Loading...
HomeMy WebLinkAbout13-1446 FURIA and TURNER By: JAMES M. TURNER., JR., ESQUIRE Attorney for Plaintiff Identification No.: 09878 THIS IS A MAJOR JURY MA'[ I 1719 Rittenhouse Square ASSESSMENT OF DAMAGES IS Philadelphia, PA 19103 REQUIRED (215) 985 -4500 ROCIO BARRIOS COURT OF COMMON PLEAS 848 Woodlawn Drive CUMBERLAND COUNTY Chambersburg, PA 17201 V. 13 - 10 GIANT FOOD STORES, LLC ' "� 1149 Harrisburg Pike Carlisle, PA 17013 NOTICE TO DEFEND -CIVIL 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 AN ATTORNEY AND FILLING 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 HAVF-A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET F(NJTI BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION U- r - 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1- 800 - 990 - 9108 717 - 249 -3166 U� C 0233 q FURIA and TURNER, LLC By: JAMES M. TURNER, JR., ESQUIRE THIS IS A MAJOR JURY 1719 Rittenhouse Square MATTER. Philadelphia, PA 19103 ASSESSMENT OF DAMAGES (2] 5) 985 -4500 IS REQUIRED ROCIO BARRIOS COURT OF COMMON PLEAS 848 Woodlawn Drive CUMBERLAND COUNTY Chambersburg, PA 17201 V. : GIANT FOOD STORES, LLC 1 ] 49 Harrisburg Pike Carlisle, PA 17013 CIVIL ACTION COMPLAINT 1. Plaintiff, ROCIO BARRIOS is an adult individual residing at 848 Wood.lawn Drive, Chambersburg, Pennsylvania 17201. 2. Defendant, GIANT FOOD STORES, LLC, is a non -profit corporation, partnership, sole proprietorship, unincorporated association, or other legal entity doing business and existing under the laws of the Commonwealth of Pennsylvania with its principal place of business located at 1 149 Harrisburg Pike, Carlisle, PA 17013 and as such owned, operated, supervised, controlled and maintained a facility at 993 Wayne Avenue, Chambersburg, Pennsylvania 17201. 3. On or about April 28, 2011, Defendant, GIANT FOOD STORES, LLC were the owners and or agent for the owner of certain real property known as GIANT FOOD STORE, located at 993 Wayne Avenue, Chambersburg, Pennsylvania 17201, and as such owned, maintained, occupied, possessed and /or controlled the premises therein. 4. At all times relevant hereto, Plaintiff, ROCIO BARRIOS, was a lawful invitee on the premises known as GIANT FOOD STORE. 5. On or about April 28, 2011, at or about 11:00 a.m., Plaintiff, ROCIO BARRIOS, was lawfully in, around and /or near the premises located at 993 Wayne Avenue, Chambersburg, Pennsylvania known as GIANT FOOD STORE, which is a property owned and operated by Defendant, GIANT FOOD STORES, LLC and was lawfully an invitee and /or licensee on said premises. 6. On or about the aforesaid date and time, Plaintiff, ROCIO BARRIOS, was walking through said store when she was caused to slip and fall on a water substance, which said fall resulted in serious and permanent personal injuries as hereinafter more particularly set forth at length. 7. On or about April 28, 2011, Defendant, GIANT FOOD STORES, LLC did own, manage, maintain, lease and /or control the premises known as GIANT FOOD STORE, and was responsible for all activity going on at that location on the aforesaid date. S. Defendant, GIANT FOOD STORES, LLC, by their agents, servants, workmen and /or employees were, at all time relevant hereto, responsible for the condition of the property known as GIANT FOOD STORE. 9. Plaintiff, ROCIO BARRIOS avers, it was the duty of Defendant, GIANT FOOD STORES, LLC to maintain the property referred to above in a reasonably safe condition for it's intended use and free from all dangerous conditions, such as soiled floors, which Defendant knew or should have known was occurring, existed, and rendered the property dangerous and unsafe, or which would present an unreasonable risk of harm to her. 10. Plaintiff, ROCIO BARRIOS, avers, it was the duty of Defendant, GIANT FOOD STORES, LLC to have available sufficient personnel to properly inspect and maintain the 2 aforesaid properties in a reasonably safe condition and to warn of the existence of dangerous conditions such as a soiled floor as referred to above. 11. Plaintiff, ROCIO BARRIOS further avers that it was the duty of the Defendant, GIANT FOOD STORES, LLC to exercise reasonable care to protect the Plaintiff from injury by inspection of the premises or by other affirmative acts such as warning Plaintiff of the existence of dangerous conditions occurring on the said property such as a soiled floor as referred to above: 12. The aforesaid accident was caused by the negligence and carelessness of Defendant, GIANT FOOD STORES, LLC in: (a) Failing to exercise due regard for the rights and safety of the Plaintiff by permitting spills to exist on the floors in question, while invitees remained in the premises; (b) Negligently causing spills on the floors in question to exist while invitees remained in the premises; (c) Failing to maintain the floors on the premises in a reasonably safe condition by allowing spills to exist on said floors while invitees remained in the premises; (d) Maintaining the floors in a dangerous and defective condition by not mopping or cleaning same; (e) Failing to warn persons on the premises of the dangerous floors located on the property which Defendant knew, or should have known, existed for some time prior to the aforesaid incident by placing notice signs alerting invitees to the existence of spills on the floors; (f) Failing to instruct, and inform its agents, servants, workmen and /or employees of the safe method of maintaining and cleaning the floors in question; (g) Permitting said floors to remain in a dangerous state which would endanger those persons lawfully on the premises by allowing same to remain wet, while invitees remained in the premises; (h) Failing to personally inspect the floors located at said premises or to request and supervise periodic inspections of the floors by its agents; 3 (i) Acting in disregard of the rights and safety of the persons lawfully on said premises by permitting unsafe and soiled floors to exist on said property; (j) Failing to warn Plaintiff of the dangerous wet floors on said property of which Defendant knew or should have known existed; (k) Failing to maintain said floors in a proper condition, which Defendant knew or should have had due and proper notice; (1) Being guilty of willful, wanton and gross misconduct and negligence by permitting unsafe soiled floors to exist on said property; (m) Allowing and permitting an unsafe soiled floors to be left in an unsafe condition thus rendering the floors itself dangerous, unsafe, improper and unstable; (n) Failing to properly, maintain, supervise and /or direct that their employees, agents and /or workmen on the proper methods of cleaning floors; (o) Failing to inspect the aforesaid premises at reasonable intervals in order to determine the defective, dangerous and unsafe condition of the floors on said property; (p) Disregarding the rights and safety of the Plaintiff, and others lawfully using the premises by permitting unsafe soiled floors to exist on said property; (q) That said Defendant knew, or should have known, about the highly dangerous, defective, hazardous and unsafe condition, existing about and upon its premises, which was caused by an unsafe and improperly cleaned floors; (r) That said Defendant maintained the aforesaid floors contrary to the general safety standards, precautionary standards, and other safety standards of the industry in violation of the appropriate federal, state and local laws, rules, regulations and code; (s) That said Defendant maintained the aforementioned floors in complete violation of local building permit and building use statutes, as well as township building use statutes and township building permit statutes; (t) That said Defendant was negligent per se by permitting unsafe soiled floors to exist on said property; (u) That said Defendant was otherwise negligent as may be determined through discovery proceedings pursuant to the Pennsylvania Rules of Civil Procedure by permitting unsafe wet floors to exist on said property; 4 (v) Being liable for acting contrary to the care required by Sections 410., 413, 324A, 414, 416, 422, 424, 426 and 427 of the Restatement of Torts 2 nd as adopted in Pennsylvania by permitting unsafe soiled floors to exist on said property; (w) That said Defendant is otherwise liable for acting contrary to the care required by the Restatement (Second) of Torts, as adopted in Pennsylvania by permitting unsafe soiled floors to exist on said property; (x) Maintaining the floors in question in a dangerous and defective condition by permitting same to remain soiled, while invitees remained in the premises; (y) Failing to inspect the floors in question at reasonable intervals, in order to determine the defective, dangerous and unsafe conditions thereon; (z) Failing to discover the unsafe soiled floors on the premises in question, (aa) That said Defendant knew, or should have known, of the highly dangerous, defective, hazardous and /or unsafe soiled floors existing about and upon the premises in question, and failed to warn the Plaintiff of its existence: (bb) That said Defendant failed to warn Plaintiff of the hazardous, dangerous and defective soiled floors on the premises in question by failing to place warning signs in the vicinity of same; (cc) Said Defendant permitted the aforesaid property to become and to remain in a dangerous, defective, hazardous and unsafe condition so as to constitute a menace, danger, nuisance, snare and trap for persons lawfully conducting business on said property by permitting unsafe soiled floors to exist on said property, while invitees remained in the premises where said floors was located; 13. The aforesaid accident was due entirely to the negligence of the Defendant, it's agents, servants, workmen and /or employees acting within the scope of their employment for and on behalf of the Defendant. 14. As a direct and proximate result of the aforesaid negligence of the Defendant, the Plaintiff, ROCIO BARRIOS, sustained severe and permanent injuries to her body, by reason of which she was rendered sick, sore, lame and disordered. More particularly, Plaintiff suffered severe and permanent injuries to the bones, muscles, tendons, ligaments, nerves and tissues of her. left knee, right shoulder, back and neck, the full extent of which is not yet known, including 5 but not limited to, cervical sprain and strain; superior labrum tear of the right shoulder; C4 -5 and C5 -6 disc bulge, and injuries to her nerves and nervous system, whereby she has in the past, and will in the future, continue to suffer severe pain. 15. Plaintiff s injuries caused constant pain, discomfort, and limitation of motion, all of which injuries are or may be of a permanent nature. 16. Plaintiff was made to undergo great mental anguish and bodily pain, as a result of which she has suffered, yet suffers, and will continue to suffer great mental anguish and bodily pain for an indefinite time in the future. She sustained a severe and permanent shock to her nerves and nervous system, and has, may and probably will in the future, continue to suffer great mental anguish and bodily pain. 17. Plaintiff, as a result of said injuries, has and probably will in the future be obliged to expend large and various sums of money for medicine and medical attention in and about an effort to treat and cure herself of her injuries. 18. As a further result of this accident, Plaintiff has, and will continue in the future, to be obliged to undergo medical attention and care, expend various sums of money, and incur various expenses for the injuries she has sustained. Plaintiff may be obliged to continue to expend such sums or incur such expenses for an indefinite time in the future. 19. As a further result of the accident, Plaintiff has or may suffer an injury which may be of a psychological nature, all of which may and probably will be of a permanent nature or irreparable and severe. 20. As a further result of this accident, Plaintiff has suffered and may continue to suffer, a severe loss of earnings and /or impairment of her earning capacity and power. 21. As a direct and proximate result of this accident, Plaintiff has, or may in the 6 future. incur other financial losses or expenses, which do or may exceed amounts which she might otherwise be entitled to recover. 22. As a result of the Defendant's negligence, Plaintiff has and probably will in the future, be hindered from attending and performing her usual and daily activities, duties, and recreational social pursuits. WHEREFORE, Plaintiff, ROCIO BARRIOS, demands judgment against Defendant, GIANT FOOD STORES, LLC, in a sum in excess of Fifty Thousand Dollars ($50,000.00). FURIA AND TURNER y � 3y- S M. TURNE , J ., ESQUIRE orney for Plaintiff 7 VERIFICATION LI o� i o ,shereby verify that I am the Plaintiff in the within action; that the facts contained in the foregoing pleadings are true and correct to the best of my knowledge, information and belief, that these statements are made subject to the penalties of 18 PA C.S. X4904 relating to unsworn falsification to authorities. SHERIFF'S OFFICE OF CUMBERLAND COUNTY f=,LED-DFFICE Ronny R Anderson O THE PRQTHf.?I�+�o Tpji ,. Sheriff ��,���������4 Jody S Smith 2013 MAR 26 AM 9- 3 4 Chief Deputy Richard W Stewart " CUMBERLAND COUNTY K PENNSYLVANIA Solicitor °rF"CE Or T"��'�ER"'` Rocio Barrios Case Number vs. 2013-1446 Giant Food Stores, LLC SHERIFF'S RETURN OF SERVICE 03/20/2013 11:52 AM-Deputy William Cline, being duly sworn according to law, served the requested Complaint& Notice by handing a true copy to a person representing themselves to be Mike Riethmiller, Security Officer,who accepted as"Adult Person in Charge"for Giant Food Stores, LLC at 1149 Harrisburg Pike, Middlesex Township, Carlisle, PA 17013. J� MUIAAA CLINE, DEPUTY SHERIFF COST: $34.00 SO ANSWERS, March 21, 2013 R_0NR9 R ANDERSON, SHERIFF c)CountySuite Sheriff,Teleosoft inc. HE Pi By: Joseph M. Toddy, Esquire 2013 APR 29 imtoddyna zarwin.com Ptl 2: 12 Identification No.: 42484 CUMBERLAND COUNTY By; Michelle Sergent Kaas, Esquire PENNSYLVANIA mkaasgzarwin.com Identification No.: 80684 ZARWIN, BAUM, DeVITO, KAPLAN, SCHAER, TODDY, P.C. 1818 Market Street, 13th Floor Philadelphia, PA 19103 (215) 569-2800 (215) 569-1606 (Fax) ROCIO BARRIOS COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY vs. : No.: 13-1446 GIANT FOOD STORES, LLC JURY TRIAL DEMANDED Defendant. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of Defendant, Giant Food Stores, LLC, in the above-captioned matter. DEMAND FOR A JURY TRIAL BY A JURY OF TWELVE MEMBERS Defendant, by their undersigned attorneys, hereby request trial by a jury of twelve members. ZARWIN ♦BAUM ♦DEVITO KAPLAN ♦ SCHAER♦ TODDY*P.C. BY: Jy9P1yM. TODDY, SQ. BY: Dated: l Z 3 ICHELLE S RGE KAAS, ESQ. By: Joseph M. Toddy, Esquire i mtoddya,zarwin.com Identification No.: 42484 By: Michelle Sergent Kaas, Esquire mkaasa,zarwin.com Identification No.: 80684 ZARWIN, BAUM, DeVITO, KAPLAN, SCHAER, TODDY, P.C. 1818 Market Street, 13th Floor Philadelphia, PA 19103 (215) 569-2800 (215) 569-1606 (Fax) ROCIO BARRIOS COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY VS. No.: 13-1446 GIANT FOOD STORES, LLC JURY TRIAL DEMANDED Defendant. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Entry of Appearance with Jury Demand was served upon r the following named parties by United States Mail, first class, postage prepaid on oa /13 James M. Turner, Jr., Esquire Furia and Turner 1719 Rittenhouse Square Philadelphia, PA 19103 ZARWIN BAUM * DEVITO KAPLAN SCHAER * TODDY* P.C. B Y �— ' PH M. RGY, Q. MICHELLE(S E KAAS, ESQ. (� Attorneys for Defendant, Dated: °( 1 Giant Food Stores, LLC OF T t{E PROTHONOTARY TO THE PLAINTIFF: 2013 � �� y You are hereby notified to plead i to the enclosed Answer with New Matter within twenty(20)days CUMBERLAND COUNTY of service thereof or default PENNSYLVANIA judgment may be entered against you4o�s BY Ad 4q ' Michelle Sergebt KaaC&squire Attorneys for Defendant, Giant Food Stores,LLC By: Joseph M. Toddy, Esquire jmtoddy@zarwin.com Identification No.: 42484 By: Michelle Sergent Kaas, Esquire mkaasgzarwin.com Identification No.: 80684 ZARWIN, BAUM, DeVITO, KAPLAN, SCHAER, TODDY, P.C. 1818 Market Street, 13th Floor Philadelphia, PA 19103 (215) 569-2800 (215) 569-1606 (Fax) ROCIO BARRIOS COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY VS. , No.: 13-1446 GIANT FOOD STORES, LLC JURY TRIAL DEMANDED Defendant. DEFENDANT, GIANT FOOD STORES, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER Defendant, Giant Food Stores, LLC, by its attorneys, Zarwin, Baum, DeVito, Kaplan, Schaer, Toddy, P.C., hereby answers Plaintiffs Complaint as follows: 1. Denied. After reasonable investigation, the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. 2. Admitted in part; denied in part. It is admitted that Giant Food Stores, LLC is a legal entity with a principal place of business located at 1149 Harrisburg Pike, Carlisle, PA 17013. It is specifically denied that Giant Food Stores, LLC is a non-profit corporation, partnership, sole proprietorship or unincorporated association existing under the laws of the Commonwealth of Pennsylvania. To the contrary, Giant Food Stores, LLC is a Delaware Limited Liability Company. It is admitted that Giant Food Stores, LLC operated a grocery store at 993 Wayne Avenue, Chambersburg, PA 17201. The remainder of this averment is denied as a conclusion of law to which no response is required. 3. Admitted in part; denied in part. It is admitted that on or about April 28, 2011, Giant Food Stores, LLC operated a grocery store located at 993 Wayne Avenue, Chambersburg, PA 17201. It is specifically denied that Giant Food Stores, LLC owned this property. To the contrary, Giant Food Stores, LLC leased this property. The remainder of this averment is denied as a conclusion of law to which no response is required. 4. Admitted. 5. Admitted in part; denied in part. It is admitted that on or about April 28, 2011, Plaintiff, Rocio Barrios was in or around the premises located at 993 Wayne Avenue, Chambersburg, PA 17201 and that Giant Food Stores, LLC operated a grocery store at 993 Wayne Avenue, Chambersburg, PA 17201. It is specifically denied that I Giant Food Stores, LLC owned this property. To the contrary, Giant Food Stores, LLC leased this property. The remainder of this averment is denied as a conclusion of law to which no response is required. 6. Denied. After reasonable investigation,the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. Furthermore, this averment is denied as a conclusion of law to which no response is required. 7. Admitted in part; denied in part. It is admitted that on or about April 28, 2011, Giant Food Stores, LLC leased the premises at 993 Wayne Avenue, Chambersburg, PA 17201 and operated a grocery store on the premises. It is specifically denied that Giant Food Stores, LLC owned this property. The remainder of this averment is denied as a conclusion of law to which no response is required. 1 8. Denied. This averment is denied as a conclusion of law to which no response is required. 9. Denied. This averment is denied as a conclusion of law to which no response is required. 1 10. Denied. This averment is denied as a conclusion of law to which no response is required. 11. Denied. This averment is denied as a conclusion of law to which no response is required. 12. Denied (a—cc inclusive). This averment is denied as a conclusion of law to which no response is required. 13. Denied. This averment is denied as a conclusion of law to which no response is required. 14. Denied. After reasonable investigation, the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. Furthermore, this averment is denied as a conclusion of law to which no response is required. 15. Denied. After reasonable investigation, the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. Furthermore, this averment is denied as a conclusion of law to which no response is required. 16. Denied, After reasonable investigation, the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. Furthermore, this averment is denied as a conclusion of law to which no response is required. 17. Denied. After reasonable investigation, the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. Furthermore, this averment is denied as a conclusion of law to which no response is required. 18. Denied. After reasonable investigation, the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. Furthermore, this averment is denied as a conclusion of law to which no response is required. 19. Denied. After reasonable investigation, the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. Furthermore, this averment is denied as a conclusion of law to which no response is required. 20. Denied. After reasonable investigation,the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. Furthermore, this averment is denied as a conclusion of law to which no response is required. 21. Denied. After reasonable investigation,the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. Furthermore, this averment is denied as a conclusion of law to which no response is required, 22. Denied. After reasonable investigation,the Defendant is unable to form a belief as to the truth of this averment. Strict proof is demanded if deemed to be relevant at the time of trial. Furthermore, this averment is denied as a conclusion of law to which no response is required. WHEREFORE, Defendant, Giant Food Stores, LLC, demands that judgment be entered in its favor and against Plaintiff plus attorney fees and costs of suit. NEW MATTER 23. Defendant was not negligent. 24. Defendant performed each and every duty which it owed to the Plaintiff. 25. The injuries, damages and losses alleged by Plaintiff were due wholly to her actions and/or omissions and not in any way to any conduct on the part of Defendant. Therefore, Plaintiff is comparatively and/or contributorily negligent. 26. Plaintiff's alleged injuries and damages, if any, were caused in whole or in part by her assumption of the risk and would preclude the Plaintiff from recovery against Defendant and/or would reduce the amount of any such recovery against Defendant. 27. Plaintiff failed to act with due regard for her own safety under the circumstances. 28. Plaintiff had another pathway to which she could have availed herself but chose not to do so. Therefore, Plaintiff's claim is barred and/or limited by the operation of Pennsylvania Law. 29. Plaintiff was comparatively at fault to such an extent that Plaintiff's recovery should be barred and/or limited by operation of the Pennsylvania Comparative Fault Act. 30. There was no defect or dangerous condition on Defendant's premises. 31. Defendant did not have actual or constructive notice of any defect or dangerous condition(the existence of which is hereby specifically denied). 32. In the alternative, Defendant took adequate steps to attempt to protect the patrons from any dangerous or defective condition which therein may have existed in Defendant's store (the existence of which is hereby specifically denied). 33. In the alternative, the defect or dangerous condition (the existence of which is hereby specifically denied) was open and obvious. 34. Plaintiff has failed to mitigate her damages. 35. Plaintiff's claims are barred in whole or in part by the applicable Statute of Limitations. 36. Plaintiff's claims fail to state a cause of action. 37. Plaintiff's accident and/or injuries were caused in whole or in part by third persons over whom Defendant had neither control nor right of control. WHEREFORE, Defendant, Giant Food Stores, LLC, demands that judgment be entered in its favor and against Plaintiff plus attorneys fees and costs of suit. ZARWIN BAUM * DEVITO KAPLAN SCHAER * TODDY* P.C. BY: M. T D , u r^ MICHELLE S G NTJ1aAS, ESQ. Dated: Attorneys for Defendant, Giant Food Stores, LLC VERIFICATION I, Bruce Astrachan,hereby state that I am a representative of the Defendant, Giant Food Stores, LLC, in this action and verify that the statements made in the foregoing Answer to Plaintiff's Complaint with New Matter are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. B ce Astrachan anager, General Liability On behalf of Giant Food Stores, LLC The above answers are based upon inquiry of our agents and employees who advised me accordingly. Barrios v. Giant By, Joseph M. Toddy, Esquire ml toddy@zarwin.com Identification No.: 42484 By: Michelle Sergent Kaas, Esquire mkaasna,zarwin.com Identification No.: 80684 ZARWIN, BAUM, DeVITO, KAPLAN, SCHAER, TODDY, P.C. 1818 Market Street, 13th Floor Philadelphia, PA 19103 (215) 569-2800 (215) 569-1606 (Fax) ROCIO BARRIOS COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY VS. No.: 13-1446 GIANT FOOD STORES, LLC JURY TRIAL DEMANDED Defendant. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Answer to Plaintiff's Complaint with New Matter was served upon the following named parties by United States Mail, first class,postage prepaid on 2 0 James M. Turner, Jr., Esquire Furia and Turner 1719 Rittenhouse Square Philadelphia, PA 19103 ZARWIN BAUM * DEVITO KAPLAN SCHAER * TODDY* P.C. BY: PH M. =ENT Y, MICHELLE KAAS, ESQ. Attorneys for Defendant, Dated: l Giant Food Stores, LLC FILED-0Ff'! E OF THE RRJTHONO TAiI 1' 2013 MAY 10 PH t: 29 CUMBERLAND COUNTY FURIA and TURNER,LLC PENNSYLVANIA By: James M. Turner, Jr., Esquire Attorney for Plaintiff Identification No.: 39738 1719 Rittenhouse Square Philadelphia, PA 19103-6109 (215) 985-4500 ROCIO BARRIOS COURT OF COMMON PLEAS CUMBERLAND COUNTY V. GIANT FOOD STORES, LLC No.: 13-1446 PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER Plaintiff by and through his attorneys, Furia and Turner, files the following response to Defendants' New Matter as follows: 23. Denied. It is denied that Defendant was not negligent. To the contrary, Defendant was negligent. All allegations to the contrary are denied and strict proof thereof is demanded at time of trial. 24. Denied. It is denied that Defendant performed each and every duty which it owed to the Plaintiff. To the contrary, Defendant did not perform each and every duty which it owed to the Plaintiff. All allegations to the contrary are denied and strict proof thereof is demanded at time of trial. 25. Denied. It is denied that the injuries, damages and losses alleged by Plaintiff were due- wholly to her actions and/or omissions and not in any way to any conduct on the part of Defendant. To the contrary, the damages and losses alleged by Plaintiff were due wholly to the T . b actions and/or omissions of part of Defendant All allegations to the contrary are denied and strict proof thereof is demanded at time of trial, 26. Denied. It is denied that Plaintiffs alleged injuries and damages were caused in whole or in part by her assumption of the risk. To the contrary, Plaintiff did not assume the risk. All allegations to the contrary are denied and strict proof thereof is demanded at time of trial. 27. Denied. It is denied that Plaintiff failed to act with due regard for her own safety under the circumstances. To the contrary, Plaintiff acted with due regard for her own safety under the circumstances. All allegations to the contrary are denied and strict proof thereof is demanded at time of trial. 28. The averments contained in paragraph 28 of Defendant's New Matter are mere conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that an answer is required, Plaintiff denies each and every averment contained in paragraph 28 of Defendant's New Matter and demands strict proof of same at time of trial. 29. Denied. The averments contained.in paragraph 29 of Defendant's New Matter are mere conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that an answer is required, Plaintiff denies each and every averment contained in paragraph 29 of Defendant's New Matter and demands strict proof of same at time of trial. 30. Denied. It is denied that there was no defect or dangerous condition on Defendant's premises. To the contrary, there was a defect or dangerous condition on Defendant's premises. All allegations to the contrary are denied and strict proof thereof is demanded at time of trial. 2 31. Denied. It is denied that Defendant did not have actual or constructive notice of any defect or dangerous condition. To the contrary, Defendant did have actual or constructive notice of any defect or dangerous condition. All allegations to the contrary are denied and strict proof thereof is demanded at time of trial. 32. Denied. It is denied that Defendant took adequate steps to attempt to protect the patrons from any dangerous or defective condition, which existed in Defendant's store. To the contrary,Defendant did not take adequate steps to attempt to protect the patrons from any dangerous or defective condition, which existed in Defendant's store. All allegations to the contrary are denied and strict proof thereof is demanded at time of trial. 33. Denied. It is denied that the defect or dangerous condition was open and obvious. To the contrary, the defect or dangerous condition was not open and obvious. All allegations to the contrary are denied and strict proof thereof is demanded at time of trial. 34. Denied. It is denied that Plaintiff has failed to mitigate her damages. To the contrary, at all times relevant hereto, Plaintiff mitigated her damages. All allegations to the contrary are denied and strict proof thereof is demanded at time of trial. 35. Denied. The averments contained in paragraph 35 of Defendant's New Matter are mere conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that an answer is required, Plaintiff denies each and every averment contained in paragraph 35 of Defendant's New Matter and demands strict proof of same at time of trial. 36. Denied. It is denied that Plaintiffs claims fail to state a cause of action. To the contrary, Plaintiffs claims states a cause of action. All allegations to the contrary are denied and strict proof thereof is demanded at time of trial. 3 37. Denied. It is denied that Plaintiffs accident and/or injuries were caused in whole or in part by third persons over whom Defendant had neither control nor right of control. To the contrary, Plaintiffs accident and/or injuries were caused in whole or in part by third persons over whom Defendant had control or right of control. All allegations to the contrary are denied and strict proof thereof is demanded at time of trial. WHEREFORE, Plaintiff, demands that the Defendant's New Matter be stricken of record and that judgment be entered in favor of the Plaintiff and against the Defendant. FURIA and TURNER JAME M. TURNER, JR., ESQUIRE Attorney for Plaintiff 4 VERIFICATION hereby verify that I am the Plaintiff in the-within action; that the facts contained in the foregoing pleadings are true and correct to the best of my knowledge,information and belief;and that these statements are made subject to the penalties of 18 PA C.S. §4904 relating to unswom falsification to authorities. CERTIFICATE OF SERVICE I,JAMES M. TURNER,JR.,hereby certify that a true and correct copy of the within Pleading,was served upon the following individual(s) by first class mail on the below date: Michelle Sergent Kaas, Esquire Zarwin, Baum 1818 Market Street, 13th Floor Philadelphia, PA 19103 FURIA and TURNER, LLC DATED: �3 By: JAMES M. TURNER,JR., ESQUIRE Attorney for Plaintiff(s) 5 FURIA and TURNER,LLC By: James M. Turner, Jr., Esquire Attorney for Plaintiff Identification No.: 39738 1719 Rittenhouse Square Philadelphia, PA 19103-6109 (215) 985-4500 ROCIO BARRIOS : COURT OF COMMON PL• Ste; FURIA and TURNER, LLC By: James M. Turner, Jr., Esquire Attorney for Plaintiff Identification No.: 39738 1719 Rittenhouse Square Philadelphia, PA 19103-6109 (215) 985-4500 ROCIO BARRIOS COURT OF COMMON PLEA Ste; CUMBERLAND COUN "' - V. ryICO C- F'j-1 r r'a GIANT FOOD STORES, LLC No.: 13-1446 C) c= N STIPULATION TO AMEND COMPLAINT AND NOW, this / -4— day of , 2013, it is hereby stipulated by and between James M. Turner, counsel for Plaintiff and Michelle Sergent Kaas, Esquire, counsel for Defendant that the Complaint shall be Amended to correct the date of the incident from April 28, 2011 to June 8, 2011. e. DATE: MICHELLE SE T AS, ESQUIRE, Counsel for De endant DATE: JA M. TURNS , JR., ESQUIRE unsel for Pla' ' f APPROVED BY THE COURT: cis 2 a- ' 'CD -j J. ;z w� 120 1gs /yz�kjLL CO J. �� M. k%v CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA II PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS BARRIOU TERM, CUMBERLAND -VS- CASE NO: 13-1446 GIANT FOOD STORES, LLC As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of MICHELLE R. SERGENT, ESQUIRE certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. M A. DATE: 11/22/2013 / �� ,�_ � MICHELLE R. r E' w T, rQUIRE I, Attorney for D FEND••,T 1 Q :11 Z1 331� �,� 141 -40 MCS # 87246-LO1 DE11 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: COURT OF COMMON PLEAS BARRIOU TERM, -VS- CASE NO: 13-1446 GIANT FOOD STORES, LLC NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009 .21 CHAMBERSBURG HOSPITAL MEDICAL RECORDS CHAMBERSBURG HOSPITAL X-RAY ONLY BOROUGH OF CHAMBERSBURG AMBULA EMS RECORDS KEYSTONE INTERNAL MEDICINE MEDICAL RECORDS & XRAYS RESULTS THERAPY & FITNESS MEDICAL RECORDS & XRAYS SUMMIT ORTHOPEDICS MEDICAL RECORDS & XRAYS TO: JAMES M. TURNER, JR. , ESQ. , PLAINTIFF COUNSEL MCS on behalf of MICHELLE R. SERGENT, ESQUIRE intends to serve a subpoena identical to the one that is 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 the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 10/31/2013 MCS on behalf of MICHELLE R. SERGENT, ESQUIRE Attorney for DEFENDANT CC: MICHELLE R. SERGENT, ESQUIRE - 30266 THE MCS GROUP INC. JAMES M. TURNER, JR. , ESQ. 1601 MARKET STREET FURIA & TURNER #800 1719 RITTENHOUSE SQUARE PHILADELPHIA, PA 19103 (215) 246-0900 PHILADELPHIA, PA 19103 MCS # 87246-CO1 DE02 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND • BARRIOU • • File No. 13-1446 vs. GIANT FOOD STORES,LLC SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22, TO: Custodian of Records for CHAMBERSBURG HOSPITAL (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 RIDER**** at The MCS Group.Inc.. 1601 Market Street.Suite 800.Philadelphia.PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance,to the party making this 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 this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: MICHELLE R. SERGENT.ESQUIRE ADDRESS: 1818 MARKET ST 13TH FLOOR PHILADELPHIA.PA 19103 TELEPHONE: (215)246-0900 SUPREME COURT ID#: ATTORNEY FOR: Defendant BY THE COURT: "1Fr :rot :' /Cler ,Civil Division NOV 2 2 2013 Date: j as I/3 Deputy Seal of the Court 21')AI Al EXPLANATION OF UIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: CHAMBERSBURG HOSPITAL MEDICAL RECORDS 112 N. 7TH STREET CHAMBERSBURG, PA 17201 RE: MCS # 87246-L01 ROCIO BARRIOU 848 WOODLAWN DR. CHAMBERSBURG, PA 17201 Social Security #: 259-99-5619 Date of Birth: 07-09-1977 Please provide the entire hospital medical file, including but not limited to all inpatient and outpatient records, ER records, physical therapy records, intake or admission forms, correspondence to and from the consulting and treating physicians, and discharge forms. Include all files, memoranda, handwritten notes, history and physical reports. Supply all medication and prescription records, nurses' notes, doctor's comments, dietary and all patient consent or refusal of treatment, . This should contain all records in your possession. including all archived records, records in storage. Including any and all items as may be stored in a computer database or otherwise in electronic form. Prior approval is required for fees in excess of $150.00 for hospitals, $100.00 for all other providers. MCS # 87246-L01 SU10 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS BARRIOU TERM, CUMBERLAND -VS- CASE NO: 13-1446 GIANT FOOD STORES, LLC As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of MICHELLE R. SERGENT, ESQUIRE certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. MC n b alf DATE: 11/22/2013 CHELLE R. E NT, SQUIRE Attorney for D FE MCS # 87246-L02 DEll COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND • BARRIOU • • File No. 13-1446 vs. • • GIANT FOOD STORES,LLC • • • SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for CHAMBERSBURG HOSPITAL (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 RIDER at The MCS Group.Inc.. 1601 Market Street.Suite 800,Philadelphia,PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance,to the party making this 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 this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: MICHELLE R. SERGENT,ESQUIRE ADDRESS: 1818 MARKET ST 13TH FLOOR PHILADELPHIA,PA 19103 TELEPHONE: (215)246-0900 SUPREME COURT ID#: ATTORNEY FOR: Defendant BY THE COURT: I. ' ,'onotary/ erk,Civil Division N V 2 2 2013 I D l3 Deputy Date: Seal of the Court 271/1 A_111 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: CHAMBERSBURG HOSPITAL RADIOLOGY DEPT. 112 N. 7TH STREET CHAMBERSBURG. PA 17201 RE: MCS # 87246-L02 ROCIO BARRIOU 848 WOODLAWN DR. CHAMBERSBURG, PA 17201 Social Security #: 259-99-5619 Date of Birth: 07-09-1977 Please provide any and all x-ray films. CT scans & MRI films and reports possession, all archived films and reports, or films and reports in storage. Including any and all such items as may be stored in a computer database or otherwise in electronic form. Prior approval is required for fees in excess of $150.00 for hospitals, $100.00 for all other providers. MCS # 87246-L02 SU10 • CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS BARRIOU TERM, CUMBERLAND -VS- CASE NO: 13-1446 GIANT FOOD STORES, LLC As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of MICHELLE R. SERGENT, ESQUIRE certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. MCS aibehif of/ DATE: 11/22/2013 /; ��I L/ IrHELLE R. SE' E E`.lrRE Attorney for DEFEND. ,' MCS # 87246-L03 DEll COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND • • • BARRIOU File No. 13-1446 vs. • • GIANT FOOD STORES,LLC • SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for BOROUGH OF CHAMBERSBURG AMBULANCE (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 RIDER**** at The MCS Group.Inc.. 1601 Market Street.Suite 800.Philadelphia,PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance,to the party making this 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 this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: MICHELLE R. SERGENT,ESQUIRE ADDRESS: 1818 MARKET ST 13TH FLOOR PHILADELPHIA,,PA 19103 TELEPHONE: (215)246-0900 SUPREME COURT ID#: ATTORNEY FOR: Defendant BY THE CO 'T: A drL , / Prothono /C1 rk,Civil Division N 1 222013 Date: ! aq h 3 Deputy Seal of the Court • EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: BOROUGH OF CHAMBERSBURG AMBULANCE 100 S. SECOND STREET CHAMBERSBURG, PA 17201 RE: MCS # 87246-L03 ROCIO BARRIOU 848 WOODLAWN DR. CHAMBERSBURG, PA 17201 Social Security #: XXX-XX-5619 Date of Birth: 07-09-1977 Please provide all treatment, transport, and any refusal of treatment records . This should contain all records in your possession, all archived records and records in storage. Include any items as may be stored in a computer database or otherwise in electronic form. Prior approval is required for fees in excess of$150.00 for hospitals, $100.00 for all other providers. MCS # 87246-L03 SU10 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS BARRIOU TERM, CUMBERLAND -VS- CASE NO: 13-1446 GIANT FOOD STORES, LLC As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of MICHELLE R. SERGENT, ESQUIRE certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. MCS ,n b=- alfjo•f DATE: 11/22/2013 lLi ; t. A{/ MI ELLE R./SE` '. T,/SQUIRE Attorney for 'E E T MCS # 87246-L04 DEll COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND • BARRIOU • • File No. 13-1446 vs. • GIANT FOOD STORES,LLC • • SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for KEYSTONE INTERND a DICINE (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 RIDER**** at The MCS Group.Inc.. 1601 Market Street.Suite 800.Philadelphia,PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance,to the party making this 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 this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: MICHELLE R. SERGENT,ESQUIRE ADDRESS: 1818 MARKET ST 13TH FLOOR PHILADELPHIA.PA 19103 TELEPHONE: (215)246-0900 SUPREME COURT ID#: ATTORNEY FOR: Defendant BY 1 C• 'T: 4.1 tiiIis16� P • ►ir. /Cle , Civil Division N V 2 2 2013 Date: Pk-9/i 3 Deputy Seal of the Court EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: KEYSTONE INTERNAL MEDICINE 830 FIFTH AVENUE CHAMBERSBURG, PA 17201 RE: MCS # 87246-L04 ROCIO BARRIOU 848 WOODLAWN DR. CHAMBERSBURG, PA 17201 Social Security #: XXX-XX-5619 Date of Birth: 07-09-1977 Please provide entire medical and diagnostic film file, including but not limited to any and all inpatient and outpatient records, ER records, physical therapy records, correspondence to and from the consulting and treating physicians. Include all files, memoranda, handwritten records and notes, emails, phone messages, history and physical reports. Supply all medication and prescription records. Provide all diagnostic films and tests, including CAT scans, CT scans, EEG's EKG'S, EMG'S, MRI'S, and x-ray and all corresponding reports or inventories. This should contain all records in your possession, all office and admission charts, all archived records, or records in storage. Including any and all items as may be stored in a computer database or otherwise in electronic form. Prior approval is required for fees in excess of$150.00 for hospitals, $100.00 for all other providers. MCS # 87246-L04 SU10 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS BARRIOU TERM, CUMBERLAND -VS- CASE NO: 13-1446 GIANT FOOD STORES, LLC As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of MICHELLE R. SERGENT, ESQUIRE certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. MCS be if o DATE: 11/22/2013 A % HELLE R. S , IRE Attorney for DEFEND MCS # 87246-L05 DEll COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND • • BARRIOU • • File No. 13-1446 vs. • GIANT FOOD STORES,LLC • • SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for RESULTS THERAPY&FITNESS (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 RIDER**** at The MCS Group.Inc.. 1601 Market Street.Suite 800.Philadelphia.PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance,to the party making this 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 this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: MICHELLE R. SERGENT,ESQUIRE ADDRESS: 1818 MARKET ST 13TH FLOOR PHILADELPHIA.PA 19103 TELEPHONE: (215)246-0900 SUPREME COURT ID#: ATTORNEY FOR: Defendant BY 1r COURT: i / ...M1fri gait P • .no /Cl; k,Civil Division V 22 2013 I Deputy Date: Seal of the Court EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: RESULTS THERAPY & FITNESS 1600 ORCHARD DRIVE CHAMBERSBURG, PA 17201 RE: MCS # 87246-L05 ROCIO BARRIOU 848 WOODLAWN DR. CHAMBERSBURG, PA 17201 Social Security #: XXX-XX-5619 Date of Birth: 07-09-1977 Please provide entire medical and diagnostic film file, including but not limited to any and all inpatient and outpatient records, ER records, physical therapy records, correspondence to and from the consulting and treating physicians. Include all files, memoranda, handwritten records and notes, emails, phone messages, history and physical reports. Supply all medication and prescription records. Provide all diagnostic films and tests, including CAT scans, CT scans, EEG's EKG'S, EKG'S, MRI 'S, and x-ray and all corresponding reports or inventories. This should contain all records in your possession, all office and admission charts, all archived records, or records in storage. Including any and all items as may be stored in a computer database or otherwise in electronic form. Prior approval is required for fees in excess of $150.00 for hospitals, $100.00 for all other providers. MCS # 87246-L05 SU10 • CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS BARRIOU TERM, CUMBERLAND -VS- CASE NO: 13-1446 GIANT FOOD STORES, LLC As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of MICHELLE R. SERGENT, ESQUIRE certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. MC-4 be .lf /, DATE: 11/22/2013 CHELLE . . ' ER .T AriRE Attorney for DEFEND •'T MCS # 87246-L06 DEll COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND • • • BARRIOU File No. 13-1446 • vs. • GIANT FOOD STORES,LLC • SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for SUMMIT ORTHOPEDICS (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 RIDER at The MCS Group.Inc., 1601 Market Street,Suite 800.Philadelphia.PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance,to the party making this 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 this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: MICHELLE R. SERGENT,ESOUIRE ADDRESS: 1818 MARKET ST 13TH FLOOR PHILADELPHIA.PA 19103 TELEPHONE: (215)246-0900 SUPREME COURT ID#: ATTORNEY FOR: Defendant BY Ilia) 1'T: ��ro.l.L. 'WO Ire ry/Cler Civil Division Date: it O� 2 2 20 kg. � Seal of the Court EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: SUMMIT ORTHOPEDICS 120 N. SEVENTH STREET SUITE 101 CHAMBERSBURG, PA 17201 RE: MCS # 87246-L06 ROCIO BARRIOU 848 WOODLAWN DR. CHAMBERSBURG, PA 17201 Social Security #: XXX-XX-5619 Date of Birth: 07-09-1977 Please provide entire medical and diagnostic film file, including but not limited to any and all inpatient and outpatient records, ER records, physical therapy records, correspondence to and from the consulting and treating physicians. Include all files, memoranda, handwritten records and notes. emails. phone messages, history and physical reports. Supply all medication and prescription records. Provide all diagnostic films and tests, including CAT scans, CT scans, EEG's EKG'S, EKG'S, MRI 'S, and x-ray and all corresponding reports or inventories. This should contain all records in your possession, all office and admission charts. all archived records, or records in storage. Including any and all items as may be stored in a computer database or otherwise in electronic form. INCLUDING ANY AND ALL RECORDS FROM DR. JAMES SCHAFFER Prior approval is required for fees in excess of $150.00 for hospitals, $100.00 for all other providers. MCS # 87246-L06 SU10 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart SHERIFF'SSolicitor OFFICE OF �~U UU�������K A���� ����"w"��~~.^ � .�/ ,u«wr��mw�u^ ?0/ ''u�Q/'' -�� ^v'' ?�� ^"'� '"�r�� �� �� n///RL �'/?/ • �u °/ vr�EmrpEaeswp ' ���yl - "« 7� Rocio Barrios vs. Giant Food Stores, LLC (et al.) Case Number 2013-1446 SHERIFF'S RETURN OF SERVICE 08/13/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Nicolas Barrios, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Franklin, Pennsylvania to serve the within Subpoena according to law. 08/13/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Amabilia Teo, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Franklin, Pennsylvania to serve the within Subpoena according to law. 08/13/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Alma Grijalva, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Franklin, Pennsylvania to serve the within Subpoena according to law, 08/20/2014 10:54 AM - The requested Subpoena served by the Sheriff of Franklin County upon Alma Grijalva, personally, at 848 Woodlawn Drive, Chambersburg, PA 17201. Dane Anthony, Sheriff, Return of Service attached to and made part of the within record. 0908/2014 10:36 AM - The requested Subpoena served by the Sheriff of Franklin County upon Amabilia Teo, personally, at 3355 Landmark Court, Chambersburg, PA 17201. Dane Anthony, Sheriff, Return of Service attached to and made part of the within record. 09/16/2014 The requested Subpoena returned by the Sheriff of Franklin Cthe within named Defendant Nicolas Barrios, not found. Dane Anthony, Sheriff, Return of Service attached to and made part of the within record. Per Franklin County Sheriffs Office, house is vacant. SHERIFF COST: $89.49 SO ANSWERS, September 19, 2014 RONRANDERSON, SHERIFF (c)CountySuiZe Sheriff, Toieosoft, Inc, SHERIFF'S RETURN - REGULAR CASE NO: 2014-00294 T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF FRANKLIN ROCIO BARRIOS VS ALMA GRIJALVA LINDSAY R WELLER , Deputy Sheriff of FRANKLIN County, Pennsylvania, who being duly sworn according to law, says, the within SUBPOENA was served upon TEO AMABILIA the DEFENDANT , at 1036:00 Hour, on the 8th day of September, 2014 at 3355 LANDMARK COURT CHAMBERSBURG, PA 17201 by handing to AMABILIA TEO a true aliaaiteaedColoy of SUBPOENA together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing .00 Service .00 Affidavit .00 Surcharge .00 Sworn .00 .00 09/l./2014 JAMES M TURNER So Answers: and Subscribed to before day of 2t'/ AD. me this NOTARIAL SEAL RICHARD D. McCARTY, Notary Public Chambersburg Boro., Franklin County My Commlesiol Expires Jan. 29, 2015 R ESQ SHERIFF'S RETURN - REGULAR CASE NO: 2014-00294 T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF FRANKLIN ROCIO BARRIOS VS ALMA GRIJALVA BRIAN J CRAMER County, Pennsylvania, , Deputy Sheriff of FRANKLIN who being says, the within SUBPOENA GRIJALVA ALMA duly sworn according to law, was served upon the DEFENDANT , at 1054:00 Hour, on the 20th day of August , 2014 at 848 WOODLAWN DRIVE CHAMBERSBURG, PA 17201 ALMA GRIJALVA by handing to a true and attested copy of SUBPOENA together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge .00 .00 .00 .00 .00 .00 Sworn and Subscribed to before me this day of A.D. AL EAL RICHARD D. ARTY, Notary Public Chembersburg Boro., Franklin County M Commission Expires Jan. 29, 2015 So Answers: BRIAN J CRAME By Depu Sherif 09/16/2014 JAMES M TURNER JR ESQ SHERIFF'S RETURN - NOT FOUND CASE NO: 2014-00294 T COMMONTWEALTH OF PENNSYLVANIA COUNTY OF FRANKLIN ROCIO BARRIOS VS ALMA GRIJALVA BRIAN J CRAMER , Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT , to wit: BARRIOS NICOLAS but was unable to locate Him in his bailiwick. He therefore returns the SUBPOENA the within named DEFENDANT , BARRIOS NICOLAS 310 STANLEY AVENUE , NOT FOUND , as to CHAMBERSBURG, PA 17201 HOUSE VACANT Sheriff's Costs: Docketing .00 Service .00 Affidavit .00 Surcharge .00 .00 .00 So answers: ANTHONY, Sheriff JAMES M TURNER JR ESQ 09/16/2014 Sworn and subscribed to before me this day of 0 A.R. /V - Notary Li COMMONWEALTH OF PENNSYLVANIA OT IALS RICHARD D, McCARTY, Notary Public Chambersburg Som., Franklin County Commission Expires Jan. 29, 2015 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND • Rocio Barrios Plaintiff Vs. Giant Food Stores, LLC TO: Nicolas Barrios Defendant File No.13-1446 SUBPOENA TO ATTEND AND TESTIFY 1. You are ordered by the court to come to Franklin County Bar Association, 100 Lincoln Way East, 3rd Floor, Chambersburg, Pennsylvania 17201 (Specify Courtroom or other place) at , Franklin County, Pennsylvania, on September 11, 2014 at 11:00 o'clock, A. M,. to testify on behalf of Giant Food Stores, LLC in the above case, and to remain until excused. 2. And bring with you the following: If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa.R,C.P.No.234.2(a): Name: Michelle Sargent Kaas, Esquire Address: 1818 Market Street, 131h Floor Philadelphia, PA 19103 Telephone: 215-569.2800 Supreme Court ID # 80684 Date: e/i4/1/ Seal of the Court / Deputy Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R.C.P.No.234.1. If a subpoena for a production of documents, records or things is desired, complete paragraph 2. (Eff. 7/97) BY THE COURT: bpm D.Tu r L Prothonotary/Cl ;rk, Civil Division By: Joseph M. Toddy, Esquire imtoddy@zarwin.com r Identification No.: 42484 `' • , ` ,1 15 ' ZARWIN, BAUM, DeVITO, KAPLAN, SCHAER, TODDY, P.C. 1818 Market Street, 13th Floor Philadelphia, PA 19103 (215) 569-2800 (215) 569-1606 (Fax) ROCIO BARRIOS COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY vs. • No.: 13-1446 GIANT FOOD STORES, LLC JURY TRIAL DEMANDED Defendant. . DEFENDANT, GIANT FOOD STORES, LLC'S MOTION TO TRANSFER VENUE TO THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY Defendant, Giant Food Stores, LLC, by its attorneys, Zarwin, Baum, Devito, Kaplan, Schaer& Toddy, P.C., move this Honorable Court to transfer venue from the Court of Common Pleas of Cumberland County to the Court of Common Pleas of Franklin County and, in support thereof, aver the following: 1. Plaintiff, Rocio Barrios, filed a Civil Action Complaint against the Defendant, Giant Food Stores, LLC, in the Court of Common Pleas of Cumberland County. See Plaintiff's Complaint attached hereto as Exhibit"A." 2. This is an action to recover damages for injuries allegedly sustained by the Plaintiff in an incident which occurred on or about June 8, 2011, at the Giant store located at 933 Wayne Ave., Chambersburg, Franklin County, PA. See Exhibit"A." 3. According to Plaintiff's Complaint, Plaintiff resides at 848 Woodlawn Drive, Chambersburg, PA. See Exhibit"A." 4. Giant manager and witness Daron Furman currently works at the Giant store located at 1511 East Main Street, Waynesboro, PA. See, Exhibit"B." 5. Giant employee and witness Steve Washabaugh currently lives in Chambersburg, PA, see, Exhibit"C," and he works at the Giant store located at 925 Norland Avenue, Chambersburg, PA. 6. Giant employee and witness Amy Haupt currently lives in Hagerstown, Maryland, see, Exhibit"D," and works at the Giant store located in Hagerstown, Maryland. 7. Giant employee and witness Ed Reed currently lives in Waynesboro, PA, see Exhibit "E," and works at the the Giant store located at 925 Norland Avenue, Chambersburg, PA. 8. Plaintiff's witness,Nicolas Barrios, lives on Woodlawn Drive in Chambersburg, PA. See, Exhibit"F." 9. Plaintiff's witness, Amabilia Teo, lives on Landmere Court in Chambersburg, PA. See, Exhibit"G." 10. Plaintiff's witness, Alma, Grijalva, lives on Woodlawn Drive in Chambersburg, PA. See, Exhibit "H." 11. Pursuant to Pennsylvania Rule of Civil Procedure 1006 (d)(1), the Court, for the convenience of the parties and witnesses, may transfer an action to the appropriate court of any other county where the action originally could have been brought. See Pa.R.C.P. 1006 (d)(1). 12. A plaintiff's choice of forum is accorded less deference when the plaintiff does not live in the forum district and none of the operative facts occurred there. See Schaffroth v. 2 Nationwide Mutual Fire Insurance Company, 2003 Phila. Ct. Com. Pl. LEXIS (C.P. Phila., 2003). 13. The Court should grant a petition to transfer venue when the plaintiff's chosen forum is oppressive or vexatious to the defendant. See Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156, 162 (Pa, 1997). 14. The defendant can show that the forum is oppressive to him by showing that trial in another county would provide easier access to witnesses, sources of proof or the ability to conduct a view of the premises involved in the dispute. See id. 15. This action could have been brought in Franklin County, PA as the accident occurred in Franklin County and Defendant regularly conducts business in Franklin County. See Pa.R.C.P. 2179 (a). 16. Cumberland County has no connection to the accident. 17. The Plaintiff is not a resident of Cumberland County. 18. The Plaintiff, witnesses, Defendant's employees and the accident site are all located in Franklin County. 19. Plaintiff's choice of forum in Cumberland County is oppressive to the Defendant as its employees, witnesses and the accident site are all located in Franklin County. 20. Trial in Franklin County would provide easier access to witnesses, sources of proof and the ability to conduct a view of the premises involved in this action. 21. Changing venue to Franklin County will facilitate access to the site of the accident, access to relevant evidence and access to the courthouse for Defendant, its employees, witnesses and the Plaintiff herself who lives in Franklin County. 3 22. The convenience of the parties and witnesses, access to the accident site, access to evidence and the interest of justice favor transfer of this case to Franklin County. 23. No other matters have been ruled upon in this case. WHEREFORE, Defendant, Giant Food Stores, LLC respectfully requests that this Honorable Court grant their Motion to Transfer this case to Franklin County. Respectfully submitted, ZARWIN • BAUM • DEVITO KAPLAN • SCHAER • TODDY* P.C. B E� OSEPH M. TODD , SQ. Dated: ///3/L7 l 4 By: Joseph M. Toddy, Esquire imtoddy(c- zarwin.com Identification No.: 42484 ZARWIN,BAUM, DeVITO, KAPLAN, SCHAER, TODDY, P.C. 1818 Market Street, 13th Floor Philadelphia, PA 19103 (215) 569-2800 (215) 569-1606 (Fax) ROCIO BARRIOS • COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY vs. No.: 13-1446 GIANT FOOD STORES, LLC JURY TRIAL DEMANDED Defendant. . MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT, GIANT FOOD STORES, LLC'S MOTION TO TRANSFER VENUE TO THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY I. MATTER BEFORE THE COURT The matter before the court is the Defendant's Motion to Transfer Venue to the Court of Common Pleas of Franklin County pursuant to Pennsylvania Rule of Civil Procedure 1006 (d) (1). II. STATEMENT OF THE QUESTION INVOLVED For the convenience of the parties and witnesses, should venue be transferred from Cumberland County to Franklin County because the accident occurred in Franklin County, the accident site is in Franklin County, he Plaintiff resides in Franklin County 5 and the Plaintiff and witnesses and are located in Franklin County? Suggested Answer: Yes III. STATEMENT OF FACTS: Plaintiff, Rocio Barrios, filed a Civil Action Complaint against the Defendant, Giant Food Stores, LLC, in the Court of Common Pleas of Cumberland County. See Plaintiff's Complaint attached hereto as Exhibit"A." This is an action to recover damages for injuries allegedly sustained by the Plaintiff in an incident which occurred on or about June 8, 2011, at the Giant store located at 933 Wayne Ave., Chambersburg, Franklin County, PA. See Exhibit"A." According to Plaintiff's Complaint, Plaintiff resides at 848 Woodlawn Drive, Chambersburg, PA. See Exhibit "A." Giant manager and witness Daron Furman currently works at the Giant store located at 1511 East Main Street, Waynesboro, PA. Giant employee and witness Steve Washabaugh currently works at the Giant store located at 925 Norland Avenue, Chambersburg, PA. Giant employee and witness Amy Haupt currently works at the Giant store located in Hagerstown, Maryland. The plaintiffs witnesses all reside in Chambersburg, PA. This action could have been brought in Franklin County, PA as the accident occurred in Franklin County and Defendant regularly conducts business in Franklin County. See Pa.R.C.P. 2179 (a). Cumberland County has no connection to the accident. The Plaintiff is not a resident of Cumberland County. The Plaintiff, witnesses, Defendant's employees and the accident site are all located in Franklin County. Trial in 6 Franklin County would provide easier access to witnesses, sources of proof and the ability to conduct a view of the premises involved in this action. IV. LEGAL ARGUMENT: Pursuant to Pennsylvania Rules of Civil Procedure 1006 (d)(1), for the convenience of the parties and witnesses, the court upon petition of any party may transfer an action to the appropriate court of another county where the action could have originally been brought. Pa.R.C.P. 1006 (d) (1). The doctrine of forum non conveniens, as codified in Rule 1006 (d) (1), allows a court to resist imposition upon its jurisdiction, even when jurisdiction is authorized by the letter of a general statute. See Zappala v. Brandolini Property Management, Inc., 909 A.2d 1272, 1283 (Pa., 2006). The trial court is vested with considerable discretion to balance the arguments of parties in determining whether to grant a motion to transfer venue. See id. See also Mateau v. Stout, 819 A.2d 563, 566 (Pa. Super., 2003) (recognizing the trial court has broad discretion to grant a petition to transfer venue). A trial court may grant a petition to transfer venue for forum non conveniens if 1) venue is proper in the transferee county and 2)the petitioner has shown that venue in the chosen forum is oppressive or vexatious. See Pa.R.C.P1006 (d)(1); Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156, 162 (Pa, 1997); Mateau, supra, 819 A.2d at 565; Wood v. E.I. Du Pont de Nemours & Co., 829 A.2d 707, 711-712 (Pa. Super., 2003). The petitioner must"present a sufficient factual basis for the petition based on the record, but no particular form of proof is required by Rule 1006 (d) (1). Wood, supra, 829 A.2d at 714. The trial court retains discretion to determine whether the particular proof presented in support of the petition is sufficient. Id. at 713-14. See also Mateau, supra, 819 A.2d at 7 567 (affirming the trial court's transfer of venue where the trial judge considered the factual record and the averments in the petition). A. This action could have been brought in Franklin County Pennsylvania Rule of Civil Procedure 2179 determines where an action can be brought against a corporation or similar entity. See Pa.R.C.P. 2179. Rule 2179 provides the following: (a) ...a personal action against a corporation or similar entity may be brought in and only in (1) the county where its registered office or principal place of business is located; (2) a county where it regularly conducts business; (3) a county where the cause of action arose; (4) a county where a transaction or occurrence took place out of which the cause of action arose, or (5) a county where the property or part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property. Venue is proper in Franklin County. The incident occurred at Defendant's store in Franklin County. Defendant regularly conducts business in Franklin County at its store. Therefore, venue may be laid in Franklin County pursuant to Rule 2179. This Court has authority under 1006 (d) (1) to transfer this action to Franklin County because this action could have been originally brought in Franklin County. B. Plaintiff's Choice of Forum is oppressive to the Defendant because the parties,witnesses and the site of the accident are located in Franklin County A plaintiff's choice of forum is accorded less deference when the plaintiff does 8 not live in the forum district and none of the operative events occurred there. Int'l Mill Servs., Inc. v. Alleghany Ludlum Corp., 2002 Phila. Ct. Com. Pl. LEXIS 74*5 (C.P. Phila. Apr. 11, 2002) (citing Watt v. Consolidated Rail Corp., 1997 U.S. Dist. LEXIS 7454, *4 (E.D. Pa. May 21, 1997); Schaffroth v. Nationwide Mutual Fire Insurance Company, 2003 Phila. Ct. Com. Pl. LEXIS 69 (C.P. Phila., 2003). The Court should grant a petition to transfer venue when the plaintiff's chosen forum is oppressive or vexatious to the defendant. See Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156, 162 (Pa, 1997). The defendant can show that the forum is oppressive to him by showing that trial in another county would provide easier access to witnesses, sources of proof or the ability to conduct a view of the premises involved in the dispute. See id. In Mateau v. Stout, the Superior Court affirmed the trial court's transfer of a personal injury action arising from a motor vehicle accident from Philadelphia County to Delaware County where the accident occurred in Delaware County, the plaintiff resided in Delaware County, one of the defendants resided in Delaware County, plaintiff's medical care was provided in Delaware County and all of the witnesses were located outside of Philadelphia County. See Mateau, supra, 819 A.2d at 567. The Court found that these facts established that the plaintiff's choice of forum in Philadelphia County was oppressive to defendant because all of the parties and fact witnesses resided outside of Philadelphia County. Id. Further, litigation in Delaware County would provide easier access to the sources of proof, fact witnesses, medical experts, medical records and the site of the automobile accident. Id. Similarly, in Schaffroth v. Nationwide Mutual Fire Insurance Company, the Court granted the defendant's motion to transfer a case arising from an insurance coverage 9 dispute from Philadelphia County to Bucks County where the plaintiffs resided in Bucks County, the insured property was located in Bucks County, the witnesses to the loss and subsequent repair(such as contactors and tradesmen) were located in Bucks County, the defendant was not located in Philadelphia County and the denial of coverage occurred either in Ohio or in Bucks County. Schaffroth, supra, 2003 Phila. Ct. Com Pl. LEXIS 69 at *10. The Court found that the defendant established litigation in Philadelphia County was oppressive because the convenience of witnesses throughout the discovery process and litigation and the ease of accessibility to evidence favored transfer to Bucks County. Id. Moreover, in Borger v. Murphy, the Court granted the defendant's motion to transfer a malpractice action from Philadelphia County to Lehigh County where all of the witnesses were located in Lehigh County and Defendants' employees who would testify at trial were located in Lehigh County. Borger v. Murphy, 797 A.2d 309 (Pa. Super., 2002), appeal denied, 808 A.2d 568 (Pa., 2002). The Court found that the defendant had established that litigation in Philadelphia County was oppressive because trial in Philadelphia would burden the witnesses and defendant's medical practice. Id. In the instant matter, litigation in Cumberland County is oppressive. The incident occurred in Franklin County. Defendant's store is located in Franklin County and Defendant regularly conducts business in Franklin County. The accident site and all the relevant evidence in this matter are located in Franklin County. The Plaintiff and Defendant's employees who will need to testify at trial are located in Franklin County. It would be burdensome and disruptive to business to require three (3) Giant employees to travel to Cumberland County to testify at trial. A trial in Franklin County 10 would provide easier access for Defendant, Defendant's employees and the Plaintiff herself Transferring the case to Franklin County would provide easier access to the parties, witnesses, sources of proof and the ability to conduct a view of the Giant store where the accident occurred. Plaintiff's choice of forum is clearly oppressive to Defendant and this matter should be transferred to Franklin County. V. CONCLUSION For the reasons set forth above, Defendant respectfully requests that its Petition to Transfer Case to Franklin County be granted and that this matter be transferred to the Court of Common Pleas of Franklin County. Respectfully submitted, ZARWIN • BAUM • DEVITO KAPLAN • SCHAER • TODDY* P.C. BY:41PAP/ JSEPH M. TO 1'1 Y, ESQ. Dated: e (1)' 11 By: Joseph M. Toddy, Esquire jmtoddy(&,,zarwin.com Identification No.: 42484 ZARWIN, BAUM, DeVITO, KAPLAN, SCHAER, TODDY, P.C. 1818 Market Street, 13th Floor Philadelphia, PA 19103 (215) 569-2800 (215) 569-1606 (Fax) ROCIO BARRIOS COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY vs. • No.: 13-1446 • GIANT FOOD STORES, LLC JURY TRIAL DEMANDED Defendant. . CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion to Transfer Venue to the Court of Common Pleas of Franklin County was served upon the following named parties by United States Mail, first class, postage prepaid on this date: James M. Turner, Jr., Esquire Furia and Turner 1719 Rittenhouse Square Philadelphia, PA 19103 ZARWIN • BAUM • DEVITO KAPLAN • SCHAER • TODDY• P.C. BYAFI. J!: �'HM. TODDY, y. S. IAttorney for Defendant Dated: i 3 EXHIBIT "A" FURIA and TURNER By: JAMES M.TURNER.,JR., ESQUIRE Attorney' for Plaintiff Identification No.: 09878 THIS IS A MAJOR JURY MATTER 1719 Rittenhouse Square ASSESSMENT OF DAMAGES IS Philadelphia, PA 19103 REQUIRED (215) 985-4500 ROCIO BARRIOS • COURT OF COMMON PLEAS 848 Woodlawn Drive • CUMBERLAND COUNT!. Chambersburg, PA 17201 • im '..-� v. )3 - 146 C, � �m rn r .7k) GIANT FOOD STORES, LLC /e(" "' 1149 Harrisburg Pike • Carlisle, PA 17013 • ' = '?; NOTICE TO DEFEND-CIVIL 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 AN ATTORNEY AND FILLING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU,YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF.YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE.IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE,GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE,PA 17013 1-800-990-9108 717.249-3166 TRUE COPY FROM RECORD In Testimony whereof, I here unto set my hand end the sig of said Co rt at C�rlisle,Pa. This day.of_1L/R&L_ 20 43 rrgthonotary 6)/ e Pr&c r�'��J PUMA and TURNER, LLC By: JAMES M. TURNER, JR., ESQUIRE THIS IS A MAJOR JURY 1719 Rittenhouse Square MATTER. Philadelphia, PA 19103 ASSESSMENT OF DAMAGES (215)985-4500 IS REQUIRED ROCIO BARRIOS : COURT OF COMMON PLEAS 848 Woodlawn Drive • CUMBERLAND COUNTY • Chambersburg, PA 17201 V. • GIANT FOOD STORES, LLC 1149 Harrisburg Pike • Carlisle, PA 17013 CIVIL ACTION COMPLAINT 1. Plaintiff, ROCIO BARRIOS is an adult individual residing at 848 Woodlawn Drive, Chambersburg, Pennsylvania 17201. 2, Defendant, GIANT FOOD STORES, LLC, is a non-profit corporation,partnership, sole proprietorship, unincorporated association, or other legal entity doing business and existing under the laws of the Commonwealth of Pennsylvania with its principal place of business located at 1149 Harrisburg Pike, Carlisle, PA 17013 and as such owned, operated, supervised,controlled and maintained a facility at 993 Wayne Avenue, Chambersburg, Pennsylvania 17201, 3. On or about April 28,2011, Defendant, GIANT FOOD STORES, LLC were the owners and or agent for the owner of certain real property known as GIANT FOOD STORE, located at 993 Wayne Avenue, Chambersburg, Pennsylvania 17201, and as such owned, maintained, occupied,possessed and/or controlled the premises therein. 4. At all times relevant hereto, Plaintiff, ROCIO BARRIOS, was a lawful invitee on the premises known as GIANT FOOD STORE. y 5. On or about April 28, 2011,at or about 11:00 a.m., Plaintiff, ROCIO BARRIOS,was lawfully in, around and/or near the premises located at 993 Wayne Avenue, Chambersburg, Pennsylvania known as GIANT FOOD STORE, which is a property owned and operated by Defendant, GIANT FOOD STORES, LLC and was lawfully an invitee and/or licensee on said premises. 6. On or about the aforesaid date and time, Plaintiff, ROCIO BARRIOS, was walking through said store when she was caused to slip and fall on a water substance, which said fall resulted in serious and permanent personal injuries as hereinafter more particularly set forth at length. 7. On or about April 28, 2011,Defendant, GIANT FOOD STORES, LLC did own, manage,maintain, lease and/or control the premises known as GIANT FOOD STORE, and was responsible for all activity going on at that location on the aforesaid date, 8. Defendant, GIANT FOOD STORES, LLC, by their agents, servants, workmen and/or employees were, at all time relevant hereto, responsible for the condition of the property known as GIANT FOOD STORE. 9, Plaintiff, ROCIO BARRIOS avers, it was the duty of Defendant,GIANT FOOD STORES, LLC to maintain the property referred to above in a reasonably safe condition for it's intended use andfree from all dangerous conditions, such as soiled floors, which Defendant knew or should have known was occurring, existed, and rendered the property dangerous and unsafe, or which would present an unreasonable risk of harm to her. 10. Plaintiff, ROCIO BARRIOS, avers, it was the duty of Defendant, GIANT FOOD STORES, LLC to have available sufficient personnel to properly inspect and maintain the 2 aforesaid properties in a reasonably safe condition and to warn of the existence of dangerous conditions such as a soiled floor as referred to above. 11, Plaintiff, ROCIO BARRIOS further avers that it was the duty of the Defendant, GIANT FOOD STORES, LLC to exercise reasonable care to protect the Plaintiff from injury by inspection of the premises or by other affirmative acts such as warning Plaintiff of the existence of dangerous conditions occurring on the said properly such as a soiled floor as referred to above: 12, The aforesaid accident was caused by the negligence and carelessness of Defendant, GIANT FOOD STORES, LLC in: (a) Failing to exercise due regard for the rights and safety of the Plaintiff by permitting spills to exist on the floors in question,while invitees remained in the premises; (b) Negligently causing spills on the floors in question to exist while invitees remained in the premises; (c) Failing to maintain the floors on the premises in a reasonably safe condition by allowing spills to exist on said floors while invitees remained in the premises; (d) Maintaining the floors in a dangerous and defective condition by not mopping or cleaning same; (e) Failing to warn persons on the premises of the dangerous floors located on the property which Defendant knew, or should have known, existed for some time prior to the aforesaid incident by placing notice signs alerting invitees to the existence of spills on the floors; Failing to instruct, and infoini its agents, servants, workmen and/or employees of the safe method of maintaining and cleaning the floors in question; (g) Permitting said floors to remain in a dangerous state which would endanger those persons lawfully on the premises by allowing same to remain wet, while invitees remained in the premises; (h) Failing to personally inspect the floors located at said premises or to request and supervise periodic inspections of the floors by its agents; 3 (i} Acting in disregard of the rights and safety of the persons lawfully on said premises by permitting unsafe and soiled floors to exist on said property; (j) Failing to warn Plaintiff of the dangerous wet floors on said property of which Defendant knew or should have known existed; (k) Failing to maintain said floors in a proper condition, which Defendant knew or should have had due and proper notice; (1) Being guilty of willful,wanton and gross misconduct and negligence by permitting unsafe soiled floors to exist on said property; (m) Allowing and permitting an unsafe soiled floors to be left in an unsafe condition thus rendering the floors itself dangerous,unsafe, improper and unstable; (n) Failing to properly, maintain, supervise and/or direct that their employees, agents and/or workmen on the proper methods of cleaning floors; (o) Failing to inspect the aforesaid premises at reasonable intervals in order to determine the defective, dangerous and unsafe condition of the floors on said property; (p) Disregarding the rights and safety of the Plaintiff, and others lawfully using the premises by permitting unsafe soiled floors to exist on said property; (q) That said Defendant knew, or should have known, about the highly dangerous, defective, hazardous and unsafe condition, existing about and upon its premises, which was caused by an unsafe and improperly cleaned floors; (r) That said Defendant maintained the aforesaid floors contrary to the general safety standards,precautionary standards, and other safety standards of the industry in violation of the appropriate federal, state and local laws, rules, regulations and code; (s) That said Defendant maintained the aforementioned floors in complete violation of local building permit and building use statutes, as well as township building use statutes and township building permit statutes; (t) That said Defendant was negligent per se by permitting unsafe soiled floors to exist on said property; (u) That said Defendant was otherwise negligent as may be determined through discovery proceedings pursuant to the Pennsylvania Rules of Civil Procedure by permitting unsafe wet floors to exist on said property; 4 (v) Being liable for acting contrary to the care required by Sections 410, 413, 324A, 414,416, 422,424,426 and 427 of the Restatement of Torts 2"as adopted in Pennsylvania by permitting unsafe soiled floors to exist on said property; (w) That said Defendant is otherwise liable for acting contrary to the care required by the Restatement(Second) of Torts, as adopted in Pennsylvania by permitting unsafe soiled floors to exist on said property; (x) Maintaining the floors in question in a dangerous and defective condition by permitting same to remain soiled, while invitees remained in the premises; (y) Failing to inspect the floors in question at reasonable intervals, in order to determine the defective, dangerous and unsafe conditions thereon; (z) Failing to discover the unsafe soiled floors on the premises in question; (aa) That said Defendant knew, or should have known, of the highly dangerous, defective,hazardous and/or unsafe soiled floors existing about and upon the premises in question, and failed to warn the Plaintiff of its existence; (bb) That said Defendant failed to warn Plaintiff of the hazardous, dangerous and defective soiled floors on the premises in question by failing to place warning signs in the vicinity of same; (cc) Said Defendant permitted the aforesaid property to become and to remain in a dangerous, defective,hazardous and unsafe condition so as to constitute a menace, danger, nuisance, snare and trap for persons lawfully conducting business on said property by permitting unsafe soiled floors to exist on said property, while invitees remained in the premises where said floors was located; 13. The aforesaid accident was due entirely to the negligence of the Defendant, it's agents, servants, workmen and/or employees acting within the scope of their employment for and on behalf of the Defendant. 14, As a direct and proximate result of the aforesaid negligence of the Defendant,the Plaintiff, ROCIO BARRIOS, sustained severe and permanent injuries to her body,by reason of which she was rendered sick, sore, lame and disordered. More particularly, Plaintiff suffered severe and permanent injuries to the bones,muscles, tendons, ligaments,nerves and tissues of her, left knee, right shoulder, back and neck, the full extent of which is not yet known, including 5 but not limited to, cervical sprain and strain; superior labrum tear of the right shoulder; C4-5 and C5-6 disc bulge, and injuries to her nerves and nervous system, whereby she has in the past, and will in the future, continue to suffer severe pain, 15. Plaintiff's injuries caused constant pain, discomfort, and limitation of motion, all of which injuries are or may be of a permanent nature. 16. Plaintiff was made to undergo great mental anguish and bodily pain, as a result of which she has suffered, yet suffers, and will continue to suffer great mental anguish and bodily pain for an indefinite time in the future. She sustained a severe and permanent shock to her nerves and nervous system, and has,may and probably will in the future, continue to suffer great mental anguish and bodily pain. 17. Plaintiff, as a result of said injuries, has and probably will in the future be obliged to expend large and various sums of money for medicine and medical attention in and about an effort to treat and cure herself of her injuries. 18. As a further result of this accident,Plaintiff has, and will continue in the future, to be obliged to undergo medical attention and care, expend various sums of money, and incur various expenses for the injuries she has sustained. Plaintiff may be obliged to continue to expend such sums or incur such expenses for an indefinite time in the future. 19. As a further result of the accident, Plaintiff has or may suffer an injury which may be of a psychological nature, all of which may and probably will be of a permanent nature or irreparable and severe. 20.As a further result of this accident,Plaintiff has suffered and may continue to suffer, a severe loss of earnings and/or impairment of her earning capacity and power. 21. As a direct and proximate result of this accident, Plaintiff has, or may in the 6 ma. • . future, incur other financial losses or expenses, which do or may exceed amounts which she might otherwise be entitled to recover. 22. Asa result of the Defendant's negligence, Plaintiff has and probably will in the future, be hindered from attending and performing her usual and daily activities, duties, and recreational social pursuits. WHEREFORE, Plaintiff, ROCIO BARRIOS,demands judgment against Defendant, GIANT FOOD STORES, LLC, in a sum in excess of Fifty Thousand Dollars ($50,000.00). FURIA AND TURNER By: JAMES M. TURNER,JR., ESQUIRE Attorney for Plaintiff 7 VERIFICATION I,-SI 4 C.i o J� p r r;n,sherelby verify that I am the Plaintiff in the within action; that the facts contained in the foregoing pleadings are true and correct to the best of my knowledge,information and belief;and that these statements axe made subject to the penalties of 18 PA C.S.§4904 relating to unsworn falsification to authorities. { EXHIBIT "B " 1 law? 2 A. Right . 3 Q . That ' s the most important instruction. 4 Could you tell me who you' re employed with right 5 now? 6 A. Giant Foods . 7 Q . And what is your position at Giant Foods? 8 A. Customer operations manager. 9 Q . And how long have you been employed with 10 Giant Foods? 11 A. Sixteen and a half years . 12 Q . Same store? 13 A. No. 14 Q . What is the number of this store again, 52 15 or 53? 16 A. 6052 . 17 Q . 6052, okay. And how long have you been at 18 6052? 19 A. Three years . 20 Q . How long have you been at 6052 before this 21 incident? 22 A. One year. 23 Q . Well, the incident was three and a quarter 24 years ago? 25 A. Yeah. That happened -- I left there in Jodi L. Lambert. Freelance Court Reporter (717) 263-5383 b 1 2012, went to 443 for six months then I went to 2 6032 is where I 'm at now in Waynesboro. 3 Q . So you were at 6052 for three years before 4 the incident? No, you were at 6052 for three years 5 from 2012? 6 A. Right . 7 Q . When you were transferred to 443? 8 A. You got it . 9 Q . And at the time of the incident you were 10 there for one year? 11 A. Correct . 12 Q . Sorry, that ' s my Catholic school math. 13 A. That ' s okay. 14 Q . It always fails me . Your position again 15 is? 16 A . Customer operations manager . 17 Q . A COM? 18 A. Correct . 19 Q . How long have you been a COM? 20 A . Since 2008 . 21 Q . And what does a COM do? 22 A. Well, I oversee the entire front end, the 23 cashiers, the cash office, the fuel station but I 24 also oversee the whole store, but my direct 25 responsibility is the front end. Jodi L. Lambert. Freelance Court Reporter (717) 263-5383 EXHIBIT "C " 4 1 STIPULATION 2 It is hereby stipulated by and between 3 counsel for the respective parties that sealing, 4 certification and filing are hereby waived; and all 5 objections except as to the form of the question 6 are reserved to the time of trial . 7 STEPHEN J. WASHABAUGH, called as a witness, 8 being duly sworn, testified as follows : 9 DIRECT ETION 10 BY ATTORNEY TURNER: 11 Q . Could you please state your name and 12 address for the record? 13 A. Stephen Jude Washabaugh, 1556 Springview 14 Drive, Chambersburg, Pennsylvania, 17202 . 15 Q . And, sir, my name is James Turner. I 'm 16 going to be taking your deposition today concerning 17 an accident that occurred on June 8, 2011 at the 18 Giant Supermarket out here in Chambersburg. Have 19 you ever given your deposition before? 20 A. No. 21 Q . And who do you currently work for? 22 A. I work for Giant . 23 Q . And how long have you been working for 24 them? 25 A. Approximately 11 years . Jodi L. Lambert. Freelance Court Reporter (717) 263-5383 1 Q . And what do you do for them? 2 A. Right now I 'm the lead dairy for 6443 . 3 Q . How about back in 2011 what were you 4 doing? 5 A. Dairy department . That ' s why you ' ll see 6 black shoes . You ' ll see like non-slip resistant 7 shoes on. 8 Q . I ' ll get to that in a second. I 'm going 9 to be asking you some questions concerning the 10 accident and we have a video of the accident, the 11 things that happened before and after the accident . 12 I understand you didn ' t witness the accident; 13 correct? 14 A. No, I did not . 15 Q . So we ' ll be quick. 16 A. Right . 17 Q . I 'm really kind of giving these 18 instructions for the other witnesses as well so I 19 don' t have to go through the instructions three 20 times . If at any time you don ' t understand my 21 question, just tell me that you didn ' t understand 22 the question and I ' ll try to speak in a more 23 clearer fashion so that you understand the 24 question. Do you understand that? 25 A. Yes . Jodi L. Lambert. Freelance Court Reporter (717) 263-5383 EXHIBIT "D" 4 1 STIPULATION 2 It is hereby stipulated by and between 3 counsel for the respective parties that sealing, 4 certification and filing are hereby waived; and all 5 objections except as to the form of the question 6 are reserved to the time of trial . 7 AMY C. HAUPT, called as a witness, being 8 duly sworn, testified as follows : 9 DIRECT EXAMINATION 10 BY ATTORNEY TURNER: 11 Q . Could you please state your full name and 12 address for the record? 13 A. Amy Christine Haupt, 14 Hagerstown, Maryland, 21740. 15 Q . Ms . Haupt, you've sat here through two 16 other depositions where I gave instructions on how 17 the deposition works . Do you need these 18 instructions repeated? 19 A. No. 20 Q . The most important instruction is that you 21 took an oath to tell the truth as if you were in a 22 courtroom, even though this is an informal setting. 23 You understand that; correct? 24 A. Yes . 25 Q . And could you give me an idea of your Jodi L. Lambert. Freelance Court Reporter (717) 263-5383 • .. • EXHIBIT "E" 1 Q . Can you give me your date of birth? 2 A. 12/14/45 . 3 Q . And off the record, your social security 4 number? 5 (A discussion was held off the record. ) 6 BY ATTORNEY TURNER: 7 Q . In three years from now if we go to trial 8 and we ' re trying to look for Ed Reed, hopefully 9 that information will allow me to find you . Can 10 you give me your address? 11 A. Amagimmimmomm, Waynesboro, PA, 12 17236. 13 Q . How long have you lived there? 14 A. I 've only lived there a year and a half. 15 Q . Where did you live before then? 16 A. Well, about a mile and a half up the road 17 in Mont Alto. 18 Q . Is it fair to say in the last 20 years 19 you've lived in this area, Chambersburg area? 20 A. The last 69 years . 21 Q . And you are married? 22 A. Yes, sir. 23 Q . And your wife ' s name? 24 A. Linda Kay. 25 Q . Any children? Jodi L. Lambert. Freelance Court Reporter (717) 263-5383 EXHIBIT "F " b 1 Q . Who is the other one? 2 A. And the other one' s name is Veronica 3 Castro. 4 Q . Veronica is married to Jesus? 5 A. Yes . 6 Q . And Veronica lives with you and Jesus on 7 Woodlawn Circle? 8 A. Uh-huh, yes . 9 Q . And Amabilia is married to Daniel? 10 A. Yes . 11 Q . And they live somewhere else now? 12 A. Yes . 13 Q . How do you know Rocio Barrios? 14 A. She ' s my daughter. 15 Q . And was Rocio living with you at Stanley 16 Avenue? 17 A. No. 18 Q . Where does Rocio live? 19 A. She lives on Woodlawn also but I don ' t 20 know the address of her house . 21 Q . A few doors down from where you are? 22 A. Yes, about five houses down. 23 Q . And is that where Rocio was living back in 24 June 2011 when she fell at the Giant? 25 A. Yes . Jodi L. Lambert. Freelance Court Reporter (717) 263-5383 EXHIBIT "G" b 1 ATTORNEY HOLDEN: So who wants to go 2 first? I 'm going to ask everyone else to leave and 3 you' ll stay. 4 (The following testimony was 5 interpreted in Spanish to the Deponent, and the 6 answers were given in English by the Interpreter: ) 7 DIRECT E ,TION 8 BY ATTORNEY HOLDEN: 9 Q . Ms . Teo, would you tell us have you ever 10 been known by any other names? 11 A. I have sort of like a middle name but it ' s 12 not really a middle name . They just sort of 13 shortened my name. 14 Q . But it ' s always Amabilia Teo? 15 A. Yes . 16 Q . What is your current address? 17 A. 41111111111111111110rChaMbersburg, PA, 18 17201 . 19 Q . And how long have you lived at that 20 address? 21 A. June/July, two years three months . 22 Q . And who lives at that address with you? 23 A. My husband and my two children. 24 Q . Where were you living back in June of 25 2011? • Jodi L. Lambert. Freelance Court Reporter (717) 263-5383 1 A. I lived with my father-in-law at 310 2 Stanley Avenue . 3 Q . What is your father-in-law' s name? 4 A. Nicolas Barrios . 5 Q . So that actually was going to be one of my 6 questions . How do you know Rocio Barrios? Rocio 7 is that how you pronounce it, R-o-c-i-o? 8 A. Rocio Barrios . Because she ' s my 9 sister-in-law. 10 Q . She ' s married to Nicolas? 11 A. No, Nicolas is my father-in-law. 12 Nicolas ' s son is my husband. 13 Q . So but Nicolas Barrios is Rocio' s husband? 14 A. No, that ' s her father. That ' s Rocio ' s 15 father, Nicolas Barrios . 16 Q . Oh, okay. And Rocio is related to you how 17 again? I 'm very confused. 18 A. She ' s my sister-in-law. Her brother is my 19 husband. 20 Q . Okay. So you were living with your 21 husband, his sister and their father in 2011? 22 A. No . Rocio didn' t live with us . Just my 23 family and my father-in-law. 24 Q . What is your citizenship status? 25 A. I don' t have citizenship. Jodi L. Lambert. Freelance Court Reporter (717) 263-5383 b 1 Q . Do you have a green card? 2 A. No. 3 Q . Do you speak English at all? 4 A. Yes, a little . 5 Q . Do you have any plans to move or leave the 6 Chambersburg area within say the next six months to 7 a year? 8 A. No. 9 Q . So how long have you known Rocio? 10 A. I married in 2007 and one year, like about 11 eight years? 12 Q . Were you with her on June 8, 2011 when she 13 fell at the Giant? 14 A. No. 15 Q . Did you see her fall? 16 A. No. 17 Q . When is the first time you heard about her 18 fall at the Giant? 19 A. I think it was Rocio. I 'm not -- she 20 called her aunt and then her aunt, I 'm not sure if 21 she called me or my father-in-law, and we went to 22 Giant where she had fallen . 23 Q . Where were you when you got that call? 24 A. At home . 25 Q . How far away from the store is your home? Jodi L. Lambert. Freelance Court Reporter (717) 263-5383 EXHIBIT "H" 4 1 STIPULATION 2 It is hereby stipulated by and between 3 counsel for the respective parties that reading, 4 signing, sealing, certification and filing are 5 hereby waived; and all objections except as to the 6 form of the question are reserved to the time of 7 trial . 8 Alii G IJALVA, called as a witness, 9 being duly sworn, testified as follows : 10 (All instructions were given to the 11 deponents simultaneously at the beginning of 12 Amabilia Teo ' s deposition. ) 13 (The following testimony was 14 interpreted in Spanish to the Deponent, and the 15 answers were given in English by the Interpreter: ) 16 DIRECT EXAMINATION 17 BY ATTORNEY HOLDEN: 18 Q . Have you ever been known by any other 19 names? You have to say it in words . 20 A. Oh, no . 21 Q . Where do you live currently? 22 A. IMP I can' t pronounce it very well, 23 24 Q . Can you spell it? 25 A. I can ' t write it . I have it written. Jodi L. Lambert. Freelance Court Reporter (717) 263-5383 1 Q . Okay, we can take a look if it helps . The 2 witness, for the record, handed me a sticky note 3 and it says WOMMOOMMOMMIMME. And that ' s here in 4 Chambersburg? 5 A. Yes . 6 Q . How long have you lived there? 7 A. Approximately three years . 8 Q . And who lives there with you? 9 A. Rocio, her husband and their children. l0 Q . Were you all living together at the time 11 that this incident happened at the Giant? 12 A. Yes . 13 Q . Was anyone else living with you besides 14 those people you just told me about at the time 15 Rocio fell? 16 A. No. 17 Q . Are you related to Rocio? 18 A. That ' s correct; yes . 19 Q . How are you related to her? 20 A. She ' s my niece . 21 Q . And how long have you lived in the United 22 States? 23 A. Since 2001 . 24 Q . Are you a citizen? 25 A. No. Jodi L. Lambert. Freelance Court Reporter (717) 263-5383 By: Joseph M. Toddy, Esquire j mtoddyna,zarwin.com Identification No.: 42484 ZARWIN, BAUM, DeVITO, KAPLAN, SCHAER, TODDY, P.C. 1818 Market Street, 13th Floor Philadelphia, PA 19103 (215) 569-2800 (215) 569-1606 (Fax) ROCIO BARRIOS • COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY vs. No.: 13-1446 • GIANT FOOD STORES, LLC JURY TRIAL DEMANDED Defendant. . CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion to Transfer Venue to the Court of Common Pleas of Franklin County was served upon the following named parties by United States Mail, first class, postage prepaid on this date: James M. Turner, Jr., Esquire Furia and Turner 1719 Rittenhouse Square Philadelphia, PA 19103 ZARWIN • BAUM • DEVITO KAPLAN • SCHAER • TODDY• P.C. BY. t� " J SEP M. TO 1 Y, ESQ. Dated: 10)1'1( EXHIBIT "I" J9-1' er VULJ IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PA OR- EDWARD SHAPIRO Plaintiff vs. August Term 2013 No.: 001286 GIANT FOOD STORE #6468, : GIANT FOOD STORES, LLC, : t/a GIANT FOOD STORES and : JURY TRIAL DEMANDED AHOLD U.S.A.,Inc. Defendants ORDER AND NOW, this zr day of te2---, 2014, upon consideration of Defendants' Motion to compel compliance with subpoena served upon the Philadelphia's District Attorney's Office, and having considered the arguments in opposition, if-anyranti-fer•veti-ettme, IT IS HEREBY ORDERED AND DECREED tharFC" ttO eh— LA, dt"7"4-J • • ;; - ;.-"; :• - - SD" . GS 91- 1 rFoasive-torthesubroena served upon it .y e - a. a ove-cap lone. ma e d. • • e . Fai • i .e" ; * . •' e . • • - I • _ -- a.. • - i .e I . Ada° -40100' Shapiro V Get Food Store#6468 Etat ORDER J. 11111111111113111111111 13080128600095 07-c;,-1Vi 44/0/411k• 4Z 4"41. 04, COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) D. STEWART 09/25/2014 ROCIO BARRIOS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW GIANT FOOD STORES, LLC, : Defendant : NO. 13-1446 CIVIL TERM IN RE: DEFENDANT, GIANT FOOD STORES, LLC'S MOTION TO TRANSFER VENUE TO THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY ORDER OF COURT AND NOW, this 24th day of October , 2014, upon consideration of Defendant, Giant Food Stores, LLC's Motion To Transfer Venue to the Court of Common Pleas of Franklin County, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 30 days of service. James M. Turner, Jr., Esq. Furia and Turner 1719 Rittenhouse Square Philadelphia, PA 19103 Attorney for Plaintiff ,/ Joseph M. Toddy, Esq. Zarwin, Baum, DeVitto, Kaplan, Schaer, Toddy, P.C. 1818 Market Street, 13th Fl. Philadelphia, PA 19103 Attorney for Defendant :rc BY THE COURT, Christylee L. Peck, J. =7. ZARWIN • BAUM • DEVITO KAPLAN • SCHAER • TODDY • P.C. By: JOSEPH M. TODDY, ESQUIRE Identification No.: 42484 By: JAMES F. LOGUE, ESQUIRE Identification No.: 202170 3 310 Market Street Suite B, 2nd Floor Rear Camp Hill, PA 17011 (717) 695-4639 (717) 695-6036 (Fax) jflogue@zarwin.com Attorneys for Defendant Giant Food Stores, LLC ROCIO BARRIOS Plaintiff, vs. GIANT FOOD STORES, LLC . Defendant. . COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No.: 13-1446 JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance as additional attorney for Giant Food Stores, LLC, in the above -referenced action. My colleague, Joseph M. Toddy, Esq., Zarwin Baum DeVito Kaplan Schaer Toddy, P.C., 1818 Market Street, 13th Floor, Philadelphia, PA 19103, (215) 569-2800, will remain as counsel for Defendant Giant Food Stores, LLC, in the above -referenced action. DATE: October 30, 2014 BY: ZARWIN • BAUM • DEVITO KAPLAN • SCHAER • TODDY* P.C. ESQUIRE QUIRE F. LOGU ZARWIN • BAUM • DEVITO KAPLAN • SCHAER • TODDY • P.C. By: JOSEPH M. TODDY, ESQUIRE Identification No.: 42484 By: JAMES F. LOGUE, ESQUIRE Identification No.: 202170 3310 Market Street Suite B, 2nd Floor Rear Camp Hill, PA 17011 (717) 695-4639 (717) 695-6036 (Fax) jflogue@zarwin.com Attorneys for Defendant Giant Food Stores, LLC ROCIO BARRIOS COURT OF COMMON PLEAS Plaintiff, OF CUMBERLAND COUNTY vs. No.: 13-1446 GIANT FOOD STORES, LLC JURY TRIAL DEMANDED Defendant. . CERTIFICATE OF SERVICE I, James F. Logue, Esquire, do hereby certify that I am counsel for Defendant referenced above and that on the date set forth below, I did cause to be served upon opposing counsel listed below, a true and correct copy of the within Entry of Appearance via U.S. First Class Mail with respect to the above -captioned matter: James M. Truner, Jr., Esquire Furia and Turner 1719 Rittenhouse Square Philadelphia, PA 19103 DATE: October 30, 2014 BY: ZARWIN • BAUM • DEVITO KAPLAN • SCHAER • TODDY* P.C. ES F. LO F. LO ,E ESQUIRE ZARWIN • BAUM • DEVITO KAPLAN • SCHAER • TODDY • P.C. By: JOSEPH M. TODDY, ESQUIRE Identification No.: 42484 By: JAMES F. LOGUE, ESQUIRE Identification No.: 202170 3310 Market Street Suite B, 2nd Floor Rear Camp Hill, PA 17011 (717) 695-4639 (717) 695-6036 (Fax) jflogue@zarwin.com Attorneys for Defendant Giant Food Stores, LLC ROCIO BARRIOS Plaintiff, vs. GIANT FOOD STORES, LLC Defendant. • • COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No.: 13-1446 JURY TRIAL DEMANDED GIANT FOOD STORES, LLC'S MOTION TO MAKE RULE TO SHOW CAUSE ABSOLUTE AND NOW, Giant Food Stores, LLC, by its undersigned counsel, respectfully moves this Court to make absolute the rule to show cause which was issued in the above -captioned matter on October 24, 2014, and in support states the following: 1. Giant Food Stores, LLC filed a Motion to Transfer Venue on October 16, 2014. 2. On October 24, 2014, The Honorable Judge Christylee L. Peck issued a rule upon Plaintiff to show cause why the relief requested should not be granted, returnable within thirty (30) days of service. 3. On October 24, 2014, the Prothonotary caused a copy of the rule to be served on counsel for Plaintiff by regular mail. A true and correct copy of the transmittal confirmation is attached as Exhibit "A." 4. Plaintiff, Rocio Barrios, has failed to answer Defendant's Motion to date. 5. Pa. R.C.P. 206.7 states "lf an answer is not filed, all averments of fact in the petition may be deemed admitted for the purposes of this subdivision and the court shall enter an appropriate order. 6. Concurrence is not necessary in this matter, pursuant to the above -stated Rule of Civil Procedure. WHEREFORE, Defendant, Giant Food Stores, LLC requests that this Court make the Rule to Show Cause absolute and grant the Motion to Transfer Venue to Franklin County. Respectfully submitted, ZARWIN • BAUM • DEVITO KAPLAN • SCHAER • TODDY* P.C. DATE: December 5, 2014 BY: LMES F. LOGUE,e QUIRE Identification No.: 202170 3310 Market Street Suite B, 2nd Floor Rear Camp Hill, PA 17011 ROCIO BARRIOS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW GIANT FOOD STORES, LLC, : Defendant : NO. 13-1446 CIVIL TERM IN RE: DEFENDANT, GIANT FOOD STORES, LLC'S MOTION TO TRANSFER VENUE TO THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY ORDER OF COURT AND NOW, this 24th day of October , 2014, upon consideration of Defendant, Giant Food Stores, LLC's Motion To Transfer Venue to the Court of Common Pleas of Franklin County, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 30 days of service. James M. Turner, Jr., Esq. Furia and Turner 1719 Rittenhouse Square Philadelphia, PA 19103 Attorney for Plaintiff ,/ Joseph M. Toddy, Esq. Zarwin, Baum, DeVitto, Kaplan, Schaer, Toddy, P.C. 1818 Market Street, 13th Fl. Philadelphia, PA 19103 Attorney for Defendant :rc BY THE COURT, 'a4 Christylee L. Peck, J. Ivo; &pies 10414 EXHIBIT • ‚-/4'- ZARWIN • BAUM • DEVITO KAPLAN • SCHAER • TODDY • P.C. By: JOSEPH M. TODDY, ESQUIRE Identification No.: 42484 By: JAMES F. LOGUE, ESQUIRE Identification No.: 202170 3310 Market Street Suite B, 2" Floor Rear Camp Hill, PA 17011 (717) 695-4639 (717) 695-6036 (Fax) jflogue@zarwin.com Attorneys for Defendant Giant Food Stores, LLC ROCIO BARRIOS Plaintiff, vs. GIANT FOOD STORES, LLC Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No.: 13-1446 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, James F. Logue, Esquire, do hereby certify that I am counsel for Defendant referenced above and that on the date set forth below, I did cause to be served upon opposing counsel listed below, a true and correct copy of the within Motion to Make Rule Absolute via U.S. First Class Mail with respect to the above -captioned matter: James M. Truner, Jr., Esquire Furia and Turner 1719 Rittenhouse Square Philadelphia, PA 19103 ZARWIN • BAUM • DEVITO KAPLAN • SCHAER • TODDY* P.C. DATE: December 5, 2014 BY: ES F. LOGUE, UIRE .ROCIO BARRIOS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW GIANT FOOD STORES, LLC, : Defendant : NO. 13-1446 CIVIL TERM IN RE: DEFENDANT, GIANT FOOD STORES, LLC'S MOTION TO MAKE RULE TO SHOW CAUSE ABSOLUTE ORDER OF COURT AND NOW, this 18th day of December , 2014, upon consideration of Defendant, Giant Food Stores, LLC's Motion To Transfer Venue to the Court of Common Pleas of Franklin County, and Defendant's Giant Food Stores, LLC's Motion To Make Rule To Show Cause Absolute, and Plaintiff 's counsel not having any objection to the motion to transfer venue pursuant to a letter written to this Court, the motion to transfer venue to the Court of Common Pleas of Franklin County is granted, and the Prothonotary of Cumberland County is authorized to transfer the case upon payment by the Defendant of any fees required for the transfer. 17/ James M. Turner, Jr., Esq. Furia and Turner 1719 Rittenhouse Square Philadelphia, PA 19103 Attorney for. Plaintiff seph M. Toddy, Esq. Zarwin, Baum, DeVitto, Kaplan, Schaer, Toddy, P.C. 1818 Market Street, 13th Fl.. Philadelphia, PA 19103 Attorney for Defendant CO iteS BY THE COURT, Christylee L. Peck, J.