HomeMy WebLinkAbout01-4178
MUHAREM NEZIC
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
ROSS STORES, INC.; and : NO. 2001-4178 CNIL TERJV1
MICHAEL LEE MOUNTZ
: CNIL ACTION - LAW
ORDER OF COURT
AND NOW, this 15TH day of DECEMBER, 2004, upon consideration of
Plaintiffs Response to the Rule to Show Cause issued on October 13,2004, the parties
are directed to appear for argument before this Court on THURSDAY. JANUARY 6.
2005. at 3:00 D.m. Counsel for Defendant Ross Stores is directed to bring the copies of
the disputed items from Defendant Mountz's personnel file [c)r the Court to review.
Edward E. Guido, J.
Sheri D. Coover, Esquire
4311 North 6TH Street
Harrisburg, Pa. 17110
Joseph N. Bongiovanni IV, Esquire
Patrick C. Lamb, Esquire
1880 John Kennedy Blvd., Suite 1200
Phila., Pa. 19103
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Roger M. Morgenthal, Esquire
95 Alexander Spring Road
Carlisle, Pa. 17013
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MUHAREM NEZIC,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
ROSS STORES, INC., and
MICHAEL LEE MOUNTZ,
Defendants
NO. 2001-4178 CIVIL TERM
AMENDING ORDER
AND NOW, this 11th day of ,January, 2005, the
final sentence of the Order of Court dated January 6, 2005, is
amended as follows:
"A copy of these documents are attached and
sealed to this Order so that they may be available for appellate
review,,"
In all other respects, the Order shall remain the
same.
Edward E. Guido, J.
Andrew J. Ostrowski, Esquire
Sheri D. Coover, Esquire \
Attorneys for Plaintiff
Joseph N. Bongiovanni IV, Esquire ~ /l'Vl.-il.:tu( /_/3 oS
Attorney for Defendant Ross Store./s, ,Inc. g- (1__
Roger M. Morgenthal, Esquire ~--.
Attorney for Defendant Mountz
srs
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MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C.
BY: JOSEPH N, BONGIOVANNI, IV, ESQUIRE
IDENTIFICATION NO. 87848
1880 JOHN F. KENNEDY BLVD., 12TH FLOOR
PHILADELPHIA, PA 19103
(215) 564-6688
ATTORNEY FOR DEFENDANT,
ROSS STORES, INC.
Our File No. 228-69990
MUHAREM NEZIC
vs.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL DIVISION
ROSS STORES, INC. and
MICHAEL LEE MOUNTZ
NO. 01-4178
DEFENDANT ROSS STORES. INC.'S
MOTION FOR SUMMARY JUDGMENT
Defendant, Ross Stores, Inc., by and through its attorneys, Marks, O'Neill, O'Brien and
Courtney, P.C., hereby moves this Honorable Court to grant its Motion for Summary Judgment,
pursuant to Pa. R.C.P. 1035.2, as to all parties on all claims for the reasons set forth herein:
1. Plaintiffs Complaint states that on October 29, 1999, Muharem Nezic was assaulted
by a co-worker, Michael Lee Mountz, while working at the Ross Distribution Center in Carlisle,
Pennsylvania during a regularly scheduled work shift. (See Plaintiffs Complaint, a copy of which is
attached as Exhibit "A.")
2. Nezic provided a statement to his employer, Ross Stores, immediately following the
assault. Plaintiff reported that he was involved in a verbal argument with Mike Mountz, a Ross Stores'
PH111924.1
co-worker, over roller space that ended in Mountz punching Plaintiff in the mouth. (See, Statement of
Muharem Nezic, a copy of which is attached as Exhibit "8.")
3. There was no allegation, in the statement or in the Complaint, that the injuries were not
work related or that Nezic was assaulted by the co-worker for purely personal reasons.
4. Nezic filed a Police Report on November I, 1999, in which he stated that he had been
assaulted on October 29, 1999, while working at the Ross Distribution Center by a co-worker. The
report stated that, "[T]he incident occurred over a work problem that Mountz [co-worker] tried to
rectifY through his own personal manner." (See, Carlisle Police Report, a copy of which is attached as
Exhibit "C.")
5. There was no allegation, in the Police Report, that the claimed injuries were non-work
related or that Nezic was assaulted by the co-worker for purely personal reasons.
6. On January 31,2001, Andrew J. Ostrowski, Esquire advised Ross Stores that he
represented "Muharem Nezic who was injured when assaulted by Michael Lee Mountz [co-worker]
on October 29, 1999, during the course of employment." (See, Ostrowski correspondence of January
31,2001, a copy of which is attached as Exhibit "D.")
7. There was no allegation by counsel that the claimed injuries were non-work related or
that Nezic was assaulted by the co-worker for purely personal reasons.
8. Under Pennsylvania Workmen's Compensation Act, 77 P.S. S 1 et seq., an employer,
such as Ross Stores, shall be liable for compensation for personal injury to an employee for an injury
sustained in the course of his employment without regard to negligence.
PHIl 1924.1
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--
BAILEY & OSTROWSKI
Andrew 1. Ostrowski, Esquire
Attorney ID 66420
Sheri D. Coover, Esquire
Attorney ID 93285
4311 North Sixth Street
Harrisburg, PA 17110
(717) 221-9500
ATTORNEY FOR PLAINTIFF
Muharem Nezic
MUHAREM NEZIC,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL DIVISION
v.
ROSS STORES, INC, and
MICHAEL LEE MOUNTZ,
Defendants
NO. 01-4178
PLAINTIFF MUHAREM NEZIC'S RESPONSE IN OPPOSITION TO
DEFENDANT ROSS STORES, INC.'S MOTION FOR SUMMARY JUDGMENT
I. Admitted.
2, Denied. The referenced document is not signed by Plaintiff and, by its
terms, the referenced document is not a statement of Plaintiff s.
3. Denied. In light of the previous answer, this allegation is denied.
4. Denied that Exhibit "c" is a police report "filed" by the Plaintiff. That
document is an Initial Crime report prepared by someone other than Plaintiff - namely
Stephen Latshaw, who, upon information and belief is a police officer. Further it should
be noted that the police report states that the subject of the incident was initially over a
work problem, defendant Mountz used a "personal" manner to rectify the situation, and,
therefore, acted outside of the scope of his employment during the incident.
5. Admitted as stated, but immaterial.
6. Admitted with the clarification that the statement "during the course of
employment" only refers to the time and place of the incident and cannot be construed as
a legally binding admission for any purpose whatsoever.
7. Admitted. However, for further clarification, counsel claims that
defendant Mountz used means that were non-work related and outside of the scope of his
employment to resolve the issue with Plaintiff.
8. The allegation of Paragraph 8 constitute conclusions of law to which no
response is required.
9. Denied. While it is admitted that Plaintiff presented a claim for
Pennsylvania Workmen's Compensation, Plaintiff withdrew the Claimant's Claim
petition before the Plaintiff received benefits. (See, Plaintiffs Exhibit "A", Department
of Labor and Industry Bureau of Workers' Compensation, Decision dated July 24, 2003).
10. Admitted.
II. Admitted.
12. Admitted.
13. Admitted.
14. Admitted.
15. Admitted with the clarification that the referenced paragraph of
Defendant's Answer with New Matter constituted a conclusion oflaw to which, under
Pa. R. Civ. P. 1027, no response is require and the allegation is deemed denied.
16. Admitted with the clarification that the method employed by Defendant
Mountz to resolve the issue with Plaintiff was outside of the scope of his employment.
2
17. Admitted. However, Plaintiff denies that he had not officially met
Defendant Mountz prior to the encounter on October 29, 1999. Defendant Mountz
admits in his deposition testimony that Plaintiff was assigned as his helper for several
months prior to the incident. The relevant portion of the deposition states as follows:
Q: Had you known him before this date?
A: I didn't know him until- - I think I knew him briefly, you know, before - -
he was under me before he started, you know, being my helper, I seen
him in the store a few times, you know working, but I didn't really know
him until he started - - you know, until they had him as my helper, which
was only a couple of months, so...
Q; Was it a couple months before this accident or - -
A: Might have only been, like, maybe two months that he was working with
me.
(See, Plaintiffs Exhibit "B", Deposition of Defendant Mountz. p.l3).
18. Admitted.
19. Admitted. By way of further clarification, it is admitted that Plaintiff
made the listed statements in his deposition. However, Detendant Mountz asserts that he
believed that the problem between him and Mountz had to do with their inability to
communicate because of language difficulties. The relevant portion of Defendant
Mountz's deposition states as follows:
Q; Okay. And did you feel that the behavior you complained to him about
was intentional on his part, that he was doing something to gum up the
work, shall we say?
A: That I do not - - I don't think so. I don't think so.
Q: Okay. Could it have ...been a communications problem because of the
language?
3
A: I think it was solely a communication problem - - yeah, I definitely think it
was just a communications problem. I don't think it was anything to hurt
the company or anything, just to hurt me or anything.
(See, Plaintiff's Exhibit "B", Defendant Mountz Dep. p. 40-41).
Further, although Defendant Mountz stated in his deposition that there was
nothing personal about the incident, he admits in his deposition that the lack of
communication between Defendant Mountz and the Plaintiff had influenced his feelings
about the Plaintiff. In referring to the language barrier, Defendant Mountz stated in his
deposition:
Q: [W]hen [Plaintiff] did these things, for whatever reason, did that reflect
back on your performance with the company?
A; Yeah. I mean, if I got questioned or yelled at for not having the orders,
you know, there or where this was or where that was, you know and
having to constantly, you know, explain, you know, well this happened
again, you know. It did affect - - it did affect my performance. I think it
definitely affected me.
Q: So it was more than just an inconvenience or annoyance to you?
A: Yeah.
(See, Plaintiff's Exhibit "B", Deposition of Defendant Mountz, p. 41).
20. Admitted. However, by way of further explanation, as stated in paragraph
19, there was a communications barrier that created difficulties in communication
between the Plaintiff and Defendant Mountz.
21. The allegations of Paragraph 21 constitute conclusions of law to which no
response is required.
22. The allegations of Paragraph 22 constitute conclusions of law to which no
response is required.
4
23, The allegations of Paragraph 23 constitute ,~onclusions of law to which no
response is required.
WHEREFORE, Plaintiff Muharem Nezic respectfully requests that this
Honorable Court deny Defendant Ross Stores, Inc. Motion for Summary Judgment.
Respe<:tfully submitted,
BAILEY & OSTROWSKI
By:
h~Coo~
n ew J. Ostrowski, Esquire
orney ID 66420
Sheri D. Coover, Esquire
Attorney ID 93285
4311 North Sixth Street
Harriburg, PA 17110
(717) 221-9500
5
CERTIFICATE OF SERVICE
I, Sheri D. Coover, Esquire, hereby certify that a true and correct copy of PLAINTIFF
MUHAREM NEZIC'S RESPONSE IN OPPOSITION TO DEFENDANT ROSS STORES,
INC. 'S MOT/ON FOR SUMMARY JUDGMENT was serv,ed via first-class, U.S. mail,
postage prepaid, on the parties below listed:
Joseph N. Bongiovanni IV, Esquire
Marks, O'Neill, O'Brien & Courtney, P.C.
1880 John F, Kennedy Boulevard
Suite 1200
Philadelphia, PA 19103
Roger M. Morgenthal, Esquire
Saltzmann, DePaulis, Fishman & Morgenthal, P.C.
95 Alexander Spring Road, Suite 3
Carlisle, PA 17013
By:
1tu1)~
.
eri D. Coover, Esquire
Attorney ID 93285
4311 North Sixth Street
Harrisburg, PA 17110
Attorney for Plaintiff
Dated: 7- 5- 200,5
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9. Plaintiff presented a claim and received benefits, pursuant to the Pennsylvania's
Workmen's Compensation Act, from Ross Stores for the injuries allegedly sustained in the assault by a
co-worker on October 29, 1999, during the course of his employment over a work problem.
10. On or about July 9,2001, Andrew J. Ostrowski, Esquire, on behalf of Muhareffi
Nezic, filed a Complaint against Ross Stores and the co-worker, Michael Lee Mountz, for the injuries
allegedly sustained by Plaintiff on October 29, 1999, following an assault "during a regularly scheduled
shift being worked by Plaintiff" (See, Plaintiff s Complaint, a copy of which is attached as Exhibit
"A.")
11. Ross Stores filed an Amended Answer with New Matter to the Complaint on or about
September 26, 2001, in which it denied any liability to Plaintiff (See, Defendant, Ross Stores, Inc.' s
Amended Answer to Plaintiffs Complaint with New Matter, a copy of which is attached as Exhibit
"E.")
12. Ross Stores, in its New Matter, averred that Plaintiffs sole remedy, if any, was under
Workmen's Compensation Act as Plaintiffs claimed injuries were suffered while at work as an
employee of Ross Stores. (See, Exhibit "E," at Paragraph 7.)
13. Ross Stores filed a Motion for Summary Judgment on January 15, 2002, alleging that
Workers Compensation was the sole remedy for plaintiff
14. Said Motion for Summary Judgment was denied as premature on April2, 2002, (See,
Exhibit "F".)
15. Plaintiff has not, in any pleading, denied that his sole remedy, as to Ross Stores, in
under the Workmen's Compensation Act.
PH1l1924.1
-3-
16. There is no evidence that the injuries sustained by Plaintiff, Muharem Nezic, were
inflicted for personal reasons.
17. During his deposition on October 22,2003, Plaintiff was asked about his relationship
with Mr. Mountz. Said questioning was submitted through an interpreter which explains some of the
inconsistencies in the transcript with the personal pronouns, The relevant portions of the deposition are
as follows:
Q: Did you and Mr. Mountz get along before this incident?
A: [Plaintiff] saw [Mountz], but they never had a conversation.
Q: [You] never spoke before?
A: No.
Q: Did [you] have any interactions in the workplace before this incident?
A: No, because [we] did not officially meet.
(See Exhibit "G," page 15, line 24 through page 16, line 9).
18. During his deposition on March 22,2005, Defendant Mountz was asked about his
relationship with Plaintiff. The relevant portions of the deposition are as follows:
Q: Had you ever spoken to him?
A: Not really, no.
Q: Okay
A: I mean, other than what I had to while working with him. But prior to that, I
hadn't spoken to him before.
Q:
Do you recall ever having any personal conversations with him outside the job?
A;
No. Never.
PHil 1924.1
-4-
.
Q: Would it be fair to say that all of your conversations with him related to work?
A: Right. Of course.
(See Exhibit "H," page 13, line 15 through page 14, line 2).
19. Later in the March 22, 2005 deposition, Defendant Mountz was asked again about his
conversations with Plaintiff. The relevant portions of the deposition are as follows:
Q: Okay. Now, all of the conversations that you just said you had, you talked to
him many times about this particular work issue, were they all related to work
or was there any personal conversation involved?
A: No, this definitely -- oh, I never talked to him about anything outside of work.
This all -- definitely all had to do with work at the time, you know, what we
were doing, you know, work-wise.
(See Exhibit" H," page 19, lines I through 10).
Mr. Mountz further testified:
Q: Okay. But Ijust want to go back to this one question that I asked you before,
about your conversations with him that initiated this physical altercation between
the two of you, did they all have to do with work or [Mountz's] job
performance, or was there anything personal in nature?
A: There was nothing personal-- absolutely nothing personal about it. It all had to
do with work.
(See Exhibit "H," page 20, lines 8 through 17).
20. Following additional testimony, Mr. Mountz concluded the deposition with the following
exchange:
Q:
I just want to clarify. Is the only communication that you and Mr. Nezic has,
was it only about work-related things?
A:
If you are asking me if! discussed anything other than work with that man, it
was only work. I've not once talked to him about anything other than work.
PHI11924"1
-5-
(See Exhibit" H," page 43, line 21 through page 44, line 3).
21. Ross Stores, as the employer of Muharem Nezic, is entitled to immunity from civil suit
for the alleged negligence causing harm to Plaintiff.
22. Ross Stores, as the employer of Muharem Nezic, also has immunity from the
Crossclaim of Co-Defendant.
23. The Complaint of Plaintiff, and any Crossclaim of the Co-Defendant, must be dismissed
with prejudice because, as a matter oflaw, Ross Stores is the employer ofPlaintiffMuharem Nezic,
and, as such, is immune from suit.
WHEREFORE, Defendant, Ross Stores, Inc., respectfully request this Honorable Court grant
its Motion for Summary Judgment and enter judgment in favor of Ross Stores, Inc., and against all
parties.
Respectfully submitted,
MARKS, O'NEILL, O'BRIEN
& COURTNEY, P.c.
By:
Josep . Bongiovanni
Att ey for Defendant,
Ross Stores, Inc.
Date: (,/117/05
/ /
PH111924.1
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MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C.
BY: JOSEPH N. BONGIOVANNI, N, ESQUIRE
IDENTIFICATION NO. 87848
1880 JOHN F. KENNEDY BLVD., 12TH FLOOR
PHILADELPHIA, PA 19103
(215) 564-6688
ATTORNEY FOR DEFENDANT,
ROSS STORES, INC.
Our File No. 228-69990
MUHAREM NEZle
vs.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CNIL DNISION
ROSS STORES, INC. and
MICHAEL LEE MOUNTZ
NO. 01-4178
MEMORANDUM OF LAW IN SUPPORT OF
ROSS STORES. INe.'S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Muharem Nezic, has filed suit against his employer, Ross Stores, Inc. ("Ross Stores"),
and co-worker, Michael Lee Mountz, for claimed injuries, a fractured jaw and the loss of several teeth,
following an assault at work by co-worker, Michael Mountz, on October 29,1999.
Nezic and Mountz were employed by Ross Stores at their Distribution Center in Carlisle,
Pennsylvania as Merchandise Processors. On October 29, 1999, Nezic and Mountz were operating
forklifts in the Receiving Dock area. Nezic was placing empty skids in the Roller Space Line while
Mountz was taking loaded skids from the Roller Space Line to the Bulk area. The placement of the
empty skids on "the line," by Plaintiff, allegedly interfered with Mountz taking his skids to the Bulk area.
PH111924.1
A disagreement arose between Nezic and Mountz over the placement of the empty skids on
"the line" by Plaintiff. This work-related disagreement, between co-workers, culminated in Mountz
punching Plaintiff in the mouth.
In a statement taken from Nezic, immediately following the incident, he reported that he was
involved in a verbal argument with Mike Mountz, a co-worker at Ross Stores, over roller space that
ended in Mountz punching him in the mouth. (See, Statement of Muharem Nezic, Exhibit "B") Nezic,
in the statement, did not claim that the assault was not work related or that the assault by Mountz was
motivated by purely personal reasons. Nezic, on November 1, 1999, filed a report with the Carlisle
Police Department in which he stated that he had been assaulted, while working at Ross Distribution,
over a "work problem" with Michael Mountz, a co-worker. (See, Carlisle Police Report, Exhibit
"C.") At no point in time did Nezic claim that the assault by Mountz was not work related or that the
assault by Mountz was motivated by purely personal reasons,
Nezic received workmen's compensation benefits from Ross Stores following this incident.
Nezic, at some point in time, retained Andrew J. Ostrowski, Esquire, as his attorney.
Ostrowski, with the knowledge and assent of Nezic, advised Ross Stores on July 9, 2001, of his
representation ofNezic "who was injured when assaulted by Michael Lee Mountz [co-worker] on
October 29, 1999, during the course of his employment" (emphasis added). (See, Ostrowski
correspondence, Exhibit "D.") At no point did Ostrowski allege that the assault by Mountz was not
work related or that the assault by Mountz was motivated by purely personal reasons. 1
1 It is interesting to note that there was no allegation that the attack was the result of personal
reasons until the filing of the Complaint on July 28,2001,21 months after the event, in which it baldly
PHlll924.1
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Ross Stores filed an Amended Answer with New Matter to the Complaint on or about
September 26, 2001, in which it denied any liability to Plaintiff. (See, Defendant, Ross Stores, Inc.'s
Amended Answer to Plaintiffs Complaint with New Matter, a copy of which is attached as Exhibit
"E."). In its New Matter, Ross Stores averred that Plaintiffs sole remedy, if any, was under
Workmen's Compensation Act as Plaintiffs claimed injuries were suffered while at work as an
employee of Ross Stores. (See, Exhibit "E," at Paragraph 7.)
Further, Ross Stores filed a Motion for Summary Judgment on January 15, 2002 alleging that
workers compensation was the sole remedy for plaintiff. Said Motion for Summary Judgment was
denied as premature on April2, 2002.
STANDARD FOR MOTION FOR SUMMARY JUDGMENT
Pennsylvania Rule of Civil Procedure 1035.2 governs summary judgment and states, in
pertinent part:
After the relevant pleadings are closed, but within such time as not to
unreasonably delay trial, any party may move for Summary Judgment in
whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a
necessary element of the cause of action or defense which could
be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the Motion,
including the production of expert reports, and adverse party
who will bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or defense
which in a jury trial require the issues to be submitted to a jury.
was averred, [U]pon information and belief, Mountz' [sic] beating of Plaintiff was motivated by his
personal animus toward Plaintiff and not for any employment-related reasons." (See, Exhibit "A," at
Paragraph 6.)
PHIII924.l
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The Pennsylvania Supreme Court, in Ertel v. Patriot-News Co., 544 Pa, 93, 674 A.2d 1038
(1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512 (1996), embraced the reasoning of the U.S.
Supreme Court in Celotex COIp. v. Catrett, 477 U.S. 317, 106 S.C!, 2548 (1986), and Anderson v.
Libertv Lobbv, 477 U.S, 242, 106 S.C!. 2505 (1986), with regard to the standard ofreview to be
applied to a motion for summary judgment. The court, in recognizing the unreasonableness of "allowing
non-moving parties to avoid summary judgment where they have no evidence to support an issue on
which they bear the burden of proof," held:
[A] non-moving party must adduce sufficient evidence on an issue
essential to his case and on which he bears the burden of proof such that
a jury could return a verdict in his favor. Failure to adduce this evidence
establishes that there is no genuine issue of material fact and the moving
party is entitled to summary judgment as a matter oflaw.
Id., 674 A.2d at 1042. The burden now rests with the non-moving parties, the Plaintiff and Michael
Mountz in this instance, to come forward with evidence to negate the motion for sWTImary judgment of
Ross Stores. It is not enough for Plaintiff to avoid summary judgment, to rest on the mere allegations
contained in the Complaint. Wilkinson v. K-Mart, 412 Pa. Super. 434, 603 A.2d 659 (1992), Nor is
it enough for the Co-Defendant, to avoid summary judgment, to rest on boilerplate averments contained
in a cross-claim.
SUMMARY JUDGMENT IS PROPER AS TO ROSS STORES. INC.
Ross Stores is the employer ofMuharem Nezic and is entitled to immunity from civil suit for
negligence claims.
PH111924.1
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As a general rule, the Pennsylvania Workmen's Compensation Act provides the exclusive
remedy for an employee, such as Nezic, who seeks recovery for injuries sustained in the course of his
employment. Wagner v. Natural Indemnitv Co., 492 Pa. 154,422 A.2d 1061,1064 (1980). The Act
provides a specific exception, however, in cases where the injury is caused intentionally by third parties.
Section 301(c) of the Act provides, in pertinent part:
The term "injury arising in the course of his employment," as used in this
article, shall not include an injury caused by an act of a third person
intended to injure the employee because of reasons personal to him, and
not directed against him an employee or because of his employment...
(emphasis added.) 77 P.S. 9411(1),
This provision of the Act has been narrowly constructed by the courts to allow recovery only in
cases where the third party's actions against the employee were motivated by personal reasons
unassociated with that particular employee's employment. Bachman Co. v. W.C.A.B. (Spence), 683
A,2d 1305, 1310, 1996 Pa. Cmwth. LEXIS 427 (Pa. Cmwth. 1996).
Applying this princfple oflaw to the facts ofthe case, Plaintiff does not fit within this narrow
exception to the Act and R~ss Stores is immune from civil suit because Ross Stores is the employer of
Nezic. Immediately follo"\\fing this incident, when recollections were fresh and uncluttered by other
considerations, Nezic state1l that he was assaulted by a co-worker, following a verbal argument over a
roller space in the Ross Di~tribution Center. (See, Statement of Muharem Nezic, Exhibit "B.") The
I
statement provided by Nezlc did not make any claim that the assault was motivated by personal
,
i
animosity, or reasons, betw~en himself and Michael Mountz, a co-worker.
,
PHI 11924.1
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The Commonwealth Court, in Bachman Co. v. W.C.A.B. (Spence), 683 A.2d 1305,1996 Pa.
Cmmw. LEXIS 427 (Pa. Cmwlth. 1996), was faced with a similar set offacts. The claimant in
Bachman, was assaulted tbllowing an argument over his refusal to back-up a company truck while
purchasing gasoline. Although the assailant was not a co-worker, the court held that the attack was
directly related to claimant's employment because the attack was precipitated by claimant's refusal to
,
,
back-up the company trucf and was not inflicted for personal reasons. As such, the injuries sustained
I
by claimant did not fit wit~in the meaning of the exclusionary provisions of Section 301 of the Act. Id.
at 1310. In this case, Plai*tiffwas assaulted following an argument over roller space in the Ross
Distribution Center. Und~r these facts, the narrow exception to the Act allowing Plaintiffto bring a
negligence action against ~is employer only applies a non-work related act provided the impetus for the
I
assault. Kandra v. w.C.AIB (Hills Dept. Store, 159 Pa. Cmwlth 251,632 A.2d 1069, 1072 (1993).2
i
There is no credible evide~ce that the assault was related to anything but Nezic's employment. There is
!
,
no evidence, of any type, ttat a non-work related act provided the impetus for the assault ofNezic by
Mountz. Plaintiff, therefoie, cannot satisfy his burden of proving that the assault was the result of
personal reasons by Mounr'
Further support thai the claim of Plaintiff, and Crossclaim of Defendant, should be dismissed
with prejudice as to Ross ~tores is found in the admission of counsel which is binding upon Plaintiff.
Counsel for Plaintiff, by c rrespondence dated January 31, 2001, advised Ross Stores that he
2 Furthermore, ther is a rebuttable presumption that an injury is work related, and does not fit
within this narrow excepti n, when it occurs on the employer's premises. Kohler v. McCorv Stores,
532 Pa. 130, 615 A.2d 27, 0 (1992).
PHI 11924.1
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represented "Muharem Nezic who was injured when assaulted by Michael Mountz [co-worker] on
October 29, 1999, during the course of his employment. (See, Ostrowski correspondence, Exhibit
"D.") Plaintiff was "copi~d" on this correspondence. There was no mention that the assault ofNezic
was the result of personallreasons unassociated with Nezic's employment with Ross Stores. Neither
!
,
counsel nor Nezic repudi ted this admission3 during the almost six month interval prior to filing the
Complaint on, or about, J ly 9,2001.
Following this Ho arable Court's denial ofthe Motion for Summary Judgment previously filed
_ said Order specifically enied the Motion as premature - discovery commenced. Quite simply, there
continues to be no eviden e that the injuries sustained by Plaintiff, Muharem N ezic, were inflicted for
personal reasons.
During his deposit on on October 22,2003, Plaintiff was asked about his relationship with Mr.
Mountz. Said questioning was submitted through an interpreter which explains some of the
inconsistencies in the tran cript with the personal pronouns. The relevant portions of the deposition are
as follows:
Q: Did you and Mr. Mountz get along before this incident?
A: [Pia ntiff] saw [Monntz], but they never had a conversation.
Q: [Yo] never spoke before?
A: No.
3 Such an admissio of counsel is binding and admissible as to a client where, as in this case, the
attorney had the authority t make the admission and did so with the full knowledge and assent of his
client. Hatbob v. Brown, 94 Pa. Super. 234, 575 A.2d, 607, 613 (1990).
PHIl 1924.1
-7-
Q: Did [you] have any interactions in the workplace before this incident?
A: No] because [we] did not officially meet.
,
(See Exhibit "G," page 19' line 24 through page 16, line 9).
,
During his deposit~on on March 22, 2005, delayed solely due to scheduling difficulties in
locating Mr. Mountz and rranging for his deposition, Defendant Mountz was asked about his
relationship with Plaintiff The relevant portions of the deposition are as follows:
Q: Ha you ever spoken to him?
A: Not really, no.
Q: Ok y
A: I m an, other than what I had to while working with him. But prior to that, I
had 't spoken to him before.
Q: Do au recall ever having any personal conversations with him outside the job?
A: No. Never.
Q: Wo Id it be fair to say that all of your conversations with him related to work?
A: Rig t. Of course.
(See Exhibit "H," page 13, line 15 through page 14, line 2).
Later in the March 2, 2005 deposition, Defendant Mountz was asked again about his
conversations with Plainti . The relevant portions of the deposition are as follows:
Q: Oka . Now, all of the conversations that you just said you had, you talked to
him any times about this particular work issue, were they all related to work
or w s there any personal conversation involved?
PH!1l924.!
-8-
A: No, this definitely -- oh, I never talked to him about anything outside of work.
This all -- definitely all had to do with work at the time, you know, what we
,
,
I
we~e doing, you know, work-wise.
I
I
(See Exhibit "H," page I~, lines I through 10).
I
!
Mr. Mountz furth r testified:
Q: Ok y, But I just want to go back to this one question that I asked you before,
abo t your conversations with him that initiated this physical altercation between
the 0 of you, did they all have to do with work or [Mountz's] job
per ormance, or was there anything personal in nature?
A: Th e was nothing personal -- absolutely nothing personal about it. It all had to
do ith work.
(See Exhibit "H," page 20 lines 8 through 17).
Following additio I testimony, Mr. Mountz concluded the deposition with the following
exchange:
Q: I ju t want to clarify. Is the only communication that you and Mr. Nezic has
[sic, was it only about work-related things?
A: Ify u are asking me ifI discussed anything other than work with that man, it
was only work. I've not once talked to him about anything other than work.
(See Exhibit "H," page 43, line 21 through page 44, line 3).
There is simply no vidence, in the admission of counselor the extensive discovery that has
taken place, that the assaul ofNezic was related to anything but Plaintiffs employment. There is no
PHIII9241
-9-
evidence, in the admission of counselor the extensive discovery that has taken place that a non-work
related act provided the iIfpetus for the assault ofNezic by Mountz. Plaintiff cannot satisfY his burden
of proving that the assauI~ was the result of personal reasons by Mountz.
CONCLUSION
A party opposing motion for summary judgment must adduce sufficient evidence on the issues
on which it bears the burd n of proof. It is not enough, to avoid summary judgment, for a party to rest
on the mere allegations co tained in the Complaint or the Crossclaim. The non-moving party, or parties
in this case, must come fo ard with evidence to negate the motion.. Failure to adduce such evidence
establishes that there is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter ofla . Ertel v. Patriot-News Co., 544 Pa. 93,674 A.2d 1038 (1996), cert.
denied, 519U.S. 1008, 11 S.C!. 512 (1996).
The evidence ofre ord reveals that Plaintiff, Muharem Nezic, reported to both his employer,
Ross Stores, and the Carli Ie Police Department that the assault, at work, on October 29,1999, was
the result of a work proble . Neither statement contained any allegation that the assault was due to
personal, or non-work rela ed, reasons. Counsel for Plaintiff reiterated this admission, with the
knowledge and assent ofh s client, to Ross Stores in his letter of representation. It was not until the
filing ofthe Civil Action t at there was a bald averment that the assault was not work related.4 Despite
this bald averment, there i no evidence of record to support such a claim.
4<'Upon informatio
animus towards Plaintiff
at Paragraph 6.)
and belief, Mountz' [sic] beating of Plaintiff was motivated by his personal
d not for any employment-related reasons." (See, Complaint, Exhibit "A,"
PH111924.1
-10-
Ross Stores has engaged in lengthy -- and costly -- discovery which has further revealed that
the altercation was the result of a work problem. The relevant portions of the deposition transcript are
attached to this pleading.
Muharem Nezic, $ an employee of Ross Stores, has forfeited any rights to damages from Ross
Stores but for the remedy available under the Workmen's Compensation Act. The immunity from suit
afforded Ross Stores, as t e employer of Muharem Nezic, mandates that any crossclaim of the Co-
Defendant be dismissed 'th prejudice.
WHEREFORE, D fendant, Ross Stores, Inc. respectfully requests this Honorable Court grant
its Motion for Summary J dgment, enter judgment in its favor against Plaintiff, and dismiss all claims and
crossclaims against them ith prejudice.
Respectfully submitted,
MARKS, O'NEILL, O'BRIEN
& COURTNEY, P.C.
Date: 0/{0(D':>
PHIII924.1
-11-
-r--
.-'1'\\\.nA l\
-
..."
.
.
.
MUUAREM NEZIC
Plaintiff
IN um COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
vs.
NO.: 01 - /.1171
Gu.-L~
I
I
ROSS STORES, INt,; and MICflAEL
LEE MOUNTZ, I
Defendants I
CMLACTION-LAW R E eEl V E D
JURY TRIAL DEMANDED JUl 23 2001
MARK S, ASKANAS
GENERAL COUNSEL. SVP-HR
NOTICE
You have been lsued in court. If you wish to defend the claim set forth in the following pages,
YOLl must take action ~thin twenty 20) days after this Complaint is served, by entering a written
appearance personally r by attorn and filing in writing with the court your defenses or objections
to the claims set forth against you. ou are warned that if you fail to do so the case may proceed
without you and a judg ment may be entered against you by the court without further notice for any
money claimed in the p tition or for yother claim or relief requested by the plaintiff You nay lose
money or property or ther riglrts i portant to you.
YOU SHouLD TAKE S PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT Hi}.. VE A LA R OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THEIOFFICE S T FORTH BELOW TO FIND OUT WHERE YOU
CAN GET LEGAL ~LP.
Cumberl d CO\H\\y Lawyer Referral Service
2 Liberty Avenue
Carlisle, P A 17013
(717)249-3166
'---
TRUE COpy FROM RECORD
III T~~ \lil!I;;'~, ! \-",e" '.lnto m m, ho~
-l! ~". PI.
~ "~'~;i""'''~ . l--'rn~
. -~~ I
010/S00~
N::illllV II 111V:>
9t99 9C6 5.6 XVd t.;1T To,rC/90
.',
.
MUHAREM NEZIC
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYL VANIA
VS.
: NO.:
ROSS STORES,INC,; and MIC
LEE MOUNTZ,
EL
, Defendants
: ClVlL ACTION - LAW
: JURY l1UAL DEMANDED
COMPLAINT
AND NOW COMES Plaint" , Muharem Nezic, by his attorney, Andrew Ostrowski, Esquire,
and in bringing this act!on before thi Court avers as follows:
1. Plaintifl\. Muharem zic, an adult individual, resides at 520 Third Street, Carlisle,
Pennsylvania 17013.
2. Defend$1t, Ross Stor s, Inc. is, upon information and belief, a corporation organized
and existing under the laws of the ommonwealth of Pennsylvania with its registered office or
principal place ofbusincSs located at 1 07 Shearer Drive, Carlisle, Cumberland County, Pennsylvania
17013
3. Defendaht, Michael L e Mountz, an adult individual, resides at 262 Mt. Zion Road,
Carlisle Cumberland COlmty, pennsyl ania 17013.
4. At all times relevant ereto, plaintiff and Defendant Mountz were employed by
Defendant Ross Stores mc..
1
OtO/900(0
NllllllV II 111VJ
S~99 SC6 S~6 YVd ~l;ll 10/te/so
.
'.
5. On Oct. 29, 1999, Defendant Mountz physically assaulted Plaintiff, intentionally and
without cause or provocation, by bFting Plaintiff with his hands and fists in and around Plaintiff's
,
face and head, fracturing Plaintijfs~aw, causing the loss of several teeth and other contusions and
lacerations, for all of which Plaint4reQuired and sought to medical attention.
I
6. Upon information d belief, Mountz' beating of Plaintiff was motivated by his
personal animus towaIids Plaintiff d not for any employment-related reasons.
7. The be~ting Plaintiff suffered at the hands of Mountz occurred on the premises of
Defendant Ross Stores.. Inc. during regularly scheduled shift being worked by Plaintiff.
8. Upon fuforrnation d belief, Defendant Ross Stores, Inc. had actual and/or
constructive knowledgt of the viole propensities of Defend ani Mountz through past actions and/or
conduct of Mountz wh~e he exhibit d such tendencies towards other employees.
COUNT I
9. Plaintiff Incorporates aragraphs 1-8 of his Complaint as iffully rewritten herein.
10. Defendabt Ross Store , Inc. owes a duty of care to Plaintiff to provide him with a
workplace free from the, risk of viol en e inflicted by employees with a propensity for such behavior
against other employeeslfor reasons u related to their work.
11. DefendaIjt Ross Store , Inc. was negligent by failing to exercise the degree of care
necessary to protect PlailPtifffrom the 'olent assault inflicted upon him by Defendant Mountz when
Defendant Ross stores lnic. new and/or should have known of the risk of harm to Plaintiff as a result
of such actions.
2
orol ,(00 lei
NffinIV II 111V:l
9t99 9ca s.a XVd t.;TT TO/TC/SO
.
.
12. As a direct and proximate result ofthe negligence and carelessness ofDefendant Ross
Stores, Inc., Plaintiff suffered a fr~ctured jaw, the loss of several teeth and other contusions and
lacerations to his face and head, fo~ all of which Plaintiff sought and received medical treatment.
,
13. As an additional ~irect and proximate result of Defendants' negligence and
I
carelessness, Plaintiff has suffered, ~nd will continue to suffer, tremendous physical and emotional
pain and suffering an~ permanent d sfigurement as a result ofthe beating inflicted upon him.
14. As a further direct d proximate result of the Defendant's negligence, Plaintiff has
incurred medical expe~ses in order t cure, heal and alleviate his injuries, pain and suffering and may
be obligated to incur ~dditional su
WHEREFOIU;, Plaintiff de ands judgment in his favor, and against Defendant Ross Stores,
Inc., for compensatory damages, p nitive damages and all such further relief to which he may be
entitled at law, in an $ount in exce s of the threshold for compulsory arbitration.
COUNT TWO
15. Plaintiftincorporates paragraphs 1-14 of his Complaint as if fully rewritten herein.
16. Defend~. t Mountz' tting of Plaintiff constitutes the intentional tort of assault and
battery for which Plain~ffmay reeo r damages at Jaw for the injuries inflicted upon him.
17. As a ditect and pro ate result of the acts and conduct of Defendant Mountz,
18. As an aMitional dire t and proximate result of the acts and conduct of Defendant
,
Plaintiff suffered a frac~redjaw, the oss of several teeth and other contusions ahd lacerations to his
face and head, for aU of which Plain sought and received medical treatment.
Mountz, Plaintiff has sJffered, and II continue to suffer, tremendous physical and emotional pain
and suffering and permanent disfigur ent as a result of the beating inflicted upon him.
3
010/800 III
NalIllVlI 1l/V:>
8t99 8C6 S~6 XVd s~:rl 10/le/80
-
.
.
19. As a funher direct and proximate result of the Defendant's negligence, Plaintiff has
incurred medical expenses in order tp cure, heal and alleviate his injuries, pain and suffering and may
i
be obligated to incur additional su~s in the future.
WHEREFORE, Plaintiff ddmands judgment in his favor, and against Defendant Michael Lee
,
I
I
Mountz, for compensatory damagesf punitive damages and all such further relief to which he may be
entitled at law, in an amount in exc1ss of the threshold for compulsory arbitration.
Respectfully submitted,
~4
Supreme Ct. 1.0. No, 66420
431 I N onh Sixth Street
Harrisburg, P A 1711 0
(717) 221-9500
Attorney for Plaintiff
Dated: July 6, 2001
4
010/600 ~
NffiIlIVlI llIV:>
8t99 8C6 SZ6 XVd sz:rr 10/re/80
,
~
.
VERIFICATION
I, Muharem Nezic, hereby \state that I am the Plaintiff herein and that I bave reviewed the
,
foregoing Complaint and that th~ facts stated therein are true and correct to the best of my
knowledge, information and belief and, that this statement is made subject to the penalties of 18
Pa. C.S. Section 4904 relating to u sworn falsification to authorities.
Dated: 0 7 - 0 6 - 0 I
,
J!<tttqreJ11 JtJ. IC,.
Muharem Nezic
OTO/OTO~
Nmmvll 111V~
8t99 9C6 SZ6 XVd SZOTT TO/TC/SO
. .
//////////////////////11111111111111111111111111111111111111111111111111111111111111111111111111111/111111111//11111111111111111111111111111111/111111//////////1//II/II/II
L7~:=N&CO.
Claims M:!J13gemelH and ^dministratiol"l
Centr'C Pointc
165 LelUlOn Lane
Suile 101
Wal1lut Creek, CA 94596
(925) 9JR-(j(l40
(BOO) 99;4763
Fox: (925) 938- 664B
August 31,2001
I FAX
I TEN PAGES
To: Tom Johanson
From: RICHARD L. MILLER
Phone:
Fax Phone: 215-628-4174
I CC:
f-
REMARKS: ~
Please take in1JT:ediate action to rotect Ross ~tores, .Inc.. We received this yesterday and
suspect ills subject to default. ormal transmlttal will follow by matI.
,
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PAGE: 1
INCff: CAR 19991001313
I
THE HARRISBURG AREA POLICE INFORMATION RESOURCE SYSTEM
09/10/01
( ICRIPINC)
LDK1 CAR2
DT,TM: 1999 10 31 1755 SUN
TO:
----------------------------------
PUCR: 0450 STATUS: R DT CLEAR: 1999 11 01 JUV CLEAR: N DIST JUST: 09201
SYNOPSIS: MUHAREM NEZIC CAME ON STATION AND REPORTED THAT HE WAS THE
VICTIM OF AN ASSAULT AT ROSS DISTRIBUTION AND WOULD LIKE TO
PURSUE A CHARGE OF ASSAULT AGAINST MICHEAL MOUNTZ.
BIAS MOTIV - ETHNIC: RELIG: RACIAL: SEXUAL:
CRIM SCENE SEARCHED: N PRINTS 1AKEN: N BY:
# OF OFFENDERS: 1 PHOTOS 1AKEN: N BY:
WAS THERE A WITNESS. . . . . . . . . . . . '.' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . .: Y
SUSPECT NAME OR GOOD DESCRIPTION..................... ...............: Y
KNOWLEDGE OF SUSPECT LOCATION.. .....................................: Y
DESCRIPTION WHICH IDENTIFIES VE~ICLE USED BY SUSPECT................: N
LIMITED OPPORTUNITY FOR SUSPECT ;TO COMMIT CRIME......... ..... .......: Y
LIMITED NUMBER OF PERSONS AS POSSIBLE SUSPECTS......................: Y
BELIEF THAT CRIME CAN BE SOLVED WITH REASONABLE INVESTIGATIVE EFFORT: Y
BELIEF THAT A MAJOR CRIME CAN B~' SOLVED BY PUBLICITy..............,.: N
PRESENCE OF SIGNIFICANT PHYSICAL EVIDENCE TO 10 SUSPECT OR ACCUSED. .: N
PROPERTY WITH CHARACTERISTICS, KS, NUMBERS THAT CAN BE TRACED....: N
POSITIVE RESULTS FROM A CRIME SC NE EVIDENCE SEARCH FOR PRINTS. . . . . .: N
MODUS OPERANDI: 404
--------------------------------~---------------------------------------------
UCR INCIDENT-CRIME-CODES DESC~IPTION #CT
- - - -- - -------------~---------------------------------------------
0~~0-18 ;;01- -- i1 SIMP~E ASSLT - ATTEMPT TO OR CAUSE BODILY INJU 1
--------------------------------+---------------------------------------------
NOFF A/C LOC #PREM SUSP-USE iCRIM-ACT WEAP/FORC-USED BIAS
--------------------------------f---------------------------------------------
DB C 05 00 N I 99 00 00 99
.
METRO
PAGE:
INC#:
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09/10/01
(ICRIPINC)
LOKI CAR2
2
cAR 19991001313
DT,TM: 1999 10 31 1755
------------------------------------------------------------------------------
REPORT NO : 01 IC INITIAL CRIME
STATUS: 0
------------------------------------------------------------------------------
LOC, GRID:
REPORT OFF:
VEH INFO:
ASSIGN OFF:
APPROV OFF:
CV HANDBK: N
SEC SURVEY: N
ARREST (S): Y
CARLISLE PA 0400
11/01/99 1738 PLAT: SECT: P
LIGHT: U WEATHER: U TEMP: 999 F
00/00/00 DUE:
00/00/00
RELAT FORM: N
W SOlITH ST
3 STEPHEN
00053
M LATSHAW
INSI, OUT: I
I
31 BARRY E fALTERS
PCCD v/w FORM:I N DOM
DEFERR PROSECUT:1 N
FURTHER ARRESTS:I N
CRIM SUMMONS: Y
REC FOLLOW UP: N
EXT SIGNED DOC: N
STMT / CONFESS: N
WARRANT: N
REC ASSIGN TO: P
MUHAREM NEZIC CAME ON STATION AND REPORTED THAT HE HAD BEEN
ASSAULTED WHILE HE WAS WORKING AT ROSS DISTRIBUTION. HE WAS
ASSAULTED ON 10-29 99 DURING HIS SHIFT BY MICHEAL MOUNTZ. MR
NEZIC WAS PUNCHED N THE FACE BY MOUNTZ AND HAD TO BE TAKEN
TO THE CARLISLE ER. AT THE ER, THEY TOOK X-RAYS AND THERE
WAS NO FRACTURE B HE HAD SEVERAL TEETH THAT WERE LOOSE
DUE THE PUNCH HE R CIEVED FROM MOUNTZ.
THE INCIDENT OC ED OVER A WORK PROBLEM THAT MOUNTZ TRIED TO
RECTIFY THROUGH HI OWN PERSONAL MANNER. NEZIC AND MOUNTZ
WERE BOTH WORKING ITH SKIDDED MATERIAL AND APPARENTLY MOUNTZ BE
CAME UPSET WITH TH WAY NEZIC WAS PERFORMING HIS TASKS. .
ACCORDING TO WITNE SES, MOUNTZ BEGAN TO VERBALLY ABUSE NEZIC.
NEZIC, WHO SPEAKS RY LITTLE ENGLISH, APPROACHED MOUNTZ AND
ASKED HIM TO CALM OWN. AT THIS TIME, MOUNTZ GRABBED A HOLD
OF NEZIC BY THE SH RT AND THREATENED HIM. NEZIC PUSHED MOUNTZ
AWAY AND APPARENTL HIS HAND MAY HAVE STRUCK MOUNTZ. MOUNTZ
SUSTAINED NO INJUR ES AND ONCE THEY WERE SEPARATED TWO
EMPLOYEES, STIPO INOVIC AND ALBERTO JOUBERT STEPPED IN AND
SEPARATED THE TWO. AFTER BEING SEPARATED, THE WITNESSES HEARD
MOUNTZ STATE "YOUR LUCKY THAT I LOVE MY JOB OR ELSE I WILL
FUCK YOU UP RIGHT ERE" MOUNTZ THEN TURNED TO LEAVE AND TOOK
TWO STEPS AND THEN CAME BACK AND PUNCHED NEZIC IN THE MOlITH.
WITNESSES STATED T NEZIC DID NOT RETALIATE IN ANY WAY AND
JUST STOOD THERE STARED AT HIM AND TOUCHED HIS MOUTH.
ART KOONCE, A SUPE VISOR AT ROSS DISTRIBUTION CAME TO THE
SCENE OF THE INCID AND CONDUCTED AN INVESTIGATION. HIS
INVESTIGATION ED THAT MOUNTZ DID STRIKE NEZIC AND THAT
MOUNTZ WAS THE AGG ESSOR. NEZIC WAS TAKEN TO THE CARLLISLE
ER FOR INJURIES MOUNTZ WAS SUSPENDED. MOUNTZ WAS CALLED
IN'rO WORK ON SA AY AND HE SPOKE WITH MARK ALTMYER WHO IS
IN THE HUMAN RESO CES DEPARTMENT AT ROSS. AT THIS TIME,
MR ALTMYER INFORME MOUNTZ THAT HIS EMPLOYMENT AT ROSS WAS
TERMINATED FOR HIS ASSAULT ON NEZIC. MOUNTZ WAS AGITATED AND
STORMED OUT OF THE BUILDING.
I SPOKE WITH MOUNT AND HE STATED THAT HE DID STRIKE NEZIC
BUT HE SAID IT WAS IN SELF DEFENSE. HE WAS ADVISED THAT HE
WOULD BE RECIEVING A SUMMONS TO APPEAR BEFORE DJ CORREAL ON
THE CHARGE OF SIMP E ASSAULT.
NEZIC WAS TREATED
ORAL SURGEON FOR H
AT THE TIME OF THI
T THE CARLISLE ER AND WAS ALSO TO SEE AN
S TEETH. HE HAS YET TO SEE THE ORAL SURGEON
REPORT. A STATUS OF HIS CONDITION WILL
METRO
PAGE:
INC#:
3
CAR 19991001313
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09/10/01
( ICRIPINC)
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DT,TM: 1999 10 31 1755
------------------------------------------------------------------------------
REPORT NO : 01 IC INITIAL CRIME
MUHAREM
STATUS: 0
NMN
NEZIC
BE UPDATED WHEN THE INFORMATION BECOMES AVAILABLE.
RSA: WM 52
VICT WITN REPT-BY
DOB: 470101 SS#: 155021379
ADDR: 520 THIRD ST
CARLISLE PA 17013
EMPL: ROSS DISTRIBUTION
ADDR: SHEARER DR 01707
CARLISLE PA 17013
OLN: WAN'I) CHK:
VICTIM - CO-OP: Y TYP-INJ: MT
TAKEN TO: CARLISLE ER
COMM:
ALBERTO
NMN
JOUBEW
CDS: 4 7 15 DJ,CRT APPEAR: 2
RESIDENT STATUS: R HISP: N CUBN: N
PHONE: 717 249 2469
OCCUP:
WRK HRS:
PHONE: 717 240 1407
COND: G MED AID: Y
NOTIFIED KIN: N, COR: N, DA: N
RSA: WM 30
--------------------------------1----------------------------------------------
DJ,CRT APPEAR: 2
HISP: H CUBN: U
OOB:
ADDR:
EMPL:
ADDR:
OLN:
COMM:
WITN
691008 SS#: 582298134
668 SCHUYKILL ST
HARRISBURG PA 17110
ROSS DISTRIBUTION
SHEARER DR 01707
CARLISLE PA 1701?
WANT! CHK:
CDS: 4 15
RESIDENT STATUS: N
PHONE:
OCCUP:
WRK HRS:
PHONE:
717 233 0259
717 240 1407
--------------------------------~---------------------------------------------
STIPO NMN JURINOVIC RSA: WM 38
--------------------------------~---------------------------------------------
,
DOB:
ADDR:
EMPL:
ADDR:
OLN:
COMM:
WITN
610705 SS#: 180783144
519 S WEST ST
CARLISLE
ROSS DISTRIBUTION
SHEARER DR 01707
CARLISLE PA 1701~
WANT iCHK:
PA l70LI!
CDS: 4 15
RESIDENT STATUS: R
PHONE:
OCCUP:
WRK HRS:
PHONE:
DJ,CRT APPEAR: 2
HISP: N CUBN: N
717 232 0568
717 240 1407
MICHAEL
--------------------------------~---------------------------------------------
RSA: WM 29
LEE
MOUNTZ'
--------------------------------~---------------------------------------------
CDS: 1 DJ, CRT APPEAR: 2
ACCU ARRES'l\'#: 420121 C/F:
OOB: 701026 S8#: 175580543 RESIDENT STATUS: N HISP: N CUBN: N
ADDR: 262 MT ZION RD
CARLISLE PA 170d PHONE: 717 245 9019
EMPL: U. S ARMY WAR COLLEGE OCCUP: SALESMAN
ADDR: CARLISLE BARRAC99999 WRK HRS: VARY
CARLISLE PA 1701~ PHONE: 717 240 1407
OLN: 22767108 SUSP PA WANT iCHK: Y N 4210 CHAPOSKY GEORGE J
COMM:
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A1~DREW J. OSTROWSKI
ATTORNEY AT LAW
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2080 Linglestown Road
Harrisburg, PA 17110
Telephone: 717-5~O-9170
Facsimile: 7l7-5~O-5~81
January 31, 2001
Ross Stores, Inc.
1707 Shearer Drive
Carlisle, P A 17013
ATTN: Liability Claims
Re: Muharem Nezic
Dear Sir and/or Madam:
Please be advised that I repres(jnt Muharem Nezic who was injured when assaulted by
Michael Lee Mountz on October 29, 1999 during the course of employment. lVlr. Nezic was
seriously injured in connection with that incident and continues to experience pain and suffered
permanent distigurement as a result of the conduct of your employee. Mr. Nezic intends to
proceed with appropriate action againstMr. Mountz and/or Ross Stores, Inc. to seek his remedies
for these actions and has authorized mlt to accept $75,000.00 in full and final settlement of any
and all outstanding claims he may have.
I will look forward to your response.
a:;:oJ
Andrew J. Ostrowski
"
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GOLDFEIN & fK)SMER
By: Thomas J. JcltIan$on
Identification No. 2l!lII5o. .
1600 Market Street
33'" Floor
Philadelphia, PA 19103
(215)919-8200
MUHAREM NEZIC
Attorney for Defendant,
Ross Stores, Inc.
Plaintiff
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CIVIL ACTION .' .-;
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JURY TRIAL DEMANDED ~ ""' ~
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vs.
ROSS STORES, INC. and
MICHAEL LEE MOUNTZ
Defendant
DEFENDANT, ROSS STORES, INC. AMENDED ANSWER TO
PLAINTIFF'S COMPLAINT WITH NEW MATTER
1. Denied. Answering Defendant lis without sufficient infonnation to fonn a belief as to the
truth of the avennents contained in this paragraph, therefore they are denied.
2. Denied. Ross Stores, Inc. is a corporation organized under the laws of the State of
California with its principle place of business in Newark California.
3. Denied. Answering Defendant is without sufficient infonnation to fonn a belief as to the
truth of the avennents contained in this! paragraph, therefore they are denied.
4. Denied. Answering Defendant is without sufficient infonnation to fonn a belief as to the
truth of the averments contained in this: paragraph, therefore they are denied.
5.
6.
ant i$ without sufficient infonnation to fonn a belief as to the
7.
..this !paragraph, therefore they are denied.
nt ill without sufficient infonnation to fonn a belief as to the
truth of the avennents COAt8ined in this paragraph therefore they are denied. All other
allegations in this paragraph are denledi as conclusions of law.
/
COUNT I
8. Answering Defendant incorporates its response to paragraphs 1 through 8 as if fully set
forth herein.
9. Denied. All allegations of negligence or carelessness are specifically denied. All other
allegations in this paragraph are denied as conclusions of law.
10. Denied. All allegations of negligence or carelessness are specifically denied. All other
allegations in this paragraph are denied as conclusions of law.
12. Denied. All allegations of neglit)ence or carelessness are specifically denied. All other
allegations in this paragraph are denied as conclusions of law.
13. Denied. All allegations of negligence or carelessness are specifically denied. All other
allegations in this paragraph are denied as conclusions of law.
14. Denied. All allegations of negligence or carelessness are specifically denied. All other
allegations in this paragraph are denied as conclusions of law.
WHEREFORE, Answering Defendant demands judgment in its favor and against
Plaintiff.
COUNT II
15. Answering Defendant incorporates its responses to paragraphs 1 through 14 as if fully
set forth herein.
16. Denied. After reasonable investigation answering defendant is unable to determine the
truth of the allegations therefore it is der'1ied, All other allegations of this paragraph are denied
as conclusions of law.
17. Denied. After reasonable investigation answering defendant is unable to determine the
truth of the allegations therefore it is denied, All other allegations of this paragraph are denied
as conclusions of law.
18. Denied. After reasonable investigation answering defendant is unable to determine the
truth of the allegations therefore it is denied. All other allegations of this paragraph are denied
as conclusions of law.
19. Denied. After reasonable investigation answering defendant is unable to determine the
truth of the allegations therefore it is denied. All other allegations of this paragraph are denied
as conclusions of law.
WHEREFORE, Answering Defendant demands judgment in its favor and against
Plaintiff.
NEW MATTER
1 . Plaintiff claims against Ross Stores, Inc. are barred by the applicable statute of
limitations.
2. Plaintiff's damages if any were caused in whole or in part by the negligence/
carelessness and/or recklessness of the Plaintiff's and the right to recover is barred or limited to
comparative and/or contributory negligence.
3. Plaintiff assumed the risk of his injuries.
4. Plaintiff's injuries occurred at a location under the control of others and not occupied,
maintained or controlled by Ross Stores, Inc.
5. Plaintiff's claims are barred by the Doctrine of Laches waiver and/or estoppel.
6. Plaintiff's injuries were caused by the intentional or negligent acts of another or others
for whom Ross Stores are not responsible.
7. Plaintiff's sole remedy, if any, is Worker's Cornpensation as his alleged injuries were
suffered while he was at work by an employee of Ross Stores, Inc.
WHEREFORE, Defendant Ross Stores, Inc. demand judgment in it's favor.
GOLDFEIN & HOSMER
By:
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Thomas J. Johanson, Esquire --
Attorney for Defendant,
Ross Stores, Inc.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the
Answer to Complaint and New Matter was served upon the following via U.S. Mail, First Class,
postage pre-paid:
Andrew Ostrowski, Esquire
4311 North Sixth Street
Harrisburg, PA 17110
Roger M. Morgenthal, Esquire
Fishman & Mogenthal
95 Alexander Spring Road, Suite 3
Carlisle, Pennsylvania 17013-9137
GOLDFEIN & HOSMER
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THOMAS J. JOHANSON, ESQUIRE
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: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-4178 CIVIL TERM
MUHAREM NEZIC
Plaintiff
ROSS STORES, INC., and
MICHAEL LEE MOUNTZ,
Defendants
IN RE: MOTION OF DEFENDANT ROSS STORES. INC. FOR SUMMARY
JUDGMENT
Before HOFFER, P.J., OLER, J. and GUIDO, J.
ORDER OF COURT
AND NOW, April 2, 2002, after careful consideration of the briefs and oral
argument, the defendant's motion is refused as being premature.
By the Court,
Andrew J. Ostrowski, Esquire
4311 North Sixth Street
Harrisburg, PA 17110
For the Plaintiff
P.J.
Thomas J. Johanson, Esquire
1600 Market Street, 33rd Floor
Philadelphia, PA 19103-7396
For Defendant Ross Stores
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Roger M. Morgenthal, Esquire
95 Alexander Spring Road, Ste. 3
Carlisle, PA 17013
For Defendant Mountz
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5
6
7
8
9
10
15
1
2
When this happened, he got
And then when Mr. Nezic go to the
A.
suspensl.on.
3 police, probably police contacted Ross, and then
4 Ross fired him.
Q. Okay. So he was fired by Ross
Stores?
A. Yes.
Q. In his own words, please ask
Mr. Nezic to tell me what happened on October 29th,
1999.
Pardon me.
Have him break up the story in
11 pl.eces so you can give me an accurate translation.
12
13
A.
This night was Halloween.
They
had, like always, come to job.
Sometime after
14 dinner something happened with him, and he started
15
to scream on him.
At this moment he doesn't
16 understand almost nothing, but he knows what means F
17 word, you know.
18
19
20
Q.
A.
Q.
You can say it.
It's okay.
He say something about fuck.
Okay. Do you know why Mr. Mountz
21 was screaming at you?
22
A.
He doesn't know what, because he
23 didn't understand anything what he was saYl.ng.
24
Q.
Did you and Mr. Mountz get along
Esquire Deposition Services
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
1,9
20
21
22
23
24
16
before this incident?
A.
He saw him, but they never have
conversation.
Q.
A.
They never spoke before?
No.
Q. Did they have any interaction 1n
the workplace before this incident?
A. No, because they did not
officially meet.
Q.
A.
Did they work together?
Yeah, he work with merchandise
driving one side, he does other merchandise on his
side.
Q.
A.
So they did work together?
They drive merchandise from
He drive for Marlene Fisher, which she
receiving.
was a superv1sor in his department, and he drive
for
he drive for another area.
It's not same
area.
Q.
Okay.
Who was Mr. Nezic's
supervisor at Ross Stores?
A. Mark Garuty. He was actually
supervisor for all forklift drivers.
Q.
And Michael Mountz was a forklift
Esquire Deposition Services
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1
2
3
Q.
A.
13
MICHAEL LEE MOUNTZ
Had you known him before this date?
I didn't know him until
I think
he was
I knew him briefly, you know, before
4 under me before he started, you know, being my
5 helper. I seen him in the store a few times,
6 you know, working, but I didn't really know him
7
until he started
you know, until they had
8 him as my helper, which was only a couple
9 months. so.
10
Q.
11 accident or
12
A.
Was it a couple months before this
Might have only been, like, maybe
13 two months that he was working with me.
14
15
16
17
18
Q.
A.
Q.
A.
Okay.
Had you ever spoken to him?
Not really, no.
Okay.
I mean, other than what I had to
while working with him.
But prior to that, I
19 hadn't spoken to him before.
20
Q.
Do you recall ever having any
21 personal conversations with him outside the
22 job?
23
24
A.
Q.
No.
Never.
Would it be fair to say that all of
ESQUIRE DEPOSITION SERVICES
14
MICHAEL LEE MOUNTZ
1 your conversations with him related to work?
2
3
A.
Q.
Right.
Okay.
Of course.
Do you recall giving a
4 statement following the accident?
5
6
7
8
A.
I'm sure I did.
MR. BONGIOVANNI
Okay.
This is
his statement that was in the personnel
file that was produced.
9 BY MR. BONGIOVANNI:
10
11
12
13
Q.
A.
Is this your handwriting?
Yeah, I believe it is.
Q. It is? Okay. Does it look
familiar to you, this particular document?
And
14 take your time if you want to look it over.
15
16
17
18
19
20
21
22
23
24
MR. MORGENTHAL:
page of it?
MR. BONGIOVANNI
Is that the only
Yeah.
MS. COOVER:
That's what I was
going to ask.
THE WITNESS:
I thought there was
more, yeah, because it looks like I
didn't sign anything at the bottom and I
thought maybe I and it looks like
unfinished.
But yeah, I do...
ESQUIRE DEPOSITION SERVICES
15
MICHAEL LEE MOUNTZ
1 BY MR. BONGIOVANNI:
2
3
Q.
Our understanding, because Ross
obviously had your personnel file
and this
4 was the only page of it that was in the
5 personnel file. So where the other page would
6 have been, if there were more than one page, we
7 certainly don't know.
8 I'm more going to ask you, though,
9 about some of the details of this particular
10 page, so it really doesn't matter that there's
11 additional pages.
12 A. Okay.
13 Q. If you could just take a moment to
14 read that over. If you have any problems with
15 the reading of it, let me know.
16
17
18
19
20
A.
It brings back memories.
*
*
*
(Pause)
*
*
*
Yeah, I do remember this now.
21 Yeah, I remember.
22
Q.
Have you finished?
Did you have a
23 chance to read it?
24
A.
Yeah.
ESQUIRE DEPOSITION SERVICES
19
MICHAEL LEE MOUNTZ
1
Q.
Okay.
Now, all the conversations
2 that you just said you had, you talked to him
3 many times about this particular work issue,
4 were they all related to work or was there any
5 personal conversation involved?
6
A.
No, this definitely
oh, I never
7 talked to him about anything outside of work.
8
This all
definitely all had to do with work
9 at the time, you know, what we were doing, you
10 know, work-wise.
11 Q. Okay. And the actual physical
12 altercation between the two of you, was that at
all did that
have anything to do with any
between the two of you?
13
14
15
personal issues
A.
See, I kind of start to remember
16 what happened was, I went to him to ask him
17 about the order, about what happened here, you
18
19
know, why he moved my stuff.
that he grabbed ahold of me.
And I remember
He grabbed ahold
20 of my face and pushed me back and snapped my
21 neck back forcefully. And I then remember that
22 I did, you know, kind of lost my temper and I
23 did swing at him and I did hit him.
24
And then they
you know, after
ESQUIRE DEPOSITION SERVICES
20
MICHAEL LEE MOUNTZ
1 that, then I think we were separated and I was
2 taken to one room, you know, and I guess I
3
started filling this out.
And he was taken
4 somewhere else and they talked to him, you
5 know, as to what happened on his side and they
6 talked to me as to what happened on, you know,
7 my side.
8
9
Q.
Okay.
But I
just want to
I asked you
go back
to
this one
question that
before,
10 about your conversations with him that
11 initiated this physical altercation between the
12 two of you, did they all have to do with work
13 0 r his job per for man c e, 0 r was the rea n y t h i n 9
14 personal in nature?
15
16
17
18
19
A.
There was nothing personal
absolutely nothing personal about it.
had to do with work.
It all
Q.
A.
Okay.
I went to him nicely to ask him
20 what happened, you know, with my order and, you
21 know, I knew that it was something that, you
22
23
24
know, he had done in the pas t.
went to him nicely and it was
personal, it was all about work.
Okay?
But I
it was nothing
It was all
ESQUIRE DEPOSITION SERVICES
43
MICHAEL LEE MOUNTZ
1 size, is Mr. Nezic larger or smaller than you
2 height and weight-wise?
3 A. He's bigger he was bigger than
4 me then. I don't know if he was stronger or
anything.
5
6
7
Q.
A.
He was
He was generally larger?
He was larger, yeah. Definitely
8 larger.
9
MR. MORGENTHAL,
I think that's all
10
11
12
13
14
15
16 BY MR. BONGIOVANNI:
I have.
MR. BONGIOVANNI:
I have an
additional question for clarification.
*
*
*
EXAMINATION
*
*
*
17
Q.
You just indicated that you felt
18 that it was a communication problem between you
19 and Mr. Nez i c, rig h t ?
20 A. (Witness nods head.)
21
Q.
I just want to clarify.
Is the
22 only communication that you and Mr. Nezic had,
23 was it only about work-related things?
24
A.
If you're asking me if I discussed
ESQUIRE DEPOSITION SERVICES
44
MICHAEL LEE MOUNTZ
1 anything other than work with that man, it was
2 only work. I've not once talked to him about
3 anything other than work.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
MR. BONGIOVANNI: Okay. Thank you.
MS. COOVER: Nothing further.
MR. MORGENTHAL: Nothing further.
MR. BONGIOVANNI:
I have nothing
further.
Thank you very much
for your
time today.
*
*
*
(Witness excused.
*
*
*
(Whereupon, the deposition was
concluded at 2:54 p.m.)
*
*
*
ESQUIRE DEPOSITION SERVICES
.
VERIFICATION
I, Joseph N. Bongiovanni, IV, Esquire, hereby state that I am the attorney for Ross Stores,
Inc.; that I am authorized to make this Verification on its behalf; that I have read the foregoing Motion
for Summary Judgment; and, the averments set forth therein are true and correct to the best of my
knowledge, information and belief.
Further, I understand that this Verification is made subject to the penalties of 18 Pa. C.S.A.
94904 relating to unsworn falsification to authorities.
Date: 0(lb{OS
PHIII924.1
--
CERTIFICATE OF SERVICE
I, Joseph N. Bongiovanni IV, Esquire, hereby certify that a true and correct copy of the Motion
for Summary Judgment of Defendant, Ross Stores, Inc. was served via first-class, U.S. mail, postage
prepaid, on the parties below listed:
Andrew J. Ostrowski, Esquire
2080 Linglestown Road
Harrisburg, PA 17110
Roger M. Morgenthal, Esquire
Salzmann, DePaulis, Fishman & Morgenthal, P,C.
95 Alexander Spring Road, Suite 3
Carlisle, P A 17013
Date: h!cb!DS
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MUHAREM NEZIC,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
ROSS STORES, INC., and
MICHAEL LEE MOUNTZ,
Defendants
NO. 2001-4178 CIVIL TERM
ORDER OF COURT
AND NOW, this 6th day of January, 2005, after
conference with counsel, and having reviewed the documents at
issue, which are several statements from employees and
supervisors dealing with inappropriate behavior of a sexual
nature taking place in the work place, we feel that the privacy
issues outweigh any benefit the Plaintiff might receive from
being provided with copies of the documents. In other words,
there is no indication of assaultive or violent behavior on the
part of the Defendant Mountz in any of the incidents related to
these documents. Therefore, the employer need not provide the
documents in discovery. A copy of these documents are attached
and sealed to this Order so that they may be available for any
further review.
By
Edward
~drew J. Ostrowski, Esquire
Sheri D. Coover, Esquire
Attorneys for Plaintiff
vGoseph N. Bongiovanni IV, Esquire
Attorney for Defendant Ross Stores, Inc.
>
~oger M. Morgenthal, Esquire
Attorney for Defendant Mountz
srs
20 :6 Inl 0 I 1Nf SOOZ
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within rnatter for the next Argument Court.
CAPTION OF CASE
(entire caption must be stated in full)
MU'HAREM NEZIC
(Plaintiff)
vs.
ROSS STORES INC., a."1d
MICHAEL LEE MOUNTZ
(Defendants)
No. 01-4178
1. State the matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint,
Etc.):
Defendant Ross Stores. Inc's Motion for Summary Judgment
2. Identify counsel who will argue cases:
(a) for Plaintiff:
Andrew 1. Ostowski, Esquire I Sheri D. COOVCl. ESQ
(Name and Address)
Bailev & Ostrowski, 4311 N. 6" Street. Hamsbure. Pa 17110
(b) for Defendant, Ross Stores, Inc.:
Joseph N. Bomriovanni. lV. Esauire
(Name and Address)
Marks, O'NeilL O'Brien & Courtnev P.c. 1880 JFK Blvd.. Ste 1200. Phila. PA 19103
(c) for Defendant, Michael Lee Mountz:
Roger M. MOT'izenthal. Esauire
(Name and Address)
Law Offices of Roeer M. MorgellthaL 2515 N. Front St. I" FI. Hamsbure. Pa 17110
3. I will notify all parties in writing within two days that this case has been listed for argument.
4. Argument Court Date:
October 20, 2005
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Print your name
Ross Stores Inc.
Date:
Attorney for
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MUHAREM NEZIC,
PLAINTIFF
V.
ROSS STORES, INC. and
MICHAEL LEE MOUNTZ,
DEFENDANTS
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
01-4178 CIVIL TERM
IN RE: MOTION OF DEFENDANT ROSS STORES. INC.
FOR SUMMARY JUDGMENT
BEFORE BAYLEY. J. AND GUIDO. J.
ORDER OF COURT
AND NOW, this t,^, day of November, 2005, the motion of defendant, Ross
Stores, Inc., for summary judgment, IS GRANTED.
By the Court,~ ~/
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,
vAndrew J. Ostrowski, Esquire
4311 North 6th Street
Harrisburg, PA 17110
For Plaintiff
J6seph N. Bongiovanni, IV, Esquire
1880 John Kennedy Blvd.
12th Floor
Philadelphia, PA 19103
For Ross Stores, Inc.
~ger M. Morgenthal, Esquire
For Michael Lee Mountz
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MUHAREM NEZIC,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
ROSS STORES, INC. and
MICHAEL LEE MOUNTZ,
DEFENDANTS
01-4178 CIVIL TERM
IN RE: MOTION OF DEFENDANT ROSS STORES. INC.
FOR SUMMARY JUDGMENT
BEFORE BAYLEY. J. AND GUIDO. J.
OPINION AND ORDER OF COURT
BAYLEY, J., November 14, 2005:--
On July 9,2001, plaintiff, Muharem Nezic, filed a complaint against defendants
Ross Stores, Inc., and Michael Lee Mountz. Plaintiff alleged in the complaint that on
October 29, 1999, while at work at Ross Stores, Inc., where he and Mountz were
employed, Mountz intentionally assaulted him, causing serious injury. Plaintiff further
alleged that, "Upon information and belief, Mountz's beating of Plaintiff was motivated
by his personal animus toward Plaintiff and not for any employment-related reasons."
The pleadings are closed. Discovery, including depositions, has been taken. Ross
Stores, Inc., filed a motion for summary judgment which was briefed and argued on
October 20, 2005.
In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of
Pennsylvania set forth the standard for deciding a motion for summary judgment. A
court:
. . . must view the record in the light most favorable to the non-moving
party, and all doubts as to the existence of a genuine issue of material
fact must be resolved against the moving party, Pennsylvania State
"
01-4178 CIVIL TERM
University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304
(1992). In order to withstand a motion for summary judgment, a non-
moving party "must adduce sufficient evidence on an issue essential to his
case and on which he bears the burden of proof such that a jury could
return a verdict in his favor. Failure to adduce this evidence establishes
that there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544
Pa. 93,101-102,674 A.2d 1038, 1042 (1996).
The Workers' Compensation Act, 77 P .S. 9 1 et seq., provides an exclusive
remedy for an employee who seeks recover for an injury sustained in the course of
employment. See, Kohler v. McCrory Stores, 532 Pa. 130 (1992). As a result of the
injuries plaintiff incurred on July 9, 2001, during the course of his employment, he filed
a claim for worker's compensation benefits. Benefits were awarded and received by
plaintiff. Ross Stores, Inc., maintains in this motion for summary judgment that plaintiff
has not adduced sufficient evidence that Ross is not immune from liability under the
Workers' Compensation Act. Plaintiff maintains that an exception at 77 P.S. Section
411 (1) applies. It provides:
The term "injury arising in the course of his employment," as used in this
article, shall not include an injury caused by an act of a third person
intended to injure the employee because of reasons personal to him,
and not directed against him as an employee or because of his
employment. . .. (Emphasis added.)
In Hammerstein v. Lindsay, 655 A.2d 597 (Pa. Super. 1995), the Superior
Court of Pennsylvania, commenting on an opinion of the Supreme Court of
Pennsylvania in Kohler v. McCrory Stores, supra, stated:
[t]hat in order for an employee to set forth a valid cause of action against
his employer under the personal animus exception, "an employee must
assert that his injuries are not work-related because he is injured by a co-
worker for purely personal reasons." ld. 532 Pa. at 137-38, 615 A.2d at
-2-
.'
01-4178 CIVIL TERM
31 (emphasis in original), Where the animosity between the third party
and the injured employee is developed because of work-related disputes,
the animosity is developed because of the employment, and the injured
employee's remedy is exclusively under the Workmen's Compensation
Act. Repco Products Corp. v. Workmen's Comp, App. Bd., 32 Pa.Cmwlth.
554, 557, 3790 A.2d 1089, 1090 (1977). Furthermore, "the lack of pre-
existing animosity between the combatants strongly suggests that the
motive for the attack was work-related and not because of reasons
personal to the assailant." Mike v, Borough of Aliquippa, 279 Pa.Super.
382,391,421 A.2d 251, 255 (1980).
Besides pleading in his complaint only a conclusion, as contrasted to facts, that
Mountz's assault on him "was motivated by his personal animus towards [him] and not
for any employment-related reasons," plaintiff has testified in depositions contrary to
that allegation:
Q: Did you and Mr. Mountz get along before this incident?
A: [Plaintiff] saw [Mountz], but they never had a conversation.
Q: [You] never spoke before?
A: No.
Q: Did [you] have any interactions in the workplace before this
incident?
A. No, because [we] did not officially meet.
* * *
Q: Had you ever spoken to him?
A: Not really, no.
Q: Okay
A: I mean, other than what I had to while working with him. But prior
to that, I hadn't spoken to him before.
Q: Do you recall ever having any personal conversations with him
outside the job?
A: No. Never.
Q: Would it be fair to say that all of your conversations with him
related to work?
A. Right. Of course,
* * *
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.'
01-4178 CIVIL TERM
Q: Okay. Now, all of the conversations that you just said you had, you
talked to him many times about this particular work issue, were they all
related to work or was there any personal conversation involved?
A: No, this definitely - oh, I never talked to him about anything outside
of work. This all - definitely all had to do with work at the time, you
know, what we were doing, you know, work-wise. (Emphasis added.)
...
Q: Okay. But I just want to go back to this one question that I asked
you before, about your conversations with him that initiated this physical
altercation between the two of you, did they all have to do with work or
[Mountz's] job performance, or was there anything personal in nature?
A: There was nothing persona [sic] - absolutely nothing personal
about it. It all had to do with work. (Emphasis added.)
...
Q: I just wanted to clarify. Is the only communication that you and Mr.
Nezic has [sic], was it only about work-related things?
A: If you are asking me if I discussed anything other than work with
that man, it was only work. I've not once talked to him about anything
other than work.
Notwithstanding, plaintiff argues in his brief:
Although there is no dispute that the assault on Plaintiff by
Defendant Mountz occurred at their place of employment and was
initiated by a dispute over roller space, the underlying reason for the
assault was due to personal animosity that Defendant Mountz had toward
Plaintiff due to communication problems caused by the language barrier.
Defendant Mountz admits that the language difficulties caused him
problems with his job and were more than an annoyance to him. In his
deposition, Defendant Mountz stated:
Q. Okay. And did you feel that the behavior you complained to
him about was intentional on his part, that he was doing something
to hum up the work, shall we say?
A. That I do not - I don't think so. I don't think so.
Q. Okay. Could it have ...been a communications problem
because of the language?
A. I think it was solely a communication problem - yeah, I
definitely think it was just a communication problem. I don't think it
was anything to hurt the company or anything just to hurt me or
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.J
01-4178 CIVIL TERM
anything.
Q. However, when he did these things, for whatever reason, did
that reflect back on your performance with the company?
A. Yeah. I mean, if I got questioned or yelled at for not having
the orders, you know, there or where this was or where that was,
you know, and having to constantly you know, explain, you know,
well, this happened again, you know. It did affect - it did affect my
performance. I think it definitely affected me.
Q. So it was more than just an inconvenience or annoyance to
you?
A. Yeah.
At most, all Mountz said is that a communication problem affected the work
performance of plaintiff, which in turn affected his own work performance. Any
communication problem, as plaintiff testified, was not personal, "It all had to do with
work." The testimony of Mountz, coupled with all other evidence adduced by plaintiff
including his own deposition testimony, does not raise a factual issue whereby a jury
could find that the injury to plaintiff falls within the personal animus exception to Section
411 (1) of the Workers' Compensation Act. Accordingly, the following order is entered.
ORDER OF COURT
AND NOW, this A day of November, 2005, the motion of defendant, Ross
Andrew J. Ostrowski, Esquire
4311 North 6th Street
Harrisburg, PA 17110
For Plaintiff
-5-
..
01-4178 CIVIL TERM
Joseph N. Bongiovanni, IV, Esquire
1880 John Kennedy Blvd.
1 ih Floor
Philadelphia, PA 19103
For Ross Stores, Inc.
Roger M. Morgenthal, Esquire
For Michael Lee Mountz
:sal
-6-
.
MARKS, O'NEILL, O'BRIEN & COURTNEY, P.c.
BY: PATRICK C. LAMB, ESQUIRE
IDENTIFICATION NO. 70817
1800 JOHN F. KENNEDY BOULEVARD
19TH FLOOR
PHILADELPHIA, PENNSYLVANIA 19103
(215) 564-6688
ATTORNEY FOR DEFENDANT,
ROSS STORES, INC.
228-69990
MUHAREM NEZIC
vs.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL DIVISION
ROSS STORES, INC. and
MICHAEL LEE MOUNTZ
NO. 01-4178
NOTICE OF CHANGE OF ADDRESS
The undersigned counsel hereby files this Notice of Change of Address with this
Honorable Court and all parties to this action that effective December 5, 2005, the law firm of
Marks, O'Neill, O'Brien & Courtney is now located at:
1800 John F. Kennedy Boulevard
Suite 1900
Philadelphia, Pennsylvania 19103
215-564-6688
215-564-2526 (fax)
Respectfully submitted,
MARKS, O'NEILL, O'BRIEN & COURTNEY, P.c.
BY:
~\ //
/" PAT CK C. LAMI:r,-esQU1RE
Attorney for Defendant
PH131584.1
40.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Notice of Change of Address
was sent by first-class U.S. mail, postage prepaid to the counsel below listed:
Andrew J. Ostrowski, Esquire
Bailey, Stretton & Ostrowski
4311 N. Sixth Street
Harrisburg, P A 17110
Roger M. Morgenthal, Esquire
Law Office of Roger M. Morgenthal
2515 North Front Street, 1 st Floor
Harrisburg, P A 17110-1150
~~
N. Bongiovann , , Esquire
Jos
Date: December 21, 2005
PH131584.1
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