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Home My WebLink About05-0343ORIGINAL ANGINO & ROVNER, P.C. Richard A. Sadlock, Esquire Attorney ID# : 47281 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 Fax (717) 238-5610 E-mail: rsadlock a angino-rovner.com JANICE RULLO and WAYNE RULLO, SR., her husband, Plaintiffs V. HAMPDEN CENTER, INC., Defendant Attorney for Plaintiffs: Janice and Wayne Rullo, Sr. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. oS - 3W OLOL E2?-?'1 JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se persentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte per escrito sus defensas de, y objecciones a , las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede set dictado en contra suya por la Corte sin mas aviso adicional. Used puede perder dinero o propiedad u otros derechos importantes Para used. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 287952 ANGINO & ROVNER, P.C. Richard A. Sadlock, Esquire Attorney ID#: 47281 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 Fax(717)238-5610 E-mail: rsadlock@angino-rovner.com Attorney for Plaintiffs: Janice and Wayne Rullo, Sr. JANICE RULLO and WAYNE RULLO, SR., her husband, Plaintiffs V. HAMPDEN CENTER, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW a[ /_-y- NO. OS-??13 UL [ JURY TRIAL DEMANDED COMPLAINT Plaintiffs Janice Rullo and Wayne Rullo, citizens of the Commonwealth of Pennsylvania, are husband and wife, adult individuals who reside at 7701 Chambers Hill Road, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant Hampden Center, Inc. is a Pennsylvania business corporation (hereinafter "Hampden Center") and is registered in Pennsylvania with a business address of > ?/y?eC 4 ?r/i c.r b,? ` S P.^ (, 4Route 11, Carlisle Pike, Hafnpden Township, Cumberland County, Pennsylvania. Wi'r'y" 3. Defendant Hampden Center owns the property known as Hampden Shopping Center at 4950 Carlisle Pike, Hampden Township, Cumberland County, Pennsylvania and leases property to several businesses including Karns Prim & Fancy Foods (hereinafter "Karns"). 4. It is believed and therefore averred that Defendant Hampden Center owns and maintains the sidewalks, parking lot, buildings and is responsible for snow and ice removal from its buildings' roofs. 5. The facts and occurrences hereinafter related took place on or about December 8, 2003, at the Hampden Shopping Center particularly on the sidewalk between CVS Pharmacy and Karns. 6. At that time and place, Plaintiff Janice Rullo had exited CVS Pharmacy and was lawfully walking on the sidewalk towards Karns. 7. At that time and place, a large piece of ice fell from the Karns' roof violently striking Mrs. Rullo's left hand. 8. No markings or signs of any kind were in place warning of the dangerous condition of ice falling off of the store roof, nor were there any verbal warnings of any kind conveyed to Mrs. Rullo that would have alerted her to the danger. 9. The Defendant had a duty to maintain and keep the sidewalks in a safe condition from ice falling off of the roof and hitting business invites. 10. The ice falling off the roof presented a dangerous condition known to the Defendant or which could have and should have been reasonably known to the Defendant, which created a reasonably, foreseeable risk of harm suffered by the Plaintiff. 11. The Defendant had sufficient time prior to the ice falling off of Karns' roof and hitting Mrs. Rollo to have taken action to protect against the dangerous condition that existed and prevent the kind of injuries suffered by Mrs. Rullo, but Defendant failed to do so. 287952 2 12. The aforementioned condition of ice on roof of the stores, especially Karns, represented a condition which existed for an adequate and sufficient time before Mrs. Rullo's incident, and Defendant had adequate time to correct the condition and warn Mrs. Rollo of the condition. 13. At all times relevant thereto, Defendant Hampden Center was the property owner and was responsible for inspecting and maintaining the property, including snow and ice removal. 14. Plaintiff Janice Rullo was owed the highest duty of care by Defendant Hampden Center to make sure that the shopping center was maintained in a safe condition for the benefit of business invitees. 15. The aforementioned accident and resulting injuries sustained by Plaintiff Janice Rullo are the direct and proximate result of the negligent conduct of Defendant Hampden Center, as follows: (a) failure to properly remove snow and ice, as alleged herein; (b) failure to inspect and maintain the shopping center, as alleged herein; (c) failure to warn about the dangerous condition of ice falling off of store roof(s), as alleged herein; (d) failure to remove excessive ice buildup on store roof(s), as alleged herein; (e) failure to use warning signs about the dangerous condition of ice falling off of store roof(s); (f) failure to hire and properly train seasonably competent personnel to supervise the area and regularly inspect the same; and 287952 3 (g) failing to take other action and precautions that a reasonable prudent property owner would have undertaken for the protection of the general public. CLAIM I JANICE RULLO v HAMPDEN CENTER, INC. 16. Paragraphs 1 through 15 of Plaintiffs' Complaint are incorporated herein as if set forth by reference. 17. As a result of the aforementioned accident, Plaintiff Janice Rullo sustained painful and severe injuries which include, but are not limited to, tenosynovitis of her long and ring fingers and Dupuytren's contracture of her left hand. 18. As a result of the injuries sustained, Plaintiff Janice Rullo was forced to incur liability for medical treatment, medications, hospitalizations, and similar miscellaneous expenses in an effort to restore herself to health, and claim is made therefor. 19. Because of the nature of her injuries, Plaintiff Janice Rullo has been advised, and therefore avers that she may be forced to incur similar expenses in the future, and claim is made therefor. 21. As a result of the aforementioned accident and resulting injuries, Plaintiff Janice Rullo has undergone and in the future will undergo great physical and mental suffering, great inconvenience in carrying out her daily activities, loss of life's pleasures and enjoyment, and claim is made therefor. 287952 4 22. As a result of the aforementioned accident and resulting injuries, Plaintiff Janice Rullo has been and in the future will be subject to great humiliation and embarrassment, and claim is made therefor. 23. Plaintiff Janice Rullo continues to be plagued by persistent pain and limitation, and therefore avers that her injuries may be of permanent nature, causing residual problems for the remainder of her lifetime, and claim is made therefor. 24. As a result of the aforementioned injuries, Plaintiff Janice Rollo has sustained work loss, loss of opportunity and permanent diminution of her earning power and capacity, and claim is made therefor. 25. As a result of the aforesaid injuries, Plaintiff Janice Rollo has sustained uncompensated work loss, and claim is made therefore. 26. As a result of the aforesaid accident, Plaintiff Janice Rullo has sustained scars which will result in a permanent disfigurement, and claim is made therefor. CLAIM II WAYNE RULLO. SR. v. HAMPDEN CENTER INC 27. Paragraphs I through 26 of Plaintiffs' Complaint are incorporated herein by reference. 287952 5 28. As a result of the aforementioned injuries sustained by his wife, Janice Rullo, Plaintiff Wayne Rullo, Sr. has been and may in the future be deprived of the care, companionship, consortium, and society of his wife, all of which will be to his great detriment, and claim is made therefor. WHEREFORE, Plaintiffs Janice Rullo and Wayne Rullo, Sr. demand judgment against Defendant Hampden Center, Inc. in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00) exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. 47T'N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiffs Date: January 18, 2005 287952 6 VERIFICATION We, Janice Rullo and Wayne Rullo, Sr., Plaintiffs, have read the foregoing PLAINTIFFS' COMPLAINT and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of our knowledge, information and belief. We understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. w mess Janice Rullo _ Wayne RdHo, Sr Dated: I?lq/0 299963 a w F? N ANGINO & ROVNER, P.C. Richard A. Sadlock, Esquire Attorney ID# : 47281 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 Fax (717) 238-5610 E-mail: rsadlock(a angino-rovner.com JANICE RULLO and WAYNE RULLO, SR., her husband, Plaintiffs V. Attorney for Plaintiffs: Janice and Wayne Rullo, Sr. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 05-343 Civil HAMPDEN CENTER, INC., Defendant JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE This is to certify that on the 21st day of January, 2005, a true and correct copy of the Complaint, Civil Action No. 05-343 Civil was mailed to Defendant Hampden Center, Inc. via certified mail, return receipt requested at 444 Park Avenue, Unit 4302, New York, NY 10016. A copy of the certified mail receipt is attached hereto. YY '?XX ? Marcy L. Brymesser ACCEPTANCE OF SERVICE This is to certify that on the 24th day of January, 2005, a true and correct copy of the above- noted was served upon the Defendant via certified mail, return receipt requested at the above-noted address. A copy of the signed receipt No. 7003 3110 0003 6410 0616 is attached hereto. Marcy L. Brymesser i_ Sworn to and subscribed before me this 3`d day of March, 2005. Notary Public NOTARIAL SEAL L,M. HEPP, Notary Public ity of Harrisburg, Da[,:SUSAN Commissior Expires May 6, 2006 292386 O ?II Y:C ?I•_!I iiG L 7 A Ylii O - : r . 3 S -r te . a Postage 1 $ M Certified Pee O k P ostmar 0 RetumReels p1 Fee Here ere (Endorsement nt Reg Required) O Restricted Delivery Fee rR (Endorsement Required) r-q m Total Postage & Fees 1 $ O nt o - -- t` Aireet, Mt NG.- -zr?.'0J1a or PO Box No. y C1N. Stare, ZIPF4 :rr r, ¦ Complete items 1, 2, and 3. Also complete Item 4 if Restricted Delivery Is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the maiipiece, or on the frignt If space permits. 1. Artois Addressed to: A. 11 -4 y-I D. Is delNery address different from Item 1? Ye; If YES, erderdelwery address below: 0 No 9. Servigs' e ^ 3Certlfed Mall O Express Mail -'/)mil ,t 1, ,N,. PZ N? C3 Insu 0 Repietered ?istum Receipt for memiganclin Insured Mail 0 c.o.o. 4. Restricted Delivery! (Enna PON 0 Yes 2. Article Number -" maeskrldlVtsbba'+¢':.-,7003 3110 0003 6410 0616 PS Form 3811, Atgtwt 2oD1 Domestic Rebem Retallpt 102505024A-1610 ANGINO & ROVNER, P.C. Richard A. Sadlock, Esquire Attorney IM 47281 4503 North Front Street Harrisburg, Pta 17110-1708 (717) 238-6791 Fax (717) 238-5610 E-mail: rsadlock((?,angino-rovner.com Attorney for Plaintiffs: Janice and Wayne Rollo, Sr. JANICE RULLO and WAYNE RULLO, SR., her husband, Plaintiffs V. HAMPDEN CENTER, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY- PENNSYLVANIA CIVIL ACTION - LAW NO. 05-343 Civil Term JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Marcy L. Brymesser, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PLAINTIFFS' COMPLAINT on the following via certified mail, return receipt requested, postage prepaid, first class United States mail, addressed as follows: Hampden Center, Inc. 444 Park Avenue, Unit #302 New York, NY 10016 Date: January 21, 2005 Marcy L. Brymesser J 287952 ?77 JANICE RULLO AND WAYNE RULLO, Sr., Plaintiffs V. HAMPDEN CENTER, INC., Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-343 Civil JURY TRIAL DEMANDED ENTRY OF APPEARANCE Kindly enter the appearance of the undersigned as counsel on behalf of the Defendant, Hampden Center, Inc., with respect to the above-referenced matter. DATE: T - I1. - oS Respectfully submitted, MARSHALL, DENNEHEY, WARNER, C01AN & GOGGIN BY: DONALD L. CARMELITE, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Defendant, Hampden Center, Inc. CERTIFICATE OF SERVICE I, Donald L. Carmelite, Esquire of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this Ot^ day of 5 J _ 2005, served a copy of the foregoing Entry of Appearance via First Class United States mail, postage prepaid as follows: Richard A. Sadlock, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 DATE: 7- 1 GS MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: DO ALD L. CARMELITE, ESQUIRE I.D. No. 84730 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Defendant, Hampden Center, Inc. \05_A\L1AB\DNC\SLPM 191649\KAB\30008\00406 ?-, ? o ? _ ? _ ? _ r-+ ?Q r ? ? <J, c? :-r _ :: ? . is ?^ { . ?? ?-j ' _ ?:. Y y.'tl V i_: ?n JANICE RULLO AND : IN THE COURT OF COMMON PLEAS OF WAYNE RULLO, Sr., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 05-343 Civil HAMPDEN CENTER, INC., JURY TRIAL DEMANDED Defendant STIPULATION It is hereby stipulated by and between counsel for the Plaintiff and counsel for Defendant that subparagraph 15(g) of Plaintiffs' Complaint is Withdrawn, with prejudice. RICHARD . SAD K, ESQUIRE Angino & C. 4503 North Front Street Harrisburg, PA 17110-1708 Attorney for Plaintiffs Z2=?? DO L. CARMELITE, ESQ 4200 Crams Mill Road Suite B Harrisburg., PA 17112 Attorneys f ?r Defendants \05 A\LIAB\DNC\LLPG\192458\TYC\30008\00406 rJ C_ n I 17. I+J JANICE RULLO AND : IN THE COURT OF COMMON PLEAS OF WAYNE RULLO, Sr., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 05-343 Civil HAMPDEN CENTER, INC., JURY TRIAL DEMANDED Defendant NOTICE TO PLEAD TO: Plaintiffs, Janice and Wayne Rullo, Sr. c/o Richard A. Sadlock, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be filed against you. MARSHALL, DENNEHEY, WARNER, CO GGIN DATE: BY: zo 7 DO ALD L. CARMELITE, ES I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Defendant, Hampden Center, Inc. JANICE RULLO AND WAYNE RULLO, Sr., Plaintiffs V. HAMPDEN CENTER, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.05-343 Civil JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT, HAMPDEN CENTER INC. TO PLAINTIFFS' COMPLAINT AND NOW comes Defendant Hampden Center, Inc., by and through its counsel, Marshall, Dennehey, Warner, Coleman & Goggin, and files this Answer to Plaintiffs' Complaint and in support thereof asserts as follows: 1. Admitted in part, denied in part. It is admitted that Plaintiffs are who they say they are. All remaining allegations are denied and strict proof thereof is demanded at time of trial. 2. Admitted in part, denied in part. It is admitted that Hampden Center, Inc. is a Defendant to this action. All remaining allegations are denied and strict proof thereof is demanded at time of trial. 3. Admitted. 2 4. Admitted in part, denied in part. It is admitted only that Defendant, Hampden Center owns the sidewalks, parking lot and buildings described in Plaintiffs complaint. All remaining allegations are denied and strict proof thereof is demanded at time of trial. 5. Denied. After reasonable investigation and inquiry, Answering Defendant is without sufficient information to form a belief as to the truth and veracity of the averments set forth in this paragraph and, as such, the averments are denied in accordance with Pa.R.C.P. 1029(e). 6. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 7. Denied. After reasonable investigation and inquiry, Answering Defendant is without sufficient information to form a belief as to the truth and veracity of the averments set forth in this paragraph and, as such, the averments are denied in accordance with Pa.R.C.P. 1029(e). 8. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 9. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 10. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 3 It. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 12. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 13. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 14. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 15. (a-g). Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). CLAIM I JANICE RULLO V. HAMPDEN CENTER INC. 16. Paragraphs 1 through 15 of Defendant's Answer are incorporated herein by reference as if fully set forth at length herein. 17. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 4 18. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 19. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 20. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 21. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 22. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 23. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 24. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 5 25. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). 26. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). CLAIM 11 WAYNE RULLO, SR. v. HAMPDEN CENTER. INC. 27. Paragraphs 1 through 26 of Defendant's Answer are incorporated herein by reference as if fully set forth at length herein. 28. Denied. The averments set forth in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this paragraph are denied in accordance with Pa.R.C.P. 1029(e). WHEREFORE, Defendant, Hampden Center, Inc. demands judgment in its favor and against Plaintiffs together with such other relief as this Court deems just and appropriate. NEW MATTER DIRECTED TO PLAINTIFF 29. Plaintiffs fail to state a cause of action as against Defendant upon which relief may be granted as a matter of law. 30. No act or omission on the part of Defendant was a substantial contributing factor in bringing about Plaintiffs injuries and/or damages, all such injuries and/or damages being expressly denied. 6 31. Defendant owed no duty of care to Plaintiffs under the circumstances described in Plaintiffs' Complaint as a matter of law. 32. Plaintiffs' claims may be barred and/or limited by Plaintiffs' own contributory negligence and/or by Plaintiffs' assumption of the risk. 33. Answering Defendant reserve their right to raise one or more of those defenses preserved by virtue of Pa.R.C.P. 1030. 34. Plaintiffs' injuries and/or damages, all such injuries and/or damages being expressly denied were caused in whole or in part by persons and/or entities over whom Answering Defendant had neither control nor right of control as a matter of law. 35. Plaintiffs' injuries and/or damages, all such injuries and/or damages being expressly denied were caused in whole or in part by negligence on the part of persons and/or entities other than Answering Defendant which negligence operates as an intervening and superseding cause of Plaintiffs' injuries and/or damages as a matter of law. 36. Plaintiffs' claims may be barred and/or limited by the Doctrines of Res Judicata and/or Collateral Estoppel. 37. Plaintiffs' claims may be barred by the Choice of Path Doctrine. 7 WHEREFORE, Defendant, Hampden Center, Inc., demands judgment in its favor and against Plaintiffs together with such other relief as this Court shall deem appropriate. Hampden Center, Inc. reserves the right to raise one or more of those defenses. DATE: < / r';z / 4}? BY: 8 Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DONALD L. CARMELITE, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Defendant, Hampden Center, Inc. JANICE RULLO XM WAYNE RULLO, S r., Plaintiffs Y. HAMPDEN CENTf R, INC., Defendant : IN THE COURT OF COMMON PLBAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-343 Civil JURY TRIAL DEMANDED 11192A v W I, Andres Briganter Property Manager, Hampden Center, a defendant inthe above matter, veriSaa that the facts set forth is Answer with New Matter of Defendant, Hampdea Center, Inc. to Plainti (W .Complaint are true to the best of my knowledge;, jnfomzatioo and belief U the above statements are riot true, the deponent is subject io tfie penaldos of 1,8 Pa.C.S: 4904 relating to unswora falsification to authorities. DATE: . \0s_AatnawNCXrxro\1 na?Txcuawaaoaoa JANICE RULLO AND IN THE COURT OF COMMON PLEAS OF WAYNE RULLO, Sr., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 05-343 Civil HAMPDEN CENTER, INC., JURY TRIAL DEMANDED Defendant CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this \ oQ day of September 2005, served a copy of the foregoing Answer with New Matter to Plaintiffs' Complaint via First Class United States mail, postage prepaid as follows: Richard A. Sadlock, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 t?nne M. Parr _ .._1 . f , ? , ?` -ti ?; , -a -?: :_ ,? . ?- p, („t ;'.?. , - ? •.. ( ANGINO & ROVNER, P.C. Richard A. Sadlock, Esquire Attorney 1D# : 47281 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 Fax(717)238-5610 E-mail: rsadlockcrangino-rovner.com JANICE RULLO and WAYNE RULLO, SR., her husband, Plaintiffs v. HAMPDEN CENTER, INC., Defendant Attorney for PlaintiftA: Janice and Wayne Rollo, Sr. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-343 Civil JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT AND NOW come the Plaintiffs, by and through their attorneys, Angino & Rovner, P.C., and hereby enter the following Reply to the New Matter of Defendant as follows: 29. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiffs' Complaint does state a cause of action upon which relief may be granted. 30. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, the acts and omissions of the Defendant do constitute negligence and were substantial causes and factors of the subject incident and did result in the injuries and losses sustained by the Plaintiffs. 31. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, the instant Defendant owed and breached its duty of care to the Plaintiffs. 32. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiff was not negligent in any way and did not assume the risk of her injuries. All of Plaintiffs' injuries and damages were caused solely and directly as a result of the negligence, carelessness, wantonness and recklessness of the instant Defendant. 33. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, none of the defenses referred to in Pa. R.C.P. 1030 are applicable to the instant action. In fact, Defendant has no defense herein. All of Plaintiffs' injuries and damages were caused by the negligence, carelessness, wantonness and recklessness of the instant Defendant. 34. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Defendant's averment lacks the specificity required by the Pennsylvania Rules of Civil Procedure. Further, all of Plaintiffs' injuries and damages were caused solely and directly as a result of the negligence, carelessness, wantonness and recklessness of the instant Defendant. 309019287952 35. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, there were no intervening or superseding causes. All of Plaintiffs' injuries and damages are recoverable in the instant action and were caused solely and directly as a result of the negligence, carelessness, wantonness, and recklessness of the instant Defendant. 36. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, the Doctrines of Res Judicata and/or Collateral Estoppel do not apply in any way to the instant action. 37. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, the Choice of Path Doctrine does not apply in any way to the instant action. WHEREFORE, Plaintiffs respectfully request this Honorable Court to dismiss Defendant's Answer and New Matter and enter judgment in their favor against the Defendant. ANGINO & R P.C. Richard A. Sa" ock, Esquire I.D. No. 47281 4503 North Front Street Harrisburg, PA 17110 (717) 238-6791 Date: September 21, 2005 Counsel for Plaintiffs 309019 287952 VERIFICATION We, Janice Rullo and Wayne Rullo, Sr., Plaintiffs, have read the foregoing PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of our knowledge, information and belief We understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unworn falsification to authorities WIm ss *An Dated: 289963 CERTIFICATE OF SERVICE I, Marcy L. Brymesser, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT on the following via postage prepaid, first class United States mail, addressed as follows: Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: September 21, 2005 *Mar #yes 3 09019 287952 n p T Y7?L -TO f,j 4 - t ? p ? CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: JANICE & WAYNE RULLO, SR. -vS- HAMPDEN CENTER, INC. COURT OF COMMON PLEAS TERM, CUMBERLAND CASE NO: 05-343 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of DONALD L. CARMELITE, ESQ. 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. DATE: 12/06/2005 M¢S n' behalf f? ONALD L. CARMELITE, ESQ. Attorney for DEFENDANT DE11 06831-1, 01 C O M M O N W E A L 17H OF P E NN S Y L VAN T A COUNTY OF C UMBER LAN D IN THE MATTER OF: JANICE & WAYNE RULLO, SR. -VS- HAMPDEN CENTER, INC. INTIMT TO DAVID J. FERNER, D.O. ORTHOPEDIC INSTITUTE OF PA. COMMUNITY IMAGING ASSOCIATES RIVERSIDE ANESTHESIA SUSQUEHANNA VALLEY SURGERY CTR CAPITAL BLUE CROSS/BLUE SHIELD MEDICAL, MEDICAL, MEDICAL, MEDICAL, MEDICAL, INSURANC BILLING, BILLING, BILLING, BILLING, BILLING, E COURT OF COMMON PLEAS TERM, CASE NO: 05-343 "ZIC AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) TO: RICHARD A. SADLOCK, ESQ., PLAINTIFF COUNSEL MCS on behalf of DONALD L. CARMELITE, ESQ. 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: 11/16/2005 MCS on behalf of DONALD L. CARMELITE, ESQ. Attorney for DEFENDANT CC: DONALD L_ CARMELITE, ESQ. - 30008-00406 Any questions regarding this matter, contact THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-317717 0 6 8 3 1- C O 1 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: DAVID J. FERNER, D.O. 4301 LONDONDERRY RD. HARRISBURG, PA 17109 RE: 6831 JANICE E. RULLO Prior approval is required for fees in excess of $100.00 for hospitals, $50.00 for all other providers. INCLUDING LAB REPORTS, X-RAY/CT/MRI REPORTS, DIAGNOSTIC TESTING WITH REPORTS, NOTES, MEMORANDA AND CORRESPONDENCE. Entire medical, billing, and diagnostic file, including but not limited to any and all records, correspondence to and from the consulting and/or treating physicians, files, memoranda, handwritten notes, history and physical reports, medication/prescription records, medical billing and payment records, x-ray films and tests with subsequent reports, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, consultation, diagnosis, care or treatment pertaining to: Dates Requested: up to and including the present. Subject: JANICE E. RULLO 7701 CHAMBERS HILL ROAD, HARRISBURG, PA 17111 Social Security A 173-42-8050 Date of Birth: 09-16-1949 SU10-591832 0 6 8 3 1- L 03_ CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: JANICE & WAYNE RULLO, SR. -VS- HAMPDEN CENTER, INC. COURT OF COMMON PLEAS TERM, CUMBERLAND CASE NO: 05-343 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of DONALD L. CARMELITE, ESQ. 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. S ARMof? DATE: 12/06/2005 XINyoNALD L L. . C CARMELITE, ESQ. ` Attorney for DEFENDANT DE11 06831-L0 2 C O M M O N W E A L T H O IT P E NN S Y L VAN T PL COUNTY OF, C UMBER LAN D IN THE MATTER OF: COURT OF COMMON PLEAS JANICE & WAYNE RULLO, SR. -VS- HAMPDEN CENTER, INC. 1NPEW TO DAVID J. FERNER, D.O. ORTHOPEDIC INSTITUTE OF PA_ COMMUNITY IMAGING ASSOCIATES RIVERSIDE ANESTHESIA SUSQUEHANNA VALLEY SURGERY CTR CAPITAL BLUE CROSS/BLUE SHIELD MEDICAL, MEDICAL, MEDICAL, MEDICAL, MEDICAL, INSURANC BILLING, BILLING, BILLING, BILLING, BILLING, E TERM, CASE NO: 05-343 01zI? AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) TO: RICHARD A. SADLOCK, ESQ., PLAINTIFF COUNSEL MCS on behalf of DONALD L. CARMELITE, ESQ. 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: 11/16/2005 MCS on behalf of DONALD L. CARMELITE, ESQ. Attorney for DEFENDANT CC: DONALD L. CARMELITE, ESQ. - 30008-00406 Any questions regarding this matter, contact THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-317717 0 6 8 3 1- C 0 3. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JANICE & WAYNE RULLO, SR. File No. U 5- 3 4/ vs. HAMPDEN CENTER, INC. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for ORTHOPEDIC INSTITUTE OF PA (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: DONALD L. CARMELITE. ES ADDRESS: 4200 CRUMS MILL ROAD HARRISBURG. PA 17112 TELEPHONE: (215) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant BY TH COURT: Prot onota erl , Civil ivision Deputy Date: A )bp . to . -?S Seal of the Court 06831-02 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: ORTHOPEDIC INSTITUTE OF PA. 875 POPLAR CHURCH ROAD CAMP HILL, PA 17011 RE: 6831 JANICE E. RULLO Prior approval is required for fees in excess of $100.00 for hospitals, $50.00 for all other providers. INCLUDING LAB REPORTS, X-RAY/MRI/CT SCAN REPORTS, DIAGNOSTIC TESTING WITH ALL REPORTS, NOTES, MEMORANDA AND CORRESPONDENCE. Entire medical, billing, and diagnostic file, including but not limited to any and all records, correspondence to and from the consulting and/or treating physicians, files, memoranda, handwritten notes, history and physical reports, medication/prescription records, medical billing and payment records, x-ray films and tests with subsequent reports, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, consultation, diagnosis, care or treatment pertaining to: (rates Requested: up to and including the present. Subject: JANICE E. RULLO 7701 CHAMBERS BILL ROAD, HARRISBURG, PA 17111 Social Security #: 173-42-8050 Date of Birth: 09-16-1949 SU10-591834 06831--T,02 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: JANICE & WAYNE RULLO, SR. -VS- HAMPDEN CENTER, INC. COURT OF COMMON PLEAS TERM, CUMBERLAND CASE NO: 05-343 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of DONALD L. CARMELITE, ESQ. 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. yr behalf DATE: 12/06/2005 ?ALD L. CARMELITE, ESQ. Attorney for DEFENDANT DE11 06831-L03 C O M M O N W E A L T H OF' P E NN S Y L VANS A COUNT Y O EP CUMBER LAN D IN THE MATTER OF: COURT OF COMMON PLEAS JANICE & WAYNE RULLO, SR. TERM, -VS- CASE NO: 05-343 HAMPDEN CENTER, INC. TO SHELVE A ?R DISCOVERY DAVID J. FERNER, D.O. ORTHOPEDIC INSTITUTE OF PA. COMMUNITY IMAGING ASSOCIATES RIVERSIDE ANESTHESIA SUSQUEHANNA VALLEY SURGERY CTR CAPITAL BLUE CROSS/BLUE SHIELD MEDICAL, MEDICAL, MEDICAL, MEDICAL, MEDICAL, INSURANC BILLING, BILLING, BILLING, BILLING, BILLING, E AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) TO: RICHARD A. SADLOCK, ESQ_, PLAINTIFF COUNSEL MCS on be of DONALD L. CARMELITE, ESQ. 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: 11/16/2005 MCS on behalf of DONALD L. CARMELITE, ESQ. Attorney for DEFENDANT CC: DONALD L. CARMELITE, ESQ. - 30008-00406 Any questions regarding this matter, contact THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-317717 0 6 8 3 3- - C 0 1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JANICE & WAYNE RULLO, SR. File No. 0 S - X13 vs. HAMPDEN CENTER, INC. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for COMMUNITY IMAGING ASSOCIATES (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 Philad lphia 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: DONALD L. CARMELITE. ESO. ADDRESS: 4200 CRUMS MILL ROAD SUITE B HARRISBURG- PA 1711 TELEPHONE: (215) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant BY THE COURT: ?d? Protho rotaryr <, ivil 11 1 ision Deputy Date: Seal of the Court 06831-03 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: COMMUNITY IMAGING ASSOCIATES 865 S. ARLINGTON AVENUE HARRISBURG, PA 17109 RE: 6831 JANICE E. RULLO Prior approval is required for fees in excess of $100.00 for hospitals, $50.00 for all other providers. INCLUDING LAB REPORTS, X-RAY/MRI/CT SCAN REPORTS, DIAGNOSTIC TESTING WITH ALL REPORTS, NOTES, MEMORANDA AND CORRESPONDENCE Entire medical, billing, and diagnostic file, including but not limited to any and all records, correspondence to and from the consulting and/or treating physicians, files, memoranda, handwritten notes, history and physical reports, medication/prescription records, medical billing and payment records, x-ray films and tests with subsequent reports, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, consultation, diagnosis, care or treatment pertaining to: Dates Requested: up to and including the present. Subject: JANICE E. RULLO 7701 CHAMBERS HII J ROAD, HARRISBURG, PA 17111 Social Security #: 173-42-8050 Date of Birth: 09-16-1949 SU10-591836 0 6 8 3 1- L 0 3 COMMONWEALTH OF, P E NN S Y L VANS A COUNTY OP C UM B E R L AN D IN THE MATTER OF: COURT OF COMMON PLEAS JANICE & WAYNE RULLO, SR. -VS- HAMPDEN CENTER, INC. NT TO SERVE I FOR DI TERM, CASE NO: 05-343 PRODUCE DOCUf4EWS AND RULE 4009.2 DAVID J. FERNER, D.O. ORTHOPEDIC INSTITUTE OF PA. COMMUNITY IMAGING ASSOCIATES RIVERSIDE ANESTHESIA SUSQUEHANNA VALLEY SURGERY CTR CAPITAL BLUE CROSS/BLUE SHIELD MEDICAL, MEDICAL, MEDICAL, MEDICAL, MEDICAL, INSURANC BILLING, BILLING, BILLING, BILLING, BILLING, E AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) TO: RICHARD A. SADLOCK, ESQ., PLAINTIFF COUNSEL MCS on be of DONALD L. CARMELITE, ESQ. 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: 11/16/2005 MCS on behalf of DONALD L. CARMELITE, E Attorney for DEFENDANT CC: DONALD L. CARMELITE, ESQ. - 30008-00406 Any questions regarding this matter, contact THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-317717 06833--COX COMMONWEALTH OF PENNSYLVANIA_ COUNTY OF CUMBERLAND JANICE & WAYNE RULLO, SR. vs. HAMPDEN CENTER, INC. File No. ?9-343 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for RIVERSIDE ANESTHESIA (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 1910 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: DONALD L. CARMELITE. ESQ. ADDRESS: 4200 CRUMS MI ROAD SUITE B HARRISBURG PA 1711 TELEPHONE: _(215) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant BY THE OURT: Proth L notary/VIcrk Civil ivision Deputy Date: -11t)OU /O?)_r Seal of the Court 06831-04 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: RIVERSIDE ANESTHESIA 4999 LOUISE DR. SUITE 105 MECHANICSBURG, PA 17055 RE: 6831 JANICE E. RULLO Prior approval is required for fees in excess of $100.00 for hospitals, $50.00 for all other providers. INCLUDING LAB REPORTS, X-RAY/MRI/CT SCAN REPORTS, DIAGNOSTIC TESTING WITH ALL REPORTS, NOTES, MEMORANDA AND CORRESPONDENCE Entire medical, billing, and diagnostic file, including but not limited to any and all records, correspondence to and from the consulting and/or treating physicians, files, memoranda, handwritten notes, history and physical reports, medication/prescription records, medical billing and payment records, x-ray films and tests with subsequent reports, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, consultation, diagnosis, care or treatment pertaining to: Dates Requested: up to and including the present. Subject: JANICE E. RULLO 7701 CHAMBERS HILL ROAD, HARRISBURG, PA 17111 Social Security #: 17342-8050 Date of Birth: 09-16-1949 SU10-591838 0 6 8 3 1- L 0 4 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS JANICE & WAYNE RULLO, SR. TERM, CUMBERLAND -VS- CASE NO: 05-343 HAMPDEN CENTER, INC. As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of DONALD L. CARMELITE, ESQ. 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. DATE: 12/06/2005 ZTAL ?behal f? i D L. CARMELITE, ESQ. Attorney for DEFENDANT ? DE11 06831-LOS C O M M O N W E A T =H H OF P E NN S Y L VAN S A COUNTY OF CUMBER LAN D IN THE MATTER OF: COURT OF COMMON PLEAS JANICE & WAYNE ROLLO, SR. -VS- HAMPDEN CENTER, INC. A SUBPOENA TO DAVID J. FERNER, D.O. MEDICAL, BILLING, AND X-RAY(S) ORTHOPEDIC INSTITUTE OF PA. MEDICAL, BILLING, AND X-RAY(S) COMMUNITY IMAGING ASSOCIATES MEDICAL, BILLING, AND X-RAY(S) RIVERSIDE ANESTHESIA MEDICAL, BILLING, AND X-RAY(S) SUSQUEHANNA VALLEY SURGERY CTR MEDICAL, BILLING, AND X-RAY(S) CAPITAL BLUE CROSS/BLUE SHIELD INSURANCE f zI TO: RICHARD A. SADLOCK, ESQ., PLAINTIFF COUNSEL MCS on behalf of DONALD L. CARMELITE, ESQ. 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: 11/16/2005 CC: DONALD L. CARMELITE, ESQ. - 30008-00406 Any questions regarding this matter, contact TERM, CASE NO: 05-343 MCS on behalf of DONALD L. CARMELITE, ESQ. Attorney for DEFENDANT THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-317717 06833_-C!03. COMMONWEALTH OF PENNSYLVANIA_ COUNTY OF CUMBERLAND JANICE & WAYNE RULLO, SR. File No. r'?S ^ 3 4/3 vs. HAMPDEN CENTER, INC SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for SUSQUEHANNA VALLEY C RY CTR (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 M CS CrQU 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: DONALD L. CARMELITE. ESO. ADDRESS: 4200 RIMS MILL ROAD SUITE B HARRISBURG PA 17112 TELEPHONE: (215) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant BY THE COURT. Protho otary/Clgrk, V7Di lion Deputy Date: /I X)U /0 .2 )&S Seal of the Court 06831-05 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: SUSQUEHANNA VALLEY SURGERY CTR 4310 LONDONDERRY RD. SUITE 1 HARRISBURG, PA 17109 RE: 6831 JANICE E. RULLO Prior approval is required for fees in excess of $100.00 for hospitals, $50.00 for all other providers. INCLUDING LAB REPORTS, X-RAY/MRI/CT SCAN REPORTS, DIAGNOSTIC TESTING WITH ALL REPORTS, NOTES, MEMORANDA AND CORRESPONDENCE. Entire medical, billing, and diagnostic file, including but not limited to any and all records, correspondence to and from the consulting and/or treating physicians, files, memoranda, handwritten notes, history and physical reports, medication/prescription records, medical billing and payment records, x-ray films and tests with subsequent reports, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, consultation, diagnosis, care or treatment pertaining to: Dates Requested: up to and including the present. Subject : JANICE E. RULLO 7701 CHAMBERS HILL ROAD, HARRISBURG, PA 17111 Social Security #: 173-42-8050 Date of Birth: 09-16-1949 SU10-591840 0 6 8 3 1- L 0 5 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS JANICE & WAYNE RULLO, SR. TERM, CUMBERLAND -VS- CASE NO: 05-343 HAMPDEN CENTER, INC. As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of DONALD L. CARMELITE, ESQ. 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. DATE: 12/06/2005 ?s behal o DONALD L. CARMELITE, ESQ. Attorney for DEFENDANT DEll 06831-L06 C O M M O N W E AL T H OF P E NN S Y L VANS A COUNT Y OF' CUMBER LAN D IN THE MATTER OF: JANICE & WAYNE RULLO, SR. -VS- HAMPDEN CENTER, INC. COURT OF COMMON PLEAS TERM, CASE NO: 05-343 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 DAVID J. FERNER, D.O. ORTHOPEDIC INSTITUTE OF PA. COMMUNITY IMAGING ASSOCIATES RIVERSIDE ANESTHESIA SUSQUEHANNA VALLEY SURGERY CTR CAPITAL BLUE CROSS/BLUE SHIELD MEDICAL, MEDICAL, MEDICAL, MEDICAL, MEDICAL, INSURANC BILLING, BILLING, BILLING, BILLING, BILLING, E AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) AND X-RAY(S) TO: RICHARD A. SADLOCK, ESQ., PLAINTIFF COUNSEL MCS on behalf of DONALD L. CARMELITE, ESQ. 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: 11/16/2005 MCS on behalf of DONALD L. CARMELITE, ESQ. Attorney for DEFENDANT CC: DONALD L. CARMELITE, ESQ. - 30008-00406 Any questions regarding this matter, contact THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-317717 0 6 8 3 1- C O 1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JANICE & WAYNE RULLO, SR. File No. S ^ 3 ?/3 vs. HAMPDEN CENTER, INC. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for CAPITAL BLUE CROSSBLUE SHIELD (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 MCC Croup Inc 1601 Market Street Suite 800, Philadel h' 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: DONALD L. CARMELITE. ESO. ADDRESS: 4200 CRUMS MILL ROAD SUITE B HARRISBURG. PA 17112 TELEPHONE: (215) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant Date: Seal of the Court BY THE COURT. Proth otary/CI r t, 'ivil Div lion Deputy 06831-06 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: CAPITAL BLUE CROSS/BLUE SHIELD 2500 ELMERTON AVE P. O_ BOX 772132 HARRISBURG, PA 17177 RE: 6831 JANICE E. RULLO Prior approval is required for fees in excess of $100.00 for hospitals, $50.00 for all other providers. CLAIM GROUP #0502625, INCLUDING PRODUCTION OF ALL DOCUMENTATION, CORRESPONDENCE, PAYOUTS, MEDICAL RECORDS & BILLS, MEMORANDA, PHOTOGRAPHS, REPORTS, ETC. Please call for prior approval for fees in excess of $100.00 for hospitals, $50.00 for all other providers. Any and all insurance records and PIP files, including but not limited to medical reports and/or records, claims, any and all correspondence, documentation supporting plaintiff s claim, payments including dates of payments, payee and reasons for payments, including any and all such items as may be stored in a computer database or otherwise in electronic form, pertaining to: Dates Requested: up to and including the present. Subject: JANICE E. RULLO 7701 CHAMBERS HILL ROAD, HARRISBURG, PA 17111 Social Security A 17342-8050 Date of Birth: 09-16.1949 Date of Loss: 12/08/2003 SU10-591842 0 6 8 3 1- L 0 6 ? -> , , ,, ? -, : <„ -- , --, v \05 A\LIAB\DLCARMELITE\LLPG\257143UWALLACE\30008\00406 Marshall, Dennehey, Warner, Coleman & Goggin By: DONALD L. CARMELITE, ESQUIRE ID #84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3504 Our File No. 30008-00406 Attorney for Defendant Hampden Center, Inc., JANICE RULLO AND IN THE COURT OF COMMON PLEAS OF WAYNE RULLO, Sr., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 05-343 Civil HAMPDEN CENTER, INC., JURY TRIAL DEMANDED Defendant DEFENDANT HAMPDEN CENTER, INC.'S MOTION FOR SUMMARY JUDGMENT AND NOW, comes Defendant Hamden Center, Inc., by and through their undersigned counsel, Marshall Dennehey Warner Coleman & Goggin, to file this Motion for Summary Judgment in support thereof, avers as follows: 1. Plaintiffs Janice Rullo and Wayne Rullo, Sr. initiated this action by Complaint dated January 19, 2005 against Defendant Hampden Center, Inc. 2. The pleadings are now closed and the parties have conducted all necessary discovery. (See correspondence from Donald Carmelite to Richard Sadlock dated May 11, 2003 attached to the Appendix as Exhibit "A"). 3. In sum, Plaintiff Janice Rullo explains that the accident occurred while walking from the CVS Pharmacy located in the Hampden Center to the Kam's grocery store on the sidewalk. 4. Plaintiff alleges that as she was passing under a fagade a large chunk of ice slipped off the roof and struck the top, center portion of her left hand. (See deposition transcript of Janice Rullo, page 15 attached to the Appendix as Exhibit "B"; Plaintiffs supplemental discovery response depicting a photograph and markings by Plaintiff indicating where the ice came from when Plaintiff was allegedly struck in the hand, attached to Appendix as Exhibit "C"; Kam's Customer Accident Report attached to Appendix as Exhibit "D"). 5. The Hampden Center is owned by Defendant Hampden Center, Inc. 6. Unnamed Defendant Lavipour & Company is the management company for the Hampden Center. (See deposition testimony of Andrea Brigante, page 6 attached to the Appendix as Exhibit "E"). 7. Kam's leases certain space in the Hampden Center from Defendant Hampden Center, Inc. and pursuant to the terms of the lease, Defendant Hampden Center, Inc. is responsible for snow removal at the shopping center including removal of snow from the roofs. 8. Lavipour & Company is responsible for contracting with local companies for maintenance and snow removal. (See Appendix, Exhibit "E" at page 7). 9. Lavipour & Company inspects the Hampden Center on a routine, periodic basis and talks to tenants about any issues they wish to report. (See Appendix Exhibit "E" at page 9). 10. Prior to and including December 2003, Lavipour & Company never received any reports of snow or ice accumulating on a roof causing problems including but not limited to falling from the roof. (See Appendix at Exhibit "E" at pages 12-13). 11. There has never been any damage to structures at the Hampden Center from snow or ice accumulation on roofs of any of the structures at Hampden Center. (See Appendix at Exhibit "E" at pages 14- 15). 12. Richard Brown, Jr. was the Store Manager for Kam's Food on the date of Plaintiffs accident. (See deposition transcript of Richard Brown, Jr. at pages 3-4 attached to the Appendix at Exhibit "F") 2 13. As the Store Manager for Karn's in the Hampden Center, Mr. Brown has never personally observed or had reported to him the occurrence of snow or ice falling from the Kam's roof. (See Appendix at Exhibit'F" at pages 8-9). 14. Lavipour & Company contracted McNaughton Services, Inc. to perform snow removal at the Hampden Center. McNaughton Services had never been asked to perform snow removal from the rooftops at any facility in the Hampden Center. (See deposition transcript of Melissa McNaughton at pages 4-5 attached to Appendix as Exhibit "G") 15. McNaughton Services has never observed any hazardous accumulation of snow or ice accumulating on the fagade of the Kam's store. (See Appendix at Exhibit "G" at pages 7-8, 11). 16. There is no absolute duty on an owner of a property to keep his premises free from ice and snow at all times. Hutchison v. Montgomery Ward & Co., 364 Pa. 126, 130, 70 A.2d 838, 840 (1950). 17. Plaintiff has a duty to show some unusual condition existed before the accident that would lead the Hampden Center, through its employees, at the exercise of reasonable and ordinary care, to believe that such additional precautions were required with regard to the snow and ice accumulation. Id. 18. There is no evidence that the Hampden Center, Inc. had actual notice of the accumulation of ice that allegedly struck Plaintiffs hand. 19. The alleged accumulation of snow and ice on the fagade or roof of the Kam's store did not rise to the level to equate constructive notice to the Hampden Center, Inc. See, Hutchison, Supra.; Menzel v. Lamproplos, 168 Pa. Super. Ct. 329, 332-333, 77 A.2d 645, 646-647 (Pa. Super. 1951; Reed v. Ulrich, 76 Pa. D&C 269 (C.C.P. Erie, 1950). 20. For the foregoing reasons, Defendant Hampden Center, Inc. is entitled to summary judgment pursuant to Pa.R.C.P. 1035.2 and Plaintiffs' Complaint must be dismissed as a matter of law. 3 y ? WHEREFORE, Defendant Hampden Center, Inc. respectfully request that this Honorable Court grant its motion for summary judgment and dismiss all claims against it. Respectfully submitted, , WARNER, DATE: June 21, 2007 BY: DONALD L. CARMELITE, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 4 JANICE RULLO AND IN THE COURT OF COMMON PLEAS OF WAYNE RULLO, Sr., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 05-343 Civil HAMPDEN CENTER, INC., JURY TRIAL DEMANDED Defendant CERTIFICATE OF SERVICE I, Lisa J. Wallace, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on thin I day of June, 2007, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: Richard A. Sadlock, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 t3 - Illy ; ? M r- rr? ?y cv c,n at7 "? Marshall, Dennehey, Warner, Coleman & Goggin By: DONALD L. CARMELITE, ESQUIRE ID # 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3504 Our File No. 30008-00406 Attorney for Defendant Hampden Center, Inc., JANICE RULLO AND IN THE COURT OF COMMON PLEAS OF WAYNE RULLO, Sr., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 05-343 Civil HAMPDEN CENTER, INC., JURY TRIAL DEMANDED Defendant DEFENDANT HAMPDEN CENTER, INC.'S APPENDIX TO MOTION FOR SUMMARY JUDGMENT ?Xi-\?C?1T t A REGIONF 'DEFENSE LITIGATION LAw FIRM MABSHAug DENNEHEY, WARNER, COLEMAN 8 GOGGIN A P R O F E S S I O N A L C O R P O R A T I O N www.marshaUdennehey.com 4200 Crums Mill Road, Suite B - Harrisburg, PA 17112 (717) 651-3500 • Fag (717) 651-9630 f PENNSYLVANIA Bethlehem Doylestown Erie Harrisburg King of Prussia Philadelphia Pittsburgh Scranton Williamsport NEW ]ERSEY Cherry Hill Roseland DELAWARE Wilmington OFQO Alcorn Direct Dial: (717) 651-3504 Email: dlcarmelite@mdwcg.com May 11, 2007 Richard A. Sadlock, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 ftop.mA Ft. Lauderdale Jacksonville Orlando Tampa RE: Janice Rullo and Wayne Rullo, Sr. v. Hampden Center, Inc. CCP (Cumberland County) No.: 05-343 Civil Our File # 30008-00406 Dear Rich: Please advise what additional discovery you wish to undertake. Absent your advice to the contrary, if I do not hear from you on the subject by the end of May, I shall assume that you do not wish to engage in any further discovery and I will proceed with filing a dispositive motion or listing the case for trial. Should you have any questions or concerns directly. the above, please do not hesitate to contact me S DLC/jmp \05_A\LIAB\DLCARMELITE\CORR\253856UMPAR.R\30008\00406 EX-1161 ORIGINAL JANICE RULLO AND WAYNE RULLO, SR., HER HUSBAND, PLAINTIFFS V DEN CENTER, INC., DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-343 JURY TRIAL DEMANDED DEPOSITION OF: JANICE RULLO TAKEN BY: DEFENDANT BEFORE: MARIA N. O'DONNELL, RPR NOTARY PUBLIC DATE: JUNE 7, 2006, 12:00 P.M. PLACE: ANGINO & ROVNER, PC 4503 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA APPEARANCES: ANGINO & RONVER, PC BY: RICHARD A. SADLOCK, ESQUIRE FOR - PLAINTIFFS MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: DONALD L. CARMELITE, ESQUIRE FOR - DEFENDANT ALSO PRESENT: WAYNE RULLO Hughes Albright Foltz Natale u4a 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 0 Lancaster 717.393.5101 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NAME JANICE RULLO BY: MR. CARMELITE WITNESSES EXAMINATION 3 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are hereby waived; and that all objections except as to the form of the question are reserved to the time of trial. JANICE RULLO, called as a witness, being duly sworn, testified as follows: EXAMINATION BY MR. CARMELITE: Q Hi, Mrs. Rullo. My name had Don Carmelite. A Good morning. Q I represent Hampden Center, Inc. I know that you were here for Miss Brigante's deposition. Your counsel went over some basic rules for depositions, but I will briefly go over them as well for you. Okay? A Yes. Q Have you ever had your deposition taken before? A I believe so. Q Okay. When was that? A Early '90s. Q And what was -- were the circumstances that that occurred? A It was in regard to a slip and fall accident. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Is that the one that occurred at the Food Festival when you slipped on Saran Wrap? A Yes, it is. Yes, it is. Q Okay. We will get back to that. A deposition is a question and answer session. This young lady here can only take down one of us talking at a time, so you need to wait for me to finish my question. I will wait for you to finish your answers. Okay? A Yes, sir. Q You need to provide all responses verbally, you can't nod of your head and say huh-uh, uh-huh. They don't get transcribed very well. Do you understand that? A Yes, sir. Q Okay. I am going to ask you questions. I am a going to assume that you understand the question unless you tell me otherwise. Do you understand that? A Yes. Q If you don't understand it, will you let me know and I will rephrase it, repeat it, whatever you need to help you understand what I am trying to ask. Is that okay? A Yes, it is. Q I don't want you to make any guesses though. All right? I want you to make educated guesses, but tell me you are doing that. All right? Otherwise, I don't want 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you to speculate or kind of guess. Do you understand that? A Yes. Q Okay. Are there any medications that you are taking today that are going to effect your ability to answer questions? A No. Q Okay. Do you have any questions about those basic ground rules we just went over? A No. Q Okay. Good. All right. Let's talk about the slip and fall accident in the nineties at the Festival Foods or Food Festival, I forget -- A I believe it was Festival Foods. Q Okay. You slipped on some Saran Wrap that was in the aisle? A It was not actually in the aisle. It was under the kick plate of the freezer. Q Okay. So you slipped on some Saran Wrap? A Yes. Q What ultimately happened with that lawsuit? A Absolutely nothing. Q Did it go to trial? A It went to trial, yes. Q And what were the results? 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A There was a finding of 51 percent it was my fault that I seen the clear Saran Wrap. Q That was in Cumberland or Dauphin County? A Dauphin County. Q So we're not talking about the same grocery store because the Karns where you -- where this incident happened we're taking your deposition used to be Festival Foods. Where your slip and fall accident happened was at a different Festival Foods? A I was not aware that that had ever been a Festival Foods where the Karns is. Q Okay. So in other words, the Festival Foods where the nineties slip and fall accident had was someplace other than Hampden Town Center? A Yes. Q Okay. Have you filed any other lawsuits? A No. Q Just -- I want to talk about the injury that you are claiming to receive to your left hand, is that correct? A Yes, sir. Q Okay. Just, you know, generally tell me what your doctors have told you happened to your hand. A Just the ice when it hit the back of my hand, it caused swelling and it triggered a fibroid growth. They are not certain. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Fibery growth, is that what you said? A Fibroid. Q Have your doctors explained to you what a fibroid growth is? A More or less. Q Okay. What have they explained to you? A That it's just -- it's a fibrous little tumor, like little octopus that grows in there and it just encircles the nerves and tendons. Q You indicated that your doctors indicated that the ice may have caused that fibroid growth to occur. Correct? A Yes. Q Okay. Did they give you possible other causes? A No. Q Do you remember the doctor that told you that it may have been the result of the ice falling? A I believe Dr. Ferner. Q Is Dr. Ferner your family doctor? A Yes. Q He ultimately referred you to some sort of specialist to treat your hand, correct? A Yes. Q Do you remember who that was? A That would have been Dr. Kaneda. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q What did Dr. Kaneda tell you with regard to the causes of your fibroid growth? A Just that it was there and whether it -- he cannot predict whether or not it would have been there without the injury, or it was completely caused by the injury, or not caused by the injury. Q Ultimately, Dr. Kaneda did surgery, is that correct? A Yes, sir. Q Okay. And tell me how that went. A It went about normal as far as the recovery period was concerned. It healed quickly. Q Did it provide you relief? A No. Q None at all, short term? A I don't believe so. Q Okay. Did Dr. Kaneda explain why the surgery wasn't -- why the surgery didn't provide you any relief? A Yes. Q Okay. What did he explain? A He explained that it would take a period of time for the area to heal after the removal of the two small nodules that he took out. And it would take about six months to a year for the area to completely clear up and heel. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. And has that time period past? A Yes. Q And how does your hand feel? How -- let me - withdrawn. How did your hand feel after that six months to a year past? A There is still pain because there is an additional two little nodules that have grown on the other finger that was effected by it. Q Is it the same type of pain, or is it a different pain? A No, it's the same type of pain. Q The two subsequent nodules that grew weren't present when the first surgery was done, to your knowledge? A One of them was. We -- at that time Dr. Kaneda assumed that it was just a small one, single small nodule, that cortisone injections would break it up. Q Okay. Did you go through with the cortisone injections? A Yes. Q How did that work? A It provided very, very short term relief from the pain, but it did not achieve our goal of breaking it up. Q What treatment have you undergone since the cortisone injections weren't successful? A I believe there was some physical therapy, and 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that's about it. Q How did the physical therapy work? A Physical therapy caused additional pain because it was pulling the nodules across nerves and tendons and stretching the scar tissue in the original site. Q Do you recall when you completed your physical therapy? A No, I do not. Q Was it a year ago? A Probably. Q Since you completed your physical therapy, have you undergone any other treatment for your left hand? A I have seen Dr. Kaneda I believe three times since then. Q What has Dr. Kaneda told you? A Well, at this point we're monitoring the growth of the subsequent nodules. His determination is that they are not operable until such time as they stop hurting. Q Has he explained why? A His -- what I recall of his explanation is that it would mean that the nodule had matured by the very fact that it had completely pinched off the nerve, and that therefore there was no longer pain in that area. Q When you had your first surgery to remove the nodules, had the pain subsided? 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A In that particular area, yes. Q Your answer indicates that there was pain in another area in your hand? A Yes. Q Okay. Where is -- where is that pain? A The original site was the -- whatever, the middle finger. Q Okay. A The second site is the fourth finger. Q Ring finger. Okay. A Yes. Q Okay. So when you had the original surgery, the pain in your middle finger had ceased, but you had pain in your ring finger? A Exactly. Q Okay. And surgery relieved the pain in your middle finger, but didn't relieve the pain in your ring finger, is that correct? A Moderately relieved the pain in my middle finger. There is still some pain there. Q Has any of your doctors explained why you still have some pain in your middle finger? A Yes. Q Okay. A There is scar tissue. It's pinching the nerve. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Was there any treatment they have prescribed for you for that issue? A No. Q Have you asked? A Yes. Q What have they told you? A At this time there is not much that can be done for it. They just have to wait to see what it is going to develop into and whether or not when I would have the second surgery on the other finger, they may have to remove what scar tissue had formed. Q Have your doctors given you any indication when they suspect that the nodules in your ring finger will mature to the point where surgery can occur? A No. Q The pain in your middle finger after the surgery, has that been pretty much a constant, or has it -- A Not really. It's more sporadic. It could just -- it comes and goes trigger, you know, here or there, just a muscle spasm, something like that. Q Are there certain things that you do that trigger the pain in the middle finger? A There are, yes. Q What would they be? A Attempting to milk a goat or cow, trying to hold 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 things in this hand or make a fist and hold it tight, holding a shovel, doing work around the farm. Q Anything else? A Just in general, just trying to carry things that require making a fist. Q Okay. How about the pain in your ring finger, has that been constant or -- A No. Q Okay. Explain that pain to me. A The pain in this finger is the same thing. It depends on when -- which way I -- if I move the finger and the lumps that are there, if they would pinch the nerve or pull on the tendon, it might just spasm like a charlie horse or it could trigger it just to -- just uncontrollably wiggle at the same time, it could pull it back, or it could just hurt all of the way up to the elbow or it might not hurt at all for an hour or two. Q Has the intensity of the pain changed at all? A It is beginning to get less. Q When it started to taper off, was there a -- was there a build up or was it like the -- the intensity was pretty much the same? A No, it's tapering off very, very gradually. As the size of the nodules grow, it is doing what Dr. Kaneda said, which is lessening in severity of the pain as it 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pinches the nerve off. Q The pain was -- is the onset of the pain similar where it tapers off? A No, it was there. It was just -- in the beginning, it didn't build up to anything, it was just once the impact, it hurt and the entire hand swelled up like a blown-up rubber glove and it just hurt, like it breaks it because initially the doctors felt it was broken, that the two bones in the middle were broke. Q Okay. So from the impact with the -- I think that you described it in discovery answers basketball size ice ball that fell from the facility? A Yes. Q From that point, the pain has been the same severity and intensity in your ring finger? A It's about the same intensity, but not the same duration. It's changed in the way that it acts. It has not gotten stronger in the spasms, but the spasms are getting less. Q Okay. My understanding from your discovery responses to interrogatory questions, that you are -- you didn't miss any work as a result of the accident? A Not initially. I did miss a couple of days of work because of the surgeries -- the surgery that was done. I don't have a choice about going to work. I 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't have a lot of leave. And I also have other physical problems, and I am the sole support basically of my family. Q Well, maybe I should -- it's my understanding, and your counsel can correct me if I am wrong, but you are not making a claim for wage loss? A No, I am not. Q Okay. You are not making a claim for future wage loss? A No, I am not. Q Okay. Why don't you tell me in your own words how the accident occurred. A I was walking from Karns -- from CVS pharmacy which would be at the I believe western most edge -- not edge, but the western side of the parking lot, shopping center. And I was on the sidewalk walking in an easterly direction toward Karns. I was figuring on going in there and getting some something for lunch before I went to my next stop. And as I was passing under one of the facades in front, a large chunk of ice came down, just slipped off the roof and it -- I had just picked my brief case up to hold it to make a note on my note pad that was on it. At that time it hit the top of my -- center of my hand. Q Okay. It was all ice? A Yes. Q Okay. What happened to the ice ball when it hit 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your hand? A It broke. Q Did it shatter in a million pieces? A Not a million pieces, but it broke into many small pieces. Q Okay. Did it break the skin on your hand? A No. Q I believe, correct me if I am wrong, did anybody witness this accident? A Yes, an employee of Karns did. Q Okay. Did you have any conversations with him about it? A He said something to the effect that -- that wasn't the first piece of ice that had fallen off there and he did ask if I was okay. Q That conversation, was that like immediately after the ice -- A Yes, it was. Q Okay. And that is the -- do you remember anything else about your conversation? A No. Q Okay. At some point I think that you went and reported the accident to a manager? A Yes, yes, I did. Q Over at Karns. Tell me about that. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I went in and I asked to see the manager. And the young lady said she was the manager. And -- or they got the manager. And she asked what the problem was, and I told her what had happened. Q Okay. What did she say to you? A She did not believe that Karns was responsible for the sidewalk, but just in case, she wanted to make sure that she was doing the right thing by having me fill out an accident report. Q Did she fill out the report with you, or did you fill it out yourself. Or how did that work? A I believe we filled it out together. Q Did they offer you any -- well, withdraw that. When the witness or employee for Karns asked you if you were okay, how did you respond to them? A That I didn't know. Q Okay. Did they offer you any medical assistance such as, you know, calling EMS or anything like that? A No. Q Is Dan Kuhn or Kuhn, K-u-h-n, does that -- the name ring a bell to you as the witness? A Yes. Q Okay. And he's the one who told you that this was not the first piece of ice that had fallen? A I believe so. 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. Is this -- you say that you believe so. Is there some doubt in your mind? A He said something to the effect that it was not the first either piece of ice or the first time that that type of thing had happened. I do not recall which. Q Okay. But generally, he communicated to you that something -- snow or ice had fallen from that facade before, you recall? A Yes, sir. Yes, sir. Q Okay. Did you raise that issue at all with the manager that you spoke with at Karns? A I believe I did. Q Okay. Tell me about that. A I don't recall exactly what was said at that time. Q What makes you believe that you did raise that issue with the manager? A Because it was a safety issue and I had just gotten hurt. And I tried to be a conscientious person and I would not want to see anybody else get hurt, especially not a child. So I would -- I believe I would have brought that up. Q You don't have a -- you don't have an independent recollection of it, you are just saying that would have been your normal customary practice to do that? 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q It's possible that you didn't, but you believe that you did, is that a fair statements? A It's highly unlikely that I would not have brought it up. Q Again, you said that the purpose of you bringing that up with the manager was because generally you didn't want to see that happen to anybody else, you know, especially -- I think you said especially a child, you are a conscientious person, is that correct? A Yes. Q What efforts did you make to follow up with that manager at Karns to see what if any changes that they were going to make to prevent that from happening in the future? A When I called, I was told that the problem was not Karns. I do not remember the exact date that I called. I was told that that would have been part of the Hampden Center's maintenance, and that was done by the Hampden Center. And no one knew where or who to get ahold of to take care of that problem. Q Okay. I know that you indicated that you don't remember when you called. Can you give me an estimation of, you know, weeks, months from the date of the accident to when you called? A It would have been within a 30-day period after 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the initial injury. Q And did you ask for the specific manager that you spoke with when you reported the incident, or did you who did you speak with, if you remember? A I do not remember. Q Okay. Do you remember if you spoke with a manager or not? A I would have spoken with a manager because they would have been the authority person. Q Do you remember if it was a man or woman? A No, I do not. Q If I understood your brief testimony, their response to what measures that they had taken to prevent that from happening in the future, it was not my responsibility, it's the responsibility of the folks who own Hampden Center and they don't know how to contact them? A The manager did not state it that specific way. It was -- it was more the way she said -- it was more I don't think that that falls under the things that Karns is responsible for, I believe that is Hampden Center's responsibility to maintain that, but we're going to look in to it. Q Okay. That conversation occurred -- A The date of the injury. Q The date of the injury. Okay. 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I am talking about when you called, when you followed up to see if they did anything. Do you remember we talked about did you -- did you report it and the reason, that you weren't quite sure if you did, but you thought that you did because you are a conscientious person and follow up, you think you did follow up with Karns to see if they made any changes. I thought that your testimony was that you talked to a manager, but you weren't sure who it was, whether it was a man or woman, and that their response to you was it not our responsibility and it's the responsibility of the owner of the strip mall or Hampden Center and we don't know who to contact. Is that -- am I incorrect on any of that? A You are incorrect on parts of that. Q Okay. Correct me, please. A The statement is correct in that I -- I did attempt to find out who was going to take -- who was responsible for taking care of it. They did say that it was Hampden Center's responsibility or the property manager or whatever of Hampden Center and they were trying to follow up on it to do something but they had no idea -- the manager or person that I talked to had no idea how to get ahold of the person who was responsible for doing that particular type of maintenance. 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. If you recall, what was your response or reaction to learning-that information? A I asked them who was responsible and they said they didn't know. Q So essentially you let it go after that? A I became involved in some other things and yes, I had no choice. Q Okay. What were the other things that you got involved in? A Helping to take care of my mother who had Alzheimers and dementia. Q Did either Dan Kuhn or the manager that you spoke with on the date of the accident or the person that you spoke with on the phone ever report to you -- withdraw that question. Aside from Mr. Kuhn telling you that snow or ice had fallen from the facade in the past, did either one of the folks who were managers that you spoke with either the day of the accident or when you called them up on the phone tell you that this was an incident that happened before? A No. Q Did you ask? A No. Q Do you remember what the weather was like that day? 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Pretty much. Q Okay. Can you tell me? A I believe the sun was shining. Temperature was just was above freezing. Q If you recall, had there been a heavy snow fall the day before or -- withdrawn. Had there been any snowfall that day, the day before, within the week that you recall? A Not snow, but ice. Q When was, if you recall, when was the ice? A The night before, maybe the afternoon day before. I don't remember the exact duration of the storm, but I know that there had been a storm. Q Okay. Okay. Now, when we say -- withdrawn. Now, when you say that the ice that hit your hand was the size of a basketball, are we talking literally the circumference of -- if we were to stick a ball of ice on the table and put a basketball right next, they would look alike? A Very close. Q Okay. Let's talk about the things that you were able to do prior to the ice hitting your hand that you are no longer able to do today. Do you understand that? A Yes. Q Okay. 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I don't crochet or knit any longer because just the attempt of trying to hold the hand in a given position for a long period of time is very painful and it doesn't work. I have given up riding horses because I can't maintain a firm grip on the reins, which means I am going to end up falling on my something because I have no sense of balance. Gardening is painful. Anything that I need to use my left hand for, carrying things. I don't rely on the left hand to carry anything that is fragile or important without having it cradled in the arm rather than holding it in the hand because of the fact that the muscle could spasm, just will let go. It doesn't happen all of the time, but it does happen. So I am trying to not take a chance. As I stated before, I -- I have dairy goats. I can't milk them by hand, I have to have an electric milker to do that because the hand becomes too tired too fast and I can't do the job. Typing can be painful. I make a lot of mistakes with the left hand. That's pretty much for the most part. Housework is a bear, but then I don't want to do it anyhow, so I -- there is no sense in worrying about that one. Q Okay. Was crocheting and knitting a hobby, or 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 something that you did for money? A I did a little bit of both because I would crochet blankets and things. I am hyperactive so I would use that to sit in the evening while I am watching T.V. where the T.V. would hold my eyes and interest, my hand could be crocheting and knitting while I was watching T.V. so that I wouldn't get up and run to the frig. Q Okay. Have you developed another kind of hobby to supplant the crocheting, knitting so you don't -- A No. No. Q Get up and go to the frig? A No. A lot of getting up and going to the frig. I spend more time trying to fritter away just putting on the computer and trying to do things like that, but when you get into those sites, they are more expensive than knitting and crocheting is. So I try to find other things just to do and it's a little difficult. Q Are you right or left-hand dominant? A I am right handed, but my left hand was my dominant hand. Q Okay. Explain that to me. A I was right handed and right hand dominant up until the time of the injury in 1991. After that time, while I am right handed my left hand and arm became the stronger of the two arms because of the damage done to the 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 nerve going into the right hand -- right arm, and therefore the left hand and arm were stronger. Q So in December of 2003, were you writing with your left hand? A No. I was still write with my write hand, but I carry everything with the left hand, do things, because this arm and hand tire less than the right hand does. Q Riding horses, I assume it's a hobby? A Yes, relaxation. Q Okay. You can't hold the reins because of your left hand. Is that -- it's painful? A It's not that it's painful, it's unreliable. Q Okay. A I can't maintain a firm grip on them. The fingers could let go, or it could go into a spasm. And if I jerk on the rein because it goes into a spasm, I am going to either have a horse rearing up or turning the wrong way or doing something ridiculous because the reins are the steering wheel on the horse, and how you hold them is how it goes. Even so much as just moving them back an inch can put you over an embankment or something like that. So even though you use two hands, you don't want -- Q Okay. A -- to be putting yourself in a precarious 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 position. And finally I am very hard headed, and after taking a rather nasty fall last fall, I just said okay, I need to quit. Q Okay. A I can't do this. Q And the fall occurred because of this reins issue? A The fall became -- the fall was an issue because I could not pull on the reins to make the horse go to the left or to the right. I could not get it to stop going straight ahead. And I thought it was going to go over an embankment and down into a gully where there were broken tree limbs and cinders and all kind of things. I feared the horse was going to break its legs, we were both going to be killed. So I went to kick my foot loose of the stirrup. Just as I went to kick my foot loss, the horse realized what was down there. She made a sharp turn. I could not grip on to -- hold anything, and the hands just wouldn't work at that point and I went falling off to my left side. Q Okay. And your right hand -- is it your right arm hand, whatever it is does, it -- you still have a deficit because of the 190 injury? A Yes. Q The issue -- you also said that something about 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you don't have balance or you have no balance. Is that just -- was that just like a general comment, you are a clutzy person, or do you have a medical issue where it effects your balance? A I actually have not got the greatest sense of balance since the spinal surgery in 191 or whenever. Q So last time that you rode horses was in fall of 105, correct? A Yes. Q okay. When you were riding horses -- how often did you do that? A I used to ride every day of the week after work just to relax. And then I just got to the point where I was riding maybe once a week just because I was determined that I was going to ride and I liked to ride. So I knew that I was taking a chance, so I would try to get out. Then it became once a month. And I guess I road three times last year. Q So in December of 2003 you were riding every day meaning -- A More or less, unless the weather was dangerous for the horse and I. Q Well, what effect did the 190 injury to your neck and back have on your ability to ride horses? A I was not riding horses at that time. I took up 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 riding when my youngest child turned 18. It had always been a dream of mine and I figured now my children were grown, I had no longer morale responsibility to them to guaranty my safety so that I would be there to help raise them. Now if there was something that I wanted to do, I had the ability to go do it because I had a responsibility to myself and to my husband who supported me in whatever I wanted to do. Q Okay. So when did you start riding horses? A '98. Q I take it that you folks must own a farm? A We live on -- it's a little piece of property, yes. Q You own some horses, some goats. Is that correct? A I started out with horses. And one of things that I always wanted to do was make cheese, so I bought some goats to start making cheese because I thought that that would give me a hobby that I could do when I retired and maybe develop it into a business, cheese making, butter, yogurt. That was what I was trying to do. Q Okay. So that's all on your property, it sounds like you stable someplace else? A No, it's on my property. Q Okay. You mentioned gardening was painful. I am 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 going to assume that's something to do with clenching your left fist and holding shovels and tools and the like? A Exactly. Q Okay. It's -- do you still do it to the extent that you can bear the pain, or have you cut it off all together? A I have cut 90 percent of it off. Q Okay. Was the gardening that you did anything beyond what the average home owner does to their property? A Yes. Q Okay. Well, tell me. A I always had a garden that I had maybe twenty tomato plants, twenty pepper plants. I grew my own ingredients to make home-made salsa. I canned my beans, kept my squash and sweet potatoes and potatoes and horseradish and everything else. Q You had a big vegetable garden? A Big. Q Big vegetable garden. When was the last time that you had your big vegetable garden? A I put a garden in last year with everybody helping, but it got out of control because nobody had the time to help and I just couldn't do it. And this year, the only thing that I did was I took in what is now my pasture and dug up garlic plants 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that my father had planted there and I put them into what was my garden, and that's the only thing that I did this year. Q Okay. Milking the goat was another issue that you discussed. Is there some significance to milking a goat by hand versus milking it electrically? A Yes. When you milk goats, and it's plural, there were twelve of them, by hand, you are going to have a constant fist and clenching and pulling. Q Sure. A When you milk them by machine, all you have to do is wash them before you put little suction, inflation tubes on their utters and take them off and then dip them in a sanitary dip, then you are done. You don't have all of that hand clenching. More than likely all that you have is standing around time, waiting and watching. Q Okay. But the quality of the milk is no different? A No. Q What you can do with the milk is no different? A No. Q It's just the fact that you enjoyed to milk goats, you can't do it any more? A Well, I -- 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q By hand? A I enjoyed the relaxation of sitting there spending time with them and milking them by hand. Getting them milking machines was an expense of a thousand dollars I had not planned on spending but needed to whenever I realized that I was not able to milk the goats out, when I was spending two -- over two hours in the evening and in the morning to milk them before I go to work and when I got home from work. It sort of became a little bit tedious, and as much as I like my goats, it was like -- Q When did you get your goats? A Last year. Q Spring, summer, fall, if you can remember? A February, March. Q We're talking 105, right? A Yes, sir. Q Typing, does your job require you to do typing? A Yes. Q Okay. Do you -- besides your job, do you do typing in any other aspect? A I do it as for word processor entry for playing with the computer and doing some bookkeeping and stuff for my husband. Q The housework, I am going to assume that the housework again is the same type of issue with the 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gardening, using various tools and -- A And appliances. Q And appliances, and the use of your hand hurts? A Carrying the laundry baskets, things like that, yes. Q Okay. Do you have a copy of the complaint that you can share with her? MR. SADLOCK: Yes. BY MR. CARMELITE: Q You have in front of you a copy of the complaint that you filed against my client, Hampden Center, Inc. Have you reviewed this complaint before? A I have seen it. Q Okay. If you turn to the back, there is a page for verification? A Okay. Q Is that -- you signed that. Is that your signature above the typed name Janice Rullo? A Yes. Q Okay. Turn to the second page of the complaint, paragraph ten. I am just going to ask you some questions about what information that you have that support various paragraphs in the complaint. Okay? A Okay. Q Paragraph ten reads the ice falling off the roof 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 presented a dangerous condition known to the defendant or which could have or should have been known to the defendant which created a reasonable foreseeable risk of harm suffered by the plaintiff. What factual information do you have to support that Hampden Centers, Inc. knew about ice falling off the roof presenting a dangerous condition? MR. SADLOCK: You mean other than what she has already testified to with the statement made by -- BY MR. CARMELITE: Q Mr. Kuhn, yes. A I have nothing else. Q Okay. Paragraph eleven reads, the defendant had sufficient time prior to the ice falling off of Karns roof and hitting Mrs. Rullo to have taken action to protect against the dangerous condition that existed and prevent the kind of injuries suffered by Mr. Rullo, but defendant failed to do so. What factual information do you have to support the contents in paragraph eleven that Hampden Centers had sufficient time to prevent the particular ice fall -- that fell off of the facade that hit your hand? A The statement from Mr. Kuhn had led me to believe that there had been sufficient time. The parking lot had been plowed, but very little of the sidewalk had been 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cleaned. And it was my interpretation of what he said at the time that it was a regular occurrence that they did not do -- that they did not have the sidewalks cleaned or anything else, the facade, the rooves. They had never been -- they never took the ice off of any of those things and that it was always falling down. Q That was your assumption based on what Mr. Kuhn had said? A Right. Q Okay. A And the fact it snowed the day before and nothing had been done about it. Q Okay. And paragraph twelve states the aforementioned condition of ice on roof of the stores, Karns, represented a condition which existed for an adequate and sufficient time before Mrs. Rullo's incident and defendant had adequate time to correct the condition and warn Mrs. Rullo of the condition. Would your response to paragraph eleven be the same to paragraph twelve? A Yes. Q Page four, paragraph twenty-one. This reads, as a result of the aforementioned accident and resulting injuries, Plaintiff Janice Rullo had undergone and will undergo great physical and mental suffering, great 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 inconvenience in carrying out her daily activities, loss of life's pleasures and enjoyment, and a claim is made therefore. I am going to assume that physical suffering is related to the pain that you have to your hand, is that fair? A Yes. Q Okay. Explain the mental suffering to me, please. A It's just the very thought that I can't do the things that I would like to be doing; to stand there and watch horses running in the fields and know I am not capable of riding them because I would kill myself, I can't hold on, I can't properly ride a horse. Even handling other things, I mean even leading a horse could be dangerous because if something spooked and my hand didn't work, I would have no control over it. Q Okay. Have you sought any counseling as a result of that issue? A No. Q Okay. Do you have any plans to seek any counseling for that issue? A No. Q The rest of that about great inconvenience in carrying out your daily activity and loss of life's 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pleasures and enjoyment, we have talked about those issues already today? A Yes. Q Okay. Paragraph twenty-two reads, as a result of the aforementioned accident, resulting injuries, plaintiff Janice Rullo has been and in the future will be subject to great humiliation, embarrassment, and a claim is made therefore. Can you explain to me the humiliation that the accident has caused you? A Falling off a horse is funny to some people. Not being able to pull a rake or lift a pooper scooper when you are in a barn. People think it's funny when you can't do it. Or if you manage to get the poop into the scoop, then you drop the whole thing. Some people think that's cute. Q Okay. Well, who are these some people that think it's funny or cute when you fall off a horse? A It would be other people that you are riding -- if you are riding in a group, somebody might -- they would laugh at you. Q Well, has this -- has that happened to you? A Yes. Q Okay. Who are these people that laughed at you? A Misty Sostar. MR. SADLOCK: Spell the last name. 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: S-o-s-t-a-r. BY MR. CARMELITE: Q What is -- anybody else? A Jesse Rebar. R-e-b-a-r. Q R-e-a -- A R-e-b-a-r. Q Is Jesse a boy or girl? A It's a woman. Q Man or woman? A Woman. Q Anybody else? A Yes. I am having a brain freeze right now. I can't remember her name. Q Okay. Another woman? A Yes. Q All right. Did -- was this one incident that they all witnessed and laughed at, or were there multiple incidents? A Minimum of two. Q Okay. All three of them were there when it happened? A No. I was riding individually with Jesse the one time it happened, and it was the third woman, I can't remember her name. Q Okay. Then the -- 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Must have just thought it was funny when I told her the story. Q Okay. A I was looking to sympathy, didn't get it. Q All right. The other activities that you talked about, I am going to characterize them as cleaning up the -- around the barn stalls. Is that fair? A Yes. Q Were there particular incidents where things that you described, cleaning up, dropping the pooper scooper and the like happened and people laughed at you? A Or when we were putting up new fence and the -- I couldn't get the tools to clench because I couldn't use the hand, my sister thought it was funny that I was having difficulty. It was not that she was trying to be mean, it was just -- it's funny that you can't make your hand work. Q Anybody else besides your sister? A I am certain there have been. I don't recall names of every person -- every person along the way that's laughed about it, it's something that you just try to go forward and forget. Q Misty, is she a friend of yours? A Acquaintance. Q Acquaintance. Jesse Rebar? 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Acquaintance. The third woman was an actual friend. Please don't tell her I forget her name. MR. SADLOCK: We can't, we don't know her name. THE WITNESS: Thank God. BY MR. CARMELITE: Q What's -- I mean I don't mean to split hairs on this, but what's the -- in your understanding, what's the difference between a friend and acquaintance? A An acquaintance is somebody that I go riding with, but I would not trust them to care for my horse when I was gone. Q Okay. Fair enough. I think that I asked you specifically about humiliation. But I am going to assume what we talked about also covers the embarrassment aspect of paragraph twenty-two? A You could, yes. Q Okay. Do you want to add anything else to that? A No. It's -- well, I have learned a lot through the time making jokes about what -- when I drop things or I do that, to make a joke about it so that if anyone is laughing, they are laughing with me rather than at me. Q Okay. A It still isn't fun. Q Paragraph 24, 25 talks about the work loss. So 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we're -- you are not making claim for that any more. A I am not making claims for them, but there was a couple days that I was off. Q Okay. Okay. Twenty-six reads as a result of the aforesaid accident, plaintiff Janice Rullo has sustained scars which will result in permanent disfigurement, and a claim is made therefore. Can I see the scar? A (Indicating.). Scarring here, and this is where the second one will go. But they have to cut this way across it. Q Okay. A That is the pulling there. Q And -- A This is mine, I was born with. Q Okay. Let me come around here. I don't mean to -- it's not the best lighting here. A This is the scar here. Q Okay. A That scar goes there. The next one will go from here to here to take those two out. Q Okay. A This is where the scar tissue is. Q And these two? A Are the nodules. Q Bumps that are along -- 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A And this dip here is where the knuckles -- Q The ring fingers, those are the nodules we were talking about? A Yes. Q Then this bump around the long -- the middle finger is the scar tissue? A Yes. Q That's what doctors have told you? A Yes. Q Okay. Has the injuries or this accident effected your life in some way that we haven't discussed today? A Let me think about that. I am not as happy, I know that for a fact, be as I don't go out and get a chance to release the tensions that I had from work and my family and everything else in life. I miss riding very much. I also get very, very angry when I have to ask anybody for assistance to do the things that I am capable or should be capable of doing myself. I am a very, very independent person, and it's very, very hard at my age to relearn that you have to depend on other people to do little things for you. Q I don't want to cut you off. A No, that's okay. That's the most important thing as far as I am concerned. 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I just -- it's just been -- it's just difficult because I was finally at a point in my life where I could do the things that I wanted and now I can't again, and it's like I resent that. Do I resent anybody in particular; no. Is carrying anger going to help me; no. I have to go forward and find something that I am capable of doing that I can find pleasure in. That's one of the reasons that I thought the goats would do that, that I could be with the animals and that I could maybe find something that I could do that I would not be limited because they are not as big as a horse, they are not as dangerous, they like to follow you around, they like the attention and everything. But it is not the same. I love the goats. But it's just not the same. I miss getting out in the woods and having the horse for a companion and know I can safely escape situations because I can handle the animals and the terrain and everything else. I don't know that any more. I have lost confidence in myself. Q Okay. Do you still have your horses? A No. Q Okay. What did you do with them? A When I realized I couldn't ride any more, I sold them. Q so that would have been sometime from the fall of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 105, sometime around the fall of 105? A I started downsizing then because I was having problems trying to take care of them. I believe that I had five or six of them at the time of the accident, and I downsized to four, then to three then to two, then I just had the one. And I finally said this is not working, I don't have a choice, I can't -- she's doing nothing but sitting in the pasture all day and she has no horses for company, she doesn't have a job. So I just decided it was in her best interest I find a home for her where she would be used to her fullest capacity. Q Okay. You said you are not as happy as you used to be. Correct me if I am wrong, but I have had an opportunity to review various medical records for you, and you have been on Prozac for a number of years? A Yes. That's for chronic pain management. Q Okay. You have never been -- a doctor has never diagnosed you with depression? A No. It also helps to control the panic attacks that I started having after November of 191. MR. CARMELITE: I don't have any more questions. MR. SADLOCK: I have no questions. (Whereupon, the deposition was concluded at 1:15 p.m.) 25 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNTY OF DAUPHIN : SS COMMONWEALTH OF PENNSYLVANIA : I, Maria N. O'Donnell, a Notary Public, authorized to administer oaths within and for the Commonwealth of Pennsylvania, do hereby certify that the foregoing is the testimony of JANICE RULLO. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said Reporter-Notary Public, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify the said deposition was taken at the time and place specified in the caption sheet hereof. I further certify that I am not a relative or employee or attorney or counsel to any of the parties, or a relative or employee of such attorney or counsel, or financially interested directly or indirectly in this action. I further certify the said deposition constitutes a true record of the testimony given by the said witness. IN WITNESS WHEREOF, I have hereunto set my hand this 2ND day of JULY, 2006. Ya N O'Donnell ary Public CXN???7 C ANGINO & RovNER, P.C. 4503 NORTH FRONT STREET HARRISBURG, PA 17110.1708 717%238.6791 FAX 717/238-5610 W W W.ANGINO-ROVNER.COM &MAIL: RSADLOCK@ANGINO-ROVNER.COM July 11, 2006 Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Re: Rullo v. Hampden Center, Inc. Cumberland Co. CCP No.: 05-343 Civil Dear Don: RICHARD C. ANGINO MICHAEL E. KOSIK NEIL J. ROVNER RICHARD A. SADLOCK JOSEPH M. MELILLO JOAN L. STEHULAK DAVID L. LUTZ LISA M.B. WOODBURN DARYL E. CHRISTOPHER Enclosed is a color copy of a photograph Mrs. Rullo has marked indicating where approximately she was and where the ice came from when she was injured. Please consider this a formal supplement to Plaintiffs' previously provided responses to Defendant's discovery requests. RAS/mlb Enclosure JUL 1 2 2006 -30wk vn? to 1? 330378 ?: ., ? " R ?_ ? s ? r ?, T { 1 .{ ; ?, ?. ?4'?' ?? : ' .} ?` f k ? ' e 5 ? {_ ?'` ? fig? ? ? ? '? 1 ' 7 , ', ?? ? ? ?? `?. ?'' . ,,: ?, e , `, ? ?. ? ',. S F d ? ?? Y Y }4 r ?.. ???? t' r :#. ??•? L ?? ." : ?L : ?!` ?: ?. ya 5. yi niC? ?r? X? t ?.+.wr ti. >'?,? -.1? Y { . ?% ?? ?Z r ??? Y.x,(?,X y kb?A ??;. ?Y ''t? _.J ? -. i,; ? r? 4 . s5 LAVIPOtJR AND CO PAGE 06106 I?aJ bbJ 1d1?4 :14: bd 2125451930 CUSTOMER ACCIDENT REPORT Karns Quality Foods, Ltd. 975 Silver Spring Rd. Mechanicsburg, PA 77055 1717) 766-8477 Store* „w1 4 office Date of Accideent Time of Accident I I 'M PM Aw9dent Resulted In injury liness -Property parrlsge Plane of AcddenL O U -V 2-1 i- E:._ What was the person doing when the accident occurred? Describe- the aj Nature of the First Aid . 44 Medical Care c - Refused Medical Attention Attending Physician or Hospital and l ^i Customer information n t n Home Phone Work Phone ~ ( ` b Home Manager Guttomsr ,Signature D-de of Report? T)?r 0 ? G 'ANICE RULLO AND 'AYNE RULLO, SR., HER USBAND, PLAINTIFFS V PDEN CENTER, INC., DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-343 JURY TRIAL DEMANDED DEPOSITION OF: ANDREA BRIGANTE TAKEN BY: PLAINTIFFS BEFORE: MARIA N. O'DONNELL, RPR NOTARY PUBLIC DATE: JUNE 7, 2006, 11:30 A.M. PLACE: ANGINO & ROVNER, PC 4503 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA ANGINO & RONVER, PC BY: RICHARD A. SADLOCK, ESQUIRE FOR - PLAINTIFFS MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: DONALD L. CARMELITE, ESQUIRE FOR - DEFENDANT ALSO PRESENT: JANICE RULLO WAYNE RULLO Hughes Alhrlght Foltz ? N,J N atale 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 0 Lancaster 717.393.5101 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NAME ANDREA BRIGANTE BY: MR. SADLOCK WITNESSES EXAMINATION 3 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are hereby waived; and that all objections except as to the form of the question are reserved to the time of trial. ANDREA BRIGANTE, called as a witness, being duly sworn, testified as follows: EXAMINATION BY MR. SADLOCK: Q Would you state your full name, please? A Andrea Brigante, B-r-i-g-a-n-t-e. Q Miss Brigante, my name is Rich Sadlock. We just met. I represent Mr. and Mrs. Rullo in an action that's been brought against the Hampden Center, Inc. I understand that you have an employment relationship with the company that has some relationship with the center, so I am going ask you some questions about that today and what if anything that you may know about this particular incident. Hopefully my questions will be loud enough and clear enough for you to hear them and understand them. If you have any problems with that at any time, let me know that and I will try to correct it so that you 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can answer the question. Allow me to finish speaking before you try to answer, again for the benefit of the court reporter. And when you do answer, you have to give a verbal response, you can't shake or nod your head or say things like uh-huh or huh-uh or whatnot. If you do, I might remind you, say -- ask something, is that a yes or is that a no, just so again the record being clear. Is that okay? A Yes. Q Have you ever given a deposition before? A Yes. Q Related to the Hampden Center? A No. Q What's your current address? A 31 Gina Court, Staten Island, New York. Q That's your home address? A Yes. Q What's your date of birth? A August 24, 1977. Q Are you currently employed by Lavipour and Company? A Yes. Q How long have you been employed with them? A Nine years. Q And what is your job title and what are your job 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 duties? A I am the property manager and I am responsible for maintaining the shopping centers that we manage. Q And Lavipour and Company, is their primary office in New York City? A Yes. Q Do they have -- does Lavipour have any other offices? A No. Q What's the extent of your education background? A I have a -- graduated high school, and I took several property management courses. Q Where were those courses taken? A They were with the ICSC, they were week long conventions. Q ICS? A International Council of Shopping Centers. Q Okay. Through your employment with Lavipour? A Yes. Q You said that you are a property manager. You manage shopping centers owned by Lavipour, is that correct? A Managed by Lavipour. Q Is there anything more specific that you can tell me that your job duties involve in terms of being a property manager? What does that mean? 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I inspect the properties on a routine basis. I am responsible for attaining all contracts for repairs and maintenance of the shopping centers. I have continual contact with the tenants. Q How many shopping centers in 2003 did Lavipour own? A About ten. Q Any others in the Central Pennsylvania area? A Yes. Q What other shopping centers other than Hampden Center? A We have Cedar Crest Square in Lebanon, and Londonderry Square in Palmyra. Q I would be correct in stating then Lavipour did own Hampden Center in December of 2003? A Lavipour Company is just the management company. Q I am sorry? A Hampden Center, Inc. is the owner of the property. Q All right. I got that mixed up, I apologize. You said one of your job duties is to inspect the property, is that correct? A Yes. Q Again, in 2003, was there a set schedule 7 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 maintained by Lavipour for you to inspect Hampden Centers? A Not a set schedule, but I routinely -- it varies every four to six weeks. Q Does that frequently change at all during the different seasons of the year? A Yes. Depending on weather and if I have anything else scheduled for another week, then it gets pushed back or pushed forward. Q Would weather cause you to make more inspections, for example, in winter? A Generally, no. Q You indicated one of your responsibilities was for contracts for repair, is that correct? A Yes. Q Is that for anything to do with the property? A Yes. I Q Whether it be resurface the parking lot, put on a new roof, anything and everything regarding the property? A Correct. Q Would that include contracts for snow removal? A Yes. Q When I talk about snow removal, would that also include if there was a need for snow removal from the roof or any facility at the building? A If it was needed, yes. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q How would it be determined again now in 2003, was there a way that it was determined if that was needed, snow removal from a facility or roof of Hampden Centers? i A If was reported to me by a tenant. Q Did all of the tenants have leases with Hampden i Centers as far as you know? A Yes. Q Was Lavipour at all involved with the leasing for Hampden Centers? A We do take care of the new leasing, new tenants that come in, yes. Q For example, I believe this incident occurred between CVS and Karns, is that your understanding as well? A From what I understand, yes. Q In 2003 or prior to that, were you involved at all in any of the leasing arrangements with the CVS and Karns? A No. Q Was Lavipour at all to your knowledge? A I don't understand what you mean by leasing. Q Did they negotiate the leases on behalf of Hampden for the CVS or Karns? A Yes. I believe they were current leases at the time. Q Does Lavipour maintain copies of the leases? 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q How far back would Lavipour keep copies of leases? A From the original lease. Q Was that a term or condition in the lease again as of December of 2003 that tenants report to you in terms of whether it be snow or need for repairs? A I am not sure what the language is of the lease, but it's -- it was just known that they do. I make my visits. They have all of our emergency contact information to report anything to us. Q When you make your periodic inspections, generally what is involved? A I walk the property, I just have a checklist that I go through. I just check the conditions of the buildings and the property. I talk to the tenants, see if they have any issues that they would like to report. Q Does the inspection also involve the inside of the different stores and whatnot? A No, just the outside. Q Exterior? A Structural. Q other than receiving reports from tenants for - regarding anything, did Lavipour have a local person who was involved with the management of Hampden Centers? 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. Q Or in terms of maintenance or repair, anything like that? A No one on site. We do have our contractors, our sweepers and snow removers that are on property regularly. Q In December of 2003, do you recall who was your contractor for snow or ice removal? A McNaughton Paving. Q Are they still your contractors for snow and ice removal for Hampden Centers? A Yes, they are. Q Do you enter into a yearly contract, or does Lavipour or Hampden Centers enter into a yearly contract with McNaughton? A Yes. Q Which group would actually be party to the contract, Hampden Center or Lavipour? A Lavipour is -- Lavipour is an agent for Hampden, so we can make any decisions. Q Do you recall what the terms are of the contract with McNaughton in terms of snow and ice removal? A Yes. Q What was it in 2003? A It's a flat fee contract. They get paid a monthly payment, and they are to go out at their 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discretions. Q And was that contract for snow and ice removal of only on the sidewalk and parking area, or did that also involve the physical structure? A Parking and sidewalk. Q Was there any contract with any company in December of 2003 that would have involved the physical structure, the building, snow removal or ice removal? A No. Q Prior to -- strike that. Let me ask it this first. How long had Lavipour been the agent for property management for Hampden Center? A I don't know. Prior to 197, I know that. Q I think that you have been with them you said nine years? A Yes. Q So right around that same time at the very least as far as you know 197? A Yes. Q At any time from 1997 to 2003, was there ever an occasion where there was a contractor hired for snow or ice removal or either the roof of the physical structures of Hampden Centers or any facade to the building or storefront? A No. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Had it ever been called to your attention with snow or ice on the roof or the facilities or falling off on to sidewalks, anything like that? A No. Q Were you the only one at Lavipour that was involved with Hampden Centers in terms of the inspections and hiring of contractors? A I have as of like late 198, yes. Q You mentioned McNaughton Paving. Was the contractor that Hampden Centers used for snow removal? Is there a specific contact person at McNaughton that you deal with? A Yes. Q Who is that? A Chad McNaughton. Q How long have you been dealing with Chad? A For at least three years. Q At least since 2003 or -- A Correct. Q Or 2002 or -- A I don't recall, but definitely since 2003. Q Again, I apologize if I asked this. At any time since you have been involved with Hampden Centers, have you received any report of snow or ice falling from the building in general, whether struck an individual, struck a 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 car, anything been reported to you? A No, no. Q In December of 2003, do you have any reports of snow or ice accumulating on the roof or causing any problems whether it be falling with the weight or anything like that? A No. Q Was there a general contractor that was under contract for Hampden Centers in terms of any other type of maintenance or repair issues? A We do have other contractors who do work on the site, yes. Q Is it one -- was it one that was a primary one versus -- or did this depend on what the problem was? A We had one maintenance company that was primary at the center. Q Who was that? A Custom Maintenance Services. Q Were they also involved as far as back as 2003? A Yes. Q First for McNaughton Paving, do you know where they are located? A No, I don't. Q Do you happen to know their phone number? A Not off the top of my head. 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. How about Custom Maintenance Service, who was the primary contact person there? A Mike Nawa. Q Can you spell his last name? A N-a-w-a. Q Nawa. Was he also the contact person in 2003? A Yes. Q Do you know where they are located? A Their offices, not off the top of my head again. Q Do you believe both of those companies are local? A Yes. Q Custom Maintenance Services, generally what type of work have they done for Hampden Centers over the years? A They are sweepers. They also just do general maintenance, some parking lot repairs, concrete work, cleaning services. Q Anything at all to do with snow or ice removal? A No. i Q Was there any other company other than McNaughton that was involved with snow or ice removal? A No. Q Had there ever been any damage to the structures at Hampden Centers from snow or ice accumulation on rooves or any facility? A Not that I am aware of. 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q If there had been, would you be the one that would have been contacted to make the repair or get in touch with the contractor to make the repair? A Yes. Q Were you contacted after this accident with Ms. Rullo? A Not that I am aware of, no. Q Did you ever till the lawsuit was filed have any notice or knowledge regarding this incident? A No. Q Would you have typically in December of 2003 still been involved in inspecting Hampden Centers? A Yes. Q In the time period after December of 2003, January of 2004 or any of the initial months thereafter, had anyone ever reported it to you? A No. Q Had anyone ever provided you with a copy of the accident report? A No. Q So I take it that you have no personal knowledge regarding this particular incident? A Correct. Q Was the filing of the lawsuit your first knowledge of this incident? 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I believe so, yes. Q Since that time, have there been any changes made in terms of reporting of incidents or changes made in terms of your job inspecting with Hampden Centers? A No. Q Have there been any problems since December 8 of 2003 with ice falling off roof tops or snow accumulating falling off, whether again involving striking of a person, property or anything like that, just the ice, anything reported to you? A No. Q Did you have an assistant in 2003? A No. Q From your recollection, was there anything in the releases again 2003, that required the tenants to perform any snow removal or ice removal? A No. Q Now, you mentioned that with McNaughton that you were on -- they were on a retainer for snow and use removal. I believe that you -- I think that you indicated that it was a flat monthly fee? A Correct. Q So whether it snowed once with plowable snow or twenty-seven times, they still got the same amount? A Yes. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And was it at their discretion as to whether or not there was a need for service for snow or ice removal, whether it be plowing, salting, sanding within a given t imef rame ? A Yes. Q Was there any criteria within that contract as best as you can recall in 2003 with McNaughton? A Can you repeat that? Q Sure. Focusing on the winter of 2003, 2004, the contract with McNaughton, were there any specific criteria in that contract that said well, when these situations arise, you must do something? A I would have to review the contract. Pretty much everything was left up to their discretion. Q Do you know if they ever did any snow removal from the building itself? A I don't believe so. MR. SADLOCK: Thank you, ma'am. I have nothing further. MR. CARMELITE: No questions. (Whereupon, the deposition was concluded at 11:51 A.M.) 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNTY OF DAUPHIN : SS COMMONWEALTH OF PENNSYLVANIA : I, Maria N. O'Donnell, a Notary Public, authorized to administer oaths within and for the Commonwealth of Pennsylvania, do hereby certify that the foregoing is the testimony of ANDREA BRIGANTE. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said Reporter-Notary Public, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify the said deposition was taken at the time and place specified in the caption sheet hereof. I further certify that I am not a relative or employee or attorney or counsel to any of the parties, or a relative or employee of such attorney or counsel, or financially interested directly or indirectly in this action. I further certify the said deposition constitutes a true record of the testimony given by the said witness. IN WITNESS WHEREOF, I have hereunto set my hand this 2ND day of JULY, 2006. 1 A ncfl A n NOTARIAL SEAL MARIA N. O'DONNELL Noksy Public SUSQUEHANNA TWRDAUPWN COUNTY My Com"Wulon Expbu May 13.2004 J.AL y k-'vIv M' N. O'Donnell, RPR Notary Public ?xH1C?l?r IF JANICE RULLO AND WAYNE RULLO, SR., HER HUSBAND, PLAINTIFFS V MPDEN CENTER, INC., DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-343 JURY TRIAL DEMANDED DEPOSITION OF: RICHARD BROWN, JR. TAKEN BY: PLAINTIFFS BEFORE: MARIA N. O'DONNELL, RPR NOTARY PUBLIC DATE: APRIL 24, 2007, 9:30 A.M. PLACE: ANGINO & ROVNER, PC 4503 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA APPEARANCES: ANGINO & RONVER, PC BY: RICHARD A. SADLOCK, ESQUIRE FOR - PLAINTIFFS MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: DONALD L. CARMELITE, ESQUIRE FOR - DEFENDANT Hughes All .... j f ?u kz Natjko 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 9 Lancaster 717.393.5101 Multi-Page M RICHARD BROWN, JR. APRIi_ 74 7M17 Page 2 Page 4 1 WITNESSES 1 Q How long have you been employed in that capacity? 2 NAME EXAMINATION 2 A I have been a store manager for twenty-one years. 3 RICHARD BROWN, JR. 3 Q How long at Hampden Center? 4 BY: MR. SADLOCK 3 4 A Five years. 5 Q So it would be correct then that you were 5 BY: MR. CARMELITE 6 employed as the store manager at that Karns on December 8, 6 7 2003? 7 R 9 10 11 12 13 14 15 16 17 1e 19 20 21 22 23 24 25 1 STIPULATION 2 It is hereby stipulated by and between counsel 3 for the respective parties that reading, signing, sealing, 4 certification and filing are hereby waived; and that all 5 objections except as to the form of the question are 6 reserved to the time of trial. 7 8 RICHARD BROWN, JR., called as a witness, being 9 duly sworn, testified as follows: 10 EXAMINATION 11 BY MR. SADLOCK: 12 Q Would you state your full name, sir? 13 A Richard R. Brown, Jr. 14 Q Mr. Brown, before Mr. Carmelite got here, I 15 reviewed with you the general instructions of the 16 deposition. 17 Do you need anything repeated? 18 A No. 19 Q I believe that you indicated that you were going 20 to waive reading and signing, is that correct? 21 A That is correct. 22 Q Okay. What is your current home address? 23 A 305 Debra Road, Mechanicsburg, 17050. 24 Q And how are you currently employed? 25 A I am store manager at Karns Food, Hampden Center 8 A That's correct. 9 Q Okay. Do you work a set schedule? 10 A No. 11 Q Do you recall what schedule that you would have 12 worked in December of 2003? 13 A The best of my knowledge without looking back 14 into it, I believe that I was on vacation that entire week. 15 Q The week of this accident? 16 A Yes. 17 Q Okay. Generally, if you know though, not 18 necessarily just on that week in the December timeframe of 19 2003, what -- 20 A It would either be 6:30 to three shift or two in 21 the afternoon till eleven shift. 22 Q Now, I imagine this list will be pretty 23 extensive, give me a general idea of what your 24 responsibilities are as store manager. 25 A Overall operations of the store, anything within Page 5 1 the walls, making sure every department does their job 2 and -- 3 Q In the wintertime, specifically back in December 4 of 2003, did you have any responsibility for the exterior 5 of the store in terms of snow removal, ice removal or 6 anything of that nature? 7 A Snow and ice removal is to be done by a company 8 hired by our landlord. There are times before they get 9 around that we do as managers have someone go out and 10 shovel the walk or whatever till the crew gets there. 11 Q Do you recall if there was anything done in that 12 regard in December of 2003? 13 A I could not -- I don't know off the top of my 14 head if there was or was not. 15 Q Would there be any -- some documentation 16 maintained by Karns if something like that is done, do you 17 document so and so -- 18 A No, we do not. 19 Q Before I get any further, did you review any 20 documents before coming into the deposition today? 21 A I looked at an accident report that we had on 22 file so I could familiarize with what was going on. 23 Q Is that a -- what's in the file other than the 24 accident form? 25 A That is it, just -- it's just the accident form, Page 3 Page 2 - rage S HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 RICHARD BROWN, JR. APRIL 24.2007 Multi-Page TM Page 6 1 that is it. 2 Q Did you review any other documentation? 3 A No, sir. 4 Q I am going to show you what has the Karns logo on 5 the left corner and at the top it's captioned customer 6 accident report dated December 8, 2003. Is this the form 7 that you looked at? 8 A Yes, sir. 9 Q Okay. Did you review that form with anyone, or 10 just on your own? 1 I A No, just on my own. 12 Q Okay. Prior to today at any time, did you ever 13 meet with me or speak with me? 14 A No, sir. 15 Q How about Mr. Carmelite, did you meet? 16 A Mr. Carmelite and I met briefly on -- last 17 Friday. 18 Q Okay. And did that occur at Karns or at his 19 office? 20 A At Karns at my office. 21 Q And what was the substance of that meeting? 22 A Just a general review for me to know what to 23 expect. 24 Q I believe this accident form was signed by -- and 25 1 am looking at the initial D, I can't tell if that is Page 7 1 spelling out a full name or just abbreviations of the last 2 name, Williams? 3 A Yes, that's correct. 4 Q What's the first name of that -- 5 A Debra. 6 Q What was her job title at that time? 7 A She's assistant, a shift manager for me. 8 Q Is she still employed at Karns? 9 A Yes, she is. 10 Q Did you at any time from December 8, 2003 to the 11 present have any conversation with Ms. Williams regarding 12 this accident? 13 A No, sir. 14 Q At the bottom of the form, there is the name of 15 Dan Kuhn, K-u-h-n. It indicates witness. Do you know a 16 Dan Kuhn? 17 A Yes, I do. 18 Q Who is Dan Kuhn? 19 A He is a stock person, stock employee for us. 20 Q Is he still employed by Karns? 21 A Yes, he is. 22 Q At the Hampden Center? 23 A Yes. 24 Q At any time after December 8, 2003, did you have 25 any conversation with Mr. Kuhn about this particular Page 8 1 accident? 2 A Not that I recall at all. 3 Q How about Janice Rullo, at any time, did you 4 speak with her? 5 A No, sir. 6 Q The other day or within the last week, whatever 7 it was, you said that you reviewed this accident report. 8 Was that the first time that you had seen it? 9 A Once I looked at it, no, I remember that when Deb 10 filled it out three, four years ago, it's always put on my 11 desk and I reviewed it and knew what was happening, but 12 once I read it, then I knew I remembered the incident. 13 Q And do you recall, did you do anything that first 14 time that you read the form either in terms of 15 investigation of the accident or contacting any witnesses 16 or anything whatsoever? 17 A Only thing that I did was I know that I 18 questioned Deb to know what -- exactly what happened for 19 her to verbalize to me other than what was on paper. 20 Q Okay. And what did she tell you? 21 A That snow had fell on the customer and had hit 22 her in the arm and hand. 23 Q And do you have an understanding of where the 24 snow fell from? 25 A She said from the roof, so.... Page 9 1 Q Of the Karns? 2 A Yes, sir. 3 Q Is that something that you had ever observed 4 yourself occurring before? 5 A No, sir. 6 Q Had you observed it at any time before? 7 A No, sir. 8 Q Any time since December 8 of 2003? 9 A No, sir. 10 Q Did anyone ever report to you, whether or not you 11 observed it yourself personally? 12 A Other than this accident report, no. 13 Q Regardless of whether or not it resulted in an 14 accident or injury to anyone, had that been something 15 whether it be an employee of Karns or other customer would 16 just come into the store and say, hey, I just want you to 17 know a huge slab of snow or ice just slid off the roof? 18 A No, sir. 19 Q Never had that happen before to your knowledge? 20 A No, sir. 21 Q I will show you just a picture. 22 A Uh-huh. 23 Q Does that show the Karns in the Hampden Center? 24 A Yes. 25 Q In that photograph, does it look as it would have 1 Page 6 - Page 9 HUGHES ALBRIGHT FOLTZ NATALE 717-540-02201717-393-5101 Multi-Page TM RICHARD BROWN, JR. APRIL 24, 2007 Page 10 1 looked back in December of 2003? 2 A Yes. 3 Q And no changes as far as you can tell to the 4 facade or the sloping on the roof and whatnot? 5 A No, no, no. 6 Q At any time, did while -- since you first started 7 at this Karns, did you yourself personally observe any snow 8 or ice that would accumulate on the facade of the Karns 9 store, either the upper portion or the red portion? When I 10 say upper, it looks like a lime, lightish green color or 11 maybe beige? 12 A Yes, there has -- when it snows, there does -- 13 snow lands on the front of it and the front windows also. 14 Q Do you ever notice again prior to December 8 of 15 2003 whether it be from melting, then refreezing, icicles 16 hanging again in that facility, whether it be in the red 17 portion or as you mentioned windows or that tannish green 18 area? 19 A I never remember seeing icicles, just there would 20 be snow from it snowing on there. 21 Q Can you describe what you observed in terms of 22 snow on there, either in terms of accumulation, size, 23 depth, anything more descriptive? 24 A I would call it a dusting or small accumulation 25 of -- from it blowing onto it. Page 11 1 Q If there was an accumulation, whether it be snow, 2 ice or any type of build up, your understanding as store 3 manager, whose responsibility would it have been to remove 4 that? 5 A The landlord's. 6 Q Again, just so I am clear, the times you said 7 that you have seen snow or ice in there, could that have 8 also included times before December 8 of 2003? 9 A Yes. 10 MR. CARMELITE: Objection to form. But I don't 11 know that he said ice ever, he just said he saw snow. 12 BY MR. SADLOCK: 13 Q Okay. In this particular photograph that I am 14 showing you there is a red car. 15 Is the entrance to Karns in front of that red car 16 underneath? 17 A In front of the car, between the car and the stop 18 sign. 19 Q Right. Thank you. 20 Had -- have you spoken at any time to any 21 witnesses regarding Ms. Rullo's accident? 22 A No. 23 Q Do you know who was responsible for snow and ice 24 removal back in December of 2003? 25 A I do not know. Page 12 1 Q Did you personally have to any time make any 2 phone calls regarding any snow or ice removal in the time 3 period of say November of 2003 through December of 2003? 4 A No. 5 Q Had you at any time again prior to December 8 of 6 2003, seen anyone removing snow or ice from that front 7 facade of the Karns store? 8 A No. 9 Q You mentioned Deb Williams. Is she still 10 employed at that Karns? I I A Yes, that is correct. 12 Q Do you know does she work a standard shift or 13 regular shift I should say? 14 A Her shift is just like mine, it's either -- her 15 shifts are either eight to four or two to eleven. 16 Q How about Mr. Kuhn, does he work full time for 17 Karns? 18 A Yes, he does. 19 Q And at this particular time, do you know what 20 shift he works, or does that vary? 21 A At this particular time he works 9:30 in the 22 evening till eight in the morning. 23 MR. SADLOCK: Thank you, sir. I have no further 24 questions. 25 MR. CARMELITE: I have no questions, you are free Page 13 1 to go. 2 THE WITNESS: Thank you. 3 (Whereupon, the deposition was concluded at 4 9:44 a.m.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 10 -Page 13 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 RICHARD BROWN, JR. Multi-Page APRIL 24, 2007 Page 14 1 COUNTY OF DAUPHIN 2 : SS 3 COMMONWEALTH OF PENNSYLVANIA : 4 I, Maria N. O'Donnell, a Notary Public, authorized to 5 administer oaths within and for the Commonwealth of 6 Pennsylvania, do hereby certify that the foregoing is the 7 testimony of RICHARD BROWN, JR. 8 1 further certify that before the taking of said 9 deposition, the witness was duly sworn; that the questions 10 and answers were taken down stenographically by the said I 1 Reporter-Notary Public, and afterwards reduced to 12 typewriting under the direction of the said Reporter. 13 I further certify the said deposition was taken at 14 the time and place specified in the caption sheet hereof. 15 I further certify that I am not a relative or 16 employee or attorney or counsel to any of the parties, or a 17 relative or employee of such attorney or counsel, or 18 financially interested directly or indirectly in this 19 action. 20 1 further certify the said deposition constitutes 21 a true record of the testimony given by the said witness. 22 IN WITNESS WHEREOF, I have hereunto set my hand 23 this 24TH day of APRIL, 2007. 24 Maria N. O'Donnell, RPR 25 Notary Public Page 14 - Page 14 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Cx????? f JANICE RULLO AND IN THE COURT OF COMMON PLEAS WAYNE RULLO, SR., HER CUMBERLAND COUNTY, HUSBAND, PENNSYLVANIA PLAINTIFFS CIVIL ACTION - LAW V NO. 05-343 MPDEN CENTER, INC., DEFENDANT JURY TRIAL DEMANDED DEPOSITION OF: MELISSA MCNAUGHTON TAKEN BY: PLAINTIFFS BEFORE: MARIA N. OtDONNELL, RPR NOTARY PUBLIC DATE: APRIL 24, 2007, 9:52 A.M. PLACE: ANGINO & ROVNER, PC 4503 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA APPEARANCES: ANGINO & RONVER, PC BY: RICHARD A. SADLOCK, ESQUIRE FOR - PLAINTIFFS MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: DONALD L. CARMELITE, ESQUIRE FOR - DEFENDANT Hughe nRarctnt , Wt, Na L,lo 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 0 Lancaster 717.393.5101 Multi-Page TM MELISSA MCHAUGHTON APRIL 24, 2007 Page 2 1 WITNESSES 2 NAME EXAMINATION 3 MELISSA MCNAUGHTON 4 BY: MR. SADLOCK 3 5 BY: MR. CARMELITE 10 6 7 EXHIBITS 8 DEPOSITION EXHIBIT NO. PRODUCED AND MARFED 9 1. DOCUMENT 10 10 11 12 13 14 15 16 11 18 19 20 21 22 23 24 25 Page 3 1 STIPULATION 2 It is hereby stipulated by and between counsel 3 for the respective parties that reading, signing, sealing, 4 certification and filing are hereby waived; and that all 5 objections except as to the form of the question are 6 reserved to the time of trial. 7 8 MELISSA MCNAUGHTON, called as a witness, being 9 duly sworn, testified as follows: 10 EXAMINATION 11 BY MR. SADLOCK: 12 Q Would you state your full name, please? 13 A Melissa Ann McNaughton. 14 Q Your current home address? 15 A 8521 Middle Ridge Road, Newport, PA, 17074. 16 Q Are you currently employed? 17 A Yes. 18 Q How so? 19 A I guess the best description would be office 20 manager. 21 Q All right. 22 A I do everything. 23 Q And for -- is that for a business? 24 A For McNaughton Services. 25 Q Are you the owner of that business? Page 4 1 A My husband and I. 2 Q What's your husband's name? 3 A Chad McNaughton. 4 Q How long have you and your husband had that 5 business? 6 A He had it before we got married. We have been 7 married about eight and a half years. I think he has had 8 it I think fourteen years. 9 Q And I understand that business has some 10 relationship with Lavipour and Associates with regard to 11 the Hampden Center, is that correct? 12 A Yes. 13 Q How long has McNaughton had a business 14 relationship with that particular mall shopping facility? 15 A I want to say six years. 16 Q So in approximately 2001? 17 A Maybe 2000. 18 Q I would be correct that you yourself were not 19 involved with any plowing or snow removal? 20 A Oh definitely, definitely not. 21 Q In terms of your understanding of the 22 relationship with the Hampden Center, what is encompassed 23 with the McNaughton's contract with Hampden Center? 24 A The scope of work? 25 Q Right. Page 5 1 1 A Just when it starts to snow, we're just 2 contracted to go in and take care of it however we see fit; 3 if it's just a little bit, put salt down, and as it 4 accumulates, we plow it, remove it from the area. 5 Q Does that include sidewalks or just the parking 6 lot? 7 A That location, I believe we do the sidewalks. 8 Q Have you ever been to that location, not to plow 9 but just shopping? 10 A Oh, yes. 11 Q Was McNaughton Services in any way responsible 12 for snow removal from the roof top of the shopping center 13 or the building structures? 14 A No. 15 Q At anytime? 16 A Never. 17 Q Had -- whether it was part of the contract or 18 not, had that ever been asked of McNaughton Services? 19 A Not to my knowledge. 20 Q Would that be something -- if it were something 21 that was asked of McNaughton Services, would that require 22 of either approval of you or your husband if there was some 23 other crew on site, for example? 24 A Yes, yes, because we have done it for so many 25 years, you know, our guys know that we do sidewalks and the Page 2 - Page 5 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 MELISSA MCHAUGHTON Multi-Page M APRTT. 24. 2007 Page 6 Page 8 1 parking lot. 1 headquarters, but again, I don't ever remember hearing 2 Q Was there a particular crew that generally went 2 anything about it. 3 to the Hampden Center? 3 Q Custom Maintenance, is that the name of the 4 A Each winter it's usually the same group of guys. 4 company? 5 Now that changes year to year, as you know, as employees 5 A Yes. 6 come and go. 6 Q Do you know who is in charge of that company or 7 Q Do you know who the crew was in December of 2003? 7 who your contact person was at Custom Maintenance? 8 A No, I would have to check. I would have to check 8 A Mike Nawa, N-a-w-a. 9 records, and I -- that long ago, I may not -- I could 9 Q N-a-w-a? 10 probably say these were our employees at the time, this is 10 A Yes. 11 probably who was there, but I probably couldn't say for 11 Q And again, what was the relationship between your 12 sure. 12 company and -- 13 Q Does McNaughton Services supply the equipment for 13 A He does like the parking lot maintenance for 14 use at Hampden Center? 14 Hampden Center, like takes care of, you know, whatever they 15 A Yes. 15 need done there. 16 Q For example, whether it was a one man crew at 16 So he just, you know, didn't do snow removal at 17 work at the Hampden Center or two man crew, whatever, they 17 the time; it needed to be done, we did it, so he contracted 18 wouldn't have the plowing truck at their home, would they, 18 us to do it. Not contracted, put us in touch with them I 19 they would get it from McNaughton's place of business? 19 should say. 20 A Generally I believe we keep most of the equipment 20 Q Okay. Are you saying then the at Custom 21 on site. 21 Maintenance would be in charge of fixing potholes or -- 22 We bring it in late fall, early winter and it 22 A Yes, I believe that's what they do. 23 sits there all winter. The only thing that May come in is 23 Q Do you know whether or not Custom Maintenance had 24 just like a pick-up truck with a plow which they would use 24 any responsibility for building upkeep or building repair? 25 to get back and forth to the job. 25 A I could not tell you that. Page 7 Page 9 1 Q At any time -- specifically in December of 2003 1 Q Okay. 2 or winter of 2003, did any of your crew ever report to you 2 A I don't know what their scope of work is to the 3 that they observed snow or ice accumulating on the facade 3 property. 4 of the Yarns store? 4 Q But in any event, you do not have any 5 A I would not have knowledge of that, and they 5 recollection of any of your employees reporting observing 6 probably wouldn't anyhow. They -- I mean when it is 6 snow or ice either accumulating on the facade? 7 snowing, it's not a fun job. 7 I will show you photographs so you know what I am 8 They are, you know, it's coming down, they have 8 talking about. I am talking about the red area or the 9 to get it out of there, so they will -- really don't pay 9 light beige-ish kind of area outside of Karns accumulating 10 attention to what is not in our scope of work. 10 there or falling from that area while they were plowing? 11 I mean I am sure if they saw a hazard, yes, they 11 A No, no. Especially not clear back to 2003, and I 12 would probably report it, but I don't ever recall hearing 12 don't ever remembering anything from the employees, you 13 anything about that. 13 know, saying, you know, like, hey, there is a problem 14 Q Would that have been something that you would 14 there, I just -- I just don't know of it. 15 have documented if it had been reported? 15 Q You don't have any knowledge, or do you have any 16 A We probably -- if they had seen it and told us 16 knowledge of your employees ever removing or knocking down 17 about it, they probably would have called Custom 17 snow from either part of that facade? 18 Maintenance who we technically -- we don't sub the contract 18 A No, because we don't have our -- that's not our 19 from them, the contract is directly with Lavipour, but 19 job, first of all, we're on the ground, that's it. We 20 Custom Maintenance is kind of like our go between. 20 don't have -- we just don't have the ability to even do 21 Q Is that a local company, Custom Maintenance? 21 that. 22 A They are -- I think they are now based in 22 Q Okay. 23 Carlisle. 23 A So -- 24 Q Is that the name of the company? 24 MR. snot.octc: Thank you, ma'am. I have no other 25 A Or we could have called New York to the 25 questions. Page 6 - Page 9 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Multi-Page MELISSA MCHAUGHTON APRIL 24, 2007 Page 10 Page 12 1 MR. CARMELITE: Ma'am, my name is Don Carmelite. 1 10:05 a.m.) 2 I represent Lavipour and Associates in a suit filed against 2 3 them by Mr. and Mrs. Rullo. 3 4 Let's mark this I guess McNaughton 1. 4 5 (Document produced and marked McNaughton Exhibit 5 6 Number 1.) 6 7 BY MR. CARMELITE: 7 8 Q I will give to you what I will represent to you 8 9 this is a copy of a snow removal contract for the year 9 10 2003, 2004 between McNaughton Services, Inc. and Lavipour 10 11 and Associates, which I think that you provided to 11 12 Mr. Sadlock. 12 13 A Uh-huh. 13 14 Q Just take a moment and review it and see if you 14 15 can identify it as such? 15 16 A Yes, this is it. 16 17 Q Okay. Flip to the last page. Is that your 17 18 signature? 18 19 A Yes. 19 20 Q Okay. With regard to this Mechanic Service, 20 21 Maintenance Service -- 21 22 A Custom Maintenance. 22 23 Q Custom Maintenance, sorry, Custom Maintenance, if 23 24 you have any problems executing your contract with Lavipour 24 25 such as the one in 2003, 2004, do you communicate with 25 Page 11 Page 13 1 Custom Maintenance or do you communicate with the folks at 1 COUNTY OF DAUPHIN 2 Lavipour? 2 : SS 3 A We would probably call Lavipour. 3 COMMONWEALTH OF PENNSYLVANIA : 4 Q Okay. Do you know if you at any time have called 4 I, Maria N. O'Donnell, a Notary Public, authorized to 5 Lavipour to report any problems associated with snow or ice 5 administer oaths within and for the Commonwealth of 6 falling from the roof or facade of any of the structures at 6 Pennsylvania, do hereby certify that the foregoing is the 7 the Hampden Center? 7 testimony of MELISSA MCNAUGHTON. 8 A Not to my knowledge. 8 I further certify that before the taking of said 9 Q Okay. Who is the primary contact person between 9 deposition, the witness was duly sworn; that the questions 10 McNaughton Services and Lavipour? 10 and answers were taken down stenographically by the said 11 A My husband Chad would call Andrea Brigante. I 1 Reporter-Notary Public, and afterwards reduced to 12 Q Do you have any -- have you ever had any direct 12 typewriting under the direction of the said Reporter. 13 contact with Andrea or -- 13 1 further certify the said deposition was taken at 14 A Yes, I have spoken to her. 14 the time and place specified in the caption sheet hereof. 15 Q But your husband primarily deals with her 15 1 further certify that I am not a relative or 16 directly? 16 employee or attorney or counsel to any of the parties, or a 17 A Yes, I only deal with her for the contract 17 relative or employee of such attorney or counsel, or 18 itself. He deals with her with the work, scope of work. 18 financially interested directly or indirectly in this 19 Q Okay. If your husband had contacted Andrea at 19 action. 20 Lavipour about a particular concern, would you generally 20 1 further certify the said deposition constitutes 21 know about that? 21 a true record of the testimony given by the said witness. 22 A Most likely he would talk to me about it. 22 IN WITNESS WHEREOF, I have hereunto set my hand 23 MR. CARMELITE: Okay. I have no other questions. 23 this 24TH day of APRIL, 2007. 24 MR. SADLOCK: Nothing further. 24 aria N. O'Donnell, RPR 25 (Whereupon, the deposition was concluded at 25 Notary Public Page 10 - Page 13 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 J7/ C4/ LVC'.7 11. JO LLLL JN JA 7JV W'?1f'VLII?. d VVI•T Mi?I f'M.,7? V? SNOW REMOVAL CONTRACT CON M&CTOR McNaughton Senrieee, Ina • 8521 Middle Ridge Road Newport, PA 17074 Phone 717-582-$823 FAX 717-582-8290 :'EAR: 2003-2004 OWNER Lavipeuur and Associates 444 Park Avenue South (Suite302) New York, NY 10016 1-500-4"-5452 212-545-1930 Contractor hereby agrees t,f famish and employ all labor, equipment and tools necessary to do all snow pkrwing and saltin; at: Hampden Centel` (Camp H31i), herein referred to as "Property", in order 0 at all times maintain a safe, clean and aecessilAe shopping center 1'or a term wh ieli shall commence October 1, 2003 and shall continue in full force isnd effect for a lxriod of 1 year and Owner agrees to pay Contractor in accordance v ith the Paymeat and Equipment Rider attached hereto and made a part hereof, tor such senices under the following terms and conditions: 1. Snow plowing shall take place h amediately when the snow accumulation reaches 13:". whenever there h a snow accumulation of 1Yz" or more, prior to 6:00 A.1N1., then snow stall be plowed from the entranees/exits, all cruising lames, and at least two thirds of the parldug areas nearest to the store buildings before 9:00 A.M., and the balance of the property shall be cleared before moon. 2. When necessary, salt or other similar and acceptable anti-skid material (cinders and like materials are not acceptable), Shall be applied regardless of snow accumulation to prevent icy conditions at all entrancelexits mad cruising lands. 3. Sak or other similar and accepi.able autt-skid material shall be suppbed and applied on lot by Contraet?ir W:3 14!1MUJ 11: ?Id 1'Ll174?1yjb i l L 4 V l h"UIJK. 6 t utvo-Arv Y 4. In the event of sn rw, which ispili d open any portion of the shopping cwter parking lo•t subsequently otelts and then fteres, Contractor sWM apply the nemsery salt or otber Ane itor and acceptable antis-skid material, as neca?sary, to prevent any icy condition on said parking lot surface. Contractor shall noke s good-faith effort to avoid pftg snow oak paved portions of the propert;. 5. All work sball be: done in a good and work[Daa.a-like manner. G. If the accumuk ion of snow on t4c Property becomes such as to require that snow be hauled away fro= whe Property, the haniing away of such snow shall be negotiated under s separate agreement. rate Y» 7. Contractor shall repair any curt damaged by plows. 19J!14l1bCi 11: 10 1 LLLJ401ZZU ?i?'I 11 '?N'?. Ht dV1 w n • ? SNOW REMOVAL CONTRACT YEAR 2003-2004 11asayilm Center----Camp EIM -- PAY.WZNT AND EQUIPMENT RIVER FLAT YZE The Contractor shall perform its duties m a rcordaace with the terms and conditions of the Contract of wboieh this hider form a part, for the term of this Agreement for a total FLAT FEE COMPENSATION of S.15,000.00, which shall be paid to it by OWNER In five (5) equal, successive, monUdy payments of $7,990.00 each, beginning November, 1 2003. This contract may be cancelled within 30 d:wa written notice. The following equipment will be available 'it aA times for BROW plowing: 3CB Sid backhoe with 12' boa Plow Volvo L120 wheel loader with 16ft. box plow Single-Azle damp track with lo% snow pl?rw and salt spreader Should any outside equipment be needed, the Contractor shall be advised of such need and Contractor will bt liable for any eharLes inside therefoare. .1111* "CTOR ht I ell, h4111- NAME t1_P'TITI..E 1/«1a1 DATE :bt)t-g0 4 11TA141E `J TITLE ' •.J V 9 bA 0- 3-DATE a m ?- N N ANGINO & ROVNER, P.C. Richard A. Sadlock, Esquire Attorney ID# : 47281 4503 North Front Street Harrisburg, PA 17110-1708 Phone: (717) 238-6791 Fax (717) 238-5610 Attorney for Plaintiffs: E-mail: rsadlock(i,angino-rovner.com Janice and Wavne Rullo Sr. JANICE RULLO and WAYNE RULLO, SR., her husband, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. HAMPDEN CENTER, INC., Defendant NO. 05-343 Civil JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2007, it is hereby Ordered and Decreed that Defendant's Motion for Summary Judgment is DENIED. BY THE COURT: J. Distribution: Richard A. Sadlock, Esquire, Angino & Rovner, P.C., 4503 North Front Street, Harrisburg, PA 17110,(717)238-6791,rsadlock@angino-rovner.com Donald L. Carmelite, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112, (717) 651-3504, dlcarmelite@mdwcg.com 292386 ANGINO & ROVNER, P.C. Richard A. Sadlock, Esquire Attorney ID# : 47281 4503 North Front Street Harrisburg, PA 17110-1708 Phone: (717) 238-6791 Fax (717) 238-5610 Attorney for Plaintiffs: E-mail: rsadlock(i?an¢ino-rovner.com Janice and Wayne Rullo Sr. JANICE RULLO and WAYNE RULLO, SR., her husband, Plaintiffs V. HAMPDEN CENTER, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-343 Civil JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 1. Admitted. 2. It is admitted only that the pleadings are closed. However, it is denied that all necessary discovery is completed. By way of amplification, Plaintiffs' counsel advised Defendant's counsel that he wished to depose Dan Kuhn, an employee of Karns Foods located within Defendant's complex. 3. See, Plaintiffs' Complaint for a complete explanation of the instant action. 4. Again, see, Plaintiffs' Complaint. 5. Admitted. 292386 6. Defendant's averment is irrelevant to the instant action. At all times applicable hereto, the instant Defendant was responsible for maintaining and keeping its property safe for business invitees. 7. Admitted. By way of further response, the instant Defendant failed to live up to its responsibility for snow removal on the date of the instant action. 8. While it may be Lavipour and Company's responsibility for contracting for snow removal, it remains Defendant's responsibility to ensure that the snow removal was completed and that its property was safe for business invitees. 9. See, paragraph 8 herein. 10. Denied. By way of amplification, it is anticipated that the remaining deposition will provide information to substantiate notice. Further, given the design of the building involved in the instant action, any snow accumulation or ice accumulation on the roof is constructive notice of a dangerous condition. 11. Defendant's averment is irrelevant to the instant action. 12. Admitted. 13. Defendant's averment is irrelevant to the instant action. 14. Defendant's averment is irrelevant to the instant action. 15. Defendant's averment is irrelevant to the instant action. Further, as previously indicated herein, the instant Defendant had constructive notice of the dangerous condition triggering its responsibility to business invitees. 287952 2 16. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, the instant Defendant breached its duty to keep its premises safe for business invitees. 17. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, an accumulation of ice and snow on a slanted roof is a dangerous condition of which Defendant had actual or constructive notice yet failed to remedy. 18. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Defendant had actual or constructive notice of the dangerous condition. 19. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, the accumulation of ice and snow did rise to the level of constructive notice to the instant Defendant. 20. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, there is no basis in fact or law to support the instant Motion and therefore it should be denied. 287952 3 WHEREFORE, Plaintiffs respectfully request Motion for Summary Judgment. Honorable Court deny Defendant's ANG1NO & ROVNER, P.C. Richard A. Sadlock, E: I.D. No. 47281 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiff u• CERTIFICATE OF SERVICE I, Marcy L. Brymesser, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PLAINTIFFS' REPLY TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT on the following via postage prepaid, first class United States mail, addressed as follows: Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Marcy L. Date: July 3, 2007 292386 t n ril c -n {= r: DONALD L. CARMELITE, ESQUIRE Marshall, Dennehey, Warner, Coleman & Goggin ID # 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3504 Attorney for Defendant, Hampden Center, Inc. JANICE RULLO AND IN THE COURT OF COMMON PLEAS OF WAYNE RULLO, Sr., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. HAMPDEN CENTER, INC., Defendant NO. 05-343 Civil JURY TRIAL DEMANDED DEFENDANT, HAMPDEN CENTER, INC.'S, APPENDIX TO MOTION FOR SUMMARY JUDGMENT 05/365896.0 ORIGINAL JANICE RULLO AND WAYNE RULLO, SR., HER HUSBAND, PLAINTIFFS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V NO. 05-343 EN CENTER, INC., DEFENDANT JURY TRIAL DEMANDED DEPOSITION OF: JANICE RULLO TAKEN BY: DEFENDANT BEFORE: MARIA N. O'DONNELL, RPR NOTARY PUBLIC DATE: JUNE 7, 2006, 12:00 P.M. PLACE: ANGINO & ROVNER, PC 4503 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA APPEARANCES: ANGINO & RONVER, PC BY: RICHARD A. SADLOCK, ESQUIRE FOR - PLAINTIFFS MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: DONALD L. CARMELITE, ESQUIRE FOR - DEFENDANT ALSO PRESENT: WAYNE RULLO Hughes AT?,N T A=F,-ight N Boltz Natale 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 • Lancaster 717.393.5101 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NAME JANICE RULLO BY: MR. CARMELITE WITNESSES EXAMINATION 3 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are hereby waived; and that all objections except as to the form of the question are reserved to the time of trial. JANICE RULLO, called as a witness, being duly sworn, testified as follows: EXAMINATION BY MR. CARMELITE: Q Hi, Mrs. Rullo. My name had Don Carmelite. A Good morning. Q I represent Hampden Center, Inc. I know that you were here for Miss Brigante's deposition. Your counsel went over some basic rules for depositions, but I will briefly go over them as well for you. Okay? A Yes. Q Have you ever had your deposition taken before? A I believe so. Q Okay. When was that? A Early '90s. Q And what was -- were the circumstances that that occurred? A It was in regard to a slip and fall accident. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Is that the one that occurred at the Food Festival when you slipped on Saran Wrap? A Yes, it is. Yes, it is. Q Okay. We will get back to that. A deposition is a question and answer session. This young lady here can only take down one of us talking at a time, so you need to wait for me to finish my question. I will wait for you to finish your answers. Okay? A Yes, sir. Q You need to provide all responses verbally, you can't nod of your head and say huh-uh, uh-huh. They don't get transcribed very well. Do you understand that? A Yes, sir. Q Okay. I am going to ask you questions. I am a going to assume that you understand the question unless you tell me otherwise. Do you understand that? A Yes. Q If you don't understand it, will you let me know and I will rephrase it, repeat it, whatever you need to help you understand what I am trying to ask. Is that okay? A Yes, it is. Q I don't want you to make any guesses though. All right? I want you to make educated guesses, but tell me you are doing that. All right? Otherwise, I don't want 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you to speculate or kind of guess. Do you understand that? A Yes. Q Okay. Are there any medications that you are taking today that are going to effect your ability to answer questions? A No. Q Okay. Do you have any questions about those basic ground rules we just went over? A No. Q Okay. Good. All right. Let's talk about the slip and fall accident in the nineties at the Festival Foods or Food Festival, I forget -- A I believe it was Festival Foods. Q Okay. You slipped on some Saran Wrap that was in the aisle? A It was not actually in the aisle. It was under the kick plate of the freezer. Q Okay. So you slipped on some Saran Wrap? A Yes. Q What ultimately happened with that lawsuit? A Absolutely nothing. Q Did it go to trial? A It went to trial, yes. Q And what were the results? 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A There was a finding of 51 percent it was my fault that I seen the clear Saran Wrap. Q That was in Cumberland or Dauphin County? A Dauphin County. Q So we're not talking about the same grocery store because the Karns where you -- where this incident happened we're taking your deposition used to be Festival Foods. Where your slip and fall accident happened was at a different Festival Foods? A I was not aware that that had ever been a Festival Foods where the Karns is. Q Okay. So in other words, the Festival Foods where the nineties slip and fall accident had was someplace other than Hampden Town Center? A Yes. Q Okay. Have you filed any other lawsuits? A No. Q Just -- I want to talk about the injury that you are claiming to receive to your left hand, is that correct? A Yes, sir. Q Okay. Just, you know, generally tell me what your doctors have told you happened to your hand. A Just the ice when it hit the back of my hand, it caused swelling and it triggered a fibroid growth. They are not certain. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Fibery growth, is that what you said? A Fibroid. Q Have your doctors explained to you what a fibroid growth is? A More or less. Q Okay. What have they explained to you? A That it's just -- it's a fibrous little tumor, like little octopus that grows in there and it just encircles the nerves and tendons. Q You indicated that your doctors indicated that the ice may have caused that fibroid growth to occur. Correct? A Yes. Q Okay. Did they give you possible other causes? A No. Q Do you remember the doctor that told you that it may have been the result of the ice falling? A I believe Dr. Ferner. Q Is Dr. Ferner your family doctor? A Yes. Q He ultimately referred you to some sort of specialist to treat your hand, correct? A Yes. Q Do you remember who that was? A That would have been Dr. Kaneda. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q What did Dr. Kaneda tell you with regard to the causes of your fibroid growth? A Just that it was there and whether it -- he cannot predict whether or not it would have been there without the injury, or it was completely caused by the injury, or not caused by the injury. Q Ultimately, Dr. Kaneda did surgery, is that correct? A Yes, sir. Q Okay. And tell me how that went. A It went about normal as far as the recovery period was concerned. It healed quickly. Q Did it provide you relief? A No. Q None at all, short term? A I don't believe so. Q Okay. Did Dr. Kaneda explain why the surgery wasn't -- why the surgery didn't provide you any relief? A Yes. Q Okay. What did he explain? A He explained that it would take a period of time for the area to heal after the removal of the two small nodules that he took out. And it would take about six months to a year for the area to completely clear up and heel. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. And has that time period past? A Yes. Q And how does your hand feel? How -- let me -- withdrawn. How did your hand feel after that six months to a year past? A There is still pain because there is an additional two little nodules that have grown on the other finger that was effected by it. Q Is it the same type of pain, or is it a different pain? A No, it's the same type of pain. Q The two subsequent nodules that grew weren't present when the first surgery was done, to your knowledge? A One of them was. We -- at that time Dr. Kaneda assumed that it was just a small one, single small nodule, that cortisone injections would break it up. Q Okay. Did you go through with the cortisone injections? A Yes. Q How did that work? A It provided very, very short term relief from the pain, but it did not achieve our goal of breaking it up. Q What treatment have you undergone since the cortisone injections weren't successful? A I believe there was some physical therapy, and 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that's about it. Q How did the physical therapy work? A Physical therapy caused additional pain because it was pulling the nodules across nerves and tendons and stretching the scar tissue in the original site. Q Do you recall when you completed your physical therapy? A No, I do not. Q Was it a year ago? A Probably. Q Since you completed your physical therapy, have you undergone any other treatment for your left hand? A I have seen Dr. Kaneda I believe three times since then. Q What has Dr. Kaneda told you? A Well, at this point we're monitoring the growth of the subsequent nodules. His determination is that they are not operable until such time as they stop hurting. Q Has he explained why? A His -- what I recall of his explanation is that it would mean that the nodule had matured by the very fact that it had completely pinched off the nerve, and that therefore there was no longer pain in that area. Q When you had your first surgery to remove the nodules, had the pain subsided? 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A In that particular area, yes. Q Your answer indicates that there was pain in another area in your hand? A Yes. Q Okay. Where is -- where is that pain? A The original site was the -- whatever, the middle f inger. Q Okay. A The second site is the fourth finger. Q Ring finger. Okay. A Yes. Q Okay. So when you had the original surgery, the pain in your middle finger had ceased, but you had pain in your ring finger? A Exactly. Q Okay. And surgery relieved the pain in your middle finger, but didn't relieve the pain in your ring finger, is that correct? A Moderately relieved the pain in my middle finger. There is still some pain there. Q Has any of your doctors explained why you still have some pain in your middle finger? A Yes. Q Okay. A There is scar tissue. It's pinching the nerve. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Was there any treatment they have prescribed for you for that issue? A No. Q Have you asked? A Yes. Q What.have they told you? A At this time there is not much that can be done for it. They just have to wait to see what it is going to develop into and whether or not when I would have the second surgery on the other finger, they may have to remove what scar tissue had formed. Q Have your doctors given you any indication when they suspect that the nodules in your ring finger will mature to the point where surgery can occur? A No. Q The pain in your middle finger after the surgery, has that been pretty much a constant, or has it -- A Not really. It's more sporadic. It could just -- it comes and goes trigger, you know, here or there, just a muscle spasm, something like that. Q Are there certain things that you do that trigger the pain in the middle finger? A There are, yes. Q What would they be? A Attempting to milk a goat or cow, trying to hold 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 things in this hand or make a fist and hold it tight, holding a shovel, doing work around the farm. Q Anything else? A Just in general, just trying to carry things that require making a fist. Q Okay. How about the pain in your ring finger, has that been constant or -- A No. Q Okay. Explain that pain to me. A The pain in this finger is the same thing. It depends on when -- which way I -- if I move the finger and the lumps that are there, if they would pinch the nerve or pull on the tendon, it might just spasm like a charlie horse or it could trigger it just to -- just uncontrollably wiggle at the same time, it could pull it back, or it could just hurt all of the way up to the elbow or it might not hurt at all for an hour or two. Q Has the intensity of the pain changed at all? A It is beginning to get less. Q When it started to taper off, was there a -- was there a build up or was it like the -- the intensity was pretty much the same? A No, it's tapering off very, very gradually. As the size of the nodules grow, it is doing what Dr. Kaneda said, which is lessening in severity of the pain as it 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pinches the nerve off. Q The pain was -- is the onset of the pain similar where it tapers off? A No, it was there. It was just -- in the beginning, it didn't build up to anything, it was just once the impact, it hurt and the entire hand swelled up like a blown-up rubber glove and it just hurt, like it breaks it because initially the doctors felt it was broken, that the two bones in the middle were broke. Q Okay. So from the impact with the -- I think that you described it in discovery answers basketball size ice ball that fell from the facility? A Yes. Q From that point, the pain has been the same severity and intensity in your ring finger? A It's about the same intensity, but not the same duration. It's changed in the way that it acts. It has not gotten stronger in the spasms, but the spasms are getting less. Q Okay. My understanding from your discovery responses to interrogatory questions, that you are -- you didn't miss any work as a result of the accident? A Not initially. I did miss a couple of days of work because of the surgeries -- the surgery that was done. I don't have a choice about going to work. I 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't have a lot of leave. And I also have other physical problems, and I am the sole support basically of my family. Q Well, maybe I should -- it's my understanding, and your counsel can correct me if I am wrong, but you are not making a claim for wage loss? A No, I am not. Q Okay. You are not making a claim for future wage loss? A No, I am not. Q Okay. Why don't you tell me in your own words how the accident occurred. A I was walking from Karns -- from CVS pharmacy which would be at the I believe western most edge -- not edge, but the western side of the parking lot, shopping center. And I was on the sidewalk walking in an easterly direction toward Karns. I was figuring on going in there and getting some something for lunch before I went to my next stop. And as I was passing under one of the facades in front, a large chunk of ice came down, just slipped off the roof and it -- I had just picked my brief case up to hold it to make a note on my note pad that was on it. At that time it hit the top of my -- center of my hand. Q Okay. It was all ice? A Yes. Q Okay. What happened to the ice ball when it hit 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your hand? A It broke. Q Did it shatter in a million pieces? A Not a million pieces, but it broke into many small pieces. Q Okay. Did it break the skin on your hand? A No. Q I believe, correct me if I am wrong, did anybody witness this accident? A Yes, an employee of Karns did. Q Okay. Did you have any conversations with him about it? A He said something to the effect that -- that wasn't the first piece of ice that had fallen off there and he did ask if I was okay. Q That conversation, was that like immediately after the ice -- A Yes, it was. Q Okay. And that is the -- do you remember anything else about your conversation? A No. Q Okay. At some point I think that you went and reported the accident to a manager? A Yes, yes, I did. Q Over at Karns. Tell me about that. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I went in and I asked to see the manager. And the young lady said she was the manager. And -- or they got the manager. And she asked what the problem was, and I told her what had happened. Q Okay. What did she say to you? A She did not believe that Karns was responsible for the sidewalk, but just in case, she wanted to make sure that she was doing the right thing by having me fill out an accident report. Q Did she fill out the report with you, or did you fill it out yourself. Or how did that work? A I believe we filled it out together. Q Did they offer you any -- well, withdraw that. When the witness or employee for Karns asked you if you were okay, how did you respond to them? A That I didn't know. Q. Okay. Did they offer you any medical assistance such as, you know, calling EMS or anything like that? A No. Q Is Dan Kuhn or Kuhn, K-u-h-n, does that -- the name ring a bell to you as the witness? A Yes. Q Okay. And he's the one who told you that this was not the first piece of ice that had fallen? A I believe so. 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. Is this -- you say that you believe so. Is there some doubt in your mind? A He said something to the effect that it was not the first either piece of ice or the first time that that type of thing had happened. I do not recall which. Q Okay. But generally, he communicated to you that something -- snow or ice had fallen from that facade before, you recall? A Yes, sir. Yes, sir. Q Okay. Did you raise that issue at all with the manager that you spoke with at Karns? A I believe I did. Q Okay. Tell me about that. A I don't recall exactly what was said at that time. Q What makes you believe that you did raise that issue with the manager? A Because it was a safety issue and I had just gotten hurt. And I tried to be a conscientious person and I would not want to see anybody else get hurt, especially not a child. So I would -- I believe I would have brought that up. Q You don't have a -- you don't have an independent recollection of it, you are just saying that would have been your normal customary practice to do that? 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q It's possible that you didn't, but you believe that you did, is that a fair statements? A It's highly unlikely that I would not have brought it up. Q Again, you said that the purpose of you bringing that up with the manager was because generally you didn't want to see that happen to anybody else, you know, especially -- I think you said especially a child, you are a conscientious person, is that correct? A Yes. Q What efforts did you make to follow up with that manager at Karns to see what if any changes that they were going to make to prevent that from happening in the future? A When I called, I was told that the problem was not Karns. I do not remember the exact date that I called. I was told that that would have been part of the Hampden Center's maintenance, and that was done by the Hampden Center. And no one knew where or who to get ahold of to take care of that problem. Q Okay. I know that you indicated that you don't remember when you called. Can you give me an estimation of, you know, weeks, months from the date of the accident to when you called? A It would have been within a 30-day period after 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the initial injury. Q And did you ask for the specific manager that you spoke with when you reported the incident, or did you -- who did you speak with, if you remember? A I do not remember. Q Okay. Do you remember if you spoke with a manager or not? A I would have spoken with a manager because they would have been the authority person. Q Do you remember if it was a man or woman? A No, I do not. Q If I understood your brief testimony, their response to what measures that they had taken to prevent that from happening in the future, it was not my responsibility, it's the responsibility of the folks who own Hampden Center and they don't know how to contact them? A The manager did not state it that specific way. It was -- it was more the way she said -- it was more I don't think that that falls under the things that Karns is responsible for, I believe that is Hampden Center's responsibility to maintain that, but we're going to look in to it. Q Okay. That conversation occurred -- A The date of the injury. Q The date of the injury. Okay. 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I am talking about when you called, when you followed up to see if they did anything. Do you remember we talked about did you -- did you report it and the reason, that you-weren't quite sure if you did, but you thought that you did because you are a conscientious person and follow up, you think you did follow up with Karns to see if they made any changes. I thought that your testimony was that you talked to a manager, but you weren't sure who it was, whether it was a man or woman, and that their response to you was it not our responsibility and it's the responsibility of the owner of the strip mall or Hampden Center and we don't know who to contact. Is that -- am I incorrect on any of that? A You are incorrect on parts of that. Q Okay. Correct me, please. A The statement is correct in that I -- I did attempt to find out who was going to take -- who was responsible for taking care of it. They did say that it was Hampden Center's responsibility or the property manager or whatever of Hampden Center and they were trying to follow up on it to do something but they had no idea -- the manager or person that I talked to had no idea how to get ahold of the person who was responsible for doing that particular type of maintenance. 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. If you recall, what was your response or reaction to learning-that information? A I asked them who was responsible and they said they didn't know. Q So essentially you let it go after that? A I became involved in some other things and yes, I had no choice. Q Okay. What were the other things that you got involved in? A Helping to take care of my mother who had Alzheimers and dementia. Q Did either Dan Kuhn or the manager that you spoke with on the date of the accident or the person that you spoke with on the phone ever report to you -- withdraw that question. Aside from Mr. Kuhn telling you that snow or ice had fallen from the facade in the past, did either one of the folks who were managers that you spoke with either the day of the accident or when you called them up on the phone tell you that this was an incident that happened before? A No. Q Did you ask? A No. Q Do you remember what the weather was like that day? 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Pretty much. Q Okay. Can you tell me? A I believe the sun was shining. Temperature was just was above freezing. Q If you recall, had there been a heavy snow fall the day before or -- withdrawn. Had there been any snowfall that day, the day before, within the week that you recall? A Not snow, but ice. Q When was, if you recall, when was the ice? A The night before, maybe the afternoon day before. I don't remember the exact duration of the storm, but I know that there had been a storm. Q Okay. Okay. Now, when we say -- withdrawn. Now, when you say that the ice that hit your hand was the size of a basketball, are we talking literally the circumference of -- if we were to stick a ball of ice on the table and put a basketball right next, they would look alike? A Very close. Q Okay. Let's talk about the things that you were able to do prior to the ice hitting your hand that you are no longer able to do today. Do you understand that? A Yes. Q Okay. 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I don't crochet or knit any longer because just the attempt of trying to hold the hand in a given position for a long period of time is very painful and it doesn't work. I have given up riding horses because I can't maintain a firm grip on the reins, which means I am going to end up falling on my something because I have no sense of balance. Gardening is painful. Anything that I need to use my left hand for, carrying things. I don't rely on the left hand to carry anything that is fragile or important without having it cradled in the arm rather than holding it in the hand because of the fact that the muscle could spasm, just will let go. It doesn't happen all of the time, but it does happen. So I am trying to not take a chance. As I stated before, I -- I have dairy goats. I can't milk them by hand, I have to have an electric milker to do that because the hand becomes too tired too fast and I can't do the job. Typing can be painful. I make a lot of mistakes with the left hand. That's pretty much for the most part. Housework is a bear, but then I don't want to do it anyhow, so I -- there is no sense in worrying about that one. Q Okay. Was crocheting and knitting a hobby, or 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 something that you did for money? A I did a little bit of both because I would crochet blankets and things. I am hyperactive so I would use that to sit in the evening while I am watching T.V. where the T.V. would hold my eyes and interest, my hand could be crocheting and knitting while I was watching T.V. so that I wouldn't get up and run to the frig. Q Okay. Have you developed another kind of hobby to supplant the crocheting, knitting so you don't -- A No. No. Q Get up and go to the frig? A No. A lot of getting up and going to the frig. I spend more time trying to fritter away just putting on the computer and trying to do things like that, but when you get into those sites, they are more expensive than knitting and crocheting is. So I try to find other things just to do and it's a little difficult. Q Are you right or left-hand dominant? A I am right handed, but my left hand was my dominant hand. Q Okay. Explain that to me. A I was right handed and right hand dominant up until the time of the injury in 1991. After that time, while I am right handed my left hand and arm became the stronger of the two arms because of the damage done to the 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 nerve going into the right hand -- right arm, and therefore the left hand and arm were stronger. Q So in December of 2003, were you writing with your left hand? A No. I was still write with my write hand, but I carry everything with the left hand, do things, because this arm and hand tire less than the right hand does. Q Riding horses, I assume it's a hobby? A Yes, relaxation. Q Okay. You can't hold the reins because of your left hand. Is that -- it's painful? A It's not that it's painful, it's unreliable. Q Okay. A I can't maintain a firm grip on them. The fingers could let go, or it could go into a spasm. And if I jerk on the rein because it goes into a spasm, I am going to either have a horse rearing up or turning the wrong way or doing something ridiculous because the reins are the steering wheel on the horse, and how you hold them is how it goes. Even so much as just moving them back an inch can put you over an embankment or something like that. So even though you use two hands, you don't want -- Q Okay. A -- to be putting yourself in a precarious 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 position. And finally I am very hard headed, and after taking a rather nasty fall last fall, I just said okay, I need to quit. Q Okay. A I can't do this. Q And the fall occurred because of this reins issue? A The fall became -- the fall was an issue because I could not pull on the reins to make the horse go to the left or to the right. I could not get it to stop going straight ahead. And I thought it was going to go over an embankment and down into a gully where there were broken tree limbs and cinders and all kind of things. I feared the horse was going to break its legs, we were both going to be killed. So I went to kick my foot loose of the stirrup. Just as I went to kick my foot loss, the horse realized what was down there. She made a sharp turn. I could not grip on to -- hold anything, and the hands just wouldn't work at that point and I went falling off to my left side. Q Okay. And your right hand -- is it your right arm hand, whatever it is does, it -- you still have a deficit because of the '90 injury? A Yes. Q The issue -- you also said that something about 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you don't have balance or you have no balance. Is that just -- was that just like a general comment, you are a clutzy person, or do you have a medical issue where it effects your balance? A I actually have not got the greatest sense of balance since the spinal surgery in 191 or whenever. Q So last time that you rode horses was in fall of 105, correct? A Yes. Q Okay. When you were riding horses -- how often did you do that? A I used to ride every day of the week after work just to relax. And then I just got to the point where I was riding maybe once a week just because I was determined that I was going to ride and I liked to ride. So I knew that I was taking a chance, so I would try to get out. Then it became once a month. And I guess I road three times last year. Q So in December of 2003 you were riding every day meaning -- A More or less, unless the weather was dangerous for the horse and I. Q Well, what effect did the 190 injury to your neck and back have on your ability to ride horses? A I was not riding horses at that time. I took up 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 riding when my youngest child turned 18. It had always been a dream of mine and I figured now my children were grown, I had no longer morale responsibility to them to guaranty my safety so that I would be there to help raise them. Now if there was something that I wanted to do, I had the ability to go do it because I had a responsibility to myself and to my husband who supported me in whatever I wanted to do. Q Okay. So when did you start riding horses? A '98. Q I take it that you folks must own a farm? A We live on -- it's a little piece of property, yes. Q You own some horses, some goats. Is that correct? A I started out with horses. And one of things that I always wanted to do was make cheese, so I bought some goats to start making cheese because I thought that that would give me a hobby that I could do when I retired and maybe develop it into a business, cheese making, butter, yogurt. That was what I was trying to do. Q Okay. So that's all on your property, it sounds like you stable someplace else? A No, it's on my property. Q Okay. You mentioned gardening was painful. I am 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 going to assume that's something to do with clenching your left fist and holding shovels and tools and the like? A Exactly. Q Okay. It's -- do you still do it to the extent that you can bear the pain, or have you cut it off all together? A I have cut 90 percent of it off. Q Okay. Was the gardening that you did anything beyond what the average home owner does to their property? A Yes. Q Okay. Well, tell me. A I always had a garden that I had maybe twenty tomato plants, twenty pepper plants. I grew my own ingredients to make home-made salsa. I canned my beans, kept my squash and sweet potatoes and potatoes and horseradish and everything else. Q You had a big vegetable garden? A Big. Q Big vegetable garden. When was the last time that you had your big vegetable garden? A I put a garden in last year with everybody helping, but it got out of control because nobody had the time to help and I just couldn't do it. And this year, the only thing that I did was I took in what is now my pasture and dug up garlic plants 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that my father had planted there and I put them into what was my garden, and that's the only thing that I did this year. Q Okay. Milking the goat was another issue that you discussed. Is there some significance to milking a goat by hand versus milking it electrically? A Yes. When you milk goats, and it's plural, there were twelve of them, by hand, you are going to have a constant fist and clenching and pulling. Q Sure. A When you milk them by machine, all you have to do is wash them before you put little suction, inflation tubes on their utters and take them off and then dip them in a sanitary dip, then you are done. You don't have all of that hand clenching. More than likely all that you have is standing around time, waiting and watching. Q Okay. But the quality of the milk is no different? A No. Q What you can do with the milk is no different? A No. Q It's just the fact that you enjoyed to milk goats, you can't do it any more? A Well, I -- 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q By hand? A I enjoyed the relaxation of sitting there spending time with them and milking them by hand. Getting them milking machines was an expense of a thousand dollars I had not planned on spending but needed to whenever I realized that I was not able to milk the goats out, when I was spending two -- over two hours in the evening and in the morning to milk them before I go to work and when I got home from work. It sort of became a little bit tedious, and as much as I like my goats, it was like -- Q When did you get your goats? A Last year. Q Spring, summer, fall, if you can remember? A February, March. Q We're talking 105, right? A Yes, sir. Q Typing, does your job require you to do typing? A Yes. Q Okay. Do you -- besides your job, do you do typing in any other aspect? A I do it as for word processor entry for playing with the computer and doing some bookkeeping and stuff for my husband. Q The housework, I am going to assume that the housework again is the same type of issue with the 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gardening, using various tools and -- A And appliances. Q And appliances, and the use of your hand hurts? A Carrying the laundry baskets, things like that, yes. Q Okay. Do you have a copy of the complaint that you can share with her? MR. SADLOCK: Yes. BY MR. CARMELITE: Q You have in front of you a copy of the complaint that you filed against my client, Hampden Center, Inc. Have you reviewed this complaint before? A I have seen it. Q Okay. If you turn to the back, there is a page for verification? A Okay. Q Is that -- you signed that. Is that your signature above the typed name Janice Rullo? A Yes. Q Okay. Turn to the second page of the complaint, paragraph ten. I am just going to ask you some questions about what information that you have that support various paragraphs in the complaint. Okay? A Okay. Q Paragraph ten reads the ice falling off the roof 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 presented a dangerous condition known to the defendant or which could have or should have been known to the defendant which created a reasonable foreseeable risk of harm suffered by the plaintiff. What factual information do you have to support that Hampden Centers, Inc. knew about ice falling off the roof presenting a dangerous condition? MR. SADLOCK: You mean other than what she has already testified to with the statement made by -- BY MR. CARMELITE: Q Mr. Kuhn, yes. A I have nothing else. Q Okay. Paragraph eleven reads, the defendant had sufficient time prior to the ice falling off of Karns roof and hitting Mrs. Rullo to have taken action to protect against the dangerous condition that existed and prevent the kind of injuries suffered by Mr. Rullo, but defendant failed to do so. What factual information do you have to support the contents in paragraph eleven that Hampden Centers had sufficient time to prevent the particular ice fall -- that fell off of the facade that hit your hand? A The statement from Mr. Kuhn had led me to believe that there had been sufficient time. The parking lot had been plowed, but very little of the sidewalk had been 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cleaned. And it was my interpretation of what he said at the time that it was a regular occurrence that they did not do -- that they did not have the sidewalks cleaned or anything else, the facade, the rooves. They had never been -- they never took the ice off of any of those things and that it was always falling down. Q That was your assumption based on what Mr. Kuhn had said? A Right. Q Okay. A And the fact it snowed the day before and nothing had been done about it. Q Okay. And paragraph twelve states the aforementioned condition of ice on roof of the stores, Karns, represented a condition which existed for an adequate and sufficient time before Mrs. Rullo's incident and defendant had adequate time to correct the condition and warn Mrs. Rullo of the condition. Would your response to paragraph eleven be the same to paragraph twelve? A Yes. Q Page four, paragraph twenty-one. This reads, as a result of the aforementioned accident and resulting injuries, Plaintiff Janice Rullo had undergone and will undergo great physical and mental suffering, great 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 inconvenience in carrying out her daily activities, loss of life's pleasures and enjoyment, and a claim is made therefore. I am going to assume that physical suffering is related to the pain that you have to your hand, is that fair? A Yes. Q Okay. Explain the mental suffering to me, please. A It's just the very thought that I can't do the things that I would like to be doing; to stand there and watch horses running in the fields and know I am not capable of riding them because I would kill myself, I can't hold on, I can't properly ride a horse. Even handling other things, I mean even leading a horse could be dangerous because if something spooked and my hand didn't work, I would have no control over it. Q Okay. Have you sought any counseling as a result of that issue? A No. Q Okay. Do you have any plans to seek any counseling for that issue? A No. Q The rest of that about great inconvenience in carrying out your daily activity and loss of life's 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pleasures and enjoyment, we have talked about those issues already today? A Yes. Q Okay. Paragraph twenty-two reads, as a result of the aforementioned accident, resulting injuries, plaintiff Janice Rullo has been and in the future will be subject to great humiliation, embarrassment, and a claim is made therefore. Can you explain to me the humiliation that the accident has caused you? A Falling off a horse is funny to some people. Not being able to pull a rake or lift a pooper scooper when you are in a barn. People think it's funny when you can't do it. Or if you manage to get the poop into the scoop, then you drop the whole thing. Some people think that's cute. Q Okay. Well, who are these some people that think it's funny or cute when you fall off a horse? A It would be other people that you are riding -- if you are riding in a group, somebody might -- they would laugh at you. Q Well, has this -- has that happened to you? A Yes. Q Okay. Who are these people that laughed at you? A Misty Sostar. MR. SADLOCK: Spell the last name. 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: S-o-s-t-a-r. BY MR. CARMELITE: Q What is -- anybody else? A Jesse Rebar. R-e-b-a-r. Q R-e-a -- A R-e-b-a-r. Q Is Jesse a boy or girl? A It's a woman. Q Man or woman? A Woman. Q Anybody else? A Yes. I am having a brain freeze right now. I can't remember her name. Q Okay. Another woman? A Yes. Q All right. Did -- was this one incident that they all witnessed and laughed at, or were there multiple incidents? A Minimum of two. Q Okay. All three of them were there when it happened? A No. I was riding individually with Jesse the one time it happened, and it was the third woman, I can't remember her name. Q Okay. Then the -- 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Must have just thought it was funny when I told her the story. Q Okay. A I was looking to sympathy, didn't get it. Q All right. The other activities that you talked about, I am going to characterize them as cleaning up the -- around the barn stalls. Is that fair? A Yes. Q Were there particular incidents where things that you described, cleaning up, dropping the pooper scooper and the like happened and people laughed at you? A Or when we were putting up new fence and the -- I couldn't get the tools to clench because I couldn't use the hand, my sister thought it was funny that I was having difficulty. It was not that she was trying to be mean, it was just -- it's funny that you can't make your hand work. Q Anybody else besides your sister? A I am certain there have been. I don't recall names of every person -- every person along the way that's laughed about it, it's something that you just try to go forward and forget. Q Misty, is she a friend of yours? A Acquaintance. Q Acquaintance. Jesse Rebar? 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Acquaintance. The third woman was an actual friend. Please don't tell her I forget her name. MR. SADLOCK: We can't, we don't know her name. THE WITNESS: Thank God. BY MR. CARMELITE: Q What's -- I mean I don't mean to split hairs on this, but what's the -- in your understanding, what's the difference between a friend and acquaintance? A An acquaintance is somebody that I go riding with, but I would not trust them to care for my horse when I was gone. Q Okay. Fair enough. I think that I asked you specifically about humiliation. But I am going to assume what we talked about also covers the embarrassment aspect of paragraph twenty-two? A You could, yes. Q Okay. Do you want to add anything else to that? A No. It's -- well, I have learned a lot through the time making jokes about what -- when I drop things or I do that, to make a joke about it so that if anyone is laughing, they are laughing with me rather than at me. Q Okay. A It still isn't fun. Q Paragraph 24, 25 talks about the work loss. So 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we're -- you are not making claim for that any more. A I am not making claims for them, but there was a couple days that I was off. Q Okay. Okay. Twenty-six reads as a result of the aforesaid accident, plaintiff Janice Rullo has sustained scars which will result in permanent disfigurement, and a claim is made therefore. Can I see the scar? A (Indicating.). Scarring here, and this is where the second one will go. But they have to cut this way across it. Q Okay. A That is the pulling there. Q And -- A This is mine, I was born with. Q Okay. Let me come around here. I don't mean to -- it's not the best lighting here. A This is the scar here. Q Okay. A That scar goes there. The next one will go from here to here to take those two out. Q Okay. A This is where the scar tissue is. Q And these two? A Are the nodules. Q Bumps that are along -- 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A And this dip here is where the knuckles -- Q The ring fingers, those are the nodules we were talking about? A Yes. Q Then this bump around the long -- the middle finger is the scar tissue? A Yes. Q That's what doctors have told you? A Yes. Q Okay. Has the injuries or this accident effected your life in some way that we haven't discussed today? A Let me think about that. I am not as happy, I know that for a fact, be as I don't go out and get a chance to release the tensions that I had from work and my family and everything else in life. I miss riding very much. I also get very, very angry when I have to ask anybody for assistance to do the things that I am capable or should be capable of doing myself. I am a very, very independent person, and it's very, very hard at my age to relearn that you have to depend on other people to do little things for you. Q I don't want to cut you off. A No, that's okay. That's the most important thing as far as I am concerned. 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I just -- it's just been -- it's just difficult because I was finally at a point in my life where I could do the things that I wanted and now I can't again, and it's like I resent that. Do I resent anybody in particular; no. Is carrying anger going to help me; no. I have to go forward and find something that I am capable of doing that I can find pleasure in. That's one of the reasons that I thought the goats would do that, that I could be with the animals and that I could maybe find something that I could do that I would not be limited because they are not as big as a horse, they are not as dangerous, they like to follow you around, they like the attention and everything. But it is not the same. I love the goats. But it's just not the same.. I miss getting out in the woods and having the horse for a companion and know I can safely escape situations because I can handle the animals and the terrain and everything else. I don't know that any more. I have lost confidence in myself. Q Okay. Do you still have your horses? A No. Q Okay. What did you do with them? A When I realized I couldn't ride any more, I sold them. Q So that would have been sometime from the fall of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '05, sometime around the fall of 105? A I started downsizing then because I was having problems trying to take care of them. I believe that I had five or six of them at the time of the accident, and I downsized to four, then to three then to two, then I just had the one. And I finally said this is not working, I don't have a choice, I can't -- she's doing nothing but sitting in the pasture all day and she has no horses for company, she doesn't have a job. So I just decided it was in her best interest I find a home for her where she would be used to her fullest capacity. Q Okay. You said you are not as happy as you used to be. Correct me if I am wrong, but I have had an opportunity to review various medical records for you, and you have been on Prozac for a number of years? A Yes. That's for chronic pain management. Q Okay. You have never been -- a doctor has never diagnosed you with depression? A No. It also helps to control the panic attacks that I started having after November of 191. MR. CARMELITE: I don't have any more questions. MR. SADLOCK: I have no questions. (Whereupon, the deposition was concluded at 1:15 p.m.) 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNTY OF DAUPHIN SS COMMONWEALTH OF PENNSYLVANIA : I, Maria N. O'Donnell, a Notary Public, authorized to administer oaths within and for the Commonwealth of Pennsylvania, do hereby certify that the foregoing is the testimony of JANICE RULLO. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said Reporter-Notary Public, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify the said deposition was taken at the time and place specified in the caption sheet hereof. I further certify that I am not a relative or employee or attorney or counsel to any of the parties, or a relative or employee of such attorney or counsel, or financially interested directly or indirectly in this action. I further certify the said deposition constitutes a true record of the testimony given by the said witness. IN WITNESS WHEREOF, I have hereunto set my hand this 2ND day of JULY, 2006. tirfa -N' -O' Donnecl 1 otary Public ANGINO & RoVNER, P.C. 4503 NORTH FRONT STREET HARRISBURG, PA 17110.1708 717/238.6791 FAX 717/238-5610 W W W.ANGINO-RO VNER.COM EMAIL: RSADLOCK@ANGINO-ROVNER.COM July 11, 2006 Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Re: Rullo v. Hampden Center, Inc. Cumberland Co. CCP No.: 05-343 Civil Dear Don: RICHARD C. ANGINO MICHAEL E. KOsIK NEIL J. ROVNER RICHARD A. SADLOCK JOSEPH M. MELILLO JOAN L. STEHULAK DAVID L. Lm LISA M.B. WOODBURN DARYL E. CHRISTOPHER Enclosed is a color copy of a photograph Mrs. Rullo has marked indicating where approximately she was and where the ice came from when she was injured. Please consider this a formal supplement to Plaintiffs' previously provided responses to Defendant's discovery requests. RAS/mlb Enclosure 330378 J U L 1 2 2006 3owl%? q06 BSc ?o ? 'k ?? F 1 r, ?s .l°t z , r?`f . r? e? ?? L ? Y k ????t {r.•}. ,?{ - ,;i i 4: ?? 4 n, #' ?.?I? ?? ^? ------. K `:, :? ?{ ?-?-" 'fi'r=:...?, . ?. ?i ???? a rt- . ",; 5:?; Ai''?, ?. i????. ???'?X axe i .i f'nuY,r-Fa, .; 'i t y l Y 1 1 . .1?, r ?! Y il: f? ?!5 I ? s1 ? ?f S'4 ?i.? tj? f y t( 1? }F ?} ??S {.? ? h ?? • ? •,?, ?. Vv/ vVr LVU•F 1Y. VV L1 G:l Y:J17-1 CJ Lmvix-LiL" RNu W CUSTOMER Store* .___„_1 Name ACCIDENT REPORT Karns Quality Foods, Ltd. 876 Silver Spring Rd. Mechanicsburg, PA 17055 (717) 766-8477 HAUL b6/ d5 3 4 6 -office Date of Accident G Time of Accident <*PM Accident Resulted In injury Illnfess Property Damage Place oi' Accident O. u-a "5 1 Ii. ? iif - V. What was the person doing when the accident accurredfil A L?Lj f Ili r, 10 ai L) 'e?55? De Describe: the aWdent?C G pm 006 j? 4 7 -J- Nature of the Injury l ? -P, ` o 2 . First Aid. Medical Care c Refused Medical Attention Attending Physician or Hospital and address W k LL, 1:5 oustornsr, information Home Home Phone Work Phone `-( 6 Manager Customer Dift of Report G- !5 ANICE RULLO AND AYNE RULLO, SR., HER USBAND, PLAINTIFFS V EN CENTER, INC., DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-343 JURY TRIAL DEMANDED DEPOSITION OF: ANDREA BRIGANTE TAKEN BY: PLAINTIFFS BEFORE: MARIA N. O'DONNELL, RPR NOTARY PUBLIC DATE: JUNE 7, 2006, 11:30 A.M. PLACE: ANGINO & ROVNER, PC 4503 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA S: ANGINO & RONVER, PC BY: RICHARD A. SADLOCK, ESQUIRE FOR - PLAINTIFFS MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: DONALD L. CARMELITE, ESQUIRE FOR - DEFENDANT ALSO PRESENT: JANICE RULLO WAYNE RULLO Hughes Albright N atale 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 0 Fax 717.540.0221 • Lancaster 717.393.5101 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NAME ANDREA BRIGANTE BY: MR. SADLOCK WITNESSES EXAMINATION 3 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are hereby waived; and that all objections except as to the form of the question are reserved to the time of trial. ANDREA BRIGANTE, called as a witness, being duly sworn, testified as follows: EXAMINATION BY MR. SADLOCK: Q Would you state your full name, please? A Andrea Brigante, B-r-i-g-a-n-t-e. Q Miss Brigante, my name is Rich Sadlock. We just met. I represent Mr. and Mrs. Rullo in an action that's been brought against the Hampden Center, Inc. I understand that you have an employment relationship with the company that has some relationship with the center, so I am going ask you some questions about that today and what if anything that you may know about this particular incident. Hopefully my questions will be loud enough and clear enough for you to hear them and understand them. If you have any problems with that at any time, let me know that and I will try to correct it so that you 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can answer the question. Allow me to finish speaking before you try to answer, again for the benefit of the court reporter. And when you do answer, you have to give a verbal response, you can't shake or nod your head or say things like uh-huh or huh-uh or whatnot. If you do, I might remind you, say -- ask something, is that a yes or is that a no, just so again the record being clear. Is that okay? A Yes. Q Have you ever given a deposition before? A Yes. Q Related to the Hampden Center? A No. Q What's your current address? A 31 Gina Court, Staten Island, New York. Q That's your home address? A Yes. Q What's your date of birth? A August 24, 1977. Q Are you currently employed by Lavipour and Company? A Yes. Q How long have you been employed with them? A Nine years. Q And what is your job title and what are your job 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 duties? A I am the property manager and I am responsible for maintaining the shopping centers that we manage. Q And Lavipour and Company, is their primary office in New York City? A Yes. Q Do they have -- does Lavipour have any other offices? A No. Q What's the extent of your education background? A I have a -- graduated high school, and I took several property management courses. Q Where were those courses taken? A They were with the ICSC, they were week long conventions. Q ICS? A International Council of Shopping Centers. Q Okay. Through your employment with Lavipour? A Yes. Q You said that you are a property manager. You manage shopping centers owned by Lavipour, is that correct? A Managed by Lavipour. Q Is there anything more specific that you can tell me that your job duties involve in terms of being a property manager? What does that mean? 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I inspect the properties on a routine basis. I am responsible for attaining all contracts for repairs and maintenance of the shopping centers. I have continual contact with the tenants. Q How many shopping centers in 2003 did Lavipour own? A About ten. Q Any others in the Central Pennsylvania area? A Yes. Q What other shopping centers other than Hampden Center? A We have Cedar Crest Square in Lebanon, and Londonderry Square in Palmyra. Q I would be correct in stating then Lavipour did own Hampden Center in December of 2003? A Lavipour Company is just the management company. Q I am sorry? A Hampden Center, Inc. is the owner of the property. Q All right. I got that mixed up, I apologize. You said one of your job duties is to inspect the property, is that correct? A Yes. Q Again, in 2003, was there a set schedule 7 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 maintained by Lavipour for you to inspect Hampden Centers? A Not a set schedule, but I routinely -- it varies every four to six weeks. Q Does that frequently change at all during the different seasons of the year? A Yes. Depending on weather and if I have anything else scheduled for another week, then it gets pushed back or pushed forward. Q Would weather cause you to make more inspections, for example, in winter? A Generally, no. Q You indicated one of your responsibilities was for contracts for repair, is that correct? A Yes. Q Is that for anything to do with the property? A Yes. Q Whether it be resurface the parking lot, put on a new roof, anything and everything regarding the property? A Correct. Q Would that include contracts for snow removal? A Yes. Q When I talk about snow removal, would that also include if there was a need for snow removal from the roof or any facility at the building? A If it was needed, yes. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q How would it be determined again now in 2003, was there a way that it was determined if that was needed, snow removal from a facility or roof of Hampden Centers? A If was reported to me by a tenant. Q Did all of the tenants have leases with Hampden Centers as far as you know? A Yes. Q Was Lavipour at all involved with the leasing for Hampden Centers? A We do take care of the new leasing, new tenants that come in, yes. Q For example, I believe this incident occurred between CVS and Karns, is that your understanding as well? A From what I understand, yes. Q In 2003 or prior to that, were you involved at all in any of the leasing arrangements with the CVS and Karns? A No. Q Was Lavipour at all to your knowledge? A I don't understand what you mean by leasing. Q Did they negotiate the leases on behalf of Hampden for the CVS or Karns? A Yes. I believe they were current leases at the time. Q Does Lavipour maintain copies of the leases? 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q How far back would Lavipour keep copies of leases? A From the original lease. Q Was that a term or condition in the lease again as of December of 2003 that tenants report to you in terms of whether it be snow or need for repairs? A I am not sure what the language is of the lease, but it's -- it was just known that they do. I make my visits. They have all of our emergency contact information to report anything to us. Q When you make your periodic inspections, generally what is involved? A I walk the property, I just have a checklist that I go through. I just check the conditions of the buildings and the property. I talk to the tenants, see if they have any issues that they would like to report. Q Does the inspection also involve the inside of the different stores and whatnot? A No, just the outside. Q Exterior? A Structural. Q other than receiving reports from tenants for - regarding anything, did Lavipour have a local person who was involved with the management of Hampden Centers? 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. Q or in terms of maintenance or repair, anything like that? A No one on site. We do have our contractors, our sweepers and snow removers that are on property regularly. Q In December of 2003, do you recall who was your contractor for snow or ice removal? A McNaughton Paving. Q Are they still your contractors for snow and ice removal for Hampden Centers? A Yes, they are. Q Do you enter into a yearly contract, or does Lavipour or Hampden Centers enter into a yearly contract with McNaughton? A Yes. Q Which group would actually be party to the contract, Hampden Center or Lavipour? A Lavipour is -- Lavipour is an agent for Hampden, so we can make any decisions. Q Do you recall what the terms are of the contract with McNaughton in terms of snow and ice removal? A Yes. Q What was it in 2003? A It's a flat fee contract. They get paid a monthly payment, and they are to go out at their 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discretions. Q And was that contract for snow and ice removal of only on the sidewalk and parking area, or did that also involve the physical structure? A Parking and sidewalk. Q Was there any contract with any company in December of 2003 that would have involved the physical structure, the building, snow removal or ice removal? A No. Q Prior to -- strike that. Let me ask it this first. How long had Lavipour been the agent for property management for Hampden Center? A I don't know. Prior to 197, I know that. Q I think that you have been with them you said nine years? A Yes. Q So right around that same time at the very least as far as you know 197? A Yes. Q At any time from 1997 to 2003, was there ever an occasion where there was a contractor hired for snow or ice removal or either the roof of the physical structures of Hampden Centers or any facade to the building or storefront? A No. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Had it ever been called to your attention with snow or ice on the roof or the facilities or falling off on to sidewalks, anything like that? A No. Q Were you the only one at Lavipour that was involved with Hampden Centers in terms of the inspections and hiring of contractors? A I have as of like late 198, yes. Q You mentioned McNaughton Paving. Was the contractor that Hampden Centers used for snow removal? Is there a specific contact person at McNaughton that you deal with? A Yes. Q Who is that? A Chad McNaughton. Q How long have you been dealing with Chad? A For at least three years. Q At least since 2003 or -- A Correct. Q Or 2002 or -- A I don't recall, but definitely since 2003. Q Again, I apologize if I asked this. At any time since you have been involved with Hampden Centers, have you received any report of snow or ice falling from the building in general, whether struck an individual, struck a 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 car, anything been reported to you? A No, no. Q In December of 2003, do you have any reports of snow or ice accumulating on the roof or causing any problems whether it be falling with the weight or anything like that? A No. Q Was there a general contractor that was under contract for Hampden Centers in terms of any other type of maintenance or repair issues? A We do have other contractors who do work on the site, yes. Q Is it one -- was it one that was a primary one versus -- or did this depend on what the problem was? A We had one maintenance company that was primary at the center. Q Who was that? A Custom Maintenance Services. Q Were they also involved as far as back as 2003? A Yes. Q First for McNaughton Paving, do you know where they are located? A No, I don't. Q Do you happen to know their phone number? A Not off the top of my head. 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. How about Custom Maintenance Service, who was the primary contact person there? A Mike Nawa. Q Can you spell his last name? A N-a-w-a. Q Nawa. Was he also the contact person in 2003? A Yes. Q Do you know where they are located? A Their offices, not off the top of my head again. Q Do you believe both of those companies are local? A Yes. Q Custom Maintenance Services, generally what type of work have they done for Hampden Centers over the years? A They are sweepers. They also just do general maintenance, some parking lot repairs, concrete work, cleaning services. Q Anything at all to do with snow or ice removal? A No. Q Was there any other company other than McNaughton that was involved with snow or ice removal? A No. Q Had there ever been any damage to the structures at Hampden Centers from snow or ice accumulation on rooves or any facility? A Not that I am aware of. 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q If there had been, would you be the one that would have been contacted to make the repair or get in touch with the contractor to make the repair? A Yes. Q Were you contacted after this accident with Ms. Rullo? A Not that I am aware of, no. Q Did you ever till the lawsuit was filed have any notice or knowledge regarding this incident? A No. Q Would you have typically in December of 2003 still been involved in inspecting Hampden Centers? A Yes. Q In the time period after December of 2003, January of 2004 or any of the initial months thereafter, had anyone ever reported it to you? A No. Q Had anyone ever provided you with a copy of the accident report? A No. Q So I take it that you have no personal knowledge regarding this particular incident? A Correct. Q Was the filing of the lawsuit your first knowledge of this incident? 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I believe so, yes. Q Since that time, have there been any changes made in terms of reporting of incidents or changes made in terms of your job inspecting with Hampden Centers? A No. Q Have there been any problems since December 8 of 2003 with ice falling off roof tops or snow accumulating falling off, whether again involving striking of a person, property or anything like that, just the ice, anything reported to you? A No. Q Did you have an assistant in 2003? A No. Q From your recollection, was there anything in the releases again 2003, that required the tenants to perform any snow removal or ice removal? A No. Q Now, you mentioned that with McNaughton that you were on -- they were on a retainer for snow and use removal. I believe that you -- I think that you indicated that it was a flat monthly fee? A Correct. Q So whether it snowed once with plowable snow or twenty-seven times, they still got the same amount? A Yes. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And was it at their discretion as to whether or not there was a need for service for snow or ice removal, whether it be plowing, salting, sanding within a given timeframe? A Yes. Q Was there any criteria within that contract as best as you can recall in 2003 with McNaughton? A Can you repeat that? Q Sure. Focusing on the winter of 2003, 2004, the contract with McNaughton, were there any specific criteria in that contract that said well, when these situations arise, you must do something? A I would have to review the contract. Pretty much everything was left up to their discretion. Q Do you know if they ever did any snow removal from the building itself? A I don't believe so. MR. SADLOCK: Thank you, ma'am. I have nothing further. MR. CARMELITE: No questions. (Whereupon, the deposition was concluded at 11:51 A.M.) 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNTY OF DAUPHIN : SS COMMONWEALTH OF PENNSYLVANIA : I, Maria N. O'Donnell, a Notary Public, authorized to administer oaths within and for the Commonwealth of Pennsylvania, do hereby certify that the foregoing is the testimony of ANDREA BRIGANTE. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said Reporter-Notary Public, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify the said deposition was taken at the time and place specified in the caption sheet hereof. I further certify that I am not a relative or employee or attorney or counsel to any of the parties, or a relative or employee of such attorney or counsel, or financially interested directly or indirectly in this action. I further certify the said deposition constitutes a true record of the testimony given by the said witness. IN WITNESS WHEREOF, I have hereunto set my hand this 2ND day of JULY, 2006. ( n n1'l a /1 NOTARIAL SEAL MARIA N. O'OONNELL Notary PubNc SUSQUEHANNA TWPQAUPHIN COUNTY My CommNslon Expbu May 13,2008 1, ,i\JVIV -` M ? . N. O'Donnell, RPR Notary Public 14 ' i JANICE RULLO AND WAYNE RULLO, SR., HER HUSBAND, PLAINTIFFS V PDEN CENTER, INC., DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-343 JURY TRIAL DEMANDED DEPOSITION OF: RICHARD BROWN, JR. TAKEN BY: PLAINTIFFS BEFORE: MARIA N. O'DONNELL, RPR NOTARY PUBLIC DATE: APRIL 24, 2007, 9:30 A.M. PLACE: ANGINO & ROVNER, PC 4503 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA APPEARANCES: ANGINO & RONVER, PC BY: RICHARD A. SADLOCK, ESQUIRE FOR - PLAINTIFFS MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: DONALD L. CARMELITE, ESQUIRE FOR - DEFENDANT Pis FAI 2080 Linglestown Road * Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 0 Lancaster 717.393.5101 Multi-Page "'1 RICHARD BROWN, JR. AYKIL 24, ZUU7 1 WITNESSES 2 NAME EXAMINATION 3 RICHARD BROWN, JR. 4 BY: MR. SADLOCK 3 5 BY: MR. CARMELITE 6 7 B 9 10 11 12 13 14 15 16 17 16 19 20 21 22 23 24 25 Page 2 Page 4 1 Q How long have you been employed in that capacity? 2 A I have been a store manager for twenty-one years. 3 Q How long at Hampden Center? 4 A Five years. 5 Q So it would be correct then that you were 6 employed as the store manager at that Karns on December 8, 7 2003? 8 A That's correct. 9 Q Okay. Do you work a set schedule? 10 A No. I 1 Q Do you recall what schedule that you would have 12 worked in December of 2003? 13 A The best of my knowledge without looking back 14 into it, I believe that I was on vacation that entire week. 15 Q The week of this accident? 16 A Yes. 17 Q Okay. Generally, if you know though, not 18 necessarily just on that week in the December timeframe of 19 2003, what -- 20 A It would either be 6:30 to three shift or two in 21 the afternoon till eleven shift. 22 Q Now, I imagine this list will be pretty 23 extensive, give me a general idea of what your 24 responsibilities are as store manager. 25 A Overall operations of the store, anything within Page 3 1 STIPULATION 2 It is hereby stipulated by and between counsel 3 for the respective parties that reading, signing, sealing, 4 certification and filing are hereby waived; and that all 5 objections except as to the form of the question are 6 reserved to the time of trial. 7 8 RICHARD BROWN, JR., called as a witness, being 9 duly sworn, testified as follows: 10 EXAMINATION 11 BY MR. SADLOCK: 12 Q Would you state your full name, sir? 13 A Richard R. Brown, Jr. 14 Q Mr. Brown, before Mr. Carmelite got here, I 15 reviewed with you the general instructions of the 16 deposition. 17 Do you need anything repeated? 18 A No. 19 Q I believe that you indicated that you were going 20 to waive reading and signing, is that correct? 21 A That is correct. 22 Q Okay. What is your current home address? 23 A 305 Debra Road, Mechanicsburg, 17050. 24 Q And how are you currently employed? ?25 A I am store manager at Karns Food, Hampden Center. Page 5 1 the walls, making sure every department does their job 2 and -- 3 Q In the wintertime, specifically back in December 4 of 2003, did you have any responsibility for the exterior 5 of the store in terms of snow removal, ice removal or 6 anything of that nature? 7 A Snow and ice removal is to be done by a company 8 hired by our landlord. There are times before they get 9 around that we do as managers have someone go out and 10 shovel the walk or whatever till the crew gets there. 11 Q Do you recall if there was anything done in that 12 regard in December of 2003? 13 A I could not -- I don't know off the top of my 14 head if there was or was not. 15 Q Would there be any -- some documentation 16 maintained by Karns if something like that is done, do you 17 document so and so -- 18 A No, we do not. 19 Q Before I get any further, did you review any 20 documents before coming into the deposition today? 21 A I looked at an accident report that we had on 22 file so I could familiarize with what was going on. 23 Q Is that a -- what's in the file other than the 24 accident form? 25 A That is it, just -- it's just the accident form, Page 2 -Page 5 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 I RICHARD BROWN, JR. APRIL 24, 2007 Multi-Page TM Page 6 1 that is it. 2 Q Did you review any other documentation? 3 A No, sir. 4 Q I am going to show you what has the Kams logo on 5 the left corner and at the top it's captioned customer 6 accident report dated December 8, 2003. Is this the form 7 that you looked at? 8 A Yes, sir. 9 Q Okay. Did you review that form with anyone, or 10 just on your own? 11 A No, just on my own. 12 Q Okay. Prior to today at any time, did you ever 13 meet with me or speak with me? 14 A No, sir. 15 Q How about Mr. Carmelite, did you meet? 16 A Mr. Carmelite and I met briefly on -- last 17 Friday_ 18 Q Okay. And did that occur at Karns or at his 19 office? 20 A At Karns at my office. 21 Q And what was the substance of that meeting? 22 A Just a general review for me to know what to 23 expect. 24 Q I believe this accident form was signed by -- and 25 1 am looking at the initial D, I can't tell if that is Page 7 1 spelling out a full name or just abbreviations of the last 2 name, Williams? 3 A Yes, that's correct. 4 Q What's the first name of that -- 5 A Debra. 6 Q What was her job title at that time? 7 A She's assistant, a shift manager for me. 8 Q Is she still employed at Kams? 9 A Yes, she is. 10 Q Did you at any time from December 8, 2003 to the 11 present have any conversation with Ms. Williams regarding 12 this accident? 13 A No, sir. 14 Q At the bottom of the form, there is the name of 15 Dan Kuhn, K-u-h-n. It indicates witness. Do you know a 16 Dan Kuhn? 17 A Yes, I do. 18 Q Who is Dan Kuhn? 19 A He is a stock person, stock employee for us. 20 Q Is he still employed by Karns? 21 A Yes, he is. 22 Q At the Hampden Center? 23 A Yes. 24 Q At any time after December 8, 2003, did you have 25 any conversation with Mr. Kuhn about this particular Page 8 1 accident? 2 A Not that I recall at all. 3 Q How about Janice Rullo, at any time, did you 4 speak with her? 5 A No, sir. 6 Q The other day or within the last week, whatever 7 it was, you said that you reviewed this accident report. 8 Was that the first time that you had seen it? 9 A Once I looked at it, no, I remember that when Deb 10 filled it out three, four years ago, it's always put on my 11 desk and I reviewed it and knew what was happening, but 12 once I read it, then I knew I remembered the incident. 13 Q And do you recall, did you do anything that first 14 time that you read the form either in terms of 15 investigation of the accident or contacting any witnesses 16 or anything whatsoever? 17 A Only thing that I did was I know that I 18 questioned Deb to know what -- exactly what happened for 19 her to verbalize to me other than what was on paper. 20 Q Okay. And what did she tell you? 21 A That snow had fell on the customer and had hit 22 her in the arm and hand. 23 Q And do you have an understanding of where the 24 snow fell from? 25 A She said from the roof, so.... Page 9 1 Q Of the Karns? 2 A Yes, sir. 3 Q Is that something that you had ever observed 4 yourself occurring before? 5 A No, sir. 6 Q Had you observed it at any time before? 7 A No, sir. 8 Q Any time since December 8 of 2003? 9 A No, sir. 10 Q Did anyone ever report to you, whether or not you 11 observed it yourself personally? 12 A Other than this accident report, no. 13 Q Regardless of whether or not it resulted in an 14 accident or injury to anyone, had that been something 15 whether it be an employee of Karns or other customer would 16 just come into the store and say, hey, I just want you to 17 know a huge slab of snow or ice just slid off the roof? 18 A No, sir. 19 Q Never had that happen before to your knowledge? 20 A No, sir. 21 Q I will show you just a picture. 22 A Uh-huh. 23 Q Does that show the Karns in the Hampden Center? 24 A Yes. 25 Q In that photograph, does it look as it would have Page 6 - Page 9 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Multi-Page "" RICHARD BROWN, JR. APRii_ ?d '7nn7 Page 10 1 looked back in December of 2003? 2 A Yes. 3 Q And no changes as far as you can tell to the 4 facade or the sloping on the roof and whatnot? 5 A No, no, no. 6 Q At any time, did while -- since you first started 7 at this Karns, did you yourself personally observe any snow 8 or ice that would accumulate on the facade of the Karns 9 store, either the upper portion or the red portion? When I 10 say upper, it looks like a lime, lightish green color or I 1 maybe beige? 12 A Yes, there has -- when it snows, there does -- 13 snow lands on the front of it and the front windows also. 14 Q Do you ever notice again prior to December 8 of 15 2003 whether it be from melting, then refreezing, icicles 16 hanging again in that facility, whether it be in the red 17 portion or as you mentioned windows or that tannish green 18 area? 19 A I never remember seeing icicles, just there would 20 be snow from it snowing on there. 21 Q Can you describe what you observed in terms of 22 snow on there, either in terms of accumulation, size, 23 depth, anything more descriptive? 24 A I would call it a dusting or small accumulation 25 of -- from it blowing onto it. Page 11 1 Q If there was an accumulation, whether it be snow, 2 ice or any type of build up, your understanding as store 3 manager, whose responsibility would it have been to remove 4 that? 5 A The landlord's. 6 Q Again, just so I am clear, the times you said 7 that you have seen snow or ice in there, could that have 8 also included times before December 8 of 2003? 9 A Yes. 10 MR. CARMELITE: Objection to form. But I don't 11 know that he said ice ever, he just said he saw snow. 12 BY MR. SADLOCK: 13 Q Okay. In this particular photograph that I am 14 showing you there is a red car. 15 Is the entrance to Karns in front of that red car 16 underneath? 17 A In front of the car, between the car and the stop 18 sign. 19 Q Right. Thank you. 20 Had -- have you spoken at any time to any 21 witnesses regarding Ms. Rullo's accident? 22 A No. 23 Q Do you know who was responsible for snow and ice 24 removal back in December of 2003? 25 A I do not know. Page 12 1 Q Did you personally have to any time make any 2 phone calls regarding any snow or ice removal in the time 3 period of say November of 2003 through December of 2003? 4 A No. 5 Q Had you at any time again prior to December 8 of 6 2003, seen anyone removing snow or ice from that front 7 facade of the Karns store? 8 A No. 9 Q You mentioned Deb Williams. Is she still 10 employed at that Karns? 1 1 A Yes, that is correct. 12 Q Do you know does she work a standard shift or 13 regular shift I should say? 14 A Her shift is just like mine, it's either -- her 15 shifts are either eight to four or two to eleven. 16 Q How about Mr. Kuhn, does he work full time for 17 Karns? 18 A Yes, he does. 19 Q And at this particular time, do you know what 20 shift he works, or does that vary? 21 A At this particular time he works 9:30 in the 22 evening till eight in the morning. 23 MR. SADLOCK: Thank you, sir. I have no further 24 questions. 25 MR. CARMELITE: I have no questions, you are free Page 13 1 to go. 2 THE WITNESS: Thank you. 3 (Whereupon, the deposition was concluded at 4 9:44 a.m.) 5 6 7 8 9 10 Ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 10 -Page 13 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 RICHARD BROWN, JR. Multi-Page'-' APRIL 24, 2007 Page 14 1 COUNTY OF DAUPHIN 2 : SS 3 COMMONWEALTH OF PENNSYLVANIA : 4 I, Maria N. O'Donnell, a Notary Public, authorized to 5 administer oaths within and for the Commonwealth of 6 Pennsylvania, do hereby certify that the foregoing is the 7 testimony of RICHARD BROWN, JR. 8 I further certify that before the taking of said 9 deposition, the witness was duty sworn; that the questions 10 and answers were taken down stenographically by the said 11 Reporter-Notary Public, and afterwards reduced to 12 typewriting under the direction of the said Reporter. 13 I further certify the said deposition was taken at 14 the time and place specified in the caption sheet hereof. 15 I further certify that I am not a relative or 16 employee or attorney or counsel to any of the parties, or a 17 relative or employee of such attorney or counsel, or 18 financially interested directly or indirectly in this 19 action. 20 I further certify the said deposition constitutes 21 a true record of the testimony given by the said witness. 22 IN WITNESS WHEREOF, I have hereunto set my hand 23 this 24TH day of APRIL, 2007. 24 Maria N. O' Donnell, RPR 25 Notary Public Page 14 - Page 14 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 `• `?? Z, jF JANICE RULLO AND WAYNE RULLO, SR., HER HUSBAND, PLAINTIFFS V IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-343 PDEN CENTER, INC., DEFENDANT JURY TRIAL DEMANDED DEPOSITION OF: MELISSA MCNAUGHTON TAKEN BY: PLAINTIFFS BEFORE: MARIA N. O'DONNELL, RPR NOTARY PUBLIC DATE: APRIL 24, 2007, 9:52 A.M. PLACE: ANGINO & ROVNER, PC 4503 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA APPEARANCES: ANGINO & RONVER, PC BY: RICHARD A. SADLOCK, ESQUIRE FOR - PLAINTIFFS MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: DONALD L. CARMELITE, ESQUIRE FOR - DEFENDANT WFA 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 9 Fax 717.540.0221 • Lancaster 717.393.5101 Multi-Page T"' MELISSA MCHAUGHTON APRIT ?A 7IIA7 1 WITNESSES 2 NAME EXAMINATION 3 MELISSA MCNAUGHTON 4 BY: MR. SADDOCK 3 5 BY: MR. CARMELITE 10 6 7 EXHIBITS 8 DEPOSITION EXHIBIT NO. PRODUCED AND MARKED 9 1. DOCUMENT 10 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Pege 2 Page 3 1 STIPULATION 2 It is hereby stipulated by and between counsel 3 for the respective parties that reading, signing, sealing, 4 certification and filing are hereby waived; and that all 5 objections except as to the form of the question are 6 reserved to the time of trial. 7 8 MELISSA MCNAUGHTON, called as a witness, being 9 duly sworn, testified as follows: 10 EXAMINATION 1 l BY MR. SADLOCK: 12 Q Would you state your full name, please? 13 A Melissa Ann McNaughton. 14 Q Your current home address? 15 A 8521 Middle Ridge Road, Newport, PA, 17074. 16 Q Are you currently employed? 17 A Yes. 18 Q How so? 19 A I guess the best description would be office 20 manager. 21 Q All right. 22 A I do everything. 23 Q And for -- is that for a business? 24 A For McNaughton Services. 25 Q Are you the owner of that business? Page 4 1 A My husband and 1. 2 Q What's your husband's name? 3 A Chad McNaughton. 4 Q How long have you and your husband had that 5 business? 6 A He had it before we got married. We have been 7 married about eight and a half years. 1 think he has had 8 it I think fourteen years. 9 Q And I understand that business has some 10 relationship with Lavipour and Associates with regard to 11 the Hampden Center, is that correct? 12 A Yes. 13 Q How long has McNaughton had a business 14 relationship with that particular mall shopping facility? 15 A I want to say six years. 16 Q So in approximately 2001? 17 A Maybe 2000. 18 Q I would be correct that you yourself were not 19 involved with any plowing or snow removal? 20 A Oh definitely, definitely not. 21 Q In terms of your understanding of the 22 relationship with the Hampden Center, what is encompassed 23 with the McNaughton's contract with Hampden Center? 24 A The scope of work? 25 Q Right. Page 5 1 1 A Just when it starts to snow, we're just 2 contracted to go in and take care of it however we see fit; 3 if it's just a little bit, put salt down, and as it 4 accumulates, we plow it, remove it from the area. 5 Q Does that include sidewalks or just the parking 6 lot? 7 A That location, I believe we do the sidewalks. 8 Q Have you ever been to that location, not to plow 9 but just shopping? 10 A Oh, yes. 11 Q Was McNaughton Services in any way responsible 12 for snow removal from the roof top of the shopping center 13 or the building structures? 14 A No. 15 Q At anytime? 16 A Never. 17 Q Had -- whether it was part of the contract or 18 not, had that ever been asked of McNaughton Services? 19 A Not to my knowledge. 20 Q Would that be something -- if it were something 21 that was asked of McNaughton Services, would that require 22 of either approval of you or your husband if there was some 23 other crew on site, for example? 24 A Yes, yes, because we have done it for so many 25 years, you know, our guys know that we do sidewalks and the Page 2 -Page 5 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 MELISSA MCHAUGHTON Multi-Page` APRIL 24, 2007 Page 6 Page 8 1 parking lot. i headquarters, but again, I don't ever remember hearing 2 Q Was there a particular crew that generally went 2 anything about it. 3 to the Hampden Center? 3 Q Custom Maintenance, is that the name of the 4 A Each winter it's usually the same group of guys. 4 company? 5 Now that changes year to year, as you know, as employees 5 A Yes. 6 come and go. 6 Q Do you know who is in charge of that company or 7 Q Do you know who the crew was in December of 2003? 7 who your contact person was at Custom Maintenance? 8 A No, I would have to check. I would have to check 8 A Mike Nawa, N-a-w-a. 9 records, and I -- that long ago, I may not -- I could 9 Q N-a-w-a? 10 probably say these were our employees at the time, this is 10 A Yes. 11 probably who was there, but I probably couldn't say for l 1 Q And again, what was the relationship between your 12 sure. 12 company and -- 13 Q Does McNaughton Services supply the equipment for 13 A He does like the parking lot maintenance for 14 use at Hampden Center? 14 Hampden Center, like takes care of, you know, whatever they 15 A Yes. 15 need done there. 16 Q For example, whether it was a one man crew at 16 So he just, you know, didn't do snow removal at 17 work at the Hampden Center or two man crew, whatever, they 17 the time; it needed to be done, we did it, so he contracted 18 wouldn't have the plowing truck at their home, would they, 18 us to do it. Not contracted, put us in touch with them I 19 they would get it from McNaughton's place of business? 19 should say. . 20 A Generally I believe we keep most of the equipment 20 Q Okay. Are you saying then the at Custom 21 on site. 21 Maintenance would be in charge of fixing potholes or -- 22 We bring it in late fall, early winter and it 22 A Yes, I believe that's what they do. 23 sits there all winter. The only thing that May come in is 23 Q Do you know whether or not Custom Maintenance had 24 just like a pick-up truck with a plow which they would use 24 any responsibility for building upkeep or building repair? 25 to get back and forth to the job. 25 A I could not tell you that. Page 7 Page 9 1 Q At any time -- specifically in December of 2003 1 Q Okay. 2 or winter of 2003, did any of your crew ever report to you 2 A I don't know what their scope of work is to the 3 that they observed snow or ice accumulating on the facade 3 property. 4 of the Karns store? 4 Q But in any event, you do not have any 5 A I would not have knowledge of that, and they 5 recollection of any of your employees reporting observing 6 probably wouldn't anyhow. They -- I mean when it is 6 snow or ice either accumulating on the facade? 7 snowing, it's not a fun job. 7 I will show you photographs so you know what I am 8 They are, you know, it's coming down, they have 8 talking about. I am talking about the red area or the 9 to get it out of there, so they will -- really don't pay 9 light beige-ish kind of area outside of Karns accumulating 10 attention to what is not in our scope of work. 10 there or falling from that area while they were plowing? 11 I mean I am sure if they saw a hazard, yes, they 11 A No, no. Especially not clear back to 2003, and I 12 would probably report it, but I don't ever recall hearing 12 don't ever remembering anything from the employees, you 13 anything about that. 13 know, saying, you know, like, hey, there is a problem 14 Q Would that have been something that you would 14 there, I just -- I just don't know of it. 15 have documented if it had been reported? 15 Q You don't have any knowledge, or do you have any 16 A We probably -- if they had seen it and told us 16 knowledge of your employees ever removing or knocking down 17 about it, they probably would have called Custom 17 snow from either part of that facade? 18 Maintenance who we technically -- we don't sub the contract 18 A No, because we don't have our -- that's not our 19 from them, the contract is directly with Lavipour, but 19 job, first of all, we're on the ground, that's it. We 20 Custom Maintenance is kind of like our go between. 20 don't have -- we just don't have the ability to even do 21 Q Is that a local company, Custom Maintenance? 21 that. 22 A They are -- I think they are now based in 22 Q Okay. 23 Carlisle. 23 A So -- 24 Q Is that the name of the company? 24 MR. SADLOCK: Thank you, ma'am. I have no other 25 A Or we could have called New York to the 25 questions. Page 6 - Page 9 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Multi-Page M MELISSA MCHAUGHTON APRIL 24, 2007 Page 10 Page 12 1 MR. CARMELITE: Ma'am, my name is Don Carmelite. 1 10:05 a.m.) 2 I represent Lavipour and Associates in a suit filed against 2 3 them by Mr, and Mrs. Rullo. 3 4 Let's mark this I guess McNaughton 1. 4 5 (Document produced and marked McNaughton Exhibit 5 6 Number 1.) 6 7 BY MR. CARMELITE: 7 8 Q I will give to you what I will represent to you 8 9 this is a copy of a snow removal contract for the year 9 10 2003, 2004 between McNaughton Services, Inc. and Lavipour 10 1 1 and Associates, which I think that you provided to 11 12 Mr. Sadlock. 12 13 A Uh-huh. 13 14 Q Just take a moment and review it and see if you 14 15 can identify it as such? 15 16 A Yes, this is it. 16 17 Q Okay. Flip to the last page. Is that your 17 18 signature? 18 19 A Yes. 19 20 Q Okay. With regard to this Mechanic Service, 20 21 Maintenance Service -- 21 22 A Custom Maintenance. 22 23 Q Custom Maintenance, sorry, Custom Maintenance, if 23 24 you have any problems executing your contract with Lavipour 24 25 such as the one in 2003, 2004, do you communicate with 25 Page I I Page 13 1 Custom Maintenance or do you communicate with the folks at 1 COUNTY OF DAUPHIN 2 Lavipour? 2 : SS 3 A We would probably call Lavipour. 3 COMMONWEALTH OF PENNSYLVANIA : 4 Q Okay. Do you know if you at any time have called 4 I, Maria N. O'Donnell, a Notary Public, authorized to 5 Lavipour to report any problems associated with snow or ice 5 administer oaths within and for the Commonwealth of 6 falling from the roof or facade of any of the structures at 6 Pennsylvania, do hereby certify that the foregoing is the 7 the Hampden Center? 7 testimony of MELISSA MCNAUGHTON. 8 A Not to my knowledge. 8 I further certify that before the taking of said 9 Q Okay. Who is the primary contact person between 9 deposition, the witness was duly sworn; that the questions 10 McNaughton Services and Lavipour? 10 and answers were taken down stenographically by the said 11 A My husband Chad would call Andrea Brigante. 11 Reporter-Notary Public, and afterwards reduced to 12 Q Do you have any -- have you ever had any direct 12 typewriting under the direction of the said Reporter. 13 contact with Andrea or -- 13 I further certify the said deposition was taken at 14 A Yes, I have spoken to her. 14 the time and place specified in the caption sheet hereof. 15 Q But your husband primarily deals with her 15 I further certify that I am not a relative or 16 directly? 16 employee or attorney or counsel to any of the parties, or a 17 A Yes, I only deal with her for the contract 17 relative or employee of such attorney or counsel, or 18 itself. He deals with her with the work, scope of work. 18 financially interested directly or indirectly in this 19 Q Okay. If your husband had contacted Andrea at 19 action. 20 Lavipour about a particular concern, would you generally 20 I further certify the said deposition constitutes 21 know about that? 21 a true record of the testimony given by the said witness. 22 A Most likely he would talk to me about it. 22 IN WITNESS WHEREOF, I have hereunto set my hand 23 MR. CARMELITE: Okay. I have no other questions. 23 this 24TH day of APRIL, 2007. 24 MR. SADLOCK: Nothing further. 24 aria , RPR 25 (Whereupon, the deposition was concluded at 25 Notary Public Page 10 - Page 13 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 V7/.4+/LUVJ ll.'Do 1"Lz JVJI DID V SNOW REMOVAL CO."TTLACT CONTRACTOR McNaughten Services, loc. 8521 Middle Ridge Road Newport, PA 17074 Phone 717-582-8823 FAX 717-582-8290 L.-?v irLJtJn. a •?v!•.r .-1?ti ? YEAR. 2003-2004 OWNER Lavipour and Associates 444 Park Avenue South (Suttt302) New York, NY 10016 1-800-404-5452 212-545-1934 Contractor hereby agrees bt furnish and emplay all labor, equipment and tools necessary to do all snow plowing and saltin; at: H mpden Center (Camp Hill), herein referred to as "Property", in order to at all times maintain a safe, clean and accessible shopping center :far a term wkicli shall commence October 1, 2003 and shall contione in full force and effect for a.IwAod of 1 year and Owner agrees to pay Contractor in accordance with the Paymeat and Equipment Rider attached hereto and made a part hereof, for such sen ices under the following terms and conditions: 1. Snow plowing sitall take place immediately when the snow accumulation reaches IA". Whenever there b a snow accumulation of IY? or more, prior to 6:00 A.M., then snow stall be plowed from the enttranees/eAts, all cruising lanes, and at least two thirds of the parking areas nearest to the store buildings before 9:00 A.M •, and the balance of the property shall be cleared before moon. 2. When necessary, salt or other similar and acceptable anti-skid material (cinders and like materials are not aocept tble), shall be. applied regardless of snow accumulation to prevent lcy conditions at all entrancetexits and cruising lan(s- 3. Salt or other shoUar and accept able. anti-skid maternal shall be supplied and applied an lot by Contractor. byila/1HV_a 11:?H 1"L117471y?t7 LAVIM. m. c, t,Utvj-c;rvr rNtr c.D 'r 4. in the event of sn+nv, which is piled upon any portion of the shopping Muter parking lo,t subsequently r kits and theca. freezes, Contractor shall apply the necessary salt or otter , vAsr and acceptable anti.-skid otaterial, as necessary, to prevent spay ley condition on said parking lot surface. Contractor shall mule a goo&faith effort to avoid pUing snow on paved portions of the preperr;. 3. All work sball be: done in a good and workman-like manner. 6. if the accumut;&Con of snow on toe Property becomes Such as to require that snow be hauled away from the Property, the hauling away of such snow shall be ne;atiated under t separate agreement. 9. Contractor shall repair any curb damaged by plows. U,:1/14/LbC'? il: j? 1L1[J4 X1730 ".,? 4 .?« SNOW REMOVAL CONTRACT YEAR 2003.2004 Hampden Center-----Camp HID PA",J ENT AND EQU PMENi' RIDER FLAT YIEE The Contractor shag perform its duties iv accordance with the terms and conditions of the Contract of which this hider formic a part, for the terra of this Agreement for a total FLAT FEE COMPENSATION of U5,000.00, which shall be paid to it by OWNER In five (5) egwd, successive, monody payments of $7,000.00 each, beginning November, 1 2003. This contract may be cancelled within 30 days written notice. The following equipment wig be available sit all times for snow plowing: JCB S16 backhoe with 12' boa plow Volvo L120 wheel loader with 16th. box plow Single-Axle dump truck witt lOfi, snow pluew and gait spreader Should any outside equipment be needed, size Contractor shall be advised of such need and Contractor will be liablc for any charges n wde therefore. lrT CTOR OWNS NAME NAME U.P TITLE DATE TITLE J DATE 10 :BOO per' JANICE RULLO AND WAYNE IN THE COURT OF COMMON PLEAS RULLO, SR., HER HUSBAND,: CUMBERLAND COUNTY, PLAINTIFFS PENNSYLVANIA V CIVIL ACTION - LAW NO. 05-343 CIVIL HAMPDEN CENTER, INC., DEFENDANT JURY TRIAL DEMANDED DEPOSITION OF: DAN KUHN TAKEN BY: PLAINTIFFS BEFORE: BOBBI JO HAHN, RPR NOTARY PUBLIC DATE: NOVEMBER 15, 2007 10:08 A.M. PLACE: MARSHALL, DENNEHEY 4200 CRUMS MILL ROAD HARRISBURG, PENNSYLVANIA (APPEARANCES: ANGINO & ROVNER, P.C. BY: RICHARD A. SADLOCK, ESQUIRE FOR - PLAINTIFFS MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: DONALD L. CARMELITE, ESQUIRE FOR - DEFENDANT - mm, 41ml 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 0 Fax 717.540.0221 • Lancaster 717.393.5101 WITNESSES NAME DIRECT CROSS REDIRECT RECROSS DAN KUHN BY: MR. SADLOCK 3 -- 21 -- BY: MR. CARMELITE -- 20 -- -- 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are hereby waived; and that all objections except as to the form of the question are reserved until the time of trial. DIRECT EXAMINATION BY MR. SADLOCK: Q Would you tell us your full name, sir? A Dan Kuhn. Q Mr. Kuhn, my name is Rich Sadlock; and I'm a lawyer here in Harrisburg. And I represent Janice and Wayne Rullo in a lawsuit that was brought against the Hampden Center for an accident that involved Miss Rullo a few years ago. And it's my understanding you work for the Karn's Market that's within that; is that !correct? A Yes. Q Okay. So we're going to ask you today some questions. I'm going to ask you some questions, Mr. Carmelite may ask you some questions about your 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 employment there, what, if anything, you may know about the accident and some other circumstances. Hopefully when I ask you my questions they'll be loud enough and clear enough for you to hear them and understand them; but if you have any difficulty whatsoever with my question, please let me know what that is before you try to answer it. Okay? And for example, if you don't hear me, I'll repeat it or if you don't understand it, I'll rephrase it. Okay? A Uh-huh. Q Second instruction would be please allow me to finish asking my question before you try to answer so that way, No. 1, you make sure you hear the whole question and that the court reporter only has to worry about typing one of us speaking at a time. Okay? A Uh-huh. Q And the final instruction I have for you today is when you do give an answer you'll have to give a verbal answer. Now, we're okay right now because I'm just giving you some instructions so it's okay for you to nod your head or say things like uh-huh or hu-huh; but when I ask you a question, if it calls for a yes or no answer, you'll have to say yes or no. Okay? A Yeah. Q Okay. Now, I don't want you guessing at 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anything today. If you honestly do not know an answer, that's fine. Let me know that. If you honestly do not remember something, again, I want that as well; but if you are giving me an estimate or an approximation or if I were to ask you something such as that, that's fine just as long as you let me know you're giving an approximation as well. Okay? A Uh-huh. Q All right. Was I correct when I indicated earlier you work at the Karn's Food Store that's located in the Hampden Center? A Yes. Q And how long have you been employed there? A About 13 years. Q And what do you do at Karn's now? A I'm a stock clerk. Q And how long have you been a stock clerk? A I'd say about five years. Q Okay. And for your entire 13 years with Karn's, have you always worked at the food store at the Hampden Center? A No. Q Okay. How long have you been with them at the Hampden Center location if you recall? A Maybe seven years. 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. For the first two years then that you were there at that Karn's, what was your job? A I was a -- Q Excuse me? A I was doing the porch and stuff. Q The porch? A Yeah. Q And what does that mean to be the porch guy? A Like pushing carts and stuff like that. Q You would go out to the parking lot and round them up? A Uh-huh. Q And bring them into the store? A Yes. Q Would you assist customers with the cart out to their car and load their cars for them? A Once in a while, yes. Q Okay. Did you have any responsibility at that time for making sure the porch as you described it is clean or free of garbage or anything like that? A Yes. Q Would that also include, you know, in the fall if any leaves or anything would you sweep it away? A No, not the leaves or anything like that. They had other guys doing that. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q What about in winter if there was any snow or ice or slush that may have been tracked onto the porch area, wou ld you help clean that off? A Yes. Q Okay. Did you do that with - - on a regular basis or justas the need arose? A As -- as it needed. Q Okay. What shift do you work currently at the Karn' s Market? A I work 9:30 to 8:00. Q 9:30 a.m.? A P.m.. Q 9:30 p.m. to 8:00 a.m.? A Yeah. Q Okay. All right. I'm going to ask you a few backgroun d questions first and then -- before I get to specifics then to this -- this case. W hat's your current a ddress? A It's 1380 -- 1380 -- I can't remember it. Q That's okay. Okay. 1308A So uth Market Street in Mechanicsburg? A Yeah, yeah. Q And approximately how long ha ve you lived there? A I think five years. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Do you live at that address with anyone? A Yeah, my girlfriend. Q Okay. And it indicates your date of birth is July 22nd, 1968? A Yes. Q And you -- obviously you just showed me a copy of your driver's license; is that correct? i A Mine. Picture ID, yeah. i Q And that's your current driver's license? A I don't drive. That's -- Q It's a photo identification card? A Yeah. Q Issued by the Commonwealth? A Yeah. Q So you don't have a driver's license? A I never had a driver's license. Q Okay. How far did you go in school? A To 12th. Q Twelfth grade? A Yeah. Q You did not graduate? A Yes, I did. Q Okay, high school graduate. What high school? A Addison, New York. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Addison? A Yeah, Addison, New York. Q And have you had any further education after you graduated high school, any -- A No. Q Okay. Now, this accident involving Miss Rullo occurred on December 8, 2003; and the accident report completed by Karn's includes your name on the bottom as being a witness to the accident. Do you remember Miss Rullo's accident? A Not -- not really. Q Okay. If I -- if I -- I'm going to give you some of the facts. I don't think they're in dispute. But Miss Rullo had indicated that she was walking on the sidewalk approaching the Karn's to enter Karn's when a piece of ice slid off the roof and struck her on her hand. Do you remember that now? A No, I don't. Q Okay. Do you remember that ever occurring while you worked at Karn's? A No. Q Okay. Did you at any -- in December of 2003, would that have been during the time period where you were working on the porch? A I think so, yes. 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q I'm going to show you a couple of pictures that obviously are taken in the springtime that show the entrance to the Karn's store or the layout in the Hampden Center. A Uh-huh. Q Now, did you have a chance to look at those two pictures? A There's one, yeah. Q Okay. Well, I'm not asking you specifically where the actual door or entry door is. But does that generally show the front of the Karn's store in the Hampden Center? A Yes. Q Okay. And I think in the one picture that -- that has a clear shot of the front of it it does show that there's the word enter painted on that red bright front part where Karn's is; is that correct? A Yes. Q Is that the only entrance to that Karn's store or is there one on each end? A No, there's one on each end. Q And when you said you worked the porch area, would that include both entrances to the Karn's? A Yes. Q Okay. Okay. So would you generally move 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 from one to the other and back and forth? A Yes. Q And in the store as needed? A Yes. Q Now, the other photograph that has a clear shot of the mailbox and a red car does show that there is some -- the roof line of that complex including the Karn's does slant, would that be a fair statement? A Yes. Q Do you see what I'm talking about, they angle down toward the sidewalk? A Yes. Q While you were working in Karn's back in 2003 or at any time earlier, did you ever see or recall seeing snow or ice or anything like that in winter accumulate on that slanted portion of the roof line? A Once. Q Okay. A Once. Q Do you remember when that may have been? A No. Q Did you ever see snow or ice or anything like that slide off of that onto the sidewalk while you were working the porch? A Not too often. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q But you did see that happen? A Once -- once in a while, yes. Q And after it happened -- did that occur first of all let me ask while you were working the porch A No, when I was pushing carts down. Q Okay. And after you pushed the carts back to the store, would you then have to grab a shovel and clean it off? A I'd clean it off, yes. Q And at any time, do you recall before snow or ice may have slid off the roof and onto the sidewalk did you ever do anything like take a shovel or a broom and clean it off yourself? A Yes. Q Before December of 2003? A Oh, yeah. Q Okay. And how would you do that when you did that? A Just go in and get a broom or a shovel. Q Do you recall how many times you may have that before December of 2003 with Miss Rullo's accident? A I couldn't really tell you. You know, I'm always -- you know, when I was out there, I was always 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pushing, you know, cleaning the porch off. Q Okay. And when you talk about the porch, does that also include that slanted portion of the roof and whatnot? A Yes. Q Now, do you remember who your supervisor was in 2003? A Mr. Brown. Q Mr. Brown? A Mr. Brown and -- Q All right. Richard Brown? A Yes. Q Okay. And do you remember any other -- for example, on this accident report for Miss Rullo's accident, it's signed by I think it's a Deborah Williams -- A Yes. Q -- who was an assistant store manager at that It ime. A Yes. Q Okay. Did you -- on these occasions in which ou may have knocked snow off the front portion of the arn's store, did you let your supervisors know that hose were things you did regularly? A Once in a while, yes. 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. Would you ask them ahead of time if you should do that or would you tell them afterwards, hey, there was some snow up on the slant and I knocked it off before it could fall? A I'd tell them, yeah. I would just do it, you know. You know, I just -- it's just a habit. You know, I -- I do it at my own house. You know, it's -- Q Okay. But to your understanding, did they know that you were -- that's something you did? A Probably not. Q At any time, do you know if they saw you ing that? A I don' t know. Q At any time, do you know whether or not if they saw the ice or snow fall off? A I don' t think so; but I -- you know -- Q Sure. Now, was this som ething that occurred at both entrances to the store? A Yeah, yeah, when we got a lot of snow, yes. Q Okay. Did it happen in -- in between as 11? A You mean not out by the windows and stuff? Q Right. A Yes. Q So the whole length of the Karn's store? 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q And when you say you would knock snow or ice or whatever off, can you tell me using the photograph -- there's -- there's different colors on this. A Uh-huh. Q So we'll -- there's some dark -- darkish green. There's some tan. There's some red. Where would that -- that snow or ice generally be that you would knock off? A Well, there's like little like grates on the (bottom of it here; and I just take a broom and just push. Q When you say grates on the bottom, you mean underneath the red portion of that that we're talking about? A Yeah, there's like awnings like -- (Discussion held off the record.) BY MR. SADLOCK: Q All right. Back on. Mr. Kuhn, as I understand, there's some type of gutter or -- or -- that would collect and that's where you would knock it off? A Yes. Q And when you talk about ice -- first of all, ice, are you talking about like icicles that would drip 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q Okay. And then after you would break it off and knock it to the ground and clean it into the parking lot? A Yes. Q And on an average if you can estimate average winter back in 2003 or just before that, how many times a winter would this be something that you would do? A When we really had bad snow. You know, it's -- you know, I really couldn't, you know, really tell you, you know, how many bad snowstorms we had. Q The equipment that you would use to -- to knock either the snow or ice down, was that something kept inside the store or on the porch? A I -- I'd bring them out every time I'd come -- come to work. Q So when you would start a shift if you had the morning shift, when you get there, do you have to hunch in? A Yes. Q All right. And after you punch in, you would get the shovel or broom or whatever and bring it out onto the porch with you? A Uh-huh. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Is that a yes? A Yes. Q Okay. And at the end of your shift, would u bring it back into the store? A Yes. O Where inside the store were -- was this stuff t? A I kept it in the back room. Q Is that all the way inside the store? A Yes. Q Okay. So you'd have to walk from the back of the store all the way through the store to come back out again with it? A Yes. Q Did either Mr. Brown or -- or Ms. Williams ever stop you and say, hey, where are you going with that stuff? A No. Q Did they ever ask you to explain what you needed it for, what you were doing with it? A Mostly I just done my work. That's -- Q Okay. Okay. And again, just do you remember seeing this -- this accident with Miss Rullo or seeing her hand afterwards where she got hit with the ice and having it being swollen and bruised? 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I don't remember. I really don't. Q And again, just so I'm clear, when you -- the times where you had to knock snow or ice would have been on the -- on the underside of the part that shows where the red and where the Karn's Food is on the awning? A It would be right about here. Q Okay. A Right where the walkway is. Q Uh-huh. A You know, they have like a little gray awning on -- underneath the red part. Well, it's on the outside of the red part; but I mean -- Q Okay. Okay. I'll show you one more picture. Again, it shows the mailbox and that red car, that same red car that's in the other picture. Here's a bicycle there. Is that your bike? A No. Q Okay. Is that how you get to work, by bike? A Yeah, I ride a bike, yeah. Q Okay. Now, from the side angle in this picture, it looks like there's -- if you look just past the green is where you see the angle where that red part starts. A Uh-huh. 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And you can see it looks like some type of ting. I'm pointing to it with my pen. Is that what 're talking about? A Yes, it -- there would be like a little orate. Q And that's where snow or ice would accumulate? A Yes. Q And you would knock it down periodically in the wintertime? A Yeah, yeah. Q And did you consider that one of your job duties and responsibilities? A I just took it on, you know, when I was out there. I'd clean it off, you know. Q When you first started doing the job as the porch person, did someone show you to do that or train you and explain that's something you would have to do? A No, I just done it on my own. Q And again, do you know whether or not Mr. Brown or Ms. Williams knew that you did that on your A No. Q You don't know if they did or not? A No. 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SADLOCK: All right. Mr. Kuhn, if you would, on the back of the one photograph that we used when you were explaining the grate, if you would just write your name on the back of that. I'm not going to attach it to the deposition; but then we'll know that's the one we were referring to. Okay. Very good. I'll put today's date, and I have no more questions. CROSS EXAMINATION BY MR. CARMELITE: Q I have a couple questions for you, Dan. Mr. i Sadlock asked you about bringing a broom and a shovel I from the back room to the front of the store. Is that something you did every day? A Yeah. Q Okay. Regardless of whether it was snowing outside or not, you always brought a broom and a shovel to the front? A Yes. Q This is a photograph that was produced in discovery by Mr. Sadlock, and it has some drawings on it by Mr. Rullo. Do you see this X and it's a blue X and there's some arrows and like a little stick person there? This first X up at the top in the -- in the tan part of the roof or the side there, have you ever knocked snow or ice down from that area? 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. Q Okay. Have you ever seen anybody associated with Karn's knock snow or ice from the top there? A No. Q Have you ever seen anybody knock snow or ice from the top? A No. MR. CARMELITE: I have no further questions. REDIRECT EXAMINATION BY MR. SADLOCK: Q Have you ever seen snow or ice accumulate in that top area where that X is? A No. Q Or fall from that area? A No, I seen it on the red part once in a while slide off; but never on the gray stuff. Q Okay. So you have seen snow or ice accumulate on the red part? A Yes. Q And then slide off from the red part? Not just underneath on that grating you were talking about but actually on the red part? A Yes. Q And slide and fall off? A Yes. 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SADLOCK: Okay. Thank you. MR. CARMELITE: This deposition is concluded, and he's free to go. (Whereupon, the deposition concluded at 10:32 a.m..) 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 OF JUNIATA SS EALTH OF PENNSYLVANIA I, Bobbi Hahn, a Notary Public, authorized to administer oaths within and for the Commonwealth of Pennsylvania, do hereby certify that the foregoing is the testimony of DAN KUHN. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said Reporter-Notary Public, and afterwards seduced to typewriting under the direction of the said Reporter. I further certify that the said deposition as taken at the time and place specified in the aption sheet hereof. I further certify that I am not a relative or mployee or attorney or counsel to any of the parties, r a relative or employee of such attorney or counsel, r financially interested directly or indirectly in his action. I further certify that the said deposition constitutes a true record of the testimony given by the said witness. IN WITNESS WHEREOF, I have hereunto set my hand this 28th day of November, 2007. NOM AM SEAL NONE JO K" Nakxy FUM 6MON9M 1WP ANOTA COtm MV CC MMW*m EXPk" MM 10. 2009 ?-&u ('? 0 a- - Bobbi Jo Hahn, RPR Notary Public Multi-Page"` & - full DAN HUHN & [21 1:18 1:20 -0- 05-343 pl 1:3 -1- I pl 4:13 10:08 [t1 1:12 10:32111 22:4 12tht11 8:18 13 [21 5:14 5:19 1308A m 7:20 1380 [217:19 7:19 15 [11 1:11 1968 Ell 8:4 -2- 20111 2:5 2003 [719:7 9:22 11:13 12:16 12:22 13:7 16:8 2007 [211:11 23:19 21 [11 2:4 22nd [tl 8:4 28th [1l 23:19 -3- 3 [1l 2:4 -4- 4200 p1 1:13 8111 9:7 8:00 (21 7:10 7:13 -9- 9:30 (31 7:10 7:11 7:13 -A- afterwards [31 14:2 17:24 23:10 again [6] 5:3 17:13 17:22 18:2 18:15 19:20 against [t1 3:17 ago Ell 3:19 ahead p1 14:1 allow [11 4:11 always [41 5:20 12:25 12:25 20:16 ANGINO Ili 1:18 angle [31 11:10 18:21 18:23 answer [61 4:7 4:12 4:18 4:19 4:23 5:1 answers [11 23:9 APPEARANC ES p1 1:17 approaching [1l 9:15 approximation [21 5:4 5:7 area 161 7:3 10:22 12:5 20:25 21:12 21:14 arose [117:6 arrows [11 20:22 assist [11 6:15 assistant p1 13:18 associated (11 21:2 attach [11 20:5 attorney [21 23:14 23:15 authorized pl 23:6 average [21 16:7 16:7 away p16:23 awning [21 18:6 18:11 awnings p1 15:16 -B- background p1 7:16 bad [21 16:10 16:12 basis p17:6 between [21 3:2 14:20 bicycle p1 18:17 bike [31 18:17 18:19 18:20 birth p1 8:3 blue ttl 20:21 Bobbi [31 1:10 23:6 23:21 bottom [31 9:9 15:11 15:13 break[2] 16:1 16:3 bright p1 10:16 bring [41 6:13 16:16 16:23 17:4 bringing p1 20:11 broom [61 12:13 12:20 15:11 16:23 20:11 20:16 brought (21 3:17 20:16 Brown [61 13:8 13:9 13:10 13:11 17:15 19:21 bruised [t1 17:25 _C_ calls [1] 4:22 caption [11 23:13 car [41 6:16 11:6 18:15 18:16 card [1l 8:11 Carmelite [61 1:21 2:5 3:25 20:9 21:8 22:2 cars Ell 6:16 cart [11 6:15 carts [3] 6:9 12:6 12:7 case [l] 7:17 Center [71 1:4 3:18 5:11 5:21 5:24 10:4 10:12 certification PI 3:4 certify [51 23:7 23:8 23:12 23:14 23:17 chance tt1 10:6 circumstances Ili 4:2 CIVIL [21 1:3 1:3 clean [71 6:20 7:3 12:9 12:10 12:14 16:4 19:15 cleaning p1 13:1 clear [414:4 10:15 11:5 18:2 clerk (215:16 5:17 COLEMAN [11 1:20 collect p 1 15:21 colors [l1 15:4 COMMON t11 1:1 Commonwealth [3] 8:13 23:4 23:6 completed p1 9:8 complex [11 11:7 concluded [21 22:2 22:4 consider [11 19:12 constitutes pl 23:17 copy [t] 8:7 correct [41 3:21 5:9 8:7 10:17 counsel [31 3:3 23:14 23:15 COUNTY [21 1:1 23:3 couple [21 10:1 20:10 Court 1211:1 4:14 CROSS [21 2:2 20:8 CRUMS pl 1:13 CUMBERLA ND Ell 1:1 current [21 7:18 8:9 customers Ell 6:15 -D- Dan [61 1:8 2:3 3:8 3:14 20:10 23:7 dark [1] 15:6 darkish m 1 15:6 date [31 1:11 8:3 20:7 Deborah p 1 13:15 December 141 9:7 9:22 12:16 12:22 DEFENDANT [21 1:4 1:22 DEMANDED 1:4 DENNEHEY [21 1:13 1:20 deposition [71 1:8 20:5 22:2 22:4 23:9 23:12 23:17 described [11 6:19 different p1 15:4 difficulty (11 4:5 DIRECT [21 2:2 3:11 direction p1 23:10 directly p1 23:15 discovery (11 20:20 Discussion 111 15:17 dispute 11l 9:13 DONALD [11 1:21 done [31 12:22 17:21 19:19 door 121 10:10 10:10 down t61 11:11 12:6 16:14 19:9 20:25 23:9 drawings [11 20:20 drip t11 15:25 drive t1l 8:10 driver's [41 8:7 8:9 8:15 8:16 duly [21 3:8 23:9 during p1 9:23 duties [11 19:13 education pl 9:3 either 121 16:14 17:15 employed [11 5:13 employee [21 23:14 23:15 emp loyment p 1 4:1 end [31 10:20 10:21 17:3 enter [219:15 10:16 entire [t1 5:19 entrance [21 10:3 10:19 entrances [21 10:23 14:18 entry [1110:10 equipment p1 16:13 ESQUIRE [21 1:18 1:21 estimate [21 5:4 16:7 EXAMINATION [31 3:11 20:8 21:9 example [2] 4:7 13:14 except t1l 3:5 Excuse p1 6:4 explain [2] 17:19 19:18 explaining [1] 20:3 a.m (21 1:12 22:5 a.m. [21 7:11 7:13 accident pol 3:18 4:2 9:6 9:7 9:9 9:10 12:23 13:14 13:15 17:23 accumulate [41 11:16 19:7 21:11 21:18 action [21 1:3 23:16 actual p 1 10:10 Addison [31 8:25 9:1 9:2 address [21 7:18 8:1 administer [1l 23:6 -E- -F- facts p1 9:13 fair [t1 11:8 fall (s] 6:23 14:4 14:15 21:14 21:24 far(11 8:17 few t21 3:19 7:15 filing p1 3:4 final (11 4:17 financially [11 23:15 fine [21 5:2 5:5 finish [11 4:12 first [61 6:1 7:16 12:3 15:24 19:16 20:23 five [21 5:18 7:25 follows [11 3:9 food [3] 5:10 5:20 18:5 foregoing [11 23:7 form p 1 3:5 forth Ell 11:1 free (21 6:20 22:3 freeze [11 16:1 front [6] 10:11 10:15 10:17 13:22 20:12 20:17 full p1 3:13 Index Page 1 HUGHES ALBRIGHT FOLTZ NATALE 717-540-02201717-393-5101 garbage - remember DAN HUHN -G- garbage 111 6:20 generally [31 10:11 10:25 15:8 girlfriend pi 8:2 given f1 23:17 giving [31 4:20 5:4 5:6 GOGGIN p l 1:20 good [> 1 20:6 grab [i1 12:8 grade 11 8:19 graduate [21 8:21 8:23 graduated pl 9:4 grate [21 19:5 20:3 grates [21 15:10 15:13 grating 121 19:2 21:21 gray [21 18:11 21:16 green [21 15:7 18:23 ground pi 16:4 guessing pl 4:25 gutter p l 15:20 guy 11 6:8 guys t1l 6:25 -H- habit p1 14:6 Hahn [31 1:10 23:6 23:21 Hampden [71 1:4 3:18 5:11 5:21 5:24 10:4 10:12 hand [31 9:17 17:24 23:19 Harrisburg 121 1:14 3:16 headpl 4:21 hear [31 4:4 4:8 4:13 heldpl 15:17 help l1l 7:3 hereby [31 3:2 3:4 23:7 hereof [11 23:13 hereunto [11 23:19 hey [21 14:3 17:16 high [31 8:23 8:23 9:4 hittll 17:24 honestly [21 5:1 5:2 Hopefully p 1 4:2 house p 1 14:7 hu-huh 1] 4:21 HUSBAND [11 1:1 -I- ice 1191 7:2 9:16 11:15 11:22 12:12 14:15 15:2 15:8 15:24 15:25 16:14 17:24 18:3 19:6 20:25 21:3 21:5 21:11 21:17 icicles p1 15:25 ID pl 8:8 identification PI 8:11 INC 111 1:4 include [31 6:22 10:23 13:3 includes pi 9:8 including pl 11:7 indicated [21 5:9 9:14 indicates p 1 8:3 indirectly p1 23:15 inside [31 16:15 17:6 17:9 instruction [21 4:11 4:17 instructions t 114:20 interested p1 23:15 involved [11 3:18 involving [11 9:6 Issued p 1 8:13 -J- Janice 12l 1:1 3:16 JO [21 1:10 23:21 job[31 6:2 19:12 19:16 July pl 8:4 JUNIATA 111 23:3 JURY p l 1:4 -K- Karn's 1211 5:10 5:15 6:2 7:9 9:15 9:15 10:3 10:11 10:19 10:23 11:13 13:23 18:5 21:3 kept [31 16:15 17:8 knew p 1 knock [91 15:9 15:21 16:14 18:3 21:3 21:5 knocked [31 14:3 20:25 Kuhn [81 2:3 3:8 3:15 15:19 3:20 5:20 9:8 9:20 10:17 11:8 14:25 17:7 19:21 15:2 16:4 19:9 13:22 1:8 3:14 20:1 mute-rage 23:7 -L- Ltil 1:21 LAW f1 1:3 lawsuit [11 3:17 lawyer [ 1 l 3:16 layout P1 10:3 leaves [2] 6:23 6:24 length p1 14:25 license [41 8:7 8:9 8:15 8:16 line 121 11:7 11:16 live p 1 8:1 lived pl 7:23 load pl 6:16 located p1 5:11 location pl 5:24 look [21 10:6 18:22 looks [21 18:22 19:1 loud p l 4:3 -M- mailbox 121 11:6 18:15 manager 11 13:18 Market [31 3:20 7:9 7:20 MARSHALL 121 113 1:20 may [71 3:25 4:1 7:2 11:20 12:12 12:21 13:22 mean t41 6:8 14:22 15:13 18:13 Mechanicsbu rg [11 7:21 MILL fl 1:13 Mine 1118:8 Miss 1713:18 9:6 9:10 9:14 12:22 13:14 17:23 morning I11 16:19 Mostly 111 17:21 move p i 10:25 MS 121 17:15 19:21 -N- name t5l 2:2 3:13 3:15 9:8 20:4 need p 1 7:6 needed 131 7:7 11:3 17:20 never [21 8:16 21:16 New [21 8:25 9:2 nod pi 4:21 Notary [31 1:10 23:6 23:22 November 121 23:19 nowp114:19 4:25 5:15 9:17 10:6 13:6 14:17 1:11 4:19 9:6 11:5 18:21 photograph 141 15:3 20:2 picture [51 10:14 18:15 18:22 pictures 121 10:7 piece 1119:16 1 1:5 20:19 8:8 18:16 10 1 -O- place 121 1.13 oaths pl 23:6 23.12 objections p1 3:5 PLAINTIFFS [31 1.2 1 9 1.19 obviously [21 8:6 PLEAS I I I II 10:2 Pointing [? l 192 occasions 11 13:21 Porch 141 6:5 occur 11 123 6:6 6:8 6:19 occurred 121 9:7 7:2 9:24 10:22 14:17 11:24 12:4 13:1 occurring [11 9:19 13:2 16:15 16:24 Off f21] 7:3 9:16 19:17 11:23 12:9 12:10 portion [41 11:16 12:12 12:14 13:1 13:3 1122 1514 13:22 14:4 1415 produced 11 20:19 15:3 15:9 15:17 Public [41 1 10 15:22 16:1 16:3 23:6 23:10 23:22 19:15 21:16 21:20 21:24 Punch 121 16:20 often [t1 11:25 16:22 Push pi 15:12 once 171 6:17 11:17 11:19 12:2 12:2 pushed [11 12:7 13:25 21:15 pushing [31 6:9 one pol 4:15 10:8 12:6 131 10:14 10:20 10:21 put I 11 20 7 11:1 18:14 19:12 20:2 20:6 ? onto [41 72 11:23 - 12:12 16:24 Questions 191 3:24 outside [21 18:13 3:24 3:25 4:3 20:16 7:16 20:7 2010 218 23:9 own 131 14:7 19:19 19:22 -R- P P_C[11 1 18 P.111 121 712 7:13 painted [11 10:16 parking [21 6:10 16:5 partpol 10:17 18:4 18:12 18:13 18:24 20:24 21 15 21:18 21:20 21:22 parties [21 3:3 23:14 pasty] 18:22 pen p1 19:2 Pennsylvania [ 41 1:2 1:14 23:4 23:7 period p l 9:23 periodically 111 19:9 person [21 19:17 20:22 photo p 1 8 11 reading [11 3,3 really [61 91 1 1224 16:10 1611 1611 181 record 121 15 17 23 F RECROSS p 1 22 redp41 10:16 11:6 15:7 1514 18:5 18:12 18:13 18:15 18:16 18:23 21:15 21:18 2120 21:22 REDIRECT [21 2:2 21:9 reduced 111 23:10 referring p] 20:6 Regardless 111 20:15 regular 11 7:5 regularly 111 1324 relative 121 23:14 23:15 remember poi 5:3 7:19 910 91- 9 19 1120 13:6 Index Page 2 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Multi-Page 1M repeat - yourself DAN HUHN 13:13 17:22 18:1 repeat [i1 4:8 rephrase [i 1 4:9 report [21 9:8 13:14 [21 4:14 23:11 Reporter-Notary [t1 23:10 represent (11 3:16 reserved [11 3:6 respective [i1 3:3 responsibilities [il 19:13 responsibility [11 6:18 Rich [1] 3:15 Kicnara [2] 13:11 ride [i1 18:20 right [iol 5:9 7:15 14:23 15:19 18:7 18:9 ROAD [i] roof [61 9:16 11:16 12:12 20:24 room [2117:8 round [i1 ROVNER [i1 RPR[21 1:10 Rullo [81 1:1 3:17 9:7 9:14 20:21 Rullo's [3] 12:22 13:14 1:18 4:19 13:11 16:22 20:1 1:13 11:7 13:3 20:12 6:10 1:18 23:21 1:1 3:18 17:23 9:10 -S- Sadlock [col 2:4 3:12 15:18 20:1 20:20 21:10 saw [21 14:11 school [41 8:23 8:24 sealing [i1 Second 111 see [71 11:10 11:22 12:1 19:1 20:21 seeing [31 17:23 17:23 set [i] 23:19 seven [t1 sheet [1123:13 shift [41 7:8 16:19 17:3 shot [2] 10:15 shovel [61 12:13 12:20 20:11 20:16 1:18 3:15 20:11 22:1 14:15 8:17 9:4 3:4 4:11 11:14 18:23 11:15 5:25 16:18 11:6 12:8 16:23 show [7110:1 10:2 10:11 10:15 11:6 18:14 19:17 showed [il 8:6 Shows [2] 18:4 18:15 Side [21 18:21 20:24 sidewalk [41 9:15 11:11 11:23 12:12 signed [il 13:15 signing [l] 3:4 slant [21 11:8 14:3 slanted [21 11:16 13:3 slid [21 9:16 12:12 slide [41 11:23 21:16 21:20 21:24 slush [1] 7:2 snow [191 7:1 11:15 11:22 12:11 13:22 14:3 14:15 14:19 15:2 15:8 16:10 16:14 18:3 19:6 20:25 21:3 21:5 21:11 21:17 snowing [11 20:15 snowstorms [il 16:12 someone pi 19:17 South[q 7:20 speaking p1 4:15 specifically [1] 10:9 specifics [il 7:17 specified [ 1 23:12 springtime [i1 10:2 SR[q 1:1 SS [11 23:3 start[ i 1 16:18 started [il 19:16 starts [11 18:24 statement [11 I L8 stenographically [i 1 23:9 stick [11 20:22 stipulated [i1 3:2 STIPULATION [i 1 3:1 stock [21 5:16 5:17 stop [il 17:16 store p91 5:10 5:20 6:13 10:3 10:11 10:20 11:3 12:8 13:18 13:23 14:18 14:25 16:15 17:4 17:6 17:9 17:12 17:12 20:12 Street [i1 7:21 struck [i 1 9:16 stuff [61 6:5 6:9 14:22 17:6 17:17 21:16 such [2] 5:5 23:15 supervisor pl 13:6 supervisors [i1 13:23 sweep [i1 6:23 swollen [i1 17:25 sworn [21 3:9 23:9 -T- taking [i1 23:8 tan [21 15:7 20:22 testified p 1 3:9 testimony [21 23:7 23:17 Thank P 22:1 through P1 17:12 times [31 12:21 16:8 18:3 today [3] 3:23 4:18 5:1 today's [il 20:7 too [i1 11:25 tookpl 19:14 top [41 20:23 21:3 21:6 21:12 toward [ll 11:11 tracked [il 7:2 train [i1 19:17 trial [21 1:4 3:6 true [il 23:17 try [21 4:7 4:12 Twelfth [11 8:19 two [21 6:1 10:7 type [21 15:20 19:1 typewriting [1 1 23:10 typing [i 1 4:15 -U- under[il 23:10 underneath [31 15:14 18:12 21:21 underside [i1 18:4 understand [31 4:4 4:8 15:20 Up [31 6:11 14:3 20:23 used [l] 20:2 using p 1 15:3 -V- V [il 1:3 verbal P] 4:19 -W- waived [il 3:5 walk [i1 17:11 walking [11 9:14 walkway p 1 18:9 WARNER [11 1:20 Wayne [21 1:1 3:17 whatnot 111 13:4 whatsoever [i] 4:5 WHEREOF [i ]23:19 whole [21 4:13 14:25 Williams 131 13:16 17:15 19:21 windows [11 14:22 winter [4] 7:1 11:15 16:8 16:9 wintertime ti 1 19:10 within [21 3:20 23:6 witness [51 3:8 9:9 23:9 23:18 23:19 WITNESSES 111 2:1 word [il 10:16 worked [31 5:20 9:20 10:22 worry p1 4:14 write [1] 20:4 -X- X [41 20:21 20:21 20:23 21:12 -Y- years [71 3:19 5:14 5:18 5:19 5:25 6:1 7:25 York 1218:25 9:2 yourself 111 12:14 Index Page 3 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 C ` C w DONALD L. CARMELITE, ESQUIRE Marshall, Dennehey, Warner, Coleman & Goggin ID # 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3504 Attorney for Defendant, Hampden Center, Inc. JANICE RULLO AND WAYNE RULLO, Sr., Plaintiffs V. HAMPDEN CENTER, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-343 Civil JURY TRIAL DEMANDED DEFENDANT, HAMPDEN CENTER, INC.'& MOTION FOR SUMMARY JUDGMENT AND NOW, comes Defendant, Hamden Center, Inc., by and through their undersigned Counsel, Marshall, Dennehey, Warner, Coleman & Goggin, to file this Motion for Summary Judgment, and in support thereof avers as follows: 1. Plaintiffs, Janice Rullo and Wayne Rullo, Sr., initiated this action by Complaint dated January 19, 2005 against Defendant, Hampden Center, Inc. 2. The pleadings are now closed and the parties have conducted all necessary discovery. (See correspondence from Donald Carmelite to Richard Sadlock dated May 11, 2003 attached to the Appendix.) 3. In sum, Plaintiff, Janice Rullo, explains that the incident occurred while walking from the CVS Pharmacy located in the Hampden Center to the Kam's grocery store on the sidewalk. 4. Plaintiff alleges that as she was passing under a fagade, a large chunk of ice slipped off the roof and struck the top, center portion of her left hand. (See deposition transcript of Janice Rullo, Page 15 attached to the Appendix as Exhibit "A"; Plaintiffs supplemental discovery response depicting a photograph and markings by Plaintiff indicating where the ice came from when Plaintiff was allegedly struck in the hand, attached to Appendix as Exhibit "B"; and Kam's Customer Accident Report attached to Appendix as Exhibit "C.") 5. The Hampden Center is owned by Defendant, Hampden Center, Inc. 6. Unnamed Defendant, Lavipour & Company, is the management company for the Hampden Center. (See deposition testimony of Andrea Brigante, Page 6 attached to the Appendix as Exhibit "D.") 7. Kam's leases certain space in the Hampden Center from Defendant, Hampden Center, Inc. and pursuant to the terms of the lease, Defendant, Hampden Center, Inc., is responsible for snow removal at the shopping center, including removal of snow from the roofs. 8. Lavipour & Company is responsible for contracting with local companies for maintenance and snow removal. (See Appendix, Exhibit "D" at Page 7.) 9. Lavipour & Company inspects the Hampden Center on a routine, periodic basis and talks to tenants about any issues they wish to report. (See Appendix Exhibit "D" at Page 9.) 10. Prior to and including December of 2003, Lavipour & Company never received any reports of snow or ice accumulating on a roof causing problems including, but not limited to, falling from the roof. (See Appendix at Exhibit "D" at Pages 12-13.) 11. There has never been any damage to structures at the Hampden Center from snow or ice accumulation on roofs of any of the structures at Hampden Center. (See Appendix at Exhibit "D" at Pages 14-15.) 12. Richard Brown, Jr. was the Store Manager for Karn's Food on the date of Plaintiffs accident. (See deposition transcript of Richard Brown, Jr. at Pages 3-4 attached to the Appendix at Exhibit "E.") 2 13. As the Store Manager for Kam's in the Hampden Center, Mr. Brown has never personally observed or had reported to him the occurrence of snow or ice falling from the Kam's roof. (See Appendix at Exhibit "E" at pages 8-9.) 14. Lavipour & Company contracted McNaughton Services, Inc. to perform snow removal at the Hampden Center. McNaughton Services had never been asked to perform snow removal from the rooftops at any facility in the Hampden Center. (See deposition transcript of Melissa McNaughton at Pages 4-5 attached to Appendix as Exhibit T.") 15. McNaughton Services has never observed any hazardous accumulation of snow or ice accumulating on the facade of the Kam's store. (See Appendix at Exhibit T" at Pages 7-8, 11.) 16. Dan Kuhn was an employee of Karn's and at the time of the incident, was responsible for the porch area, including collecting the shopping carts. (See deposition transcript of Dan Kuhn at Pages 5-6 attached to Appendix as Exhibit "G.") 17. Mr. Kuhn does not remember the incident giving rise to this litigation. (See Appendix at Exhibit "G" at Page 9.) 18. Mr. Kuhn never observed snow and ice accumulate on the top part of the roof as indicated with an "x" by Plaintiff on Exhibit "B" nor has Mr. Kuhn ever witnessed anybody knock snow or ice down from that area. (See Appendix at Exhibit "G" at Pages 20-21, and Exhibit "B.") 19. Mr. Kuhn did witness snow or ice accumulate on the red part of the facade to the store and slide and fall off onto the porch area, as well as the grading and gutter system underneath the front facade of the store. Sometimes Mr. Kuhn would knock snow or ice down from the grading and gutter system to the front facade of the store also. (See Appendix, Exhibit "G" at Pages 18-19.) 3 20. There is no absolute duty on an owner of a property to keep his premises free from ice and snow at all times. Hutchison v. Montgomery Ward & Co., 364 PA 126, 130, 70 A.2d 838, 840 (1950). 21. Plaintiff has a duty to show some unusual condition existed before the accident that would lead the Hampden Center, through its employees, at the exercise of reasonable and ordinary care, to believe that such additional precautions were required with regard to the snow and ice accumulation. Id. 22. There is no evidence that the Hampden Center, Inc. had actual notice of the accumulation of ice that allegedly struck Plaintiffs hand. 23. The alleged accumulation of snow and ice on the facade or roof of the Karn's store did not rise to the level to equate constructive notice to the Hampden Center, Inc. See, Hutchison, Supra.; Menzel v. Lamproplos, 168 PA Super. Ct. 329, 332-333, 77 A.2d 645, 646-647 (PA Super. 1951; Reed v. Ulrich, 76 PA D&C 269 (C.C.P. Erie, 1950). 24. For the foregoing reasons, Defendant, Hampden Center, Inc., is entitled to summary judgment pursuant to PA R.C.P. 1035.2 and Plaintiffs' Complaint must be dismissed as a matter of law. WHEREFORE, Defendant, Hampden Center, Inc., respectfully request that this Honorable Court grant its Motion for Summary Judgment and dismiss all claims against it. 4 Respectfully submitted, DATE: 0- BY: 5 MARSHALL, DENNEHEY, WARNER, COLE GOGGIN DON L. CARMEL E, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Defendant, Hampden Center, Inc. JANICE RULLO AND IN THE COURT OF COMMON PLEAS OF WAYNE RULLO, Sr., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : V. : NO. 05-343 Civil HAMPDEN CENTER, INC., JURY TRIAL DEMANDED Defendant CERTIFICATE OF SERVICE I, Diane E. Black, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this 1`6 day of December, 2007, I served a copy of the foregoing document via First Class United States mail, postage prepaid, as follows: Richard A. Sadlock, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 Attorney for Plaintiffs ? i Diane E. Black 05/197338.v1 v z z} (^Jr •' ANGINO & ROVNER, P.C. Richard A. Sadlock. Esquire Attorney ID# : 47281 4503 North Front Street Harrisburg, PA 17110-1708 Phone: (717)238-6791 Fax (717) 238-5610 Attorney for Plaintiffs: E-mail: rsadlock&anaino-rovner.com Janice and Wayne Rullo. Sr. JANICE RULLO and WAYNE RULLO, SR., her husband, Plaintiffs V. HAMPDEN CENTER, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-343 Civil JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 1. Admitted. 2. It is admitted only that the pleadings are closed. 3. See, Plaintiffs' Complaint for a complete explanation of the instant action. 4. See, Plaintiffs' Complaint. 5. Admitted. 6. Defendant's averment is irrelevant to the instant action. At all times applicable hereto, the instant Defendant was responsible for maintaining and keeping its property safe for business invitees. 359234 7. Admitted. By way of further response, the instant Defendant failed to live up to its responsibility for snow and ice removal on the date of the instant action. 8. While it may be Lavipour and Company's responsibility for contracting for snow and ice removal, it remains Defendant's responsibility to ensure that the snow and ice removal was completed and that its property was safe for business invitees. 9. See, paragraph 8 herein. 10. Denied. By way of amplification, the testimony of Dan Kuhn substantiates notice. See, Defendant's Appendix, Exhibit G, at page 11, lines 22-25; page 12, lines 1-25; page 13, lines 21-25; page 14, lines 1-5; and page 21, lines 17-25. Further, given the design of the building involved in the instant action, any snow accumulation or ice accumulation on the roof is constructive notice of a dangerous condition. 11. Defendant's averment is irrelevant to the instant action. 12. Admitted. 13. Denied. See, paragraph 10 herein. 14. Defendant's averment is irrelevant to the instant action. 15. Defendant's averment is irrelevant to the instant action. Further, as previously indicated herein, the instant Defendant had constructive notice of the dangerous condition triggering its responsibility to business invitees. See, paragraphs 8 and 1.0 herein. 16. Mr. Kuhn's deposition speaks for itself. 17. Mr. Kuhn's deposition speaks for itself. 18. Denied. See, paragraph 10 herein. 287952 2 19. See, paragraph 10 herein. 20. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, the instant Defendant breached its duty to keep its premises safe for business invitees. 21. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, an accumulation of ice and snow on a slanted roof is a dangerous condition of which Defendant had actual or constructive notice yet failed to remedy. 22. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Defendant had actual or constructive notice of the dangerous condition. See, paragraph 10 herein. 23. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, the accumulation of ice and snow did rise to the level of constructive notice to the instant Defendant. See, paragraph 10 herein. 24. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, there is no basis in fact or law to support the instant Motion and therefore it should be denied. 287952 3 WHEREFORE, Plaintiffs respectfully request Your Honorable Court deny Defendant's Motion for Summary Judgment. ANGINO & ROVNER, P Esquire '4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiff Date: January 3, 2008 287952 4 CERTIFICATE OF SERVICE I, Marcy L. Brymesser, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PLAINTIFFS' REPLY TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT on the following via postage prepaid, first class United States mail, addressed as follows: Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: January 3, 2008 M icy ryme s 359234 C? ra P Cam; A t In i E - " -r+ i i C" co 77-- JANICE RULLO AND WAYNE RULLO, Sr., Plaintiffs V. HAMPDEN CENTER, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-343 Civil JURY TRIAL DEMANDED PRAECIPE TO LIST CASE FOR ARGUMENT Please list the above-captioned matter for argument during the February 27, 2008 term. Respectfully submitted, Y, WARNER, o„Ilg'oX BY: DON9CCD?`-CARMELITE, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Defendant, Hampden Center, Inc. 051368961.v t JANICE RULLO AND IN THE COURT OF COMMON PLEAS OF WAYNE RULLO, Sr., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 05-343 Civil HAMPDEN CENTER, INC., JURY TRIAL DEMANDED Defendant : CERTIFICATE OF SERVICE I, Diane E. Black, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this day of January, 2008, I served a copy of the foregoing document via First Class United States mail, postage prepaid, as follows: Richard A. Sadlock, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 Attorney for Plaintiffs I G Diane E. Black 05/197338.v1 C N -r - c , . _ L L. co { G1 _'7G rT JANICE RULLO IN THE COURT OF COMMON PLEAS OF And WAYNE RULLO, SR. CUMBERLAND COUNTY, PENNSYLVANIA V. HAMPDEN CENTER, INC. NO. 2005 - 0343 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, OLER, JR., GUIDO, JJ. ORDER OF COURT AND NOW, this 3RD day of MARCH, 2008, after reviewing the briefs filed by the parties and having heard argument thereon, Defendant's Motion for Summary Judgment is DENIED. Z Ric hard A. Sadlock, Esquire ? Donald L. Carmelite, Esquire (Court Administrator :sld Co I %" rrc.,; t LCCL 3/u/o 6 ?l,,Iyl By Edward 13, Gdido. J. ro Raft. ?'v T ? ??? ilk i? { 4 JANICE RULLO AND WAYNE RULLO, Sr., Plaintiffs V. HAMPDEN CENTER, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-343 Civil JURY TRIAL DEMANDED PRAECIPE TO SETTLE, DISCONTINUE AND END TO: PROTHONOTARY Cumberland County, Pennsylvania Kindly mark the above-referenced matter as SETTLED, DISCONTINUED and ENDED. Harrisburg, PA 17110-1708 Dated: Ttw PC 4503 North Front Street C7, - Q uz m -o z lS? K