanna High School? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 o25 8 like that? A. Yes. Q. So you had no plans to go back to work? A. No. Q. And in these type of cases, it's important to know some background about you. Had you ever been in any accidents where you were injured before this accident in August 2010? A. Yes. Q. Could you tell me about them and the dates and what was injured? A. Sure. I have a bad memory, so please bear with me. I do know that it was in 2007 my husband and I took a cruise for our 25th wedding anniversary and we were out at sea and I like to swim and I was in the pool. And what I presume happened is that a big wave must have gone under the ship, it created a wave in the pool and the wave in the pool pushed me, my back into, like, a bar that went around the perimeter of the pool, and I hurt for quite some time after. Q. What did you hurt? A. My low back. I had recovered fully from that. Q. Did you bring a claim against anybody as a 9 result of that? A. No. Q. And you did have medical treatment for that problem? A. Yes. Q. And who did you treat with? A. Dr. Zeliger gave me some treatments. I saw my family physician, and I apologize but I can't remember everything. Q. Do you remember the diagnosis of your injury, what happened to your low back? There's discs involved and bones. A. I'm sorry; I don't remember. Q. Did you have diagnostic studies? A. Yes, I did. I don't remember, though. Q. How long did it take you to recover? A. I'd say probably about -- I'm just guessing, maybe four to five months to the best of my recollection. Q. Okay. Before this accident at Chalit's Restaurant, had you ever been in any motor vehicle accidents when you were injured? A. Yes. I had an accident in 2005, car accident. Q. And how did that happen? • 1 2 3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 25 10 A. I hit ice. We had an Explorer, and it flipped over on me. Q. What parts of your body were injured? A. The only injury I had was to my left hand. Q. Did you injure your back at all? A. No. Q. Any other car accidents? A. No. Q. Any claims for Workers' Compensation while you were employed? A. No. At that point in time I just had a part-time job and they gave me whatever time I needed to recover. I can't really remember. Q. Well, Workers' Compensation, I mean, did you get hurt at work at any point where you made a claim? A. Na. I was just on my way to work. Q. Now, there are sometimes incidents where you're just doing common things like helping someone get up or shoveling snow. Did you ever have any incidents like that where you hurt your back? A. Yes. Q. And tell me about those, or was that a common thing? A. That was a common thing for me, you know, just that 1 would throw my back out, you know. 1 loved 1 2 3 4 5 6 7 8 9 10 11 12 0 13 14 15 16 17 18 19 20 21 22 23 24 25 11 gardening; I always loved gardening. Q. And how often did you throw your back out over the years? A. You know, maybe once or twice a year I'd move a certain way and it would just seem -- it would go funny on me and hurt for a while but then it would get better. Q. And you mentioned before the accident at Chalit's Restaurant you had seen your family doctor at various times. Who is your family doctor? A. Dr. Marie Papoutsis, P -a -p -o -u -t -s -i -s. Q. And she's with a group? A. Yes; Good Hope Family Physicians. Q. And did you see any specialists at all for your back? A. From my accident? Q. From your prior, prior accidents, not from -- A. Not from Chalit's? Q. We're before Chalit's. Did you ever see any specialists like orthopedic doctors? A. Yes, I have. Q. You had mentioned Dr. Zeliger. A. I remember going to a chiropractor. Q. Who is the chiropractor? A. 1 apologize. 1 know he was in Hummelstown, 12 but I don't remember his name, Scott something. Q. Okay. Now, I have to tell that you your attorney has shared with me various records, and we've gotten your consent to get various records. So I've seen some of these records so I know what you're talking about in some cases. Does Dr. Scott Stoner sound right? A. Yes. Q. And he's in Hummelstown? A. Correct, yes. Q. When did you start seeing Dr. Stoner? A. So sorry; I have such a bad memory. I saw him for a while. I remember he had put heat packs on my back. He did some manipulations, you know. He put a TENS, like, a TENS unit on my back. I bought a TENS unit off of him. I'm sorry; I can't remember everything he did or how long the treatments were. Q. Have. you seen Dr. Stoner since your accident at Chalit's? A. No. Q. So it was before Chalit's that you saw Dr. Stoner? A. Yes, correct. Q. Was it around the time you had the cruise ship incident? 0 1 2 3 4 5 6 7 8 9 10 11 12 0 13 14 15 16 17 18 19 20 21 22 23 24 25 13 A. I believe so. Q. Did you see him months or years or weeks? A. I think just maybe -- I don't really recall. I'm guessing maybe a couple of months. I'm just guessing because I can't remember. Q. What part of the body did he treat? A. My back. Q. The back can go from your neck to your tail -- A. Lower back. Q. So lower back? A. Lower back, yes. Q. Had you ever been hospitalized for any back problem before this accident at Chalit's? A. No. I had gone to an emergency room before with my back but was not kept, I was not admitted. Q. And when had you gone to emergency rooms for your back? A. I was a kid; I can't really recall. I might have been about 14, maybe 13, tobogganing. Q. And you hurt your low back? A. I fractured my tailbone. Q. And how did they treat that? A. I think they gave me stuff for pain. I don't think they could really. That's not something you can 14 treat. It just healed over time, and eventually I made a full recovery from it. Q. Now, just so I understand everything, before Chalit's incident in October 2010, had you ever brought any lawsuits for injuries to yourself? A. No. Q. Even at the time of Chalit's, the Chalit's accident, were you on any kind of disability like Social Security Disability or -- A. No. Q. -- some kind of private disability? A. No. Q. And how was your activity level at the time of the Chalit's accident? A. Prior to? Q. Prior to. A. I was great. I could weed all day. I could do anything. I could hike. I could kayak. I was just perfectly healthy. I had no issues. Q. Now, in your Answers to Interrogatories which your attorney sent me we asked you questions like how has the accident affected you, the accident at Chalit's. You indicated depression, that you had some depression. Did you ever have depression before the Chalit's accident? 1 2 3 4 5 6 7 8 9 10 • 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 A. The only time I ever had anything like that is losing a loved one or having a loved one that was very ill; then I would have a hard time dealing with that. Other than that, I never had issues with depression. Q. Okay. Now, we're going to switch gears here and switch to the accident at. Chalit's. And I'm going to ask you what got hurt as a result of that accident. So you tell me, like, what you think what parts of your body were injured. A. My low back. Q. Is that the main part? A. Yes. Q. And the day of the accident was August 16, 2010. Did you seek any healthcare that day? A. Yes. My husband took me to Harrisburg Hospital. Q. And were you seen by a doctor there? A. Yes. It took -- we waited for hours before we saw a doctor. Q. And what was his recommendation? A. Well, he wanted to take x-rays and put me in another room where we waited for hours. And my pain level was too high; I couldn't handle it. Q. So you didn't stay for the x-rays? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 A. No. Q. Now, that was -- was that on the very day of the accident, August 16? A. Yes. Q. When's the next time you saw a doctor or had some health treatment? A. I spent a week lying flat on my back on ice; and when I realized that nothing was working, I went to my family doctor. That was August 23rd, and that was Dr. Papoutsis. Q. Now, you have a pretty good memory, it seems to me. Have you reviewed anything to prepare for this deposition? Do you have a journal, for example, or did you review hospital records? A. I remember the time of -- I don't remember a lot about appointments and stuff afterwards, but my memory of the accident is very clear. I did, you know, look over a few things that I had, but I didn't have to for the accident because I just remember that. Q. Well, for example, you told me you went to see Dr. Papoutsis a week later on August 23. Did you look through any medical records to help refresh your recollection as to when and -- A. No. I just remember that date. Q. Okay. And what did Dr. Papoutsis do to treat 1 2 3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 (:) 25 17 you? A. She knew I was in intense pain, and she sent me stat to Hershey Medical Center to have x-rays done. Q. Did you go the same day to have the x-rays? A. Yes. Q. So you would have had x-rays August 23? A. Yes. Q. Did she examine you at that time? A. Yes. Q. Did she give you any diagnosis when she saw you on August 23? A. No. She just knew I was in horrific pain. Q. Did she give you any new medications? A. I'm sorry; I don't recall. I presume she did, but I really don't recall. I'm sorry. Q. The records can answer all those questions, but I just want to get some general idea from you. Do you remember on the day of the accident, August 16, 2010, what were your medications that you were taking at that time? And I mean before the accident. A. I'm sorry; I don't really remember. I have some IBS issues, irritable bowel issues, so sometimes I take Bentyl. I presume at that time of the year I would have been on allergy meds because I suffer bad with hay fever. And it was August and that's my season so 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 o25 18 presume I was on allergy meds. Q. Were you taking any depression anxiety type medications at that time? A. Don't think so, no, not to my memory. Although I might have been -- I very well could have been now that I think about it because my brother had died August 10th and I was having a very hard time dealing with it. Q. Now, you have the x-rays at Hershey. And did you have that more sophisticated test, the MRI too -- A. Yes. Q. -- at Hershey? A. Um -hum. Q. Was that the same day or the next day? A. I don't recall; I'm sorry. It might have been the same day or it might have been a couple days later. I'm sorry, I don't remember. Q. How were your activities in the, let's say, 30 days after you fell at Chalit's? A. I couldn't do anything. The pain was through the roof. I could not do anything. Q. Now, you told -- were you able to walk? A. Not very well. Q. Now, you told me about prior problems with your back. Did that ever affect your walking 0 1 2 3 4 5 6 7 9 10 11 12 3 13 14 15 16 17 18 19 20 21 22 23 24 ( 25 19 A. No. Q. -- when you were having those problems? A. No. When I -- in 2007 it hurt a bit to walk; but after a few treatments it quickly healed and then I didn't have any issues; I was fine. Q. What kind of treatments did you have that healed? A. I had some spinal decompression treatments, chiropractic, physical therapy, a little aqua therapy. And I made a full recovery. I could dance, you know, do anything. Q. After you made the full recovery in 2007, would you still have these episodic times when you would twist your back? A. Occasionally. Q. So we're back to who you treated with after the accident at Chalit's. We had you seeing your family doctor and having x-rays at Hershey and an MRI at Hershey. Then you started treating with doctors at Hershey. Is that it? A. Well, I had gone to Hershey. And I apologize here again; I can never pronounce this one doctor's name from Hershey. It begins with a V. Q. Dr. Vresilovic? A. Yes, because I can never remember his name. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 I also saw Dr. Vora at Hershey. They have a lot of student doctors that come in too that I do not recall their names. I saw Dr. Jill Eckert for pain management at Hershey. Q. With all that treatment, did you improve at all? A. No. Q. Did you go back to Dr. Zeliger at any point? A. Yes. Q. And what kind of treatment did he give you? A. He tried more spinal decompression treatments on me; also thought the physical therapy was good. Several doctors wanted me to go to physical therapy, so I did physical therapy, aqua therapy. Q. And did you improve at all with that treatment? A. No. Q. I saw somewhere that you had seen a doctor at Orthopedic Institute of Pennsylvania. A. Yes. That was Dr. Balog. I was trying anything because the pain was just beyond anything I had ever known. Q. Eventually I saw you ended up going to Philadelphia? A. Yes. 21 Q. What got you to go to see a doctor in Philadelphia? A. I had an appointment for a check-up with my gynecologist, Dr. Holly Thomas. And when I walked into her office, as she saw me trying to walk into her office, she said, oh, my God, what happened to you. And I told her and broke down and cried. And she said, I'm going to tell you where to go and I want you to go there ASAP, and she directed me to Philly. Q. And who's the doctor you saw in Philadelphia? A. Dr. James Harrop. Q. Now, what type of -- he did surgery on your back, correct? A. Yes. Q. And I saw in the records that was February of 2012? A. Yes, February 6th, 2012. Q. So that would have been about a year and a half after the accident at Chalit's? A. Probably close to that. Q. What type of surgery did he do to your back? A. This is what I recall of what they did to the best of my ability. I had a slipped disc that they took tissue from and filled in the backside, and they also filled in a hairline fracture that he thought was, that 22 was above that. And he put a cage around that area, fused that area, put in rods and screws. And I also had bulging discs that he had gotten rid of, and he said I also had stenosis, so while he was in there he widened that. Q. So he did a lot to your low back? A. Yes. Q. How long were you in the hospital for that? A. A week. Q. Do you know how long the procedure took, how many hours? A. I'm sorry; I do not remember. Q. Now, has that helped your back? A. Yes, it has helped. I'm much better than what I was prior to surgery. I'm nowhere near where I want to be, but I'm much better than where I was. Q. What type of treatment are you receiving now for your back? A. I go to the aquatic, the Elite Aquatic Fitness Center on the Carlisle Pike. Q. And what's it's called? A. Elite. Q. E -1 -i -t -e? A. Yes. Q. And that's on the Carlisle Pike? 1 2 o3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 o25 23 A. Yes. Q. Camp Hill or Mechanicsburg? A. Mechanicsburg. Q. How often do you go there? A. I go there three times a week. Q. Do you water -jog? A. I get on a treadmill in the water. I do exercises in the water. I have a PT trainer there who is disappointed with the ability of how far I can walk so he's currently working with me again and having me do exercises on a table in the gym to try and get better core strength in my low back. Q. Do you have insurance to pay for that or is that something A. No. I've been paying it out-of-pocket. Q. How much does that cost? A. I pay -- currently I pay $210 -- it just started, $210 for three months. The last three months -- I got a discount. The last three months was $225. And then prior to that I paid $505 for six months because at the time of my fall I put on a lot of weight because I couldn't move. And also along with the exercises to help my back I was trying to do a diet program there to lose the weight that 1 put on since my accident. 0 1 2 3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 25 24 Q. What's the name of the trainer? A. His first name's Rich. And I apologize, I don't remember his last name. But he's the manager there, so... Q. When did you start taking those exercises? A. I've been doing aquatic exercises for my back with the same people since I fell. Q. So you've been going to the same Elite Aquatic Fitness? A. They just opened that up. There's a place that's Cumberland Physical Therapy. It's owned by the same man who owns the Elite Aquatic Center who is also a physical therapist, and I've been going to them since my accident. And they -- the Cumberland Physical Fitness Center is just, like, two blocks away from the Elite Center and owned by the same people, and I have pretty much the same people working with me. Q. Are you still seeing Dr. Harrop? A. Yes. I go to him March 18th. Q. And how often do you see Dr. Harrop? A. I have not seen him -- the last visit he said he'd see me in one year, so I go now back. Q. Do you know if this will be your last visit? A. I do not know. 1 2 3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 V 25 25 Q. And do you see any other doctors for your back? A. No. Q. You indicated that you felt the surgery helped and you were much better but there's room for improvement. Let's say 10 is where you want to be and 1 is the worst you've been. Where would you say you are now? A. 5 or 6. Q. So back before you had the surgery, where were you? A. Before I had the surgery I was definitely a 1 or below. Q. Now I'm going to sort of jump back to the accident, if you don't mind. Now, we're going back to August 16, 2010. And what time were you, did you get to that area where the restaurant, Thai Restaurant was? A. I'd say approximately around 4, to my best ability to remember. Q. You can't give me an exact time? It could have been a little bit before 4? A. Correct, right. I'm not sure. Close to that area of time. Q. And had you ever been to this place before? 26 A. No. Q. Now, the -- oh, one question I forgot to ask you. Since the accident at Chalit's in August 2010, have you had any other accidents or falls where something happened? A. I did trip on the steps and I broke my foot tripping on our stairs. Q. And that's at home? A. Yes. I did not hurt my back. I didn't land on -- I caught myself on the rail and -- I caught myself on the rail and just twisted my foot. I came down on it a bad way, but my back didn't touch anything so my back was fine. Q. When did that happen? A. Last March -- a year ago. Q. So March of 2013? A. Correct. Q. And did you have any medical treatment for that? A. Yes. Q. Who did you see? A. I went to a -- sorry. Again, I can't remember the name of the place. It was a 24-hour care place, Rossmoyne Business District. They were open. Q. Rossmoyne? 27 A. Yes. Q. Rossmoyne Business District? A. Yes. It's, like, next to -- there's a restaurant there. Q. Isaac's? A. Yes. Q. It's close to Isaac's? A. Um -hum. Q. Did you see your family doctor over that? A. They were closed. Q. And how did they treat your foot? A. They did an x-ray and told me that I did have a little fracture and that the next day I should go to OIP Institute. Q. Did you go to OIP? A. Um -hum. Q. Yes? A. Yes. Q. And who did you see at OIP? A. Let's see. I apologize; I can't remember his name. I think it begins with K, Kline. I am so sorry; I don't remember the gentleman's name. Q. Have you had any other incidents such as a car accident, a fall since the incident at Chalit's? A. No. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 Q. Now, going back again to August 16, 2010, you had never been there before, correct? A. No. Q. And what was the weather like? A. It was raining. We were getting a horrific thunderstorm, extremely heavy rain. Q. Who was driving the car? A. My husband. Q. And where were you sitting? A. Passenger side. Q. The front? A. Yes. Q. And you had people in the back? A. Yes. Q. Who were those people? A. My sister and my brother. Q. Not sister-in-law, brother-in-law; they were actually your sister and brother? A. They are my siblings, yes. Q. And what was your plan that day when you left your house in the car? A. My brother passed away August 10th and we had to work on his estate. And we had gone -- my sister and brother had a hard time getting off work and they could get off that afternoon. And we had gone to a bank and 29 we had to get a tax number and we kept calling the IRS and we'd be on the phone with them for 10 minutes and they would disconnect us, and this kept happening repeatedly. And my husband said I know where there's an Internet Cafe and he said we can go there and use the Internet, get a drink and then come back. So he drove to this place thinking it was an Internet Cafe. And that's what brought us there. Q. What bank had you been to? A. Members lst. Q. And where's that located? A. That was the one in Camp Hill, Camp Hill on Carlisle Pike. Q. So you left the bank? A. Um -hum. Q. You have to say yes. A. Yes. Sorry. Q. And your husband drove down the Carlisle Pike? A. Yes. Q. And you went into the shopping center? A. Yes. Q. Now, tell me where you were when you got out of the car. 30 A. I got out of the front side of the car and headed towards the restaurant. Q. Where was the car? Was the car in the parking spot at this point? A. No. My husband dropped us off close to the door. Q. Were you on the side closest to the door, or were you on the other side of the car? A. I was on the side closest to the door. Q. And you got out of the car? A. Yes. Q. And tell me what happened after you got out of the car. A. I got out of the car and I darted to the door because of the horrific weather that we were having. I paused, I opened the door, went in and just immediately fell very hard. Q. Did you see anyone go through the door before you? A. I was the first person through the door. Q. And did your brother and sister follow you? A. Yes. Q. How close were they to you? A. They were pretty close. Q. When you opened the door, did they come 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 through with you, or did the door close and then they came through? How did that work? A. I don't know. I presume I can't quite remember, but I presume that the door was still ajar as I was going down. Q. What kind of shoes were you wearing? A. I had Crocs on that had the back strap on. Q. And you had to go through the rain. Were there any puddles that you went through, or don't you remember? A. Everything was just wet. There was, you know, it was a heavy, heavy storm. Q. Were your Crocs wet? A. Yes. Q. Were you carrying anything? A. Pocketbook. Q. From the time you opened the door to get out of the car to the time you fell, how many seconds transpired; you know, one thousand one, one thousand two, one thousand three, one thousand four? Can you give me an estimate? A. I'm really not sure. I'm not sure; sorry. Maybe 60 seconds. I'm not really sure. Q. 60 seconds? A. Maybe. 1 mean, 1 just darted from there to 0 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 the door. And then, you know, the door, from my recollection from what I believe that I remember, the door opened out so I had to pause to open the door. And then I went in, and it was just, like, ice. Q. Now, you're not wearing glasses today, correct? A. Correct. Q. Do you wear contacts? A. No. Q. So you don't have any prescription for glasses or contacts? A. I have reading glasses, but they're not really prescription. Q. Now, you then fell as you went into the restaurant. Could you tell me how you landed? A. Yes. Q. Sort of the mechanics of your fall. A. I landed on my low back very hard. Q. Where were your feet when you landed on your low back? A. I do not recall. I just remember my back is what hit the floor. Q. Now, I take it this happened all pretty fast, right? A. Yes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 Q. Do you know what the condition of the floor was in the restaurant where you fell before you got in? A. No. Q. So you don't know whether that floor area was dry or what? A. No. Q. Did you see any signs on the door that you opened before you went in? A. No. Q. Were you looking for any signs? A. No. Q. Now, after you filed the Complaint in this case, the restaurant I represent filed an Answer. And they said that the restaurant was closed at the time and was not open for business and they had a sign on the door. Now, when someone says I didn't see a sign, it could mean they were looking and there wasn't any sign there or they just didn't notice whether there was a sign there or not. And what I'm getting at -- my people say there was a sign on the door. Are you saying that's not true? A. I'm not saying that. It was coming down cats and dogs. I could not tell you if there was a sign. do not know. 1 just know the door was unlocked. 1 2 3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 Th 25 34 Q. So you're not disputing their statement that there was a sign on the door? A. No. I don't know. Q. And they gave me the sign that they say was on the door, and I sent a Xerox copy of it to your attorney. So this sign I'm showing to you -- A. Did not notice it, no. Q. But you're not saying it wasn't on the door; you're just saying you didn't see it? A. I didn't see it. I don't know if it was or not. All I know is the rain was coming down so hard that I didn't see any sign. I couldn't tell you if it was there or not. Q. You had not phoned ahead to this or had anyone phoned ahead to this restaurant to say we're coming? A. No. Q. So I take it you had no communication with the restaurant about your visit? A. No. Q. And you and your group hadn't received any permission to come into the restaurant, I take it? A. No. Q. That's correct, you had not received any permission? You know, it's the double negative. Had 0 1 2 3 4 5 6 7 8 9 10 11 12 (:) 13 14 15 16 17 18 19 20 21 22 23 24 25 35 you received any permission to go in the restaurant from the owner? A. Didn't see anybody to talk to. We just opened the door; I just opened the door. Q. So the answer is no, you hadn't received any permission? A. Yes, because we didn't see anybody to ask. Q. Now, your brother and sister then came into the restaurant behind you? A. Yes. Q. Did either one of them fall? A. No, because I was lying in their way. Q. Did you see anyone in the restaurant after you got in? A. Yes. Q. Who did you see? A. Two employees. Q. Did you see anyone else? A. No. Q. So there were no customers in the restaurant that you could see? A. No. Q. And what did you say to the two employees? A. They just knew I was hurt. I laid on the floor a little bit because it hurt a lot. My family (:) 1 2 3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 25 36 helped me into a chair then, and they were very kind to me and brought me ice. And I put ice, had ice on my back and sat there a little bit. Q. Can you describe those two employees? A. I'm sorry, I can't. I was in horrific pain. I really do not remember their faces. Q. Were they two women, two men, a man and a woman? A. To the best of my estimate, the best of my knowledge, I think it was a man and a woman. Q. Mrs. Misicko, you said you darted into the restaurant, darted. A. I darted to the door. Q. Or darted to the door. Can you clarify that or -- A. Well, it was just unbelievable rain, very hard, so I darted to the door to get out of the storm. But then I had to pause because I had to pull the door open, so I had to pause there in order to open the door. Q. But you were going quickly? A. I don't really recall, sorry. I just know that I darted from the car to the door. I had to open the door; and when I went in, it was like a sheet of ice and I went down. Q. Now, you've seen various doctors and you've 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 explained to these people what happened. Have you ever used -- did you ever use the term that you ran into the restaurant? A. I don't recall. To be honest, I was in so much pain that, you know, to remember a little detail like that would be really hard. I was really in excruciating pain. Q. Well, we've pulled out some records, and I don't think we have to run through all of them. But if the record says, for example -- like, here's a record from Dr. Zeliger's office September 23, 2010. And he has in here, she reports to me that on August 16, 2010 she was in a rainstorm and to get out of the rain she ran into a restaurant named Chalit's Bistro in which she slipped on the wet floor landing on her buttocks. Now, he says, she reports to me that she ran in. Would that be something you would have said to Dr. Zeliger? A. I'm really not sure. You know, I explained how I rushed into a restaurant and when I went through the door it was wet and I went down and it was like hitting ice. But I can't remember my exact wording to any doctor that I spoke to. I don't remember exactly what I said. 38 Q. Okay. This is sort of like the other question. Like, you're not denying that you might have said I ran into the restaurant to these doctors? A. No, because I just don't recall. Q. You're not denying it, though? A. Correct. Q. Do you remember what either of the employees said to you at that time of the accident? A. I'm sorry, I don't recall. I think my pain level was so incredible that, you know, it's -- I really don't remember. I just remember the pain. I remember them being nice; but other than that, I don't really recall. Q. And I think you said they got you some ice for your back? A. Yes. Q. And they treated you with respect? A. Yes. Q. But that's about all you remember? A. That's all I remember, yes. Q. Do you know what the two employees were doing in there when you got into the restaurant? A. No. Q. Did your husband eventually come into the restaurant too? 39 A. Yes. Q. And were you still on the floor when he came in? A. Yes. Q. Now, your purpose to go there was to use the Internet? A. Yes. Q. And your Crocs were wet as you were going in the restaurant? A. Yes. Q. Do you remember whether there were lights on in the restaurant when you got in? A. Yes. Q. And were the lights on? A. I believe so. To my memory, I believe so. Q. Was it dark in the restaurant? A. No. Q. Sufficient lighting? A. Yes. Q. Now, were there any rugs on the floor in the restaurant? A. Yes. Q. And where was -the rug? A. Pushed up -- I didn't notice until I went to leave. It was pushed up against the back wall. 1 2 3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 25 40 Q. How far was the rug from the front door? A. I'm just -- to the best of my estimate, because I don't remember for sure, maybe about six feet. That's just to the best of what I can recall. I have not been in the place since so I'm just, to the best of my memory. Q. Do you remember how long you were on the floor? A. No. I remember laying there for a while because I really hurt and I wasn't sure what I had done, but I don't recall how long I was on the floor. Q. Did you fill out any type of accident report for anybody? A. Not at that time, no. Q. Now, I think you said this was around 4:00; could have been earlier, could have been later? A. Yeah, close to 4. Q. Approximately when did you go to the emergency room? A. Probably about to the best of my ability, probably maybe -- I'm not 100 percent sure -- 5 or 5:30. But that's -- I'm just trying to remember because I don't remember exactly. Q. Now, about two or three weeks later, did a claims representative come from the insurance company up 1 2 o3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 25 41 to your house to take your statement? A. Yes. Q. And have you seen a transcript of that statement? A. Yes. Q. And when did you look at that transcript? A. I looked at it a little last night actually. Q. We sent a copy to your attorney. Is that how you got it? A. Yes. MR. DEARDORFF: And, Amy, do you want to mark this as 1? I'll mark it 1 and you can later put a little sticker on it. (B. Misicko Exhibit No. 1 was marked.) BY MR. DEARDORFF: Q. I'm showing you what's been -- A. Do you mind if I get my glasses? Q. Oh, no. No problem. A. Thank you. Q. When you looked over the statement last night, did you read it from page to page? A. Yes. Q. Or front to back? A. Yes. Q. Did you see anything in there that you 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 thought, gee, that's a mistake, I never said that? A. No, not really. Q. Did reading this statement help you to refresh your recollection? A. Concerning? Q. had. Oh, the accident and then the treatments you A. No, because the accident I remember very well; so I, no, I didn't have to refresh my memory on that. Q. Now, I'm looking -- I'm just going to ask you a couple of questions at some of these pages. At page 3, if you don't mind, page 3 at the top you were asked about the weather and you said, it was really pouring. And that's how you remember it? A. Um -hum. Q. You have to say yes. A. Yes. Q. And then down a couple lines you state, yes, and, um, I, my sister and my brother darted in and I guess I was the first that went through the door. Do you see that? A. Yes. Q. So that's how you remember it too, that you were darting? 0 1 2 3 4 5 6 7 8 9 10 11 12 0 13 14 15 16 17 18 19 20 21 22 23 24 25 43 A. Um -hum. Q. You have to say yes. A. Yes. I darted to the door. Q. Was there anything hanging outside the door to protect you from the rain? A. No. Q. So as you're opening the door, you're still being rained upon? A. Yes. Q. So would it be fair to say that you're still being rained on, you get the door open and you went into the restaurant quickly? A. I went in, yeah. Q. Well, in this statement you say, I darted in. A. Um -hum. Q. It doesn't say I darted to the door. Would you agree that you went quickly -- after you opened the door, you're still being rained upon and you quickly went into the restaurant, sort of darted into the restaurant? A. I went in, you know, I guess, you know, quick. Q. Then moving down to page 7, that's where you indicate that the people were kind to you and brought you ice. Do you see that? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 44 A. Yes. Q. And that's to the best of your recollection? A. Yes. Q. So all in all you thought this statement was accurate? A. Yes, I think so. Q. Now, I know you had some medical bills. And my insurance company, did they contribute at all to those medical bills? A. Yes, they did. Q. Do you have an amount that they -- A. Yes. They contributed 5,000 towards my medical bills. Q. And do you have insurance to cover some of those medical bills? A. Yes. Q. Can you tell me at the present time what your out-of-pocket -- A. I'm still trying to figure that out because it's been kind of difficult as, like, some of the doctors that, like, when I go to Hershey there would be, I'd have an appointment with one doctor say I had an appointment with Dr. Vora, but all these other doctors would come in with names that I knew nothing about that showed up on the bills. And so by looking at 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 these names, the names are unrecognizable to me, so I'm trying to figure that out and have not quite figured it out yet. Q. Do you have a rough guess such as we're out-of-pocket a thousand dollars or $500? A. I know it was a lot. I haven't quite determined that yet because a lot of the doctors' names are confusing me and I'm confused as to who's who because, you know, at Hershey you'd get -- even at Thomas Jefferson -- well, Thomas Jefferson I knew was all my back. But at Hershey you'd have all these names of people that would come in but they weren't actually who you were there to see but their names show up on the bills and I can't figure out by looking at the name who they were. So I'm having a hard time with that. I'm trying to get that to you. Q. Are you receiving any Social Security benefits? A. No. Q. Welfare benefits? A. No. Q. And is your husband still employed? A. No. 1 2 3 4 5 6 7 8 9 10 11 12 0 13 14 15 16 17 18 19 20 21 22 23 24 25 46 Q. When did he retire? A. 2007. Q. So he was retired at the time of the accident? A. Yes. Q. And your husband's a plaintiff too, or he's on this lawsuit too on how this has affected him. Can you tell me in your own words how this has affected your relationship with your husband? A. My husband, up until 1 had surgery, had to take over all chores. He was doing everything. He was doing the laundry, the cooking, the dishes. He was doing everything. I really couldn't do much of anything. You know, a long time we couldn't be intimate together. He would, you know, it would hurt me to drive so he would drive me a lot. And, you know, we spent our lives on the road going to doctor appointments and such. You know, it was difficult for him. Q. Now, you said before the surgery? A. Yes. Q. Now, since the surgery, have all these things gotten better? A. They've gotten much better but not where I'd like to be. 1 mean, he still has to do things that 1 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 still can't do. Q. Can you give me any examples? A. I cannot clean our tubs. Trying to bend in that position to clean a tub really hurts, so I don't do the tubs. I can vacuum now, but I cannot vacuum the steps so he'll do the steps. I used to do a lot of the weed -whacking. I can't weed -whack. I used to do all the weeding. I've been able to weed now since surgery. Q. You're able to what? A. Weed. But I pay for it when I do weed. pay for it, like, a week afterwards. I used to we have three acres of land. I used to take the weeds and throw them in garbage cans and I used to haul them down to the woods myself and dump them. I can no longer do that. I used to help trim all the brush and, you know, rake it and put it, you know, put it in the garbage cans. There was just so much I did on our property. We have a pool. I used to help a lot with the pool. I can't do that anymore. I used to shock it, you know, dip the bucket into the pool, put the chlorine in, mix it and then pick up the bucket and dump it around the perimeter of the pool. I can't pick the bucket up out of the water anymore. 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 48 So there were a lot of chores that I did that -- I can do laundry now. What I do is I put my laundry, sort my piles out, I drag my basket down the steps to do my laundry. Q. Now, before the accident at the restaurant, were some of these chores the same types of activities that would occasionally aggravate your back? A. Occasionally on a rare occasion, if I bend a certain way on a rare occasion. But for the most part I did -- I did weed -whacking, I swung a pick, I could plant shrubs. You know, I did a lot of yard work. I had a very high passion for gardening. Now my gardens look awful. Q. Now, you mentioned that before the surgery you couldn't be intimate with your husband. Has that improved? A. That has improved; not to where, not like it used to be, but it has improved. Q. So you do have intimacy now with your husband? A. Yes. Q. Has the doctor told you that you're going to gradually improve? A. I don't think they really know. I'm hoping. I'm hoping 1 can get better than what 1 am. o1 2 3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 25 49 Q. Do you feel better after your activities at the aqua fitness place? A. Yes. Q. And do you plan to continue with that? A. Oh, yes. I think I have to. MR. DEARDORFF: I think that's all I have at this point. Thanks. MR. HELD: I don't have anything. (The deposition concluded at 11:04 a.m.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50 COMMONWEALTH OF PENNSYLVANIA ) ) SS. COUNTY OF CUMBERLAND I, AMY R. FRITZ, a Court Reporter Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of BARBARA N. MISICKO. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter -Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 24th day of March, 2014. NOTORIAL SEAL AMY R. FRITZ, NOTARY PUBLIC Notary ub BOROUGH OF CARLISLE, CUMBERLAND COUNTY MY COMMISSION EXPIRES SEPTEMPER 22, 2014 30P -PA -01-10-0149935 Barbara Misicko 11/16/2012 Q: This is Noel Doutrich and today is Tuesday September 7th 2010 and the time is approximately 10:25 in the morning I'm here this morning with Barbara Misicko regarding an -an incident she was involved in on the 16th of August 2010 at approximately 4:00 in the afternoon at the Thai Bistro at 5103 Carlisle Pike in Mechanicsburg Pennsylvania and Barbara could I get you to state your full name for me please A: Yes it's Barbara Nece N -E -C -E Misicko Q: And could you spell your last name for me as well A: Sure M -I -S -I -C -K -O Q: And do you understand this conversation is being recorded A: Yes Q: And that's being done so with your permission A: Yes Q: And could I get your home address please A: Sure 6 Bretz B -R -E -T -Z Circle Shermans Dale and the zip is 17090 Q: And how about a home telephone number here A: Sure (717)610-4335 Q: Okay and that's where we're actually at this morning taking your statement is that correct A: Yes correct Q: Okay and what is your age if I may A: 56 Q: Okay and how about your date of birth Transcription by Marsha WakemanC.F0 1 IEXHIBIT ��'� BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 A: 12/21/53 Q: And do you know your social security number A: Yes I do um Q: And what is that A: It's 206-38-9792 Q: And are you currently a Medicare beneficiary A: No Q: Okay and your marital status A: Married Q: Okay and your occupation A: Homemaker Q: Okay and to the best of your recollection are the date the time and the place correct as I had stated (inaudible) the incident that day A: Correct Q: Okay and can you we started to before the statement um we turned the recorder on rather can you walk me through what you took -took you to that location that day what was your purpose of being at that 5103 A: We thought it was an internet cafe Q: Okay A: And we needed access to an internet Q: Okay and can you take me through um maybe uh I know you got dropped off there right at the is it the front door steps I'm not sure how that sets up there A: I was dropped off pretty close to the front door Transcription by Marsha Wakeman it BOP -PA -01-10-0149935 Barbara Misicko 11./16/2012 Q. Okay A: And it was really pouring Q: Okay A: And um Q: I was just going to ask what the weather was like that day A: Yes and um I my sister and my brother and I darted in and I guess I was the first that went through the door Q: Okay A: And the tile floor was wet inside and when I hit that it was like hitting ice Q: Okay A: And I went down my back -back came down really hard on the tile floor Q: Okay so you said it was really pouring at the time A: Yes it was Q: Okay is there any kind of um in front of this the building is there any kind of overhang or anything like that A: (phone ringing) um (to another person) can you get that (inaudible) A: Um you know I don't recall Q: Okay A: All I remember is when I hit the pain was sharp and intense and they were (inaudible) brought me ice 0: They brought you ice A: Yeah they brought me ice Transcription by Marsha Wakeman BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 Q: Okay -okay um when you went in through the doors then is this immediately you fell right immediately inside the door A: Yes correct Q: Okay and you said it's a tile floor A: Yes Q: Any kind of carpeting or rugs or anything like that A: There was a carpet but it was pushed towards the back of that area so it wasn't smack in front of the door Q: Okay A: And -and when I went in to tell them that I was hurt Q: Okay A: The rug was still pushed back it was not up front Q: Okay is that do you think that's pushed forward from maybe the door opening or is there something else going on there that A: I don't know Q: Okay A: What they what they should do is put in a bigger rug Q: Okay A: To prevent that from happening Q: Okay A: For anybody else Q: Okay Transcription by Marsha Wakeman BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 A: That they put in a rug that would fit that whole area Q: Okay A: I don't think that would happen to anybody else Q: Okay so it's a smaller rug then maybe that A: Correct Q: That doesn't fit this A: (inaudible) right Q: Okay A: That they could use a bigger rug Q: Okay all right and so you -you step in and were you hurrying in there or A: Well I was just trying to get in out of the rain Q: Okay A: It was coming down in buckets Q: Okay A: So I was just trying to get in out of the rain Q: Any idea of maybe what -what slipped first or A: I have no idea I went down so fast Q: Okay A: Fast and hard is all I remember Q: Okay A: And pain Transcription by Marsha Wakeman BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 Q: Do you remember what part you landed on first or what you were able A: It was my tailbone area my low back Q: Okay all right and do you remember what kind of shoes you had on that day A: It was like Crocs Q: Okay uh and when 1 picture Crocs the Crocs um just the -the rubber kind of Crocs type thing A: Yeah -yeah right Q: And the flat with the flat A: Yeah Q: No probably no um A: It wasn't like a clog it was like a Croc ;.. Q: Okay A: Low Croc Q: Low Croc A: Yeah Q: Okay um and A: And I've worn those thousands and thousands of times never fell Q: Okay got it A: Yeah Q: And you wouldn't have gotten caught or tripped on anything or anything like that A: No I think it was wet tile smooth tile and it was just like hitting ice ,'°'6 Transcription by Marsha Wakeman BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 Q: Got it okay um and how about then when you went down do you know any other part of your body I don't know if there's anything in the surrounding area that might have hit anything else going down A: No Q: Any like elbows or anything else A: No -no I just my -my back low back hit -hit that tile hard(inaudible) Q: Okay -okay A: And 1 didn't catch anything else going down Q: Okay what happened from there then A: Um I laid there for awhile because 1 couldn't get up right away Q: Okay A: And it really hurt Q: Okay A: Um the people there were very kind Q: Okay A: They brought me ice Q: Okay A: Um my sister and my brother and my husband helped me up to a chair Q: Okay A: And we put ice on my back Q: Okay A: And so I sat there for a little bit �7 Transcription by Marsha Wakeman B0P-PA-01-10-0149935 Barbara Misicko 11/16/2012 Q: Okay A: Until 1 thought that I could walk out Q: Okay A: And um and then you know I sat there a little bit and then you know they as- uh they were nice people in the restaurant and -and you know talked to me a little bit and you know it was just an accident Q: Sure A: And -and then we finally left 0: Okay A: Um and ever since then I've had pain Q: Okay A: Um I'm having trouble walking I can't walk far Q: Okay A: Because my low back really hurts Q: Okay A: Um we have a pool I-1 used to do laps three or four about three times a day I'd go out and swim 1 tried the other day to get in the pool I thought well maybe if tried to swim it would loosen me up and 1 tried I-1-1 couldn't swim it just hurt so then I got out I didn't want to get in without my husband home because 1 thought if I got in pain or something in trouble and I didn't want to be alone out there Q: Sure A: So when he was home I had him watch me but I couldn't swim so um Q: Okay haven't swum at all then since the um incident and -and you said you did it three or four times a day do you think 8 Transcription by Marsha Wakeman B0P-PA-01-10-0149935 Barbara Misicko 11/16/2012 OA: Oh about three times a day I would do laps Q: Three times a day (inaudible) A: Yes -yes Q: Okay A: I'm not doing laps um I'm a gardener I love did you see the weeds out there Q: Okay A: Because I can't go out and yank weeds or anything Q: Okay _... _ A: Um so I'm not doing my normal stuff Q: Okay A: Um I do think with all my heart that with physical therapy and I think with 0 physical therapy and um they're going try some aqua therapy on me Q: Okay A: And um and I don't know if I need spinal decompression but I know that can really help so I'm hoping to go that route Q: Okay A: And not to have to have anything surgically done Q: Let's go back a second though A: Sure 0: What after the incident then you had ice right away A: Yes Q: Tell me about any kind of medical treatment that you had then Transcription by Marsha Wakeman B0P-PA-01-10-0149935 Barbara Misicko 11/16/2012 A: My husband 0: Did you go to the emergency room A: 1 went to the emergency room Q: Okay what emergency room did you go to A: 1-1 went to Harrisburg Hospital 0: Okay A: And it was a disaster Q: Okay was that the same day A: Yes it was Q: Okay all right 0 A: It was a total disaster Q: Okay A: 1 have never seen such a mess in my life 0: Okay A: We spent hours in the emergency room 0: Okay A: And -and 1-1 couldn't lay I was in excruciating pain and the chairs were not comfortable for the kind of pain that I was in 0: Okay A: So we spent hours there and finally a doctor saw me very briefly 0: Okay 10 Transcription by Marsha Wakeman B0P-PA-O1-10-0149935 Barbara Misicko 11/16/2012 A: And um and then uh he was going to send me for x-rays stuck us in another waiting room where we were waiting for a long -long time Q: Okay A: And I couldn't take it anymore I finally said to me husband I said can you please take me home I said all I want to do is to go home and lay down it was like there was tons and tons of people in there Q: Mm hmm A: There was a woman in there who looked like she was dying and she wasn't being taken care of and I thought if they're not going to see this woman nobody's going to be seeing me any time soon Q: Yeah A: And all I wanted to do was lay down flat and I had this huge ice pack here and I just wanted to get on that ice pack and lay down so my husband ended up bringing me home because Q: Okay A: It was like it was a zoo Q: Okay A: I said I would never go back to that emergency room again Q: Okay A: It just was I think in Harrisburg you have a lot of people using that as a family doctor Q: Okay A: As opposed to um so then Q: So no treatment there then per se 11 Transcription by Marsha Wakeman BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 A: No treatment there then correct so then I-1 made an appointment and went to my family doctor Q: Okay A: And that was Dr. Marie Papoutsis and her last name is P -A -P -O -U -T -S -I -S Q: And when did you see um the family doctor A: Um I saw her let me get my calendar Q: Okay are you okay do you want me to grab something for you A: Sure you can just grab that off the wall thank you Q: Sure absolutely yeah A: Because I usually jot everything down thank you Q: You're welcome 0 A: Uh the 16th I went to the emergency room uh "sch-sch-sch-sch" my calendar here is such a mess Q: Oh that's okay or even if you know approximately is even fine A: I thought I had it written down okay um actually I-1 laid on ice for you know I kept icing myself Q: Okay A: And then I kept hoping it would just go away Q: Okay A: So I waited Q: Okay A: I waited until August 23rd Transcription by Marsha Wakeman BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 /7) Q: Okay A: I had an appointment with Dr. Papoutsis at 4:40 Q: Okay A: And she sent me STAT she wanted me to go right away for x-rays Q: Okay A: 5o she sent immediately to Hershey Medical Center and on the on the 23rd of August we went right down to Hershey then and we had x-rays done back x-rays done Q: Okay A: And um the back x-rays showed no fractures Q: Okay A: 5o there are no fractures um that were seen there Q: Okay A: And um Q: You said back x-rays did you have multiple x-rays done then A: Yes 1 did Q: Okay A: Yes I did Q: What were the other ones A: Oh the other one the other thing I had done was an MRI Q: Okay did you have okay so a back x-ray and a MR) A: Well that night they just did the back x-rays X13 Transcription by Marsha Wakeman BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 Q: Okay A: Urn -um but my doctor was concerned about the level of pain I was in Q: Okay A: 5o she wanted me to have an MRI done Q: Okay A: And let me just see if I can figure out okay my MRI was scheduled then for uh August 29th I had an MRI at 9:15 Q: Okay A: Um and then um Q: And did you have the results of the MRI A: Yes! have a report here 0 Q: Okay A: If you give me uh I was looking for that this morning trying to figure out what I did with it Q: Okay A: But I'II go check and see if I put it in my desk Q: Okay that's fine Unknown voice: (inaudible) Have more than one x-ray A: (to another person) yes 1 did honey but there were no fractures Q: Not on the A: There were no fractures on that Q: Okay �'"j14 Transcription by Marsha Wakeman BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 A: Yes Q: That's fine A: Uh then let's see uh then uh they scheduled an appointment with a doctor I'm going to spell his name Q: Okay A: Because 1 haven't a clue how you pronounce it Q: Okay that's fine A: It is U -R -E -S -I -L -O -V -I -C he's an orthopedic spine surgeon at Hershey um at the spine clinic at Hershey Q: Okay A: And is saw him at 1:30 on September the 3r1 and he's sending me Unknown voice: No it's V -R -E -S A: Oh V I'm sorry I'm sorry I couldn't read my own writing Q: Okay A: V and -and this is a script for physical therapy that he's given me right now Q: Okay -okay A: And if you give me a minute I'II go and Q: Oh that's fine we can even look after the statement's over A: Okay Q: For the other for the MRI report A: Yeah Q: That's fine we can look afterwards 15 Transcription by Marsha Wakeman BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 A: Yeah 1 have an MRI report here Q: Okay that's more than fine A: I just need to figure out what I did with it Q: That's okay yeah that perfectly fine so they so the doctor from uh the orthopedic spine surgeon then had given you a prescription then for physical therapy A: Correct Q: Okay A: And aqua therapy Q: And aqua therapy A: Yeah Q: And did you set any of those appointments up just yet A: Yes I actually I have a consultation um I go um Igo September the uh 13th at 10:45 AM Q: For is that for both A: Um well they -they -they like to do they said a consultation first and then after the consult visit in that week they set you up with your appointments Q: Okay all right and how about Unknown voice: That was not for aqua therapy correct Barbara A: Oh um it is um that I won't get aqua therapy that day Q: Sure A: But probably maybe Wednesday they'll start aqua therapy that's just they say they do the consultation the first day and meet with you 16 Transcription by Marsha Wakeman 30P -PA -01-10-0149935 Barbara Misicko 11/16/2012 Q: Sure A: And then they set your appointments up for the rest of the week Q: Yeah A: And. then they start seeing you Q: That's fine that's fine and then um with respect to the family doctor did you have any follow-up visits to the family doctor A: Not after that no Q: Okay (inaudible) A: She -she you know whatever Q: (inaudible) referred you up to the orthopedic then A: Correct Q: Okay A: Correct Q: Okay all right um and I think that co- I think that covers everything about the incident then and they urn and then we -we I think we talked briefly well we talked briefly over before the recording started about you felt as though it was just -just an accident A: Yeah Q: You know it happened A: You know it didn't Q: You were interested in suing anyone A: I would never sue anybody 17 Transcription by Marsha Wakeman BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 Q: Tell me about your -your medical bills do you have medical coverage right now as far as that goes A: Yes I do 0: Okay A: Uh it's GEHA Q: Okay A: This actually is my card I didn't know if you needed to see that 0: Oh okay -okay A: So I put that out Q: Okay A: Um I just you know wanted to make sure that I'd be covered with any medical bills and no I've like I said never sued anybody in my life Q: Okay A: I'm not that I'm not that kind of person I wouldn't sue anybody Q: Okay no problem A: So I just want to know that -that I'm going to have coverage for my bills Q: Okay A: Yeah Q: And so far have the medical bills gone back to your private healthcare provider then A: I presume I don't know Q: Okay Transcription by Marsha Wakeman BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 A: I haven't got any bills since this happened Q: You haven't okay A: No Q: How about do you know have you had any copays or anything just yet as far as that goes A: Um I've had copays Q: Do you have any idea how much you had in those A: Um I can tell you yes Q: Okay A: Um I had a copay for the spinal specialist Q: Okay 0 A: And that was $25 Q: Okay A: Um I had a copay for Dr. Marie Papoutsis that was $10 0: Okay A: Um and I guess they're the only two like when you Q: Okay A: I didn't have haven't received a bill from the emergency room and I felt bad walking out of the emergency room that night but I was in excruciating pain Q: Okay A: And there was no place to lay down and -and I kept saying are they going to see me soon 19 Transcription by Marsha Wakeman 1 BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 Q: Yeah A: And -and it was just it was like a free-for-all that night it was just amazing Q: Yeah did you actually just checkout of the emergency room or A: I just told them I had to lay down and 1 just couldn't handle staying here anymore Q: Got it okay A: Um because the pain was excruciating and you know Q: Sure A: If -if they had taken me back somewhere found something for me to lay on or Q: Right A: It was just those chairs and the pain was excruciating Q: Right A: Just all I wanted was ice Q: Right A: All I wanted was to lay on ice Q: Right A: Yeah so um I think they were my only two copays Q: Okay A: Because you know when you have to go like for x-rays or a MRI or something they don't have copays 0: How about if um have -have any of the doctors given you any kind of um anti- inflammatories or medication 2 Transcription by Marsha Wakeman BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 A: Um they put me on um a pain killer Q: Okay A: Um see I-1 have problems with my platelets 1 have low platelets Q: Okay A: So they kind of yell at me no more ibuprofen and no Tylenol Q: Okay A: They put me on um my husband's going for it Q: Okay A: (to another person) oh honey could you get that medicine out of the cupboard it's -it's not there it's in the other cupboard with my vitamins it's -it's in the bag it's in the bag that it came in it's um I can't think of the name uh they said it won't hurt my platelets um Q: Okay it won't conflict with that A: Right Q: Particular A: Right Q: Okay A: Um why can't I think of the name Unknown voice: (inaudible) muscle relaxer A: Yeah I'm on a muscle relaxer too but they said Unknown voice: (inaudible) A: Yeah -yeah that's Flexeril the muscle relaxant Transcription by Marsha Wakeman BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 Q: Okay -okay A: And then this is the pain medication that I'm not allowed to have them together so I take one or the other Q: Okay A: It's um yeah Ultram I don't know why I couldn't think of that Q: Oh that's okay A: Yeah I don't know why I couldn't think of that Q: That's okay and then so you don't take those together then A: No I'm not allowed to have them together Q: Okay A: Because this will also make you like drowsy 0 Unknown voice: (inaudible) the muscle relaxer from her primary care physician Q: Okay Unknown voice: And then she got it from Hershey and -and they are not to be used together A: Yeah Q: Okay and -and just and I'm sorry just for the recorded statement since -since I've gotten his voice on here a couple of times A: Sorry Q: I'll just say for the recorded statement that that's actually Barbara's husband A: Yeah Q: Um for the recorded statement Transcription by Marsha Wakeman BOP -PA -01-10-0149935 Barbara Misicko 11/16/2012 A: Yeah Q: Yep that's fine and this has actually been um Tr -Tr- is it Tramadol Husband: That's the generic name A: Yes -yes Q: Oh here it is dispensed for Ultram there I'm seeing A: Yeah -yeah Q: It's -it's uh T -R -A -M -A -D -O -L just and so A: Yeah Q: They we have it for the statement A: Okay Q: And then what is the other one A: That's a muscle relaxer that's in there too Q: Oh that is in there oh that's the Flexeril A: Flexeril Q: Okay that's what you said A: Yeah Q: Okay A: Right Q: Okay very good A: Right Q: Thank you so much I appreciate that okay and did you have um copays with those then as well do you know 23 Transcription by Marsha Wakeman BOP -PA -01-10-0149435 Barbara Misicko 11/16/2012 Husband: 5 Q: $5 A: That was 5 Husband: The Flexeril (inaudible) Q: Okay that's fine I was just curious just approximately A: Yeah I can't remember Q: Okay that's fine okay A: I guess you know I was really worried about physical therapy and then um I was worried if I needed a spinal decompression Q: Mm hmm do you know with your um uh private healthcare how much physical therapy it covers or if there is copay with it A: Um I know it covers 60 treatments Q: And -and uh Barbara's husband actually just for the recorded statement here does look like there is uh let's look here where I see this is actually highlighted what were you pointing to there sir Husband: I was here starting here Q: Oh 60 calendar was oh okay 60 visits per yeah A: (inaudible) Q: Okay all right okay and -and actually just for the recorded statement and Barbara's husband actually has handed me it says for but it look- it appears as though the coverage that they have on their private healthcare has 60 visits per calendar year for combined services for the following one visit is 2 hours or Tess of physical therapy or occupational therapy (inaudible) for 60 visits for a calendar year do you know do you run January to January as well okay Transcription by Marsha Wakeman 4 BOP -PA -01-10-0149935 Barbara Misicko 11/1512012 A: Yeah Q: Okay A: Yeah 0: Okay very good um and maybe I'll make a photograph of that then as well A: That's fine Husband: We have (inaudible) 0: Okay all right okay very good um Husband: Would you like me to run a copy of that off for you 0: Yeah if you could okay Husband: And I'll make one for us 0: Um I think that pretty much covers everything A: Okay Q: But 1 always like to give you the opportunity if there's anything else that you would like to add that I didn't ask you about with respect to the incident it's pretty straight forward as far as that goes A: Yeah Q: Oh I know do you know if there were any um independent witnesses that had seen you fall that day A: I don't know Q: That weren't with you -you know as far as A: It was Husband: Well there were only two employees at the restaurant Transcription by Marsha Wakeman • 0 B0P-PA-01-10-0149935 Barbara Misicko 11/16/2012 A: There was only there was nobody there than the two employees at the restaurant Q: Okay A: And my brother and my sister and then my husband came in and found me laying on the floor Q: Okay A: Yeah Q: Okay A: Yeah Q: Have the remarks made in this recording been the truth to the best of your knowledge A: Yes Q: And has this recording been made with your permission A: Yes Q: And could you once again state your full name for me please A: Sure Barbara Nece Misicko it's M -1 -S -I -C -K -O Q: And I'll say this concludes our recording and 1 have the time as approximately 10:50 in the morning on the 7th of September 2010 and I'II turn off the recorder now 26 Transcription by Marsha Wakeman CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Morison Law Offices, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 umma Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: F:\FILES\Clients\3050 Donegal\3050 Current \3050.698\3050.698.pra3.wpd Revised: 12/22/14 3:41PM DECDaniel K. Deardorff, Esquire 22 s't j MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, MARTSON LAW OFFICES FALLER !It'ir2E � ; ,D C"u`a I.D. 17837 VENN'S Yl VAM 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants BARBARA MISICKO and, DAVID MISICKO, her husband, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 2012-4563 : CIVIL ACTION - LAW CHALIT'S THAI BISTRO, Defendant : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Attached hereto, to become part of the record, is the deposition of Laura E. McKechnie in support of Defendant's Motion for Summary Judgment. Dated: 16\ IAA Respectfully Submitted, MARTSON LAW OFFICES Daniel K. Deardorff, Esquire v I.D. No. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant BARBARA MISICKO and IN THE COURT OF COMMON PLEAS DAVID MISICKO, her CUMBERLAND COUNTY, PENNSYLVANIA husband, • Plaintiffs : . NO. 2012-4563 v. CIVIL ACTION - LAW CHALIT'S THAI BISTRO, : Defendant JURY TRIAL DEMANDED ORIGINAL DEPOSITION OF: LAURA E. McKECHNIE TAKEN BY: Defendant BEFORE: Amy R. Fritz, Court Reporter Notary Public DATE: October 7, 2014, 9:23 a.m. PLACE: APPEARANCES: Martson Law Offices Ten East High Street Carlisle, Pennsylvania HANDLER, HENNING & ROSENBERG, LLP BY: STEPHEN G. HELD, ESQUIRE FOR - PLAINTIFFS MARTSON LAW OFFICES BY: DANIEL K. DEARDORFF, ESQUIRE FOR - DEFENDANT ALSO PRESENT: Chalit C. Kijcharoen entral Pennsylvania ourt Reporting Services P.O. Box 508 • Carlisle, PA 17013 800-863-3657.717-258-3657.717-258-0383 fax courtreporters4u @a aol. corn 2 DEPONENT Laura E. McKechnie INDEX TO TESTIMONY EXAMINATION PAGE By Mr. Deardorff 3,20 By Mr. Held 12 INDEX TO EXHIBITS NO. DESCRIPTION PAGE (None.) CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATIONS It is hereby stipulated by and between the respective parties that signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved until the time of trial. LAURA E. McKECHNIE, called as a witness, being duly sworn, was examined and testified as follows: EXAMINATION BY MR. DEARDORFF: Q. Laura, please give us your full name. A. Laura Elizabeth McKechnie. Q. What's your age, Laura? A. 25. Q. And where do you live? A. My address? Q. Yes. A. 4263 Nantucket Drive, Mechanicsburg, PA 17050. Q. Laura, are you employed by Chalit's Thai Bistro? A. Yes. Q. How long have you worked there? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 A. Almost five years. Q. And what's your -- what is your current position? A. Manager. Q. And you know we're here because of an accident that happened involving Mrs. Misicko back on August 16, 2010? A. Yes. Q. What was your position back on that date? A. Manager. Q. Now, just some general questions about the restaurant -- or I should ask you, what does your job as manager involve? A. A little bit of everything. I serve, I host, I schedule, I train. I do everything. Q. Do you help to open and close the restaurant? A. Yes. Q. Do you help to clean and inspect the restaurant? A. Yes. Q. Now, going back to August 16, 2010, was the schedule, as indicated by Chris, lunch 11 to 2 p.m. and the restaurant was closed 2 p.m. until 4 p.m, then dinner from 4 p.m. until 9 p.m.? A. Correct. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 25 5 Q. And was there any custom or practice about putting up a sign for that period of time when the restaurant was closed? A. Yes. The sign was flipped to say Closed. Q. And who would do that flipping? A. On that particular day? Myself. Q. And why did you do it that day? A. Because I was the opener for the restaurant that day. Q. And are you sure you flipped it to Closed? A. Yes, absolutely. Q. Now, just some background again. I'm showing you the exhibit called Chalit 1 that was presented when Chris was testifying. The first page, does that show what the restaurant looked like on the day of the accident back in August 2010? A. Yes. Q. And page 2, does that show what the front door area looked like from the outside looking in? A. Yes. Q. And does that show the sign on the door that indicates whether the restaurant is open or closed? A. Yes. Q. And page 3, does that show the front door area from the inside of the restaurant? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 6 A. Yes. Q. Does page 3 show the mat that there's been some discussion about? A. Yes. Q. And page 4, does that again show the inside of the front door area? A. Yes. Q. And page 5, does that show the door area looking in from the outside? A. Yes. Q. And to the left it shows the sign that indicates whether the restaurant is open or closed? A. Yes. Q. Laura, were you there when these pictures were taken? A. No, not that I recall. Q. And I've marked as Chalit Number 2 a Xerox copy of the actual sign, and I have the actual sign here. Is this the sign that was up in the restaurant on the day of the accident? A. Yes. Q. And it shows what it looks like when it says Closed? A. Yes. Q. On page 1. And page 2 would be the other CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 side of the sign that the people on the inside of the restaurant would see? A. Yes. Q. Now, Laura, are you sure that the sign indicated Closed on the day of the accident? A. Absolutely, yes. Q. Now, how is your recollection on the day of the accident? A. I remember it like it was yesterday. It was something I had never seen or encountered before so I can recall it very clearly. Q. Had anything like this happened before where someone comes in and falls at the front door? A. Absolutely not. Q. Now, you were working the day of the accident August 16, 2010? A. Yes. Q. And do you remember the weather? A. It was raining all day long. Q. And you had been already opened for the lunch crowd? hours. A. Yes. Yeah, we had already served our lunch Q. Was it raining during that time? A. Yes, it was. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 Q. Had anyone fallen at that time? A. Absolutely not. Q. And was lunch served until about 2 p.m.? A. Yes. Q. And at what point did you change the sign from open to closed? A. Between 1:50 and 2:00. It was flipped by 2:00. Usually we do it a little bit before then. Q. And on that day what occurred between the closing of the restaurant and the time the Plaintiff came in and fell? A. Closing down for lunch, the entire restaurant was cleaned, we set out our dinner plates; and then once everything has been properly cleaned, the lunch crew then leaves and then an opener, myself that day, comes in before dinner to do any final touches on cleaning and final prep for the store, or the restaurant. Q. And you had come in to do that on that day? A. Yes. Q. Was it still raining at that time? A. Yes. Q. Now, I'm showing you page 2 of Chalit Exhibit Number 1 which shows the front door area. On the day of the accident at the time just before the accident, was the area on the inside of the door, what was the CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 0 13 14 15 16 17 18 19 20 21 22 23 24 25 9 condition of the floor in that area? A. It was clean and dry. Nobody had come in, so there was no water or rain on the ground. Q. And before the Plaintiff fell, was the mat approximately in that position, or had it been moved at all? A. The mat had not been in its proper place yet because I had not gotten around to cleaning the lobby area and putting the mat and chairs in their proper place. Q. And what's your practice with regard to the front door mat before the restaurant flips to Open and customers are allowed in for dinner? A. It is adjusted to be closer towards the door, especially when it's raining, it's abutted right up against the door. Before we flip the sign, it's put in its proper place, moved forward. Q. Now, the time of the accident, what time did you say you came in? A. I come in between 3:30 and 3:45. Q. And that was on the day of the accident? A. Correct. Q. And how much after the time you came in did the accident happen? A. Not long after. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 10 Q. But had 4:00 come at that point? A. No. Q. Had it come to the point where you were going to move the mat? A. It was minutes before. Q. And did you see the Plaintiff fall on that day? A. I did, yes. Q. Tell us what you remember. A. I remember I was standing behind the counter, and you can see through the window to the front door. I remember a vehicle pulling up to the front of the restaurant and the woman had gotten out of the vehicle, ran to the front door, opened it quickly, rushed inside, and then we couldn't see her anymore because she had fallen. So we ran around to check on her. Q. Now, the whole time that you had worked at the restaurant, had it ever been an Internet Cafe? A. No. Q. Had you ever met the Plaintiff before this accident happened? A. No. Q. Had you ever given her permission to come into the restaurant at that time? A. Absolutely not. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 25 11 Q. At the time she came in, was the sign still up indicating that the restaurant was closed? A. Yes. Q. Do you remember what occurred after she fell? A. After she had fallen, both Chris and myself had run to go check on her. Her husband and her friend had come in around the same time and was asking to see if she was okay to be stood up and moved to a chair. We grabbed her ice, anything we could possibly do to accommodate her at the time. We asked and provided those things for her. Q. Was there any discussion as to why those people were there at your restaurant, meaning the lady who had fell and her friends and husband? A. They had mentioned several minutes after the incident that they were looking to use the Internet because they thought that we were an Internet Cafe, Q. Are Internet services offered at the restaurant? A. No. Q. Did the Plaintiffs, meaning the lady who fell and her husband, and the other people, did they stay for a meal? A. No. Q. Have you had any contact with the Plaintiff CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(7I7)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 or her family since the day of the accident? A. No. MR. DEARDORFF: That's all I have, Laura. Thanks. EXAMINATION BY MR. HELD: Q. Good morning, ma'am. My name again is Stephen Held. You were here when I took Mr. Chalit's deposition. A. Yes. Q. So you sort of know the drill. I have some just general questions, a little bit of background. Did you go to high school? A. I did, yes. Q. Where did you go? A. Harrisburg Christian School. Q. And that's where? A. Linglestown. Q. Did you graduate there? A. Yes. Q. What year? A. 2007. Q. Did you go to college at all? A. Some college, yes. Q. Where did you go? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P,O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(7l7)258-0383 *** eourtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 (:) 13 14 15 16 17 18 19 0 20 21 22 23 24 25 13 A. Messiah College. Q. What degree were you going for? A. Public Relations. Q. And how far did you go with that? A. One year. Q. So that would have put you to 2008. So you started working for Chalit's 2009? A. Yes. Q. When you were hired, were you hired as a manager? A. No. Q. What were you hired as? A. Server. Q. And then when did you become manager? A. I do not recall the exact time, but not long after I was hired. Q. time? In August of 2010, you were a manager at that A. Yes. Q. Just a question about the sign that we're referring to, the actual sign we have here and there's photographs we've marked, have you ever forgotten to switch the sign? A. No. Q. Never forgotten that? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 14 A. No. Q. Okay. What are your usual hours at working at Chalit's? A. My hours that I work? Q. Yeah. A. It varies every week. Typically I work every single day at least one of the shifts. Most of the time I do work doubles, but every week is different so I cannot give you a definite answer. Q. How many days a week is the restaurant open? A. Six. Q. It's closed Sunday? A. Correct. Q. So you do occasionally work Saturdays as well? A. Oh, yeah, absolutely. Q. And do you remember what time you got in on August 16th, 2010? A. After 3:30, before 3:45. Q. Had you been there long before this event with Mrs. Misicko and her fall happened? A. No more than ten minutes. Q. Okay. In your years working as a manager at Chalit's, have you ever seen people come in early before the store is open? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 A. We don't let them in. Q. And when you say you don't let them in, what do you do? A. Most people don't try and come in. They see the sign; they, you know, do not try and come in. If anybody does, we let them know that we are not open for business yet, we are still setting up, and we tell them when we are open and -- Q. Politely ask them to leave? A. Yeah, absolutely. Q. Did you hear Mrs. Misicko complain about any body parts being injured after her fall? A. I remember her husband had told us that she had had back issues and he was concerned for her then. I do not recall hearing her say anything had specifically had hurt her at that time. Q. Did you see her put ice on any part of her body or somebody put ice on her? A. Not that I can definitely recall. Q. Do you remember the ice being used, though? A. It was handed to her husband to place on her. I want to say he held onto it for a while to ask her what she needed. Q. Okay. And you don't remember what her response was, what she needed? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 16 A. I remember her being a little hysterical and not properly communicating or thinking straight at the time. Q. Okay. Was there any discussion of calling an ambulance? A. Yes. We had asked if that, if anything that she needed, and they said no. Q. Do you have a recollection about what time the Misickos left Chalit's? A. I would say around 4:15. They did not stay for a long time. Q. Now, you'd agree with me that they did not park their vehicle in a parking spot in the lot, they pulled up to the curb? A. Initially to let her out, and then the other two parked and then came in. Q. You saw her get out of the car, then the car go to get a spot? A. Yes. Q. And then she rushed to the door? A. Yes. Q. And I'll show you again Chalit's Exhibit 1 which is the photographs we've been referring to. Your recollection is you were not here when these photos were taken? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 o 14 15 16 17 18 19 20 21 22 23 24 25 17 A. Not that I can recall, no. Q. Are there periods of time when the restaurant is open and you are not there? A. Yes. Q. All right. Between, I would say, August of 2010 and, let's say, the next six months after that, do you remember what hours you would work at Chalit's? A. I typically work between seven and ten shifts a week, and that has been for many years. Q. And do you know how many shifts in a week they would have? Would it be two a day? A. Yes; so 12. Q. 12 a week, okay. So there would be maybe five or, what, two to five shifts per any given week that you would not work? A. Yes. Q. If my math is right, which I'm not sure it is. A. It is. Q. Okay. After Mrs. Misicko left the restaurant up through today, have you ever talked to Mrs. Misicko? A. No. Q. Have you ever talked to Mr. Misicko? A. No. Q. Would you know either of them if you ever saw CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 them? A. No. Q. All right. Do you remember if anyone was working outside the kitchen in, I'll call it, the public area of Chalit's when this fall happened? A. No. It was just Chris and myself. Q. Were there any servers that were in the restaurant at that time? A. No. Q. When do servers come in for the dinner? A. The next server comes in at 4:30. Q. And you man the fort from 4 to 4:30 serving wise? A. Correct. Q. Okay. I'm going to show you on Chalit's 1 the fifth picture, the fifth page. A. Yes. Q. Fifth and last. You'll see here where it says OPEN? A. Yes. Q. Right here I'm indicating. And it's a little hazy because it's, you know, a photograph that has probably been copied numerous times. Do you know what that open is? Is that related to the sign? A. That open sign was a neon sign and so CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 whenever it is lit, it's bright red; whenever we are closed, it's not lit, you can't even see it because the word, open, blends in with the black of the sign. Q. Where is that neon sign? Is that attached to this window, or are we just seeing it in this photograph through the window? A. You're seeing it through the window. Q. Can you tell from that photograph if the store is open or not? A. Based off of this sign alone? Q. Yeah. A. Based off of that sign alone, in this photograph, I cannot. It's not colored; it's blurry. Q. Right. And the neon of it, is it, like, a bright orange? A. Bright red. Q. Okay. And is it one of the signs that you pull a little cord? A. It has a switch. Q. Oh, a switch, okay. And then that sign was at the bistro in August of 2010, correct? A. Yes. Q. And it was functional? A. Yes. Q. And it would not have been on when my client CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 went in, correct? A. Correct. Q. But you'd agree with me that if it's not on you cannot see it very well, correct? A. Correct. MR. HELD: I believe that's all the questions I have. EXAMINATION BY MR. DEARDORFF: Q. Just ane more question. Laura, this neon sign, is that -- who turns that on or off when you open up at 4:00 for the dinner crowd? A. That day it would have been myself. The same person who flips the sign on the door would turn the neon sign on. Q. And you've testified you hadn't flipped -- you had flipped the closed sign but you hadn't flipped it open yet, correct? A. Correct. Q. And so at the time the Plaintiff fell, was the neon sign saying open on? A. No. MR. DEARDORFF: That's all I have. (The deposition concluded at 9:47 a.m.) CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 J 25 21 COMMONWEALTH OF PENNSYLVANIA ) ) SS. COUNTY OF CUMBERLAND I, AMY R. FRITZ, a Court Reporter Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of LAURA E. McKECHNIE. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter -Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 21st day of October, 2014. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Dated: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 MARTSO;1 I AW 0 "F17 J11 Ami hum a Tee ast High treet Carlisle, PA 17013 (717) 243-3341 i By F:\FILES\Clients\3050 Donegal\3050 Current \3050,698\3050.698.pra4.wpd Revised: 12/22/14 3:4IPM Daniel K. Deardorff, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants -- TtirlN0`j,,,, ?iii, DEC 22 PM 11; CUMSE-:RL AND COUNTY PE NS YLVA NIA BARBARA MISICKO and, DAVID MISICKO, her husband, Plaintiffs V. CHALIT'S THAI BISTRO, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2012-4563 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Attached hereto, to become part of the record, is the deposition of David Misicko in support of Defendant's Motion for Summary Judgment. Dated: l a 19a \,)Lt Respectfully Submitted, MARTSON LAW OFFICES By 7) Daniel K. Deardorff, Esquire I.D. No. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant 1 BARBARA MISICKO and IN THE COURT OF COMMON PLEAS DAVID MISICKO, her CUMBERLAND COUNTY, PENNSYLVANIA husband, • Plaintiffs : NO. 2012-4563 v. CIVIL ACTION - LAW CHALIT'S THAI BISTRO, : Defendant JURY TRIAL DEMANDED ORIGINAL DEPOSITION OF: DAVID M. MISICKO TAKEN BY: Defendant BEFORE: Amy R. Fritz, Court Reporter Notary Public DATE: March 13, 2014, 11:12 a.m. PLACE: APPEARANCES: Handler, Henning & Rosenberg 1300 Linglestown Road, Suite 2 Harrisburg, Pennsylvania HANDLER, HENNING & ROSENBERG, LLP BY: STEPHEN G. HELD, ESQUIRE FOR - PLAINTIFFS MARTSON LAW OFFICES BY: DANIEL K. DEARDORFF, ESQUIRE FOR - DEFENDANT ALSO PRESENT: BarbaraI1=--wM±s'-icko I 5._. N entral Penn&yania urt Reporting Services 800-863-3657 • 717-258-3657 • 717-258-0383 fax courtreporters4u @aol. corn 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 DEPONENT David M. Misicko INDEX TO TESTIMONY EXAMINATION By Mr. Deardorff PAGE 3 INDEX TO EXHIBITS NO. DESCRIPTION PAGE (None.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 STIPULATION It is hereby stipulated by and between the respective parties that signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved until the time of trial. DAVID M. MISICKO, called as a witness, being duly sworn, was examined and testified as follows: EXAMINATION BY MR. DEARDORFF: Q. Mr. Misicko, did you hear my instructions to your wife? A. Yes. Q. Did you understand all those instructions? A. Yes. Q. And could you please state your full name. A. David Mark Misicko. Q. Have you ever testified before? A. No. Q. Now, you're not going to be as long as your wife because my first question is, did you listen to her answers to my questions? A. Yes. 1 2 3 4 6 7 8 9 10 11 12 0 13 �✓ 14 15 16 17 18 19 20 21 22 23 24 25 4 Q. Did any answer strike you as that's not right or she's a little off on that? A. I wish I could remember. As far as I know, she has never been convicted of anything. She was arrested; she was not convicted. Q. Okay. And I understood that. The appeal overturned, she was found innocent; but, I mean, anything about the accident or her back problems or past back problems. A. She made it sound worse than I thought that she really was as far as her back. Her back problems have been infrequent. Q. So you're talking about -- A. But she said once or twice a year. To me that was -- she hasn't twit her back out once or twice a year. I thought she had told you that she would hurt her back once or twice a year. I'm not sure that that's what she said but I think that's what she said. MRS. MISICKO: It's not really hurt; just MR. DEARDORFF: Well, I'm asking your husband. Your testimony is on record, Mrs. Misicko. THE DEPONENT: I disagree with her statement that she puts her back out once or twice a year prior to the accident. I don't think it was anywhere near that frequently. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 BY MR. DEARDORFF: Q. But you remember the cruise ship incident? A. I remember the cruise ship incident. Q. And she said she had a car accident. Do you remember that? A. Oh, I do remember the car accident. Q. Now, somewhere I saw a skiing accident. Do you remember your wife ever having a skiing accident? A. I don't remember my wife ever being on skis. Q. That might have just been a mistake in the records. But you do remember from time to time she'd pull a muscle in her back or twist her back? A. Rarely, but, yes. Q. Now, the day of the accident, what's your recollection as to the time? A. Late afternoon is the best I'm going to be able to come up with. Q. So you can't put a number on it; 4:00, 3:00? A. No. Q. 3:30, 4:30? A. I don't know. Q. The weather, do you agree it was pouring? A. I know I had my windshield wipers on double, as fast as they could go. I'm a little fussy when I'm driving, and I remember them being -- I rarely do that; 1 2 3 4 5 6 7 8 9 10 11 12 Q13 14 15 16 17 18 19 20 21 22 23 24 25 6 that's why I remember it. Q. Was puddling taking place, ponding; like, on the roads it was raining so much there were little ponds of water? A. I don't recall that. Q. And she testified she was the first one into the restaurant. Do you recall that? A. She was. Q. And then her brother and sister? A. They followed her. I don't know who came next though. Q. Did you watch her go into the restaurant? A. No. Q. What were you doing? A. Parking the car. Q. So you can't say whether, how she opened the door or -- A. I cannot say other than that. My recollection is that the door opens outward and that she would have had to stop to open the door and then step inside the restaurant. Q. Did you observe her running towards the door? A. Yes -- not running. Like she says, dashing. I'll agree with the dash, yeah. I don't know if I've ever seen Barbara run. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 Q. Did the brother and sister dash too? A. I wasn't paying attention to them. They were in the backseat, and I know they got out of the car and I was parking at that point. Q. After you parked the car, did you dash into the restaurant? A. I got as quickly as I could from the car to the restaurant, yes. Q. And did your shoes get wet as you were going from the car to the restaurant? A. I have no idea, but I assume they did because everything was -- it was teeming. Q. Did you have any conversations with the employees in the restaurant? A. I must have. I remember speaking with the both of them, and I agree with Barbara that they were helpful, kind. I also remember a conversation having to do with I'm looking for the Internet Cafe. I'm the one who said I know where there's an Internet Cafe. That was me; that was my idea. So I drove to where I thought there was an Internet Cafe. Said, here it is, guys, go on in. So eventually after we, Barb was seated, I did look around and say, did this used to be an Internet Cafe. And they said, yes, it did. And I was surprised 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 that it was not an Internet -- I thought -- I'm looking around, did I send them to the wrong door, did I pick the wrong door. And so I thought -- I didn't understand -- I was confused. I walked in the door, Barb's on the floor on the ground. And then after we took care of her, I'm looking around saying this is not the place I thought it was. So I was confused. Q. And just so we're clear, your purpose was not to go to this restaurant and have a meal? A. Correct. It was to go to a different restaurant and have a meal in the same location. Q. Your wife said something about going to use the Internet and have a drink. Does that sound about right? A. Yes. It used to be -- I had been in there. They had four computers up on a bar platform. It was a coffee house with sandwiches and pastries and you could get cappuccino, regular coffees and use their -- they had couches as well as computers that were up for grabs. Q. And I take it you did not see your wife fall? A. No, I did not. Q. And you can't tell us about the condition of the floor where she fell before she fell? A. No. 1 2 3 4 5 6 7 8 9 10 11 12 0 13 14 15 16 17 18 19 20 21 22 23 24 Th 25 9 Q. And how about the rug, do you remember seeing any rug there on the floor? A. There was no rug. I agree with what Barbara's memory says; there was no rug on the floor at the doorway. There was a rug pushed up against the back wall. Q. And how far was the rug from the front door? A. My guess would be -- this is a guess. My guess is 8 feet. Q. Would it be from me to you, or farther? And I'd say from me to you is maybe 6 feet. A. Maybe more like -- to me there's not a lot of difference between 6 and 8. Yeah, maybe -- I'll compromise and say 7. It's a guess. I haven't been in there since either. Q. Neither you or your wife have been back to that place? A. No. I have not stepped in the restaurant since then. I don't know. That was a long time ago. Q. Did you or your wife at the scene of the accident have any discussion with either employee as to what happened or what caused the accident? A. I don't recall having one. like? Q. Do you remember what the employees looked 10 A. I remember they were a man and a woman; black hair, both of them, dark hair. I would have said of Asian ethnicity. Q. Do you remember what your wife said to you -- or did your wife tell you how the accident happened at some point? A. No. At some point? No. I don't think -- I guess I always assumed I knew what happened, but I don't think she ever explained to because I think I know what happened. Q. And what's that? A. She fell as she entered into the door. Q. And you went with your wife to the emergency room about an hour or two later? A. Yes. Q. You and your wife .haven't had any later discussions with anyone who has an ownership or supervisory position at the restaurant, have you? A. No. Q. And you haven't called them up and said we want to talk about this accident to you? A. No. Q. Now, were you present when your wife gave the statement here about a couple years ago? A. I do not remember if I was present at this. 11 Q. Did you read the statement too? A. I don't think I have. Q. Well, you don't have to read it. A. Okay. Q. Your wife has seen a lot of doctors; her family doctor, the doctors at Hershey, a doctor at Orthopedic Institute, Dr. Zeliger. Have you gone with her to all those visits concerning her back injury, or some of them, or how's that? A. I would say most of them. Q. And how about your wife since her surgery in February of 2012, do you agree with her testimony about the improvement? A. Yes. She is much improved since the surgery. Q. And she's testified about how this has impacted you, but she's able to do more since the surgery around the house? A. She's able to do more since the surgery. Q. Where do you judge her to be? Let's say if her condition is a 1 before the surgery and 10 being back to normal, where do you think she is now? A. 5. Q. Now, you and your wife live together at home up in Shermans Dale, correct? A. Yes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 Q. Does anyone else live there with you? A. We have a son who's a full-time student at Shippensburg, so he's there when school is not in session a lot of the time. Even when school is out of session he still sometimes is not there. There's three in the household, but he's a full-time student. Q. When he's in school, does he stay there overnight at Shippensburg? A. Yes. He has an apartment in Shippensburg. MR. DEARDORFF: I don't know; was he listed as a witness, Steve? MR. HELD: I don't know. MR. DEARDORFF: I think that's all I have, Mr. Misicko. Oh, I do have another question. BY MR. DEARDORFF: Q. Mr. Misicko, I'm sorry about this. Did you notice whether there was a sign or not on the front door saying that the restaurant was closed? A. I did not. Q. So just like with your wife, the people I represent at the restaurant say there was a sign that said closed. Are you disputing that? A. Am I disputing that the restaurant -- Q. That they put a sign up that said closed. A. 1 have no idea whether they put a sign up 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 that said closed. I don't know. Q. So you're not denying that they put a sign up; you just don't know one way or the other? A. I'm not denying that they put a sign up, no. MR. DEARDORFF: Well, thank you very much. I just wanted to clarify that. (The deposition concluded at 11:27 a.m.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 COMMONWEALTH OF PENNSYLVANIA ) ) SS. COUNTY OF CUMBERLAND I, AMY R. FRITZ, a Court Reporter Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of DAVID M. MISICKO. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter -Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 24th day of March, 2014, NOTORIAL SEAL AMY R. FRITZ, NOTARY PUBLIC Not BOROUGH OF CARLISLE, CUMBERLAND COUNTY MY COMMISSION EXPIRES SEPTEMPER 22 2014 CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 MARTSGb4 LAW OF Akk JiI k P. Thu Ten East High treet Carlisle, PA 17013 (717) 243-3341 By Dated: 0\t‘R,, 1 4 FAMES \Clients \ 3050 Donegal \:3050 Current \3050.6981:1050.69.pra2wpd Revised: 12/22/14 3:40PN1 Daniel K. Deardorff, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants 41: BARBARA MISICKO and, DAVID MISICKO, her husband, Plaintiffs V. CHALIT'S THAI BISTRO, Defendant • IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2012-4563 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Attached hereto, to become part of the record, is the deposition of Chalit C. Kijcharoen in support of Defendant's Motion for Summary Judgment. Dated: 014 pc/ Respectfully Submitted, MARTSON LAW OFFICES By V)Jk. Daniel K. Deardorff, Esquire I.D. No. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant 1 • 4 - BARBARA MISICKO and : IN THE COURT OF COMMON PLEAS DAVID MISICKO, her : CUMBERLAND COUNTY, PENNSYLVANIA husband, Plaintiffs : NO. 2012-4563 v. CIVIL ACTION - LAW CHALIT'S THAI BISTRO, : Defendant : JURY TRIAL DEMANDED ORIGINAL DEPOSITION OF: CHALIT C. KIJCHAROEN TAKEN BY: Defendant BEFORE: Amy R. Fritz, Court Reporter Notary Public DATE: October 7, 2014, 8:30 a.m. PLACE: APPEARANCES: Martson Law Offices Ten East High Street Carlisle, Pennsylvania HANDLER, HENNING & ROSENBERG, LLP BY: STEPHEN G. HELD, ESQUIRE FOR - PLAINTIFFS MARTSON LAW OFFICES BY: DANIEL K. DEARDORFF, ESQUIRE FOR.- DEFENDANT ALSO PRESENT: Laura E. McKechnie entral Pe nsy ama urt Reporting Services 800-863-3657 • 717-258-3657 • 717-258-0383 fax courtreporters4u@aoLcorn 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 INDEX TO TESTIMONY DEPONENT EXAMINATION Chalit C. Kijcharoen By Mr. Deardorff By Mr. Held INDEX TO EXHIBITS PAGE 18 NO. DESCRIPTION PAGE 1 Series of five photocopied photographs 6 2 Photocopied photographs of 9 Closed/Thank You Please Call Again sign CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 4- 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between the respective parties that signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved until the time of trial. CHALIT C. KIJCHAROEN, called as a witness, being duly sworn, was examined and testified as follows: EXAMINATION BY MR. DEARDORFF: Q. May I call you Chris? A. Yes. Q. And, Chris, please give your full name so the stenographer has it. A. Chalit Kijcharoen. Q. Chris, do you own a restaurant on the Carlisle Pike in Mechanicsburg? A. Yes. Q. And what's the name of the restaurant? A. Chalit's Thai Bistro. Q. And do you live in that area? A. Yes. Q. What's your address? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O, Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 A. 551 Harvest Lane, Mechanicsburg, PA 17055. Q. Chris, what's your age? A. I'm 40 years old. Q. And you know we're here as a result of an accident where a lady fell in your restaurant, correct? A. Yes. Q. Now, are you the owner of the restaurant? A. Yes. Q. And when did you start the restaurant? A. October 19th, 2009. Q. So just about five years ago? A. Yes. Q. And are you still the owner of the restaurant? A. Yes. Q. And were you the owner of the restaurant on August 16, 2010 when the accident happened? A. Yes. Q. Okay. Just a little bit of information about the restaurant. Back on the day of the accident, was anyone else there with you? A. Laura was. Q. And what's Laura's last name? A. McKechnie. Q. And what was her position on that day? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16' 17 18 19 20 21 22 23 24 25 A. She's the manager. Q. Now, on -- tell us a little bit about the restaurant. When's it open? A. We open from 11 to 2 and we close in between so we close between 2 to 4.. Dinner hours is 4 to 9. Q. And how many, approximately how many tables do you have in your restaurant? A. Oh, we seat about 50 something, 54 or 56 people for the number of tables and -- about 20, a little bit over 20 tables, but sometimes we put them together. Q. And, Chris, is the location of the restaurant 5103 Carlisle Pike in Mechanicsburg? A. Yes. Q. And just for everyone''s understanding, is that close to where the entrance is to get on 581? A. Yes. Q. But you're on the Carlisle Pike? A. Um -hum. Q. And are you in that little strip mall on the north side of the Carlisle Pike? It's, like, a little mall with various stores? A. Yes. Directions, that's when I get confused. We going left or right? Q. It's sort of towards the mountains? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com vu7.-vvo-�—am„c;•-rA i iu i3—**• (7T7)-258-3257 *** f (71.7)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 Q. door? And there's a mailbox to the left of the A. Yes. Q. Now I'm turning to page 2. Is that the front door where you get into the restaurant? A. Yes. Q. And it shows a mat. Is that a mat that's at the front door? A. Yes. Q. And then to the far left there's a sign. Is that a sign that's placed on the front door about whether you're open or closed? A. Yes. Q. And then I'm going to go to the third page. Is that another picture of the front door from looking from inside the restaurant out the front door? A. Yes. Q. And does that show the mat and the tile around the entrance to the restaurant? A. Yes. Q. And then I'm showing you the fourth page. Is that another picture showing the inside of the front door with the door open? A. Yes. Q. And then on the very top it shows where a CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 (:) 13 14 15 16 17 18 19 20 21 22 23 24 25 (—) 8 sign is located? A. Yes. Q. Is that the sign indicating closed or open? A. Yes. Q. And then the last page, once again, is that a picture going in the front door from the outside? A. Yes. Q. And once again, on the front door there's that sign to the middle left showing, Thank You -- I guess that faces inside and Open or Closed is on the outside? A. Yes. Q. Now, this is the way everything looked in August 2010 when the accident happened? A. Yes. Q. Now, we've had these pictures about the way the door looks and the restaurant, and I've -- did you at some point after the accident give me the actual sign that was on the door the day of the accident? A. Yes. Q. And I'm showing you the sign, and the sign has, like, little suction cups on each end? A. Um -hum. Q. You have to say yes. A. Yep, and you just slide it left to right or CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 right to left to show open or closed. Q. At the time of the accident, to your knowledge, was the sign indicating open or closed? A. It was closed. (Chalit's Exhibit No 2 was marked.) BY MR. DEARDORFF: Q. Now, I'm showing you Chalit Exhibit Number 2. Is this a Xerox picture of what the sign looks like when it indicates closed -- or let's see here -- showing, the front side of the sign showing closed and the backside of the sign saying, Thank You Call Again? A. Yes. Q. So the part that says, Closed, that would have been looking out towards the parking lot? A. Yes, that's correct. Q. And the backside saying Thank You Please Call Again would be looking towards the inside of the restaurant? A. Yes. Q. Now, was there any custom or practice as to when the sign was placed on the door when the restaurant became open for lunch? And I think you said it opened for lunch around 11. A. Yes. The sign is placed on the door already. Right at 11:00 the server will slide the sign just, you CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 know, to open. Q. And is there any custom or practice as you get close to 2:00 and the lunch crowd is over and you're going to be closed, what's the custom or practice about changing the sign to indicate that you're closed? A. One of the servers will flip the sign -- that's what we call it -- slide the sign, as this one is, around 1:55, you know, or closer to 2:00. Q. Does it have anything to do with who opened the restaurant or who closed the restaurant as to who does the flipping? A. Yeah. Who opened the restaurant will actually, you know -- the one who flipped the sign then will be the one who actually flip the sign when we close at 2. Q. Now, in these pictures on Exhibit 1 -- or strike that question. Between 2:00 when you close for lunch and 4:00 when you open for dinner, what goes on in the restaurant? A. Well, the servers will be doing the cash -out and then leave; and then the person who actually opened for the dinner shift will come in before 4, about 3:35, 3:45, will come in and check, you know, what needs to be done, spot cleaning and make sure everything is, you know, good and ready for the dinner shift. So basically CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 CD 2 3 4 5 6 7 8 9 10 11 12 0 13 14 15 16 17 18 19 20 21 22 23 24 25 11 it's just walk around and see what needs to be cleaned up. Q. When the person who's going to open up for the dinner crowd at 4, does that person do anything with regard to the mat that is at the front door as people walk into the restaurant? A. Things will be adjusted accordingly. So basically they would do the plate setup and everything; and then right before 4:00 the person would come into, you know, before they actually slide the door, open, will check the, will check the, what you call it, the cleanliness and, you know, if things need to be moved because it's kind of waiting area as well so we make sure that it's clean. So the mat, you know, maybe during lunchtime gets shifted and stuff, then we can put them in place. Q. And where do you put the mat into place? A. Right in front of the door, so basically a little bit closer, you know. Q. So the mat is moved closer to where the doorway is? A. Yes. Q. Now, going back to the day this happened, August 16, 2010 -- and I think it was a Monday. But, Chris, how is your recollection as to the events of that CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 day? A. It was raining all day. Q. But, I mean, how good is your recollection? Like, sometimes people say it was just another day, I don't remember what happened. How about on this day? A. It was unusual, you know. That's why, you know, I remember it because, you know, it never happened, you know, somebody slipped and fell. Q. That had never happened before? A. No. Q. Now, were you there at the time the accident happened? A. Yes, I was. Q. And at that point had you changed the sign to indicate open? A. No, not yet. I think the person came in before, in between 3 to 4, so that sign was still closed. Q. And you were talking about the weather. How would you describe the weather in that time frame when the accident happened? A. It was raining hard outside, but it was like that since the morning, you know, as when we had lunch. Q. Had anything unusual happened in the restaurant that day before the accident involving Mrs. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ,,�-- 25 13 Misicko? A. No. Q. Had anyone else slipped and fallen? A. No. Q. Do you remember that day who the person was who put the sign on the door and changed it from open to closed when the lunch crowd was over? A. It was Laura. Q. And why do you remember it was Laura? A. Because she was the one who actually was there with me, you know, when we were going to open. And then that's when we witnessed the incident. Q. And, Chris, are you sure the sign was up on the door at the time the accident happened? A. Yeah, because it has the suction cup and it's always there, and then we had a routine of open and closed. Q. And are you sure it indicated closed as designated by Exhibit Number 2? A. Yes. As I said, it was a routine that we do it every day two times -- you know, not two times. But, you know, we flip it before we open, flip it when we close between lunch and then do that for dinner as well, open and closed. Q. Okay. So on the day this happened, August CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 16, 2010, you indicated it was raining hard that day? A. Yes. Q. Had anyone come in the front door during that period between 2:00 up to the time. Mrs. Misicko came in that you can recall? A. No, none that I can recall. Q. What was the condition of the floor right at the place where the mat is and the tile is as you come ,in through the front door? Was that, by the time Mrs. Misicko came in or before she came in, was that area dry? A. I would -- I think so. But once you open the door, then the water, you know, the rain's going to come in with the person, so that's what I assumed that she slipped. Q. But before the door was open before Mrs. Misicko came in, had that area been cleaned and dried? A. Yes. Q. And then at the point where Mrs. Misicko came in, was it at the point where you were very close to opening and had moved the rug up closer to the front or had the rug remained away from the front of the area? A. I think at that time, I think Laura didn't have -- because it was not the 4:00 yet. I don't think that she went outside and, you know, about to flip the CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 25 1 15 sign and check the readiness of the waiting area yet. So the rug might be a little bit like this part. Q. And you're indicating the position the rug is in on picture number 3 on Exhibit 1? A. Yeah, um -hum. It's always at that level. Q. Now, when Mrs. Misicko came in, where were you positioned in the restaurant? A. We were behind the counter, the cashier counter. I think I was talking to Laura, something. Q. And what got your attention at the time Mrs. Misicko came in? A. I think I saw the, you know, people rushing in and I was looking, you know, at Laura. And then -- you know, because you can see because when we, when we behind the counter, peripheral, you can see people coming in. And then it was raining hard outside so the person came in and just rushing in, and what I saw again was, like, I couldn't see anybody. So basically, you know -- so I was, like, something's wrong. So I looked, you know, not looked over, but I could see something's wrong, and then the person fell. Q. Do you recall what kind of footwear the person who fell was wearing? A. Something like Crocs, like, the plastic kind. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P,O, Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 Q. And what happened after she fell? A. I think she came in with her husband and another lady -- I don't know -- so they were helping her up. And then what we did was that, you know, we got a pack of ice and, you know, help her up. So she was sitting -- there was another right beside the -- when you open another door to come in, then there's a little two chairs, that she was sitting there. And then we grabbed her a bag of ice so that she could rest and then get that to help her out. Q. Did any one of the people who came in with Mrs. Misicko say why they had come into your restaurant? A. I believe he or she said that they were lost and they wanted to come in to actually use the Wi-Fi or the Internet. Q. Does your restaurant have Wi-Fi or Internet that's available to the public? A. No. Q. Do you know whether the restaurant that was there before you took over the area, was that an Internet Cafe, do you know? A. It was a coffee shop, and I believe they might have provided the Wi-Fi. Q. When Mrs. Misicko fell and then was sitting there and you said you gave her some ice, was there any CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 o 25 f 17 discussion as to whether she ever had back problems before? A. Yes. I think her husband mentioned that. Q. Did these people; Mrs. Misicko, the lady who fell, and her friends, did they stay for dinner? A. No. That was not their intention to come in to dine. They came in just to use the Internet, which we do not provide. Q. Besides you seeing what happened during the accident, was Laura there with you? Did she see what happened? A. Yes. Q. Had either you or Laura given permission to Mrs. Misicko or any of her friends to come in at that point when the restaurant was closed and the sign was up indicating it was closed? A. We did not invite them. They just rushing in. They just came in because we were not -- we don't serve people until we're open. Until we flip the sign open, then we do -- you know, because basically that's the time that the kitchen is prepping as well for the dinner shift. MR. DEARDORFF: Okay. Chris, that's all I have at this point. Now Attorney Held will ask some questions of you. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 EXAMINATION BY MR. HELD: Q. Good morning. My name is Stephen Held, and I represent the Plaintiffs in this incident. A. Yes. Q. First of all, you have been testifying already. You understand you're at a deposition, right? A. Yes. Q. Have you ever given a deposition before? A. No. Q. I'm sure Mr. Deardorff here has explained this to you; but just so we're clear, this woman to your left and my right is a Court Reporter. She has been taking down everything that's being said. A. Yes. Q. And you understand that? A. Yes. Q. And you understand that you are under oath just as if you were in a court of law. You understand that? A. Yes. Q. Even though we're in your attorney's office? A. Right. Q. All right. Some questions following up CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 mostly what Mr. Deardorff asked you. A little bit about yourself; what's your education? A. I have master's degree. Q. Where did you get your master's at? A. National University. Q. Okay. And is that in Washington D.C.? A. California. Q. Glad I asked. And what's your master's in? A. General Business. Q. Where did you go undergrad? A. From Thailand, Assumption University. Q. And then do they have something like high school there or preparatory school, something along those lines? A. What do you mean? Q. Before you go to college, what sort of schooling do you have in Thailand? A. I went to high school, regular, a Catholic school. Q. Okay. I'm unfamiliar with that. What year did you come over to the United States? A. 1999. It's been a while. area? Q. And have you always lived in the Harrisburg A. No. I've lived in California, and we moved CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 with my partner to Harrisburg -- I can't remember -- I think two years before we open a restaurant. I'm bad with my years. Q. That's fine; I understand. And you said your partner. Who's your partner? A. James McClain. Q. And he's still your partner? A. Yes. Q. And is he a part owner in Chalit's? A. No. Moral support. Q. And somewhere I think in discovery responses we had sent your attorney questions that you helped him answer. Do you recall doing that? A. Um -hum. Q. You answered that you opened this restaurant in about 2009? A. Yes. Q. That sounds about right? The actual premises where the restaurant is at, do you lease that space or do you own that? A. We lease it. Q. Who do you lease it from? A. From Momentum Fitness, and that's a landlord, but we sublet it from Momentum Fitness from the previous owner. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 Q. So we're clear, you pay rent to Momentum? A. Yes. Q. And your understanding is Momentum pays it to somebody else then? A. Yes. Q. And up to, from 2009 up to today, that's been the relationship? A. Yes, um -hum. Q. All right. And in 2010 of August there was no awning outside of the front door, correct? A. No. Q. There is an awning there now? A. Yes. Q. Do you know when that awning was put on? MR. DEARDORFF: And I'm going to object to these post -accident changes just for the record. MR. HELD: Okay. THE DEPONENT: I have to look at the receipt, but maybe a few months after or six months. I have to look at the receipt to get you that information. I just don't want to speculate. BY MR. HELD: Q. Fair enough, and I don't want you -- if you don't understand my question or don't know the answer, that's fine. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com i 1 2 3 4 5 6 7 8 9 10 11 12 o 13 14 15 16 17 18 19 20 21 22 23 24 o 25 22 A. Yeah. Q. And why did you put the awning there? A. First of all, it's for the look; and second of all, that comes with the, so that people will have a place to actually stand before they come in. Q. Okay. And on August 16th, 2010, you were actually there at the restaurant and saw my client fall, right? A. Yes, um -hum. Q. And according to these photographs -- first of all, do you know when these photographs were taken? A. I don't, but obviously before the awning was put on. Q. So if the awning was put on approximately six months before -- or I'm sorry -- six months after my client's fall, safe to say these photos were taken within six months of my client's fall, right? A. Probably. Q. Then I'm going to show you the second picture of what did we mark this -- Chalit 1, so it's page 2 of Chalit 1. A. Yes. here. Q. Okay. And I'm indicating here there's a mat A. Yes. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 23 Q. Is that your mat, or do you have a service that provides the mat? A. That's our mat. Q. What is the reason you have the mat there? A. First of all, to attract the dirt, and then second of all is to actually make sure that people come in have a place to land their foot if it was kind of wet outside. Q. Okay. So, you know, have you ever heard of that mat called a walk -off mat? A. I don't know what that means. Q. Okay. Fair enough. Is it your understanding that one of the reasons for that mat to be there is if, you know, it's raining outside, people come in, that takes moisture off their shoes? A. Okay. Yes. Q. Okay. Then the other thing I want to clear up I'm turning to page 3 of Chalit 1. These six tiles right inside of the door A. Um -hum. Q. -- they're a different color? A. Yes. Q. Are they of a different style of tile than the rest of the floor? A. Actually it was the same. We painted a CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 texture paint so that people when they come in have the grip, yeah. That was painted after. MR. DEARDORFF: And it's a continuing objection to post -accident changes. BY MR. HELD: Q. That was painted after my client's fall? A. After, yes. Q. And the reason you put the texture there is for slip resistance to have -- A. Right, precaution. Q. Okay. And your general hours you had testified were 11 to 2 is lunch? A. Yes. Q. Then there's a 2 to 4 break? A. Yes. Q. And this fall occurred during that 2 to 4 break, right? A. Yes. Q. And back to Chalit Exhibit 1, page 2 -- I'm sorry. Yeah, page 2. Here we go. You have, or your attorney has brought the actual sign that's depicted in the door here? A. Yes. Q. Were you present when these photographs were taken? Do you remember these photographs being taken by CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 25 somebody, probably an insurance investigator or someone like that? A. I wasn't sure. Q. Okay. You don't remember if you were there when the photographs were taken? A. Right. Q. Do you think -- THE DEPONENT: Didn't you take this picture? MR. DEARDORFF: I didn't take the picture. BY MR. HELD: Q. And we can figure out later who actually took the picture. I probably have that information somewhere, but -- A. I'm trying to recall if somebody from the insurance company actually came in and took the picture. MR. DEARDORFF: And I think it was a claims person from the insurance company came and took a picture. MR. HELD: I believe so, and I have an idea who it was. THE DEPONENT: Now talking about, I think I kind of -- it kind of -- I kind of recall it. But, yeah, go ahead. BY MR. HELD: Q. Do you believe these pictures were taken when CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u0aol.com 26 the restaurant was open for business, or don't you know? A. I could not recall. Q. And you'd agree with me here in this photograph it's showing the inside of the door? A. Um -hum. Q. So if I show you the inside of the door, it shows the Please Call Again aspect of it? A. Yes. Q. And you see from the photograph you can see the other side of the plastic that slides left and right? A. Okay. Q. And you see from this photograph that it's the Please Call Again side is in this position, the same position as it is in the photograph. You see that? A. (Perusing document.) Q. You see where the little plastic -- A. Oh, yes. Okay. Q. Then on the other side you see it says Open? A. Um -hum. Q. So when this photograph was taken, the sign said Open? A. Okay. Q. You agree with me? A. Yes. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 27 Q. It seems like that? A. Yes. Q. Now, when the store is closed overnight, let's say, you lock this front door, right? A. Yes. Q. Is there a reason you do not lock it between 2 and 4? A. No. We did not lock it. Q. Is there a reason why you don't lock it when you close for the lunch break? A. There's no -- because basically you cannot lock it from this side. We can lock it from the other door, but this one we have to lock it from the outside. Q. Okay. I gotcha. So if you lock the front door during that 2 to 4 break, someone would have to go out the front door and lock it? A. Um -hum. Q. Is there an entryway in the back for, like, staff members? A. No. Q. So there would be no way that person could go back in? A. Right. Q. All right. I gotcha. A. We don't have access to the back. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 28 Q. Okay. Then the sign -- is this sign always on the door? A. Yes. Q. Okay. And just so we're clear about what I mean by always on, it has suction cups, you stuck it to the front door; even if you leave during the day, it's still on the front door? A. Yes. Q. Okay. Then other than this sign here, is there any sign on the outside that says what the hours are? A. Yes. We have -- it's right on the front door. We have -- yeah. MR. DEARDORFF: Picture 5. MR. HELD: Okay. There we go. BY MR. HELD: Q. And the business hours sign that's here on page 5 of Chalit 1, that's the same sign that was there in August of 2010? A. Yes. Q. Now, back to August 16th, 2010 and my client's fall, you actually saw her fall? A. Yes. Q. Did you see what caused her to fall? A. I know that she was rushing in and probably CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 o3 4 5 6 7 8 9 10 11 12 o13 14 15 16 17 18 19 20 21 22 23 24 25 29 didn't get the grip to the floor. I think she stepped on the tile right away. Q. And you indicated she was rushing in. Did she stop to open the door? A. I wasn't sure. The only thing I saw that, you know, somebody just came rushing in. Q. Okay. Did you happen to notice anything else she was wearing other than her footwear, like, what type of clothing she was wearing? A. I could not remember, but I think she's wearing -- I don't think she has rain gear on her, and probably T-shirt and -- I can't remember the pants, but I know that it's not something that is waterproof. Q. Do you remember seeing if she was carrying anything when she came in? A. Not that I'm aware of. Q. All right. And then after she fell, immediately after, was she still on the floor for a period of time or did she get right back up? A. I believe that her husband and her friend came in and then talked to her and then make sure that it's okay, I believe that it's okay that she is ready to move because basically when somebody fell, you don't want to actually pick them up and move them right away. I think that's what they were trying to do, asking her CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 if she was okay, if she's ready. And then after that they came in and then sat in that two, you know, one of the two chairs that I told you, you know, inside the restaurant. But before then it was closed so we were inside. Q. What was her mental state after she fell? Was she crying? Was she -- A. I think so. I think she was, like -- crying I'm not sure, but she has, like, something that she was -- I don't know what's the term. Q. That's okay. You're fine. A. She wasn't crying, but she was, like, (making sound). Q. Moaning? A. Maybe, yeah. Q. Or, like, whimpering? A. Yeah, like she's in pain. Q. Did you talk to Mrs. Misicko at all? A. I'm not sure, but I'm -- I can't recall what I talked to her, but I'm pretty sure that I asked her if she was okay, you know, and is there anything I could help, like, you know so that's why we got her a bag of ice and, you know Q. The bag of ice, did she put that on any part of her body that you remember? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 A. I don't. Q. Do you remember if she said any part of her body was in pain? A. I could not recall, but I know that her husband was helping her, attending to her. So in that case I think her husband probably knows because he was attending to her at that time. I was just observing and giving them whatever I could find and what they need. Q. Okay. And did you open then at 4:00 for dinner? A. Yes. Q. Was Mrs. Misicko still there when you opened? A. Yes. Q. Now, when you open at 11 in the morning, do you unlock the doors before 11:00 in the morning? A. Yes. Q. Now, I assume you do some sort of prep in the morning or -- A. Yes. Q. It's not all of a sudden at 11 you have a full menu ready? A. Yeah, right. Q. Do you ever have people come in a little bit early before 11 and wait inside the store? A. No. Usually people always look at the sign CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aoLcom • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 and then they always, you know, wait in the car. I think that's the good thing about the plaza is that we have a lot of parking spaces and when people come in and they look at the sign and then usually they'll go back to the car and then wait in the car. Q. Now, there have been times after 2:00 where people are still finishing their meal, right? A. Yes. Q. Then when between 2 and 4, has anyone ever come in early to wait? A. No. Q. And since the day this happened and after Mrs. Misicko left your restaurant, have you talked to Mrs. Misicko at all up through to today? A. No. I have not heard from her after that, but I heard from, her husband. Q. you? Okay. Do you know when her husband contacted A. Could not recall the time, but I know that he show up at the bistro and asking for the insurance information and asking that they have health insurance but, you know, the deductibles, that they need to have, you know, that they needed help with. And so that's when I share the insurance information with the goodness of my heart that, you know, I -- CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 Q. Right, yeah. And was that just one conversation, or were there more than one as far as you remember? A. I could not recall if he called; but as far as the face-to-face conversation, that was the only time that he came in and talked to me and asked me that. Q. Was he polite when he came to you? A. Yeah, very -- I shouldn't say apologetic, but he was kind of -- what should I say -- asking, like, you know, not -- I wouldn't say begging, but asking for help, that, you know, we needed help on the deductibles. Q. Okay. Did he tell you what sort of medical treatment his wife was getting? A. Wasn't sure, but he said that she has back problem before and when she fell, then probably, you know, it needs the attention. And that's when, you know, that's when he said that he needed the deductibles to help him on that. Q. When the actual fall happened, you were there, right? A. Yes. Q. Laura McKechnie was there? A. Yes. Q. Did I say that right? A. Yes. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 34 MR. HELD: No? BY MR. HELD: Q. All right. Was anyone else at the restaurant? A. The kitchen staff, but they were in the kitchen so they don't know, you know, what really happened at that time because they were prepping and stuff. Q. Okay. Where the kitchen is, can the kitchen staff actually see out to where the customers sit? A. No. MR. HELD: I believe that's all the questions I have. MR. DEARDORFF: I have no further questions. (The deposition concluded at 9:22 a.m.) CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 35 COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF CUMBERLAND ) I, AMY R. FRITZ, a Court Reporter Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of CHALIT C. KIJCHAROEN. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter -Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 21st day of October, 2014. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com • 0 Jr • • . . &AA; • :4•Sliktk•-; ‘1:1 0 lJ 0 0 0 CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 MART ,dN lAW OF,FI By 9 'Thurrn. Ten East Hi _ ' Street Carlisle, PA 17013 (717) 243-3341 Dated: 1a19,9,11,/ F:\FILES\Clients\3050 Donega1\3050 Current \3050.698\3050.698.pra6.wpd Revised: 1/15/15 4:28PM Daniel K. Deardorff, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants 5E'16 11: 10 ._;,•I.ic.RLAND COUNTY PENNSYLVANIA IA BARBARA MISICKO and, DAVID MISICKO, her husband, Plaintiffs CHALIT'S THAI BISTRO, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2012-4563 CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Attached hereto, to become part of the record, is the deposition of Noel Doutrich in support of Defendant's Motion for Summary Judgment. Dated: January 16, 2015 Respectfully Submitted, MARTSON LAW OFFICES By T,c" Daniel K. Deardorff, Esquire I.D. No. 17837 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant [Page 1] COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION BARBARA MISICKO and DAVID NO. 2012-4563 MISICKO, her husband, Plaintiffs vs. CHALIT'S THAI BISTRO, Defendant DEPOSITION OF NOEL DOUTRICH Taken in the Law Offices of Martson, Deardorff, Williams, and Otto, Ten East High Street, Carlisle, Pennsylvania, on Wednesday, December 17, 2014, commencing at 10:00 a.m., before Justine Starrick, Registered Professional Reporter. 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com 1 APPEARANCES: 2 HANDLER HENNING & ROSENBERG, LLP By: STEPHEN G. HELD, ESQ. 3 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 4 Held@hhrlaw.com -- For the Plaintiffs 5 6 MARTSON, DEARDORFF, WILLIAMS AND OTTO By: DANIEL K. DEARDORFF, ESQ. 7 Ten East High Street Carlisle, PA 17013 8 -- For the Defendant 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 [Page 2] 877-479-2484 U.S. LEGAL SUPPORT www.uslcgalsupport.com [Page 3] 1 INDEX TO WITNESS THE WITNESS PAGE 2 Noel Doutrich 3 By Mr. Held 4 4 5 INDEX TO EXHIBITS 6 EXHIBIT DESCRIPTION PAGE 7 Doutrich 1 Photographs 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 4] 1 2 NOEL DOUTRICH, having been duly sworn, 3 was examined and testified as follows: 4 5 EXAMINATION 6 BY MR. HELD: 7 Q. Good morning, ma'am. For the record please 8 state your name. 9 A. Noel Doutrich. 10 Q. We're here to take your deposition. You've 11 done probably many recorded statements, but have you 12 ever done a deposition before? 13 A. No. 14 Q. Okay. A deposition is very similar to a 15 16 17 18 19 20 21 22 23 or even a head shake, you know, shoulder shrug. Can 1 recorded statement, except instead of talking to a microphone we have a court reporter here that's taking down everything that's being said. I'll give you some of my general rules for a deposition. They're probably similar that you tell people in a recorded statement for the same reasons, but just to make sure, try to give a verbal response to every question I ask you, rather than an uh-huh or huh-uh, 24 you try to do that for me? 25 A. Yes. 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 5] 1 Q. Likewise, try not to talk when I'm talking, 2 just so if both of us are talking it makes her life 3 more difficult. 4 A. Okay. 5 Q. This is not an interrogation, it's not, you 6 know, a test or something like that. If you do not 7 know or do not remember those are perfectly 8 acceptable responses. Okay. Don't feel like you 9 have to give an answer just to satisfy me. Okay? 10 A. Okay. 11 Q. All right. I'm not going to keep you that 12 long, but like I said earlier, it's not an 13 interrogation. If you need to take a break for any 14 reason we could go off the record. Okay? 15 A. Okay. 16 Q. You know you're under oath just as if you 17 were in a court of law, correct? 18 A. Correct. 19 Q. And also every deposition I ask these 20 questions, do not be offended, but we have legal 21 reasons we ask them. Are you on any medications 22 that in any way impair your ability to understand 23 what's going on? 24 A. No. 25 Q. And do you have any physical or mental 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com a [Page 6] 1 reason that would prevent you from giving accurate 2 and complete answers to my questions? 3 A. No. 4 Q. And immediately before the deposition 5 started Mr. Deardorff and I kind of had a 6 conversation and you were here. But basically you 7 did review answers to interrogatories, my second set 8 of interrogatories before this deposition? 9 A. Yes. 10 Q. Did you review anything like the claims 11 file or anything like that for this case? 12 A. Could you repeat that again? 13 Q. Sure. Did you review the claims file for 14 this case prior to today's deposition? 15 A. Yes. 16 MR. DEARDORFF: And this -- does that 17 mean just a part of the claims file? 18 MR. HELD: Anything from the claims 19 file. 20 Q. Did you review -- I'm going to show you 21 what I have already marked as Doutrich 1, a pack of 22 photographs. Did you review those photographs 23 before today's deposition? 24 A. Yes. 25 Q. Just to get a general background about 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 7] 1 yourself, have you ever been known by any other 2 nicknames, maybe just a general name change or a 3 maiden name or anything like that? 4 A. 5 Q. 6 A. 7 Q. 8 A. 9 Q. 10 A. 11 Q. 12 A. 13 Q. 14 A. 15 Q. Have you ever had any other titles with 16 Donegal? 17 A. I don't believe so, if it is it's claim 18 representative. 19 Q. And prior to working for Donegal, what was 20 your job immediately before working for Donegal? 21 A. Claim representative for State Farm 22 Insurance. 23 Q. Which State Farm office did you work in? 24 A. New Cumberland, they closed. 25 Q. Did we have any cases together as a claim No. Are you currently married? No. What's your current business address? It's 1195 River Road, Marietta, PA 17547. And that's Donegal? Yes. How long have you worked for Donegal? Nine years I think it'll be. What's your title with Donegal? Field claim representative. 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 8] 1 rep for State Farm that you remember? 2 A. I don't recall. 3 Q. All right. What's your date of birth? 4 A. 12/16/69. 5 Q. What's your education -- first of all, I 6 assume you graduated high school? 7 A. 8 Q. 9 A. 10 Q. 11 A. 12 Q. 13 A. 14 Q. 15 A. 16 Q. 17 A. 18 Q. 19 A. 20 Q. 21 A. 22 Q. 23 you go for any further formal education? 24 A. No. 25 Q. And as part of being a claim rep did you Yes. What high school? Donegal High School. What year? 1988. Did you attend college? Yes. What college? Bloomsburg University. And what years did you go to Bloomsburg? I graduated in '92. Did you get a degree? Yes. What was your degree in? Business Administration Management. And after graduating from Bloomsburg did 877-479-2484 U.S. LEGAL SUPPORT www.uslcgalsupport.com [Page 9] 1 undergo any sort of certification or training, 2 schooling type things with State Farm or Donegal? 3 A. Yes, bear with me a moment. 4 Q. That's fine. 5 A. Appraiser school with State Farm Insurance, 6 and I also have my appraiser's license. And claims 7 school with State Farm Insurance for a few weeks. 8 But I'm not sure the duration of that. 9 Q. Okay. And after college, what was your 10 first job after college? 11 A. Barco Electrical for an office job. 12 Q. Okay. When did you get into the insurance 13 business? 14 A. After Barco was a job with Beneficial for 15 about two years, and then State Farm, I tried to get 16 into State Farm and they had a hiring freeze. And 17 then right after Beneficial I got into insurance and 18 have been in insurance since then. 19 Q. Okay. And do you have any sort of like 20 private investigator license or anything like that? 21 A. No. 22 Q. All right. Now, the reason we're here at 23 all is regarding a lawsuit my client filed against 24 Chalit's Thai Bistro regarding an August 16, 2010 25 slip and fall. Did you do any sort of field work on 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 10] 1 this claim? 2 A. Yes. 3 Q. What did you do? 4 A. I received an assignment to take 5 photographs and also take a statement of your client 6 and get' a medical authorization. 7 Q. And I don't know if I have it in the file 8 or not, but did you get a recorded statement from my 9 client? 10 A. In person, prior to your representation. 11 Q. Yes, I assumed so. And even if I was 12 13 14 15 16 17 18 19 20 A. Correct. 21 Q. Do you think that's right? 22 A. Yes. 23 Q. All right. In the documents that you 24 reviewed before today, the claims log, was there 25 something you reviewed that established the date representing them I probably would have allowed it and I would have been there. And it probably just showed I don't remember more than anything. According to defendant's answers to plaintiff's second set of interrogatories I had asked Mr. Deardorff when you took the photographs. According to these responses it was September 7, 2010? 877-479-2484 U.S. LEGAL SUPPORT www.uslcgalsupport.com [Page 11] 1 that you did that, was there an entry or something 2 like that? 3 A. Yes. 4 Q. So you're pretty certain that -- reasonably 5 certain that was the date you took these 6 photographs? 7 A. Yes. 8 Q. Do you remember what day of the week it 9 was? 10 A. I do not. 11 Q. Okay. If I look at a calendar -- 12 MR. DEARDORFF: Off the record. 13 (Discussion held off the record.) 14 BY MR. HELD: 15 Q. I have right here September 7 was a 16 Tuesday. 17 A. I'll take your word for that. 18 Q. I'll show you on my iPad, I have a 19 calendar. 20 A. Okay. 21 Q. Now, do you have any idea about what time 22 you took these photographs? 23 A. I do not. 24 Q. Do you know if the business was open or 25 closed when you took these photographs? 877-479-2484 U.S. LEGAL SUPPORT www.uslcgalsupport.com [Page 12] 1 A. I do not. 2 Q. And then I sort of got the cart before the 3 horse here. Exhibit Doutrich 1, do you recognize 4 what those photographs are? 5 A. Yes. 6 Q. What are those photographs? 7 A. Photographs that I had taken of the 8 insured's business. 9 Q. Do you think you would have made an attempt 10 to take these photographs at off hours when the 11 business was not open? 12 A. I don't know. I would have coordinated 13 with the insured when it was convenient with him, 14 whenever he said that was convenient for him. 15 Q. Now, you would agree with me that even 16. though these photographs don't depict the full 17 restaurant, none of these photographs show any 18 patrons in the restaurant at the time, correct? 19 A. It's just the front of the building. 20 Q. And the next three -- 21 A. And the entryway. 22 Q. The last photograph doesn't seem to be -- 23 you don't see anybody in here? 24 A. Yeah, I don't see any -- it's hard to tell 25 anything there as far as the inside of it. 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 13] 1 MR. HELD: Dan, do you have color 2 photographs with you? 3 MR. DEARDORFF: I don't think I do. 4 MR. HELD: All right. 5 Q. You would agree with me though that the 6 last photograph here it shows the backside of the 7 sign thatwas on the front door, you would agree 8 with me on that? 9 A. Are you pointing to the left? 10 Q. Yes. And let me point on your photograph. 11 Right there. (Indicating.) 12 A. I see it. Thank you. 13 Q. Yes. And this is actually the sign that 14 Mr. Deardorff claims was on the door? 15 A. I guess. 16 Q. And you would agree with me that based on 17 the photograph if you look closely on the sign here, 18 I'm indicating the plastic is wider as the sliding 19 part moves up and down. Do you understand what I'm 20 saying? (Indicating.) 21 A. No, could you repeat that again? I'm 22 sorry. 23 Q. On the front of the sign, which is what the 24 people approaching the door would see, you would 25 agree with me that half of it says open, and half of 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 14] 1 it says closed, correct? 2 A. Yes. 3 Q. And then this part, this plastic part that 4 slides over the sign, slides to indicate whether 5 it's open or closed. Do you see that? 6 (Indicating.) 7 A. I do. 8 Q. And then on the backside of it you could 9 see the plastic overhang on the sign, correct? 10 A. Yes. 11 Q. And then you could tell by the photograph 12 that the sign appears on the back, from the 13 photograph, to have the plastic slider in this 14 position, correct? 15 A. I can't tell that from this photo. 16 MR. DEARDORFF: Off the record. 17 (Discussion held off the record.) 18 BY MR. HELD: 19 Q. As Mr. Deardorff kindly pointed out that 20 the deposition exhibit photograph seems to be 21 clearer, right? Can you see what I'm talking about 22 with the plastic? 23 MR. DEARDORFF: Why don't we leave it 24 like this, the photo speaks for itself. 25 MR. HELD: Okay. 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 15] 1 MR. DEARDORFF: Steve, there's other 2 3 4 5 6 7 8 9 10 11 for itself. 12 Q. And then as Mr. Deardorff said, let's 13 assume for this next part of the question, or these 14 next questions, that the back is in this position, 15 the back of the sign is in this slide position. 16 Okay. If that's the case does the front of the sign 17 say open or closed? 18 A. If you make that assumption and you slip 19 that over it says open. 20 MR. DEARDORFF: And we'll stipulate to 21 that too, it is what it is. 22 Q. And, again, according to the entry you 23 looked at on the log, the claims log, you could not 24 tell what time you actually took the photographs? -- the photograph, Chalit's Deposition 2, that sort of speaks for itself. MR. HELD: Okay. MR. DEARDORFF: I will state for the record the photograph does speak for itself and it does look like the plastic thing is to the left side of the thank you. MR. HELD: All right. MR. DEARDORFF: But it is -- it speaks 25 A. No. 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 16] 1 Q. Okay. And I do not believe I've actually 2 seen the log, and I'm not saying that I should have 3 or I asked for it even, but is the log in this case, 4 is it a daily entry, how are entries put on the 5 claims log? 6 MR. DEARDORFF: I'll say for the 7 record, Steve, when we sent answers to 8 interrogatories we did include the photographs, the 9 statement of the plaintiff, and the log. 10 MR. HELD: Okay. 11 MR. DEARDORFF: And I'll state for the 12 record that the log, once again, it is what it is, 13 but there are entries that are dated by various 14 people. 15 MR. HELD: Okay. And are they dated 16 -- do they have the time put in? 17 MR. DEARDORFF: Yes. They have the 18 time. And I have the entries involving Noel, and 19 they have the time when she put the entries into the 20 log, the dates and time. If you want to see that. 21 MR. HELD: If you have that in front 22 of you. Let's go off the record. 23 (Discussion held off the record.) 24 BY MR. HELD: 25 Q. We had some discussions off the record 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 17] 1 where Mr. Deardorff showed some entries in the 2 claims log and noted some times that were included 3 in the recorded statement. And you were present 4 when Mr. Deardorff and I talked about that, correct? 5 A. Yes. 6 Q. And can we agree that it's pretty clear 7 there is no entry put in the claims log indicating 8 the exact time you took the photographs? 9 A. Correct. 10 Q. And did you take the photographs that are 11 depicted in Doutrich Exhibit 1, did you take those 12 the same day you did the recorded statement of my 13 client? 14 A. Yes. 15 Q. And there was an entry in the claims log 16 that said you had taken the recorded statement and 17 then went to the defendant's place of business to 18 take photographs, correct? 19 A. Yes. 20 Q. All right. What time did you take the 21 recorded statement, what time did that end? 22 A. I think it ended -- Mr. Deardorff has a 23 copy of the transcript. It started it says 24 approximately 10:25 a.m. and it concluded at 10:50 25 a.m. on the 7th of September, 2010. 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 18] 1 Q. And that transcript was taken -- the 2 recorded statement was taken at my client's 3 residence in Perry County, correct? 4 A. Yes, I believe so. Let me just double 5 check that. Bretts Drive in Shermans Dale. 6 Q. Okay. And then you traveled from my 7 client's residence to Chalit's Thai Bistro in 8 Mechanicsburg? 9 A. Yes. 10 Q. And then you took the photographs that are 11 depicted in Doutrich Exhibit 1 after you my client's 12 residence not before? 13 A. Yes. 14 Q. So you would have taken those -- these 15 photographs, Doutrich Exhibit 1, some time after 16 10:30, correct? 17 A. Correct. 18 Q. And what time -- well, did you actually put 19 an entry into the log that this assignment was 20 completed? 21 A. ' Yes. 22 Q. What time was the entry put in, date and 23 time? 24 A. 9/7/2010, 2:57 p.m. 25 Q. Okay. That's when it was entered into the 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 19] 1 claims log, correct? 2 A. Correct. 3 Q. And where physically do you enter 4 information into the claims log? 5 A. At 110 Apple Tree Lane in Mount Wolf, PA, 6 that's my field office. 7 Q. So you would have -- and that time that is 8 documented on the claims log, that would have been 9 -- is that something the computer already -- the 10 claims log already marks the time automatically, or 11 is that something you manually put in, the time? 12 A. I believe the computer marks that. 13 Q. Okay. And that would not have been put in 14 like from a laptop or something in the field, it 15 would have been in the office? 16 A. Generally speaking that would have been in 17 the office on my laptop. 18 Q. Okay. And so what time again was that 19 entered? 20 A. 2:57 p.m. 21 Q. So that means if you put that entry in at 22 2:57 p.m. the photographs would have been taken at 23 least whatever time it took you from Mount Wolf to 24 Mechanicsburg before? 25 A. Correct. 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 20] 1 MR. DEARDORFF: Objection. Assuming 2 there was no interruption between your trip from 3 Mechanicsburg to Mount Wolf. I'm just thinking 4 maybe she had lunch or stopped at the store. 5 Q. That's possible. I'm just saying that the 6 latest the photographs were taken -- you don't know 7 how long it took you to get from Mechanicsburg to 8 Mount Wolf? 9 A. I don't. 10 Q. Let's say for sake of reference that it's 11 30 minutes. The photographs at the latest were 12 taken 30 minutes before that entry was put in, 13 correct? 14 A. 15 Q. 16 17 18 19 20 MR. DEARDORFF: Assuming it took 30 21 minutes. 22 MR. HELD: Right. 23 MR. DEARDORFF: But we're not saying 24 it was. 25 MR. HELD: Correct. I'm trying to Correct. All right. MR. DEARDORFF: And, once again, you're saying the photographs could not have been taken later in that 30 minute gap? MR. HELD: Right. 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 21] 1 establish there'S a range of time these photographs' 2 could have been taken. And basically I'm thinking 3 the range of time could be between 11 and 2. Would 4 that seem about right? 5 MR. DEARDORFF: That sounds close. 6 Not exactly, because who knows how long it takes to 7 get from Shermans Dale down to Mechanicsburg and 8 whether Noel took lunch before -she tdok the 9 photographs -- 10 MR. HELD: Or stopped for gas. 11 MR. DEARDORFF: 'Yeah. I mean, if -She 12 took them after she took the statement and the 13 statement was over at 10:50 a.m., and she took them 14 before the e-mail at 2:57 p.m., there is that range. 15 MR. HELD: Right. Okay. 16 Q. And, ma'am, you agree.with what was just 17 said, correct? 18 A. Yes. 19 MR. HELD: I believe that's all the 20 questions I have. 21 MR. DEARDORFF: Okay. I have no 22 questions. 23 (The deposition concluded at 10:30 a.m.) 24 25 877-479-2484 U.S. LEGM. SUPPORT ivww.uslegalsupport.com • [Page 1] A a.m 1:23 17:24,25 21:13,23 ability 5:22 acceptable 5:8 accurate 6:1 accurately 22:10 address 7:7 Administration 8:21 agree 12:15 13:5,7,16,25 17:6 21:16 allowed 10:12 answer 5:9 answers 6:2,7 10:15 16:7 anybody 12:23 APPEARANCES 2:1 appears 14:12 Apple 19:5 Appraiser 9:5 appraiser's 9:6 approaching 13:24 approximately 17:24 asked 10:16 16:3 assignment 10:4 18:19 assume 8:6 15:13 assumed 10:11 Assuming 20:1,20 assumption 15:18 attempt 12:9 attend 8:12 August 9:24 authorization 10:6 automatically 19:10 B back 14:12 15:14,15 background 6:25 backside 13:6 14:8 BARBARA 1:3 Barco 9:11,14 based 13:16 basically 6:6 21:2 bear 9:3 believe 7:17 16:1 18:4 19:12 21:19 Beneficial 9:14,17 birth 8:3 Bistro 1:6 9:24 18:7 Bloomsburg 8:15,16,22 break 5:13 Bretts 18:5 building 12:19 business 7:7 8:21 9:13 11:24 12:8,11 17:17 C calendar 11:11,19 Carlisle 1:21 2:7 cart 12:2 case 6:11,14 15:16 16:3 cases 7:25 certain 11:4,5 certification 9:1 certify 22:8 Chalit's 1:6 9:24 15:2 18:7 change 7:2 check 18:5 CIVIL 1:1 claim 7:14,17,21,25 8:25 10:1 claims 6:10,13,17,18 9:6 10:24 13:14 15:23 16:5 17:2,7,15 19:1,4,8,10 clear 17:6 clearer 14:21 client 9:23 10:5,9 17:13 client's 18:2,7,11 close 21:5 closed 7:24 11:25 14:1,5 15:17 closely 13:17 college 8:12,.14 9:9,10 color 13:1 commencing 1:23 COMMON 1:1 complete 6:2 completed 18:20 computer 19:9,12 concluded 17:24 21:23 contained 22:9 convenient 12:13,14 conversation 6:6 coordinated 12:12 copy 17:23 correct 5:17,18 10:20 12:18 14:1,9,14 17:4,9,18 18:3,16 18:17 19:1,2,25 20:13,14,25 21:17 22:12 County l:1 18:3 court 1:14:165:17 Cumberland 1:1 7:24 current 7:7 currently 7:5 D daily 16:4 Dale 18:5 21:7 Dan 13:1 DANIEL 2:6 date 8:3 10:25 .11:5 18:22 dated 16:13,15 dates 16:20 DAVID 1:3 day 11:8 17:12 Deardorff 1:19 2:6,6 6:5,16 10:17 11:12 13:3,14 14:16 14:19,23 15:1,5,10,12,20 16:6,11,17 17:1,4,22 20:1 20:16,20,23 21:5,11,21 December 1:21 Defendant 1:7 2:8 defendant's 10:15 17:17 degree 8:18,20 depict 12:16 depicted 17:11 18:11 deposition 1:13 4:10,12,14 4:18 5:19 6:4,8,14,23 14:20 15:2 21:23 DESCRIPTION 3:6 difficult 5:3 Discussion 11:13 14:17 16:23 discussions 16:25 DIVISION 1:1 documented 19:8 documents 10:23 Donegal 7:9,11,13,16,19,20 8:9 9:2 door 13:7,14,24 double 18:4 Doutrich 1:13 3:2,7 4:2,9 6:21 12:3 17:11 18:11,15 Drive 18:5 duly4:2 22:11 duration 9:8 E e-mail21:14 earlier 5:12 East 1:19 2:7 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 2] education 8:5,23 Electrical 9:11 ended 17:22 enter 19:3 entered 18:25 19:19 entries 16:4,13,18,19 17:1 entry 11:1 15:22 16:4 17:7,15 18:19,22 19:21 20:12 entryway 12:21 ESQ 2:2,6 establish 21:1 established 10:25 evidence 22:9 exact 17:8 exactly 21:6 EXAMINATION 4:5 examined 4:3 exhibit 3:6 12:3 14:20 17:11 18:11,15 EXHIBITS 3:5 F fall 9:25 far 12:25 Farm 7:21,23 8:1 9:2,5,7,15 9:16 feel 5:8 field 7:14 9:25 19:6,14 file 6:11,13,17,19 10:7 filed 9:23 fine 9:4 first 8:5 9:10 follows 4:3 formal 8:23 freeze 9:16 front 12:19 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7:1 knows 21:6 L Lane 19:5 laptop 19:14,17 latest 20:6,11 law 1:17 5:17 lawsuit 9:23 leave 14:23 left 13:9 15:7 legal 5:20 let's 15:12 16:22 20:10 license 9:6,20 life 5:2 Likewise 5:1 Linglestown 2:3 LLP 2:2 log 10:24 15:23,23 16:2,3,5,9 16:12,20 17:2,7,15 18:19 19:1,4,8,10 long 5:12 7:11 20:7 21:6 look 11:11 13:17 15:7 looked 15:23 lunch 20:4 21:8 M ma'am 4:7 21:16 maiden 7:3 Management 8:21 manually 19:11 Marietta 7:8 marked 6:21 marks 19:10,12 married 7:5 Martson 1:17 2:6 mean 6:1721:11 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 3] means 19:21 Mechanicsburg 18:8 19:24 20:3,7 21:7 medical 10:6 medications 5:21 mental 5:25 microphone 4:16 minute 20:18 minutes 20:11,12,21 MISICKO 1:3,3 moment 9:3 morning 4:7 Mount 19:5,23 20:3,8 moves 13:19 N name 4:8 7:2,3 need 5:13 New 7:24 nicknames 7:2 Nine 7:12 Noel 1:13 3:2 4:2,9 16:18 21:8 Notary 22:16 noted 17:2 notes 22:10 0 oath 5:16 Objection 20:1 offended 5:20 office 7:23 9:11 19:6,15,17 Offices 1:17 Okay 4:14 5:4,8,9,10,14,15 9:9,12,19 11:11,20 14:25 15:4,16 16:1,10,15 18:6,25 19:13,18 21:15,21 once 16:12 20:16 open 11:24 12:11 13:25 14:5 15:17,19 Otto 1:19 2:6 overhang 14:9 P p.m 18:24 19:20,22 21:14 PA 2:3,7 7:8 19:5 pack 6:21 PAGE 3:1,6 part 6:17 8:25 13:19 14:3,3 15:13 patrons 12:18 Pennsylvania 1:1,21 people 4:19 13:24 16:14 perfectly 5:7 Perry 18:3 person 10:10 photo 14:15,24 photograph 12:22 13:6,10,17 14:11,13,20 15:2,6 photographs 3:7 6:22,22 10:5,17 11:6,22,25 12:4,6,7 12:10,16,17 13:2 15:24 16:8 17:8,10,18 18:10,15 19:22 20:6,11,17 21:1,9 physical 5:25 physically 19:3 place 17:17 plaintiff 16:9 plaintiffs 10:15 Plaintiffs 1:4 2:4 plastic 13:18 14:3,9,13,22 15:7 PLEAS 1:1 please 4:7 point 13:10 pointed 14:19 pointing 13:9 position 14:14 15:14,15 possible 20:5 present 17:3 pretty 11:4 17:6 prevent 6:1 prior 6:14 7:19 10:10 private 9:20 probably 4:11,19 10:12,13 proceedings 22:9 Professional 1:25 22:16 Public 22:16 put 16:4,16,19 17:7 18:18,22 19:11,13,21 20:12 Q question 4:22 15:13 questions 5:20 6:2 15:14 21:20,22 R range 21:1,3,14 reason 5:14 6:1 9:22 reasonably 11:4 reasons 4:20 5:21 recall 8:2 received 10:4 recognize 12:3 record 4:7 5:14 11:12,13 14:16,17 15:6 16:7,12,22,23 16:25 recorded 4:11,15,20 10:8 17:3,12,16,21 18:2 reference 20:10 regarding 9:23,24 Registered 1:25 22:16 remember 5:7 8:1 10:14 11:8 rep 8:1,25 repeat 6:12 13:21 reporter 1:25 4:16 22:16 representation 10:10 representative 7:14,18,21 representing 10:12 residence 18:3,7,12 response 4:21 responses 5:8 10:18 restaurant 12:17,18 review 6:7,10,13,20,22 reviewed 10:24,25 right 5:11 8:3 9:17,22 10:21 10:23 11:15 13:4,11 14:21 15:9 17:20 20:15,19,22 21:4 21:15 River 7:8 Road 2:3 7:8 ROSENBERG 2:2 rules 4:18 S sake 20:10 satisfy 5:9 saying 13:20 16:2 20:5,17,23 says 13:25 14:1 15:19 17:23 school 8:6,8,9 9:5,7 schooling 9:2 second 6:7 10:16 see 12:23,24 13:12,24 14:5,9 14:21 16:20 seen 16:2 sent 16:7 September 10:18 11:15 17:25 set6:7 10:16 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com q [Page 4] shake 4:23 Shermans 18:5 21:7 shoulder 4:23 show 6:20 11:18 12:17 showed 10:14 17:1 shows 13:6 shrug 4:23 side 15:7 sign 13:7,13,17,23 14:4,9,12 15:15,16 similar 4:14,19 slide 15:15 slider 14:13 slides 14:4,4 sliding 13:18 slip 9:25 15:18 sorry 13:22 sort 9:1,19,25 12:2 15:2 sounds 21:5 speak 15:6 speaking 19:16 speaks 14:24 15:3,10 Starrick 1:25 22:15 started 6:5 17:23 state 4:8 7:21,23 8:1 9:2,5,7 9:15,16 15:5 16:11 statement 4:15,20 10:5,8 16:9 17:3,12,16,21 18:2 21:12,13 statements 4:11 STEPHEN 2:2 Steve 15:1 16:7 stipulate 15:20 stopped 20:4 21:10 . store 20:4 Street 1:19 2:7 Suite 2:3 sure4:21 6:13 9:8 sworn 4:2 22:11 T take 4:10 5:13 10:4,5 11:17 12:10 17:10,11,18,20 taken 1:17 12:7 17:16 18:1,2 18:14 19:22 20:6,12,18 21:2 22:10 takes 21:6 talk 5:1 talked 17:4 talking 4:15 5:1,2 14:21 te114:19 12:24 14:11,15 15:24 Ten 1:19 2:7 test 5:6 testified 4:3 testimony 22:10 Thai 1:6 9:24 18:7 thank 13:12 15:8 thing 15:7 things 9:2 think 7:12 10:21 12:9 13:3 17:22 thinking 20:3 21:2 three 12:20 time 11:21 12:18 15:24 16:16 16:18,19,20 17:8,20,21 18:15,18,22,23 19:7,10,11 19:18,23 21:1,3 times 17:2 title 7:13 titles 7:15 today 10:24 today's 6:14,23 training 9:1 transcript 17:23 18:1 22:12 traveled 18:6 Tree 19:5 tried 9:15 trip 20:2 try 4:21,24 5:1 trying 20:25 Tuesday 11:16 two 9:15 type 9:2 U uh-huh 4:22 undergo 9:1 understand 5:22 13:19 University 8:15 V various 16:13 verbal 4:21 vs 1:5 W want 16:20 way 5:22 we'll 15:20 we're 4:10 9:22 20:23 Wednesday 1:21 week 11:8 weeks 9:7 went 17:17 wider 13:18 Williams 1:19 2:6 witness 3:1,1 22:11 Wolf 19:5,23 20:3,8 word 11:17 work 7:23 9:25 worked 7:11 working 7:19,20 X Y Yeah 12:24 21:11 year 8:10 years 7:12 8:16 9:15 Z 0 1 13:76:21 12:3 17:11 18:11 18:15 10:00 1:23 10:25 17:24 10:30 18:16 21:23 10:50 17:24 21:13 1121:3 110 19:5 1195 7:8 12/16/69 8:4 1300 2:3 16 9:24 17 1:21 17013 2:7 17110 2:3 17547 7:8 1988 8:11 2 22:3 15:2 21:3 2:57 18:24 19:20,22 21:14 2010 9:24 10:19 17:25 2012-4563 1:3 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com [Page 5] 2014 1:23 3 30 20:11,12,18,20 4 43:3 5 6 6 3:7 7 7 10:18 11:15 7th 17:25 8 9 9/7/2010 18:24 928:17 877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 MARTSON LAW OFFICES By Ami J. Thuna V Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: January 16, 2015 //AL , ;tea (17— .i.H Pi-',U I H�C,J 1,,iiY. L315 j0 16 PM 12) 36 CUM: RLANi) COUNTY PENNSYLVANIA Stephen G. Held (PA 72663) HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Ph. 717.238.2000 Fax 717.233.3029 held@hhrlaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARBARA MISICKO & DAVID MISICKO, Plaintiffs, v. CHALIT'S THAI BISTRO, Defendant. No. 2012 - 4563 Civil CIVIL ACTION — LAW Attorneys for Plaintiffs PLAINTIFFS' RESPONSE TO DEFENDANT, CHALIT'S THAI BISTRO'S MOTION FOR SUMMARY JUDGMENT Plaintiffs, Barbara and David Misicko ("Mr. & Mrs. Misicko" or "Plaintiffs"), by and through their attorneys, HANDLER, HENNING & ROSENBERG, LLP, file the within response to Defendant, Chalit's Thai Bistro ("Defendant") Motion for Summary Judgment. 1. Admitted with clarification. On or about August 16, 2010, at about 4:00 p.m., Mrs. Misicko was entering the Premises when she slipped on the wet floor, which caused her to fall abruptly and hard upon the tile floor. Mrs. Misicko sustained severe personal injuries, including, but not limited to, back and spinal injuries, headaches and ongoing pain. 2. No response is required. The document speaks for itself. 3. No response is required. The document speaks for itself. 4. No response is required. The document speaks for itself. 5. Denied. Plaintiff was aware she was entering a business, saw no indication that the restaurant was closed, and the doors were unlocked. She entered the premises as a business invitee at approximately 4:00 p.m., when the business was open for dinner. The time of the incident, and whether or not there was a sufficient indication to the public that no one was allowed to be in the restaurant at the time of the incident is a question of material fact for trier of fact and its resolution determinative as to Plaintiff's status as an invitee, licensee or, trespasser and the corresponding level of are owed to Plaintiff. 6. Admitted. 7. Admitted. 8. Admitted to the extent that paragraph 8 states Pennsylvania Rule of Civil Procedure 1035.2. Plaintiff denies that the Rule requires summary judgment in this case. Summary judgment is not appropriate when there remains a dispute issue of material fact and Defendant is not entitled to judgment as a matter of law. 9. Denied. Defendant is not entitled to summary judgment as a matter of law because "the determination of whether an entrant upon land is an invitee, a licensee, or a trespasser is one of fact for the jury." Palange v. City of Phila., 640 A.2d 1305, 1307 (Pa. 1994). "Only where the evidence is insufficient to support an issue as to the entrant's status may it be appropriate for a court to remove that issue from the jury." Id. 10. Admitted with clarification. Courts view the evidence "in the light most favorable 2 to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005). (emphasis added). 11. Admitted with clarification. Pennsylvania has adopted Section 332 of the Restatement (Second) of Torts which provides that: " (1) An invitee is either a public invitee or a business visitor. (2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." See ex: Gillingham v. Consol Energy, Inc., 51 A.3d 841, 849-50 (Pa. Super 2012); Updyke v. BP Oil Co., 717 A.2d 546, 549 (Pa. Super. 1998). 12. Admitted with clarification. Pennsylvania has adopted Section 343 of the Restatement (Second) of Torts, which provides that the possessor of land is subject to liability "if he: "(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger." See. Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983); Farabaugh v. Pa. Tpk. Comin'n, 911 A.2d 1264, 1272 n.10 (Pa. 2006); Gillingham v. Consol Energy, Inc., 51 A.3d 841, 850 (Pa. Super 2012). 13. Admitted with clarification. "To charge a defendant store with constructive notice of a harmful condition a plaintiff need not produce positive testimony as to how long the defect 3 existed if: (1) the defect is of a type with an inherently sustained duration, as opposed to a transitory spill which could have occurred an instant before the accident; and (2) a witness saw the defect immediately before or after the accident" Neve v. Insalaco's, 771 A.2d 786, 791 (Pa. Super 2001) 14. Denied. Plaintiff and members of her party witnessed the wet floor immediately after Mrs. Misicko's fall. Defendant's manager, Laura Mckechnie, testified in her deposition that she arrived at Chalit's Thai Bistro no more than ten (10) minutes before the incident. (Mckechnie Depo. 14:20-22, Oct. 7, 2014. Attached as Exhibit A). Ms. Mckechnie also testified that it was raining at the time of her arrival, and that it had been "raining all day long." (Mckechnie Depo. 8:18-21; 7:18-19). Chalit Kijcharoen, owner of Chalit's Thai Bistro, testified in his deposition that the front door unlocked while the restaurant is closed between 2:00 p.m. and 4:00 p.m. because the front door is the only means of ingress and egress for patrons and restaurant staff alike. (Kijcharoen Depo. 27:6-25, Oct. 7, 2014. Attached as Exhibit B). When Ms. McKechnie arrived approximately 10 minutes prior to the arrival of the Misi.ckos at th.e restaurant, she entered through the front door. Mr. Kijcharoen also testified that there was no awning over the door at the time of the incident and that during rainy weather; rain would come in with the person as soon as the door is opened. (Kijcharoen Depo. 14:7-1.5.) Curiously, neither Mr. Kijcharoen nor Ms. McK.echnie asserts that there were any efforts made to dry the floor after Ms. McKechnie's entrance just minutes before the incident. Ms. Mckechnie also testified that occasionally patrons come into the restaurant's unlocked doors between the lunch and dinner hours and are told to leave. (McK.echnie Depo. 14:23-25; 15:1-10). Despite the foregoing, Ms. McKechnie testified that she had not "gotten around to" putting the mat back in place in front of the door at the time of the incident. (McKechnie Depo. 9:4-10) 4 15. Admitted in part and denied in part. Mr. Misicko testified that he had "no idea" whether his shoes got wet in the course of his journey from the parking lot to the restaurant entrance, only that he "assume[d] they did because everything was [wet]" (David Misicko Depo. 7:9-12, March 13, 2014. Attached as Exhibit C). 16. Admitted in part and denied in part. It is undisputed that it was raining at the time Ms. Misicko entered the restaurant and that it had been raining for hours prior to the incident. It is denied that no one entered the restaurant after 2:00 p.m. Ms. McKechnie entered the restaurant approximately 10 minutes before Ms. Misicko entered the restaurant. (McKechnie Depo. 14:20-22). Further, the owner was aware of the tendency of rain to come into the restaurant whenever the front door was opened during periods of rain (Kijchroen Depo. 14:7-15). The area in front of the door was wet and it is undisputed that the mat was not in place in front of the door at the time iof Mrs. Mi.sicko's fall. 17. Denied. Plaintiff did not see any sign indicating that the restaurant was closed. The area in front of the door was not dry. It was raining and Ms. McKechnie entered through the door approximately 10 minutes before Ms. Misicko fell. (McKechnie Depo. 14:20-22). Further, the owner was aware of the tendency of rain to come into the restaurant whenever the front door was opened during periods of rain (Kijchroen Depo. 14:7-15). While it is undisputed that Ms. McKechnie did not give express permission to Ms. Mi.sicko to enter the restaurant, it was close to 4:00 p.m., when the restaurant opened for dinner, and patrons occasionally came into the restaurant during the "closed" time between lunch and dinner. (MeKechnie Depo. 14:23-25; 15:1-10). Such patrons are able to enter the "closed" restaurant because the door is always left unlocked between 2:00 p.m. and 4:00 p.m. (Kijchroen Depo. 27:6-25). 18. Denied. The evidence in this matter plainly shows that Defendant had constructive 5 and actual notice that there was a dangerous condition, specifically a wet and slippery floor inside the front entrance, that members of the public could, and occasionally actually did enter the restaurant during "closed" periods, that during periods of rain, rainwater would enter the restaurant, and yet still failed to exercise reasonable care to remedy the dangerous condition. 19. Denied. Mrs. Misicko was a business invitee at the time of the incident. 20. Denied. Mrs. Misicko was a business invitee. "The duty of care owed to a business invitee (or business visitor) is the highest duty owed to any entrant upon land." Emge v. Hogosky, 712 A.2d 315, 317 (Pa. Super. Ct. 1998); Gutteridge v. A.P. Green Servs., 804 A.2d 643, 656 (Pa. Super 2002). The possessor of land has "an affirmative duty to protect a business visitor not only against known dangers but also against those which might be discovered with reasonable care." Gutteridge, 804 A.2d at 656 (Pa. Super 2002). 21. Denied. The document speaks for itself. 22. Denied. Paragraph 22 contains conclusions of law to which no response is required. To the extent that a response is deemed to be required, the allegations of this paragraph are denied. By way of further answer, please refer to Plaintiffs' responses to paragraphs 9, 11, and 12, supra. 23. Denied. Plaintiff was not a trespasser, accidental or otherwise. Mrs. Misicko was a business invitee, "a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land," entering the restaurant at the beginning of their dinner business hours. Gillingham v. Consol Energy, Inc., 51 A.3d 841, 849-50 (Pa. Super 2012). Even if Mrs. Misicko entered the restaurant a few moments prior to 4:00 p.m., it was the custom of the restaurant to leave the door unlocked between 2:00 p.m. and 4:00 p.m., knowing that people could and sometimes did in fact enter the restaurant during these closed 6 hours. The fact that Mrs. Misicko was hoping to find therein an Internet cafe rather does not change the result, as she intended to enter a business that is open to the public. Further, the definition of business invitee "is not limited to those coming upon the land for a purpose directly or indirectly connected with the business conducted thereon by the possessor, but includes as well those coming upon the land for a purpose connected with their own business which itself is directly or indirectly connected with a purpose for which the possessor uses the land," Straight v. B. F. Goodrich Co., 47 A.2d 605, 606 (Pa. 1946), (quoted in Gutteridge v. A.P. Green Servs., 804 A.2d 643, 656 (Pa. Super 2002)). The rule in Oswald v. Hausman has no application in the present matter. 548 A.2d 594 (Pa. Super. 1988). There, the decedent apparently believed he was on a public road that was in fact a private driveway that was not cleared of ice and snow, became stranded, and froze to death. Mrs. Misicko intended to enter a business located at 5103 Carlisle Pike in Mechanicsburg Pennsylvania, and did in fact enter a business at that address. The mere fact that the business was of a somewhat different character than the business she anticipated is irrelevant. 24. Admitted in part and Denied in part. Admitted to the extent that Paragraph 24 reflects the content of the deposition. Denied to the extent that Defendant alleged that there was a visible "closed" sign on the door. 25. Admitted in part and Denied in part. Admitted to the extent that Paragraph 25 reflects the content of the deposition. Denied to the extent that Defendant alleged that there was a visible "closed" sign on the door. 26. Admitted in part and Denied in part. Plaintiff does not claim that she received an express invitation to enter the restaurant. As a business invitee, it was not necessary for Mrs. Misicko to obtain express permission before entering a business open to the public. 7 27. Admitted in part and Denied in part. Plaintiff does not claim that she received an express invitation to enter the restaurant. As a business invitee, it was not necessary for Mrs. Misicko to obtain express permission before entering a business open to the public 28. Admitted in part and denied in part. While David Misicko testified that he did not deny that there was a closed sign on the restaurant door, he repeatedly testified that he did not know whether or not there was a sign there. (David Misicko Depo. 12:16 —13:4). 29. In considering all of the evidence in the light most favorable to the non-moving party, there is a genuine issue of material fact as to what time Ms. Misicko entered the restaurant, what her entrant status was at the time of the incident and therefore the level of duty owed to her by Defendant, and whether Defendant by its actions or omissions failed in carrying out that duty. 30. Admitted. 31. Admitted. WHEREFORE, Plaintiffs respectfully request that Defendant, Chalit's Thai Bistro's, Motion for Summary Judgment be DENIED. Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP Dated: Jan. , 2015 By: SteA 72663) 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Ph. 717.238.2000 Fax. 717.233.3029 held@hhrlaw.com Attorneys for Plaintiffs, Barbara and David Misicko 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 side of the sign that the people on the inside of the restaurant would see? A. Yes. Q. Now, Laura, are you sure that the sign indicated Closed on the day of the accident? A. Absolutely, yes. Q. Now, how is your recollection on the day of the accident? A. I remember it like it was yesterday. It was something I had never seen or encountered before so I can recall it very clearly. Q. Had anything like this happened before where someone comes in and falls at the front door? A. Absolutely not. Q. Now, you were working the day of the accident August 16, 2010? A. Yes. Q. And do you remember the weather? A. It was raining all day long. Q. And you had been already opened for the lunch crowd? hours. A. Yes. Yeah, we had already served our lunch Q. Was it raining during that time? A. Yes, it was. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtrepo EXHIBIT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 Q. Had anyone fallen at that time? A. Absolutely not. Q. And was lunch served until about 2 p.m.? A. Yes. Q. And at what point did you change the sign from open to closed? A. Between 1:50 and 2:00. It was flipped by 2:00. Usually we do it a little bit before then. Q. And on that day what occurred between the closing of the restaurant and the time the Plaintiff came in and fell? A. Closing down for lunch, the entire restaurant was cleaned, we set out our dinner plates; and then once everything has been properly cleaned, the lunch crew then leaves and then an opener, myself that day, comes in before dinner to do any final touches on cleaning and final prep for the store, or the restaurant. Q. And you had come in to do that on that day? A. Yes. Q . Was it still raining at that time? A. Yes. Q . Now, I'm showing you page 2 of Chalit Exhibit Number 1 which shows the front door area. On the day of the accident at the time just before the accident, was the area on the inside of the door, what was the CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 condition of the floor in that area? A. It was clean and dry. Nobody had come in, so there was no water or rain on the ground. Q. And before the Plaintiff fell, was the mat approximately in that position, or had it been moved at all? A. The mat had not been in its proper place yet because I had not gotten around to cleaning the lobby area and putting the mat and chairs in their proper place. Q. And what's your practice with regard to the front door mat before the restaurant flips to Open and customers are allowed in for dinner? A. It is adjusted to be closer towards the door, especially when it's raining, it's abutted right up against the door. Before we flip the sign, it's put in its proper place, moved forward. Q. Now, the time of the accident, what time did you say you came in? A. I come in between 3:30 and 3:45. Q. And that was on the day of the accident? A. Correct. Q. And how much after the time you came in did the accident happen? A. Not long after. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. Q. Okay. What are your usual hours at working at Chalit's? A. My hours that I work? Q. Yeah. A. It varies every week. Typically I work every single day at least one of the shifts. Most of the time I do work doubles, but every week is different so I cannot give you a definite answer. Q. How many days a week is the restaurant open? A. Six. Q. It's closed Sunday? A. Correct. Q. So you do occasionally work Saturdays as well? A. Oh, yeah, absolutely. Q. And do you remember what time you got in on August 16th, 2010? A. After 3:30, before 3:45. Q. Had you been there long before this event with Mrs. Misicko and her fall happened? A. No more than ten minutes. Q. Okay. In your years working as a manager at Chalit's, have you ever seen people come in early before the store is open? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 A. We don't let them in. Q. And when you say you don't let them in, what do you do? A. Most people don't try and come in. They see the sign; they, you know, do not try and come in. If anybody does, we let them know that we are notlopen for business yet, we are still setting up, and we tell them when we are open and -- Q. Politely ask them to leave? A. Yeah, absolutely. Q. Did you hear Mrs. Misicko complain about any body parts being injured after her fall? A. I remember her husband had told us that she had had back issues and he was concerned for her then. I do not recall hearing her say anything had specifically had hurt her at that time. Q. Did you see her put ice on any part of her body or somebody put ice on her? A. Not that I can definitely recall. Q. Do you remember the ice being used, though? A. It was handed to her husband to place on her. I want to say he held onto it for awhile to ask her what she needed. Q. Okay. And you don't remember what her response was, what she needed? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 Q. It seems like that? A. Yes. Q. Now, when the store is closed overnight, let's say, you lock this front door, right? A. Yes. Q. Is there a reason you do not lock it between 2 and 4? A. No. We did not lock it. Q. Is there a reason why you don't lock it when you close for the lunch break? A. There's no -- because basically you cannot lock it from this side. We can lock it from the other door, but this one we have to lock it from the outside. Q. Okay. I gotcha. So if you lock the front door during that 2 to 4 break, someone would have to go out the front door and lock it? A. Um -hum. Q. Is there an entryway in the back for, like, staff members? A. No. Q. So there would be no way that person could go back in? A. Right. Q. All right. I gotcha. A. We don't have access to the back. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Did the brother and sister dash too? A. I wasn't paying attention to them. They were in the backseat,. and I know they got out of the car and I was parking at that point. Q. After you parked the car, did you dash into the restaurant? A. I got as quickly as I could from the car to the restaurant, yes. Q. And did your shoes get wet as you were going from the car to the restaurant? A. I have no idea, but I assume they did because everything was -- it was teeming. Q. Did you have any conversations with the employees in the restaurant? A. I must have. I remember speaking with the both of them, and I agree with Barbara that they were helpful, kind. I also remember a conversation having to do with I'm looking for the Internet Cafe. I'm the one who said I know where there's an Internet Cafe. That was me; that was my idea. So I drove to where I thought there was an Internet Cafe. Said, here it is, guys, go on in. So eventually after we, Barb was seated, I did look around and say, did this used to be an Internet Cafe. And they said, yes, it did. And I was surprised CENTRAL PENNSYLVANIACOURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 Q. Does anyone else live there with you? A. We have a son who's a full-time student at Shippensburg, so he's there when school is not in session a lot of the time. Even when school is out of session he still sometimes is not there. There's three in the household, but he's a full-time student. Q. When he's in school, does he stay there overnight at Shippensburg? A. Yes. He has an apartment in Shippensburg. MR. DEARDORFF: I don't know; was he listed as a witness, Steve? MR. HELD: I don't know. MR. DEARDORFF: I think that's all I have, Mr. Misicko. Oh, I do have another question. BY MR. DEARDORFF: Q. Mr. Misicko, I'm sorry about this. Did you notice whether there was a sign or not on the front door saying that the restaurant was closed? A. I did not. Q. So just like with your wife, the people I represent at the restaurant say there was a sign that said closed. Are you disputing that? A. Am I disputing that the restaurant -- Q. That they put a sign up that said closed. A. I have no idea whether they put a sign up CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com Stephen G. Held Attorney ID# 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax : (717) 233-3029 E-mail: Held@hhrlaw.com Attorney for Plaintiff(s) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY COURT OF COMMON PLEAS COUNTY, PENNSYLVANIA BARBARA MISICKO and DAVID MISICKO, her husband„ Plaintiff(s) v. CHALIT'S THAI BISTRO, Defendant(s) 2012-4563 Civil Action - Law CERTIFICATE OF SERVICE On, January 14, 2015, I hereby certify that a true and correct copy of Plaintiffs' Response to Defendant, Chalit's Thai Bistro's Motion for Summary Judgment was served upon the following by depositing same in the United States Mail, in Harrisburg, Pennsylvania: Daniel K. Deardorff, Esq. MARTSON, DEARDORFF, WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 Attorney for: Chalit's Thai Bistro HANDLER, HENNING & ROSENBERG, LLP