HomeMy WebLinkAbout14-0935 Supreme C, ennsylvania
Con DC&rnmo leas For Prothonotary Use Only:
C" ll C� V S$�8t Docket No:
CUM IRLINO' County
The information collected on this form is used solely for court administration purposes. This form does not _
supplement or replace the filing and service ofpleadings or other papers as required by law or rules of court.
Commencement of Action:
S x Complaint El Writ of Summons -J Petition
Transfer from Another Jurisdiction 0 Declaration of Taking
E
C Lead Plaintiff's Name: Lead Defendant's Name:
THERESA FABIANO MECHANICSBURG FITNESS, INC. t/d /b /a GOLD'S GYR
T Dollar Amount Requested: E within arbitration limits
I Are money damages requested? iX Yes 0 No (check one
fX outside arbitration limits
O
N Is this a Class Action Suit? Q Yes El No Is this an MDJAppeal? � � Yes iX No
A Name of Plaintiff /Appellant's Attorney ANTHONY STEFANON
0 Check here if you have no attorney (are a Self - Represented [Pro Se] Litigant)
Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your
PRIMARY CASE. If you are making more than one type of claim, check the one that
you consider most important.
TORT (do not include Mass Tort) CONTRACT (do not include.ludgments) CIVIL APPEALS
F] Intentional Cl Buyer Plaintiff Administrative Agencies
El Malicious Prosecution 0 Debt Collection: Credit Card Q Board of Assessment
E] Motor Vehicle - Debt Collection: Other 0 Board of Elections
Nuisance E] Dept. of Transportation
Q Premises Liability ❑ Statutory Appeal: Other
S IQ Product Liability (does not include M Employment Dispute:
E mass tort)
Slander/Libel /Defamation Discrimination
C F Other. ❑Employment Dispute: Other Zoning Board
, NEGLIGENCE 0 Other:
I E3 Other:
O MASS TORT
0 Asbestos
N ❑G Tobacco
Es Toxic Tort - DES
E, Toxic Tort -Implant REAL PROPERTY MISCELLANEOUS
Toxic Waste 13 Ejectment CI Common Law /Statutory Arbitration
B 0 Other:
Eminent Domain /Condemnation E] Declaratory Judgment
Q Ground Rent Cl Mandamus
O Landlord /Tenant Dispute 0 Non- Domestic Relations
Ci Mortgage Foreclosure: Residential Restraining Order
PROFESSIONAL LIABLITY 0 Mortgage Foreclosure: Commercial —1 Quo Warranto
0 Dental Eli Partition I-i Replevin
0 Legal E Quiet Title 0 Other:
0 Medical Other:
Other Professional:
Updated 1/1/2011
' EE U /
18
A
ANTHONY STEFANON, ESQUIRE NIA
I.D. #25497
1847 Center Street
Camp Hill, PA 17011 -1703
Attorney for Plaintiffs
THERESA FABIANO and : IN THE COURT OF COMMON PLEAS
STANLEY N. FABIANO, her husband, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
CIVIL ACTION - LAW
No.
lq 93 S
MECHANICSBURG FITNESS, INC.,
t/d /b /a GOLD'S GYM, Defendants 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 is
served, by entering a written appearance personally or by attorney and filing in writing with
the Court your defenses or objections to the claims set forth against you. You are warned
that if you fail to do so the case may proceed without you and a judgment may be entered
against you by the Court without further notice for any money claimed in the Complaint or
for any other claim or relief requested by the Plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
(717) 249 -3166
(800) 990 -9108
SID?: /S P�
I
NOTICIA
Le han demandado a usted en la corte. Si usted quiere defenderse de estas
demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al
partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia
escrita o en persona o por abogado y archivar en la corte en forma escrita sus persona.
Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una
orden contra usted sin previo aviso o notificacion y por cualquier quaja o alivio que es
pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros
derechos importantes para usted.
I
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
' I
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
(717) 249 -3166
(800) 990 -9108
i
I I
2
II
ANTHONY STEFANON, ESQUIRE
I.D. #25497
1847 Center Street
Camp Hill, PA 17011 -1703
Attorney for Plaintiffs
THERESA FABIANO and : IN THE COURT OF COMMON PLEAS
STANLEY N. FABIANO, her husband, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
CIVIL ACTION - LAW
v
No.
MECHANICSBURG FITNESS, INC.,
t/d /b /a GOLD'S GYM, Defendants JURY TRIAL DEMANDED
COMPLAINT
1. Plaintiffs are Theresa Fabiano and Stanley N. Fabiano, adult individuals,
husband and wife, who reside at 45 Tuscany Court, Camp Hill, Cumberland County,
Pennsylvania, 17011.
2. Defendant is Mechanicsburg Fitness, Inc., t/d /b /a Gold's Gym, a corporation
organized and existing under the .laws of the Commonwealth of Pennsylvania with offices
or principal place of business located at 3401 Hartzdale Drive, Suite 101, Camp Hill,
Cumberland County, Pennsylvania, 17011.
1
3. At all times relevant hereto, Defendant owned and operated a physical fitness
and training facility which was held open to the public at the address set forth in the
foregoing Paragraph 2.
4. On March 5, 2012, Plaintiff Terry Fabiano was present in Defendant's business
I
premises, as a business invitee, or in the alternative, as a licensee, intending to undertake
a course of exercise on a treadmill machine which was owned, maintained, and provided
I
by Defendant for use of the Plaintiff.
5. At the time and place aforesaid, Plaintiff was 74 years of age and was engaged
in a regimen of physical exercise in order to maintain her healthy, active, and vigorous
lifestyle.
6. Prior to March 5, 2012, Plaintiff had been a regular patron of Defendant's
establishment, and had used the treadmills located in Defendant's facility on many
occasions.
7. The treadmill used by Plaintiff on March 5, 2012 has been identified by
Defendant as a Freemotion Treadmill, FMTL8255P.2, Serial Number AA82020055.
8. Prior to March 5, 2012, Defendant had never provided to Plaintiff any instruction,
direction, training, warning, information, or manuals regarding the manner in which the
treadmill should be operated.
9. Immediately prior to the time that Plaintiff undertook to operate the treadmill, the
treadmill had been used by a young and vigorous male patron of Defendant's
establishment who had programmed the machine to operate at a high speed.
2
10. When the previous user of the treadmill stopped the machine and departed the
treadmill, the program which he had set in the machine remained active.
11. More than 30 seconds elapsed between the time that the prior user stopped the
machine and the time that Plaintiff undertook to operate the machine.
12. When Plaintiff undertook to operate the machine, she pressed the "Quick Start"
button at which point the machine resumed the high speed setting that had been input by
the prior user,'which speed was far beyond the physical capacity of Plaintiff to match.
13. Prior to the time that Plaintiff pushed the button to start the machine, Plaintiff
did not know or have reason to know that the machine was set at a high speed, and
Plaintiff had never previously experienced one of the Defendant's treadmills starting .at a
high speed.
14. Because of the high speed set in the machine, Plaintiff was unable to reach the
buttons to stop the machine, and was thrown from the treadmill inflicting serious injury to
her person.
15. Plaintiff suffered serious, permanent, and disabling injuries as the result of this
incident including a concussion resulting in unconsciousness, dislocation of her left
shoulder with supraspinatous tendon tear; a fracture of her right wrist; injuries to her back,
neck, and spine, and contusions and abrasions to her face, arms, wrists, knees, and legs.
16. Plaintiff has undergone an extensive course of medical care and treatment for
her injuries, including both inpatient and outpatient care, surgery for the reconstruction of
her left shoulder, surgery for the injuries to her cervical spine, extensive inpatient and
3
outpatient rehabilitation and therapy, and has incurred medical expenses for this course
of care and treatment.
17. As the result of her injuries, Plaintiff has lost extended periods of time from her
employment, and has suffered the loss of past and future earnings which she would have
realized had the injuries not occurred.
n 18. As the result of these injuries, Plaintiff has endured past and future pain,
suffering, aggravation, inconvenience, and the loss of life's pleasures, and has suffered
both temporary and permanent disability and temporary and permanent impairment of her
bodily functions.
19. As the result of the injuries to Plaintiff Terry Fabiano, Plaintiff has been
prevented from attending to the needs of her husband, Stanley N. Fabiano, who is himself
an invalid and who is now confined to a nursing facility.
20. As the result of the injuries to his spouse, Plaintiff Stanley N. Fabiano has
suffered the loss of the services, society, comfort, and support of his spouse, and claims
loss of consortium as an element of damage in this case.
COUNT,I
SUPPLYING DANGEROUS EQUIPMENT
21. On and before March 5, 2012, the treadmill in question was owned, controlled,
maintained, adjusted, programmed, and operated by Defendant.
4
22. The Plaintiffs believe and therefore aver that the treadmill in question could
have been programmed, in the maintenance mode, to have deleted the program set by the
prior user in as little as 15 seconds after the time that the prior user stopped using the
machine, by properly programming the "timeout mode."
23. Defendant knew or should have known that its patrons who used the treadmills
came in a wide range of ages, and physical capability, and that the programs input into the
treadmills by young, healthy, and vigorous users would not be safe for use by much older
and relatively less vigorous users such as Plaintiff.
24. Defendant was negligent in failing to program the minimum 15 second delay
time into the "timeout mode," given its knowledge of the highly variable abilities of its
patrons.
25. Had Defendant input the minimum timeout delay of 15 seconds, the program
set by the prior user would have been deleted prior to the time that Plaintiff pressed the
start button, and the machine would not have started at the high speed at which it did start,
resulting in the injury to Plaintiff.
26. The User's Manual for the Freemotion Treadmill clearly describes the manner
in which the timeout delay can be programmed into the machine by the maintenance
mode, and Defendant either failed to read the manual, failed to program the timeout delay,
or actively elected to set the timeout delay in excess of the minimum value.
5
27. Plaintiff was unaware of the hazards presented by the machine at the time that
she pushed the start button, and Plaintiff could not reasonably have discovered the
existence of those hazards before she pushed the start button.
28. Plaintiff was unaware of the manner in which the machine had been
programmed in the maintenance mode, and Plaintiff could not reasonably have discovered
the manner in which the machine had been programmed.
29. Defendant supplied the treadmill to Plaintiff for her use in a condition which it
knew or should have known was dangerous, which condition Plaintiff could not reasonably
discover.
30. The Freemotion Treadmill was also designed by the manufacturer to
incorporate a safety key which safety key provided a means by which the treadmill would
be stopped if the safety key were pulled from its socket in the event that a user, such as
Plaintiff, was unable to control the treadmill.
31. Plaintiffs believe and therefore aver that the safety key was not present on the
treadmill operated by Plaintiff on the date of her injury.
32. Plaintiffs believe and therefore aver that the safety key function had been
intentionally disabled on the machine which caused her injuries.
33. The Freemotion Treadmill can be programmed by the owner, in the
maintenance mode, to disable the safety key function, and Plaintiffs believe, and therefore
avers, that Defendant had so programmed the treadmill which Plaintiff was operating, thus
intentionally defeating an essential safety feature of the machine.
6
34. Plaintiffs believe and therefore avers that Defendant acted in an intentional and
reckless fashion in programming the machine for a timeout delay which exceeded 15
seconds and in disabling the safety key feature of the machine, which intentional and
reckless conduct led directly to the injuries suffered by Plaintiff in this case.
35. Defendant had actual knowledge that the safety key function had been disabled
on the machine used by Plaintiff, as the safety key itself was absent from the socket on the
machine when Plaintiff used it.
36. In the alternative, Plaintiff believes and therefore avers that Defendant acted
in a reckless fashion in failing to discover the values which had been programmed for the
timeout delay and for the disabling of the safety key and was further reckless in its failure
to reprogram the machines in a safe and proper fashion to restore the safety features
designed into the machine.
37. Defendant was further negligent in each of the following respects:
(a) Defendant failed to provide Plaintiff with any instruction, direction, or training
regarding the safe and proper use of the treadmill; and
(b) Defendant failed to provide a copy of the User's Manual for the treadmill in
a place where that manual could be accessed by users of the treadmill such
as Plaintiff; and
(c) Defendant failed to employ the services of personnel properly trained in the
programming and operation of the functions of the treadmill, and particularly
with regard to the maintenance mode operations of the treadmill program;
and
7
(d) Defendant failed to properly maintain the treadmill; and
(e) Defendant failed to properly program the treadmill; and
(f) Defendant failed to warn its patrons, including Plaintiff, of the settings which
had been input into the maintenance mode of the treadmill; and
(g) Defendant failed to inform itself of the settings which could be input into the
maintenance mode of the treadmill; and
(h) Defendant failed to provide information to Plaintiff of the manner in which the
treadmill could be programmed to avoid the risk of injury to Plaintiff.
(i) Defendant failed to properly maintain the control system of the treadmill.
38. Defendant had control of the programming functions for the maintenance mode
of the treadmill, and failed to exercise that control to protect the safety of its patrons
including Plaintiff.
39. Defendant knew or should have known that, if it was negligent in each of the
respects set forth in the foregoing paragraphs, such negligence could lead to the serious
injury and damage suffered by Plaintiff.
40. The foregoing negligent conduct of Defendant caused the injuries and damages
suffered by Plaintiffs.
WHEREFORE, Plaintiffs demand judgment against Defendantfor special damages,
general damages, and punitive damages in an amount in excess of the limits for
compulsory arbitration under the Local Rules of the Court of Common Pleas of
Cumberland County, Pennsylvania, plus interest and cost of suit.
8
COUNT /I
HAZARDOUS CONDITION OF PREMISES
41. The averments of the foregoing Paragraphs 1 through 40 are incorporated
herein by reference.
42. Defendant was the owner or occupier of the business premises located at 3401
Hartzdale Drive.
43. The Freemotion Treadmill described in the foregoing paragraphs was a
dangerous condition of the premises.
44. Defendant knew, or by using reasonable care, should have discovered the
dangerous condition and should have realized that it involved an unreasonable risk of harm
to persons in the position of Plaintiff.
45. Defendant knew or should have known that persons in the position of Plaintiff
would not discover or realize the danger presented by the treadmill and would not protect
themselves against it.
46. Defendant failed to use reasonable care to protect Plaintiff from the danger
presented by the treadmill.
47. The dangerous condition of the treadmill was not open, obvious, anticipated,
or known to Plaintiff, and Defendant should have anticipated that its patrons would not
recognize the dangerous condition of the treadmill.
9
48. Defendant failed to exercise reasonable care to make the dangerous conditions
safe, or to warn its patrons of the condition and the risk involved.
49. Defendant was further negligent in each of the following respects:
(a) Defendant failed to provide Plaintiff with any instruction, direction, or training
regarding the safe and proper use of the treadmill; and
(b) Defendant failed to provide a copy of the User's Manual for the treadmill in
a place where that manual could be accessed by users of the treadmill such
as Plaintiff; and
(c) Defendant failed to employ the services of personnel properly trained in the
programming and operation of the functions of the treadmill, and particularly
with regard to the maintenance mode operations of the treadmill program;
and
(d) Defendant failed to properly maintain the treadmill; and
(e) Defendant failed to properly program the treadmill; and
(f) Defendant failed to warn its patrons, including Plaintiff, of the settings which
had been input into the maintenance mode of the treadmill; and
(g) Defendant failed to inform itself of the settings which could be input into the
maintenance mode of the treadmill; and
(h) Defendant failed to provide information to Plaintiff of the manner in which the
treadmill could be programmed to avoid the risk of injury to Plaintiff.
(i) Defendant failed to properly maintain the control system of the treadmill.
10
50. Defendant knew or should have known that, if it was negligent in each of the
respects set forth in the foregoing paragraphs, such negligence could lead to the serious
injury and damage suffered by Plaintiff.
51. The foregoing negligent conduct of Defendant caused the injuries and damages
suffered by Plaintiffs.
WHEREFORE, Plaintiffs demand judgment against Defendant for special damages,
general damages, and punitive damages in an amount in excess of the limits for
compulsory arbitration under the Local Rules of the Court of Common Pleas of
Cumberland County, Pennsylvania, plus interest and cost of suit.
RESPECTFULLY SUBMITTED,
By:
ANTHONY S A ON, QUIRE
I.D. #25497
1847 C treet
Camp Hill, PA 17011 -1703
(717) 761 -6162
Date: �� �y � j
11
VERIFICATION
The undersigned hereby verifies thatthe facts averred in the foregoing COMPLAINT
are true and correct to the best of her knowledge, information and belief.
This Verification is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to
unsworn falsification to authorities.
Theresa Fabiano
Date:
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson {
Sheriff
HE
( R t,.7 1 1 1 k1
Jody S Smith =�, �� 2014 FE(�2� 3:Chief Deputy
Richard W Stewart CUMBER
LAN,:E = AND itJF j .
PENNSYLVANIA
Theesa Fabino (et al.) Case Number
vs.
Mechanicsburg Fitness, Inc. t/d/b/a Gold's Gym 2014-935
SHERIFF'S RETURN OF SERVICE
02/20/2014 11:52 AM - Deputy Stephen Bender, being duly sworn according to law, served the requested Complaint
& Notice by handing a true copy to a person representing themselves to be Amy Wolf, Manager,who
accepted as"Adult Person in Charge"for Mechanicsburg Fitness, Inc. t/d/b/a Gold's Gym at 3401
Hartzdale Drive, Suite 101, Lower Allen, Camp Hill, PA 17011.
STEPHEN :ENDER, DEPUTY
SHERIFF COST: $45.44 SO ANSWERS,
February 24, 2014 RONR ANDERSON, SHERIFF
Thomas E. Brenner, Esquire
GOLDBERG KATZMAN, P.C.
4250 Crums Mill Road, Ste. 301
P. O. Box 6991
Harrisburg, PA 17112
(717) 234-4161
Counsel for Defendant
Wit;
PE>``rl/s AVIA °rY
N{,i
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
Theresa Fabiano and Stanley N.
Fabiano, her husband,
Plaintiffs
v.
Mechanicsburg Fitness, Inc.,
t/d/b/a Gold's Gym,
Defendant
TO: Anthony Stefanon, Esquire
1847 Center Street
Camp Hill, PA 17011
Attorney for Plaintiff
: CIVIL ACTION — LAW
: NO.: 14-935 - CIVIL
: JURY TRIAL DEMANDED
NOTICE TO PLEAD
You are hereby notified to file a written response to the enclosed Answer with New Matter
to Plaintiff's Complaint within twenty (20) days from service hereof or a default judgment may be
entered against you.
Dated: Si//1`�
{00686889;v1}
By.
renner, Esquire
Attorney ID No. 32085
P.O. Box 6991
Harrisburg, PA 17112
(717)234-4161
Attorney for Defendant
Thomas E. Brenner, Esquire
GOLDBERG KATZMAN, P.C.
4250 Crams Mill Road, Ste. 301
P. O. Box 6991
Harrisburg, PA 17112
(717) 234-4161
Counsel for Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
Theresa Fabiano and Stanley N.
Fabiano, her husband,
Plaintiffs
: CIVIL ACTION - LAW
: NO.: 14-935 - CIVIL
Mechanicsburg Fitness, Inc.,
t/d/b/a Gold's Gym,
Defendant : JURY TRIAL DEMANDED
ANSWER OF DEFENDANTS WITH NEW MATTER
AND NOW, comes Defendant, Mechanicsburg Fitness, Inc. t/d/b/a Gold's Gym by and
through their attorneys, Goldberg Katzman, P.C., who states:
1. Admitted.
2. Admitted.
3. Admitted.
4. Denied. This paragraph states a legal conclusion to which no response is
necessary.
5. Denied. This paragraph is denied pursuant to Pa.R.C.P. 1029(e).
6. Admitted with clarification. Plaintiff did not maintain an active membership to the
gym at the time of this incident. She was last a member in 2010.
7. Admitted.
{00686889;v1}
8. Denied. The treadmill contains labels which set forth directions for its use. If
Plaintiff required instruction and would have contacted staff, they would have provided
information to her.
9. Admitted.
10. Admitted with clarification. There is a 30 second manufacturer installed program
feature that preserves the program of the previous use. After 30 seconds, that program clears.
11. Denied. This paragraph is denied pursuant to Pa. R.C.P. 1029(e).
12. Admitted.
13. Denied. This paragraph is denied pursuant to Pa. R.C.P. 1029(e).
14. Denied. This paragraph is denied pursuant to Pa. R.C.P. 1029(e).
15. Denied. This paragraph is denied pursuant to Pa. R.C.P. 1029(e).
16. Denied. This paragraph is denied pursuant to Pa. R.C.P. 1029(e).
17. Denied. This paragraph is denied pursuant to Pa. R.C.P. 1029(e).
18. Denied. This paragraph is denied pursuant to Pa. R.C.P. 1029(e).
19. Denied. This paragraph is denied pursuant to Pa. R.C.P. 1029(e).
20. Denied. This paragraph is denied pursuant to Pa. R.C.P. 1029(e).
Count I
21. Admitted.
22. Denied.
23. Admitted with clarification. If Plaintiff had followed the proper procedure posted
on the treadmill before stepping onto the belt, this incident would not have occurred.
{00686889;v1}
24. Denied. This paragraph states a legal conclusion to which no response is
necessary. Moreover, if Plaintiff had followed the proper procedure posted on the treadmill before
stepping onto the belt, this incident would not have occurred.
25. Denied. To the knowledge of the Defendant, the machine could not be set for 15
second time frame. Moreover, if Plaintiff had followed the proper procedure posted on the
treadmill before stepping onto the belt, this incident would not have occurred.
26. Denied. The Manual is a document which speaks for itself.
27. Denied. This paragraph is denied pursuant to Pa.C.R.P. 1029(e). Moreover,
Plaintiff did not press the start button, she pressed the quick start button.
28. Denied. This paragraph is denied pursuant to Pa. R.C.P. 1029(e). Moreover, if
Plaintiff had followed the proper procedure posted on the treadmill before stepping onto the belt,
this incident would not have occurred.
29. Denied. The treadmill was not dangerous. Moreover, if Plaintiff had followed the
proper procedure posted on the treadmill before stepping onto the belt, this incident would not
have occurred.
29. Denied. The treadmill was not dangerous. Moreover, if Plaintiff had followed the
proper procedure posted on the treadmill before stepping onto the belt, this incident would not
have occurred.
30. Admitted.
31. Denied. The safety key was in place on the machine. Plaintiff failed to utilize
same.
32. Denied. The safety key was in place on the machine.
{00686889;v1}
33. Denied. The safety key was in place on the machine and available for Plaintiff to
use on the treadmill.
34. Denied. Defendant did not program the timeout feature. Rather, this was
programmed from the manufacturer. In further response, the safety key feature was in place and
not used by the Plaintiff.
35. Denied. The safety key was in place on the machine.
36. Denied. The timeout feature was programmed by the manufacturer. The safety
key was in place on the machine and not utilized by Plaintiff.
37. Denied. The Defendant was not negligent. The remainder of the paragraph is a
series of legal conclusions to which no response is necessary.
38. Denied. The timeout feature program was set by the manufacturer based upon their
experience.
39. Denied. The Defendant was not negligent.
40. Denied. The Defendant was not negligent.
WHEREFORE, Defendant requests Plaintiff's Complaint be dismissed with prejudice.
Count II
41. Answers to paragraphs 1 through 40 are incorporated herein by reference.
42. Admitted.
43. Denied. It is denied that the treadmill was in a dangerous condition.
44. Denied. There was no dangerous condition.
45. Denied. The treadmill was not in a dangerous condition.
46. Denied.
47. Denied. The treadmill was not dangerous.
{00686889;v1}
48. Denied. The treadmill was not dangerous.
49. Denied. The Defendant was not negligent. The remainder of the paragraph sets
forth a series of legal conclusions to which no response is necessary.
50. Denied. The Defendant was not negligent.
51. Denied. The Defendant was not negligent.
WHEREFORE, Defendant requests Count II of Plaintiff's Complaint be dismissed with
prejudice.
NEW MATTER
52. Plaintiff's Complaint fails to state a cause of action upon which relief can be
granted.
53. Plaintiff's Complaint fails to set forth the basis for "special damages or punitive
damages".
54. Plaintiff's injuries arose from her comparative negligence under the circumstances.
55. The treadmill used by the Plaintiff was not in a "dangerous condition".
56. Theresa Fabiano was not a member of Gold's Gym on the day of the incident.
57. Theresa Fabiano was a trespasser on the property of Gold's Gym on the day of the
incident.
58. Plaintiff assumed the risk of harm in the use of the treadmill.
59. Plaintiff's Complaint fails to state a cause of action for punitive damages.
WHEREFORE, Defendant requests Plaintiff's Complaint be dismissed with prejudice.
{00686889;v1}
GOLDBERG KATZMAN, P.C.
By:
Date: AlilLe
{00686889;v1}
Thomas E. Brenner, Esquire
Atty No.: 32085
4250 Crums Mill Road, Ste. 301
P.O. Box 6991
Harrisburg, PA 17112
(717) 234-4161
(717) 234-6808 (facsimile)
Attorney for Defendant
VERIFICATION
S. (r,
I, \1p1/GQ. a representative of Mechanicsburg Fitness, Inc.
t/d/b/a Gold's Gym, hereby acknowledge that I have read the foregoing document, and that the
facts stated therein are true and correct to the best of my knowledge, information and belief.
I understand that any false statements herein are made subject to penalties of 18 Pa. C.S.
Section 4904, relating to unsworn falsification to authorities.
Date:
By:
(00686889;v1)
Mechanicsburg Fitness, Inc. t/d/b/a Gold's Gym
CERTIFICATE OF SERVICE
I hereby certify that I am this date serving a copy of the foregoing document upon the
person(s) and in the manner indicated below, which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail,
with first-class postage, prepaid as follows:
Anthony Stefanon, Esquire
1847 Center Street
Camp Hill, PA 17011-1703
By:
Date: (,1?"11q
{00686889;v1}
Thomas E. Brenner, Esquire
0,9.95 201 �'/ 1-:
k NA/S YC A COUNTY
NIA
ANTHONY STEFANON, ESQUIRE
I.D.#25497
1847 Center Street
Camp Hill, PA 17011-1703
Attorney for Plaintiffs
THERESA FABIANO and : IN THE COURT OF COMMON PLEAS
STANLEY N. FABIANO, her husband, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs :
: CIVIL ACTION - LAW
v
: No. 14 -935 -Civil
MECHANICSBURG FITNESS, INC., :
t/d/b/a GOLD'S GYM, Defendants : JURY TRIAL DEMANDED
PLAINTIFFS' REPLY TO NEW MATTER
AND NOW comes Plaintiff above named, by her attorney, Anthony Stefanon, and
replies to the New Matter of Defendant as set forth in the following paragraphs.
52. Denied. The averments of this paragraph are conclusions of law not requiring
answer by Plaintiff.
53. Denied. The averments of this Paragraph are conclusions of law not requiring
answer by Plaintiff.
54. Denied. To the contrary, the injuries suffered by Plaintiff were caused by the
acts and omissions of Defendant as set forth in Plaintiffs' Complaint.
1
55. Denied. To the contrary, the treadmill used by Plaintiff was in a dangerous
condition as set forth in Plaintiffs' Complaint.
56. Denied. To the contrary, Plaintiff was present on Defendant's premises as a
business invitee, or in the alternative, as a licensee, with Defendant's knowledge,
acquiescence, and permission, and had paid the fee requested by Defendant to utilize
Defendants' premises and equipment on the day of the incident.
57. Denied. To the contrary, the averments of the foregoing Paragraph 56 are
incorporated herein by reference.
58. Denied. Plaintiff specifically denies any voluntary assumption of any known risk
whatsoever.
59. Denied. The averments of this paragraph are conclusions of law not requiring
answer by Plaintiff.
WHEREFORE, Plaintiff demands judgment in accordance with the prayer for relief
set forth in her Complaint.
RESPECTF S , TTED
ony Stefa on squir
1847 Center S' • -et
Camp Hill, X117011-1703
(717) 76 2
I.D.#25.7
Date: S" k 3
VERIFICATION
The undersigned hereby verifies that the facts averred in the foregoing
PLAINTIFFS' REPLY TO NEW MATTER, are true and correct to the best of her
knowledge, information and belief.
This Verification is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to
unsworn falsification to authorities.
Theresa A. Fabiano
Date:/1 "'/G �l
CERTIFICATE OF SERVICE
The undersigned hereby certifies that, on the date below he served a true copy of
PLAINTIFFS' REPLY TO NEW MATTER, on the person listed below, at the address set
forth, by First Class United States Mail:
Thomas E. Brenner, Esquire
GOLDBERG KATZMAN
4250 Crums Mill Road, Suite 301
P.O. Box 6991
Harrisburg, PA 17112
RESPECTF
LY S
TED,
/i
,%`�4
�"` i Y :T 'A Off SQUIRE
.#254
1847 C
Camp
(717)
Date: c-, (;lq
r Street
A 17011-1703
6162
HLED-OFFICE
OF THE PROTHONOTARI
7.0111SEP -5 f111: 52
CUMBERLAND COUNTY
PENNSYLVANIA
ANTHONY STEFANON, ESQUIRE
I.D.#25497
1847 Center Street
Camp Hill, PA 17011-1703
Attorney for Plaintiffs
THERESA FABIANO and : IN THE COURT OF COMMON PLEAS
STANLEY N. FABIANO, her husband, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
: CIVIL ACTION - LAW
V
: No. 14 -935 -Civil
MECHANICSBURG FITNESS, INC.,
t/d/b/a GOLD'S GYM, Defendants : JURY TRIAL DEMANDED
CERTIFICATE PREREQUISITE TO SERVICE
OF A SUBPOENA PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to
Rule 4009.22, Plaintiff 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 (20) 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.
RESPECTFULLY SU
DATE: (1'4,-ZOI f
By:
/p•Al
R- ONYEFANO3r SQUIRE
I.D.#25 . ' 7
1847 V ent Street
Cam• Hil PA 17011-1703
(717) 761-6162
CERTIFICATE OF SERVICE
The undersigned hereby certifies that, on the date below he served a true copy of
CERTIFICATE PREREQUISITE TO SERVICE OFA SUBPOENA PURSUANT TO RULE
4009.22 , on the person listed below, at the address set forth, by First Class United States
Mail:
Thomas E. Brenner, Esquire
GOLDBERG KATZMAN
4250. Crums Mill Road, Suite 301
P.O. Box 6991
Harrisburg, PA 17112
RESPECTFULLY SUBMITTED,
ONY E NO , ESQUIRE
I.D.#25497
1847 Ce - r Street
Camp Hi "A 17011-1703
(717) 76 -•162
Date: /- ��-1001
ANTHONY STEFANON, ESQUIRE
I.D.#25497
1847 Center Street
Camp Hill, PA 17011-1703
Attorney for Plaintiffs
THERESA FABIANO and : IN THE COURT OF COMMON PLEAS
STANLEY N. FABIANO, her husband, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
: CIVIL ACTION - LAW
v
: No. 14 -935 -Civil
MECHANICSBURG FITNESS, INC.,
t/d/b/a GOLD'S GYM, Defendants : JURY TRIAL DEMANDED
NOTICE OF INTENT TO SERVE A SUBPOENA
TO PRODUCE DOCUMENTS AND THINGS FOR
DISCOVERY PURSUANT TO RULE 4009.21
Plaintiff 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 no objection is made, the
subpoena may be served.
RESPECTFU S : ED,
4po
(—.1114L111k
717- HO Y . E ' CON,
I.D.#254 •
1847 C - - - Street
Camp Hill, PA 17011-1703
(717) 761-6162
DATE: • % ' 2 0/
UIRE
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
THERESA FABANO et al
Plaintiff , File No. 14 -935 -CIVIL
VS.
MECHANICSBURG FITNESS, INC t/d/b/a GOLDS GYM
Defendant
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: AERO FITNESS SERVICES, INC, 4750 Westport Dr. Ste 300 Mechanicsburg PA 17055
(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:
Any and all records of maintenance, repair, or programming services or product sales provided to
Mechanicsburg Fitness, Inc t/d/b/a Gold's Gym for any Treadmill owned or operated by Golds Gym
at any time from January 1, 2009 to the present. This request is intended to include any paper
records as well as any electronic records including repair invoices, bills, logs, notes, repair orders,
purchase orders, and any other similar records for the specified time period.
at Anthony Stefanon Attorney, 1847 Center Street, Camp Hill, PA 17011
(Address)
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: ANTHONY STEFANON, ATTORNEY
ADDRESS: 1847 CENTER STREET
CAMP HILL PA, 17011
TELEPHONE: 717 761 6162
SUPREME COURT ID # 2540
ATTORNEY FOR: PLAINTIFFS
Date:
Y THE COURT:
LE
Prothonotary, Civil Division
Deputy