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88-4010
Li St' OA A, AGUE, 1N lilt C()URI t)r C:Iilttl(lti I'I.[AS UNIlERLNt111 fin 1Y, Pt.tttISVI.VAHIA IAGUE IIARILF.I I SRAnn and WIFE PtaintIffs DALE I. KAPLAN Uef entIaut I i U C E (;IVIi ACt I(3N 1 AU I1t1CY1 r tIU. 61 /0 ,111RY I IN irusris5 YOI 1AVP 1r;Ft) SIIED IN t:cltlt("I'. r f you ;� t c1+*rA1t+l ng nittat the r:!Intmi net rtrt:h in tit trtwtn 'rap ""•r I,.,:tt mug,- tnkP within ty (yn nEtnr titin ('.., :►ittfir nut) co rat, n(±!r'vhd, by entering +t frittrtt nt+penrnucr periottn11.y nr by nttr►ru"y nod fi i ittp, itt writlnp with the Court your rinfnnnrn rr nit0Pcti.aun to this cIntun nit fort!, np,nlugt you. Ynit nre wnrunrl aunt if you fni.l to 'In nrt t.1►n cnae tnny itrnc_t+or) without you nurl rt Jttdgmrttt. (rt{ty b" entrrnri npnivat you by tit•* Court without fur. titer, notice for nny money r. I n i mod In tltn Crtmp)nittt or, fttr ratty �ttltrtt. cirtlru rim r°IIr•f rerittngtrot by tits I')ru tttIff, 'tort i��ny or prnpnrty (tr vt.)t !r riitpor, tnttt / WO YOU r.)tlCF. 1r Af FORD ()lir, ronin hr.I.(,tr lirl.P. t. 0 yott. Lb TAKE 'l ll L rAPrR 10 YOUR 1.AWY ER AY. DO HOU tiAy, A I,AWY I:R OR CA11110 ►1' 10 OR '1El.) PIM 'i Hr 01F1( *:l:l° F ItIU mull' WIIEI(E Yon CAI t11;`t' 1.1 u AI. Crt: Arirnittl land t►srl +1p, i'#"?iunsylvalula (1111 749- IN TILE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LINDA A. SPRAGUE and C. BARTLETT . CIVIL ACTION LAW SPRAGUE, HUSBAND and WIFE Plaintiffs DOCKET NO. /J 7') v. JURY TRIAL DEMANDED DALE I. KAP AN IN TRESPASS Defendant COMPLAINT NOW COME LINDA A. SPRAGUE AND C. RARTLETT SPRAGUE, by their attorney, and file the within Complaint. COUNT I 1. The ply+ntiffs are Linda A. Sprague and r- Bartlett Sprague, Husband and Wife, residing at 201 North 24th Street, Camp Hill, PA 17011. 2. Defendant is Dale I. Kaplan, an adult individual residing at 108 Hanna Street, Harrisburg, PA. 3. At all times relevant to this Complaint, Defendant was the owner and operator of Capers Careful Cleaners, a dry cleaning and laundering establishment located at 3607 Market Street, Camp Hill, Cumberland County, PA. 4. Plaintiff Linda A. Sprague and Plaintiff C. Bcrtlett Sprague were married on the evening of December 31, 1987. 5. On the morning of December 31, 1987, Plaintiff Linda Sprague traveled by automobile to the business establishment of Defendant for the purpose of claiming a dress which Plaintiff had previously left with Defendant to be cleaned. 6. Upon arriving at t)efendant's business establishment, Plaintiff Linda Sprague parked her automobile in the parking Int directly in front of Defendant's establishment, entered the establishment, and claimed the dress. 7. Separating the sidewalk in front of Defendant'- business establishment from the parking lot was a large ridge of rutted, lumpy ice, which Plaintiff Linda Sprague was required to cross in order to gain entrance to Defendant's establishment. 8. While carrying the dress and returning to her car, Plaintiff Linda Sprague slipped upon the ice referred to in Paragraph 7 hereof and fell to the ground, striking her right hip, right elbow, and the back of her head. Plaintiff Linda Sprague temporarily ..est consciou. ,:ss as a result of t},w. fall. 9. Defendant Dale 1. Kaplan was careless and negligent in failing to maintain the parking lot in a safe and reasonable manner for Plaintiff Linda Sprague and other proper users of the parking lot, in creating an unreasonably dangerous condition, in permitting an unreasonably dangerous condition to exist, and in failing to exercise due care in the operation of his business and the maintenance of the parking lot. 10. As a result of the negligence of Defendant, Plaintiff Linda Sprague suffered injuries to her head, neck, back, spine, right arm, and right hand. She has suffered aches, pains, numbness, dizziness, shaking, asthma attacks, and mental anguish.. She has been prevented from performing her usual duties and engaging in the activities, avocations, and recreations she had engaged in prior to her injuries. 11. As a result of the negligence of Defendant, Plaintiffs were unable to consummate their marriage on their wedding night, and were unable to engage in normal marital relations. 12. As a result of the negligence of Defendant, Plaintiffs have incurred medical expenses with the Herd Chiropractic Clinic, 704 Market Street, Camp Hill, PA 17011, in an amount of $1,225.00. WHEREFORE, Plaintiffs claim judgment in their favor and against Defendant in an amount in excess of $20,000.00 by reason of the negligence and carelessness of Defendant. COUNT II Plaintiffs incorporate by reference the allegations contained in Paragraphs 1 through 12 hereof, as if the said allegations were set forth herein. 13. Plaintiffs rnntend that the failure of Leiendant to properly and adequately maintain the parking lot and remove the ice therefrom constituted gross and wanton negligence and misconduct. WHEREFORE, Plaintiffs demand punitive damages against Defendant in addition to compensatory damages, interest, and costs. Liam H. Andring Attorney for Plaintiffs 248 Creek Road Camp Hill, PA 17011 (717) 737-9847 VERIFICATION I verify upon my personal knowledge, information, and belief that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. No curt cf Ccm , 4.00tp *we .4 p • * * **I woof s Linda A. Sprayue and C. Bartlett Sprague VS. Dale T. Kaplan December 16 u. Now, wiu •;.F,aa 0 Civil • a 88 88 s:zz " C7.711-3 A..VD C T.7:-. ITY. Daupli n "s 40.4 4 O. 1 A.114 Adavit of Servic.e, •0 I " oLcc :a swcrr.3.nd si el ci CCST. CouacT, COMMCWWEALTH4V CCUNTY OF DAUPHIN .VA SHERIFF'S RETURN No. 4010 Civil 1 Page 39V, I, Willia H, Livingston, Sheriff of the County of Dauphin, State of Pennsylvania do hereby certify and return, that I made diligent starch and inquiry for Dale 1. Kaplan the defendant named in the within ;,,oTIcE &. COMPLAINT p and that I am unable to 14.nd in the County of Dauphin. and therefore return same NOT FWND, this 9th 4isy of January 19 39 . Sworn and subscribed to before me this 9thday of Jan., 1J89 PROTEIONOTARI So Answers Sheriff of Dauphin County, Pen Sheriff's Cost Qnot iive ot acigre giVin Camp Hillen. CgWn Cleatlers DOS SHERIFF'S RETURN COMMONWEALTH OF PENNSYL\ANIA COUNT'''. OF CUMBERLAND Linda A. Sprague and C. Bartlett Sprague Husband abd Wife Dale I. Kalqan Iv the Court of Common Pleas of Cumberland County, Pennsylvania No. 14nio fivii yin Complaint in Trespass and Notice WILLIAM K. BECK, Sheriff, who being duly sworn according to :aw, says, that he made diligent search and inquiry for the within named defendant, to wit: him Dale I. Kaplan , but was unable to locate his bailiwick. He therefore deputized :.he sheriff of Dauphin County, Pennsylvania, to serve the within Complaint in Trespass and OtjGg On janar,, )989 this office was in rec—',ipt of the attached return from Dauphin County, Pennsylvania. Sheriff's Costs: Docketing Service Surcharge Out of County Dauphin County 14.00 2.00 5.00 19.50 S —1-0.50 pd. by Sworn and subscribed to before me atty I- -89 So answers: WrLLIAM K. BECK, Sheriff Prothonotary IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LINDA A. SPRAGUE and C. BARTLETT SPRAGUE, HUSBAND and WIFE P aintiffs V. DALE I. KAPLAN CIVIL ACTION - LAW DOCKET NO. 4010 CIVIL 1988 • JURY TRIAL DEMANDED • IN TRESPASS PRAECIPE TO THE PROTHONOTARY OF THE COURT OF COMMON PLEAS: Please reinstate the Complaint in the above -captioned action. William H. Andring, Esq. Attorney for Plaintiffs, 248 Creek Road Camp Hill, PA 17011 (717)737-9847 SHERIF', RETURN COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Linda A.Sprague and C. Bartlett Sprague husband and wife VS Dale I. Kaplan David Rudy In the Court of Common Pleas of Cumberland County, Pennsylvania No. 4010 Civil 1988 Complaint in Trespass . agfilixor Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, Complaint in Trespass that he served the within upon Dale I. Kaplan EST / 0-001tx or the 23rd 3607 Market Street, Camp Hill , the defendant, at da' of 2:40 o'clock P M. February_ , 19 8q , at (street number' PennsvlvaniP, by hand"- to (city or town) Adrian Haile Secretary ,Cumberland County, a true and attested copy of che and at the same time directing Complaint in Trespass his the "Ndtice to Plead" endorsed thereon. Sheriff's Costs: Docketing Service Affidavit Surcharge 14.00 6.72 2.00 S 22.72 pd. by Sworn and subscribed before me atty.2-24-89 this day of i),a, Prothonotary attention to the contents thereof and So answers: * M K. BECK, Sheriff CERTIFICATE OF SERVICE T hereby certify that T. am this day 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 .me in the United States mail, Harrisburg Pennsylvania, which first-class postage, prepaid, as follows: William H. Andring, Esquire 248 Creek Road Camp Hill, PA 17011 GOLDBERG, KATZMAN & SHIPMAN, P.C. By: PATE: John A. tat T.D. 38l2 319 .rket Street P.O. Rox 1268 Harrisburg, PA (717) 234-4161 17108-1268 Attorneys for Defendant, David I. Kaplan LINDA A. SPRAGUE and : IN THE COURT OF COMMON PLEAS C. BARTLETT SPRAGUE, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW NO. 4010 - 19R8 DALE T. KAPLAN, Defendants : JURY TRIAL DEMANDED PRAFCTPF TO THE PROTHONOTARY: PLEASE enter the appearance of John A. Statler, Esquire, of GOLDBERG, KATZMAN & SHIPMAN, P.C., as counsel on behalf of the Defendant, DALE I. KAPLAN, in the captioned action. GOLI)FEPG, KATZMAN & SF1IPMAN, P.C. n A. I.D. #43 31.9 Mar et Street P.O. B x 1268 Harrisburg, PA (717) 234-4161 17108 - Attorneys for Plaintiffs DATE: /I / LINDA A. SPRAGUE and : IN THF COURT OF COMMON PLEAS C. BARTLETT SPRAGUE, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : CIVIL ACTION - LAW v . NO. 4010 - 1988 DAL} Y. KAPLAN, Defendants : JURY TPIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TC) THE PLAINTIFFS' COMPLAINT AND NOW, comes the Defendant, David I. Kaplan, by his attorneys, Goldberg, Katzman & Shipman, p.C., and files the following Preliminary Objections to the Plaintiffs' Complaint: A. MOTION TO STRIKE J. The Plaintiffs Complaint avers Plaintiff Linda Sprague was injured on the morning of December 31, 1987 when she slipped and fell on some ice (Plaintiffs' Complaint - paragraphs 5 - 8). The Plaintiffs' Complaint further avers that Plainti s Linda A. Sprague and C. Bartlett Sprague were married on the evening of December 31 1987. 3. A fair reading of the Complaint indicates that Linda Sprqne and C. Bartlett Sprague were not married when the accident occurred. 4. A cause of action for consortium is not recognized under Pennsylvania law unless a legal marriage existed at the time of the iniurv. See, e.g. McMullen v. Himes, 69 Erie L.J. 95 (1986), and Saternow v. Byknish, 31 D&C 3d 9 (1983). WHFnPFORE, Defendant respectfully requests that this Court strike off C. Bartlett Sprague as a party from this action since the Plaintiffs were not legally married at the time of the accident and, therefore, Mr. Sprague does not have a valid consortium claim. B. D7MURRER 1. uoferdant incorporates by reference the averments in part A, paragraphs 1 - 4 above. WHEREFORE, Defendant requests that this Court grant the Defendant's Demurrer and dismiss Mr. Sprague's consortium claim from this action. C. MOTTON TO STRIKE COUNT 11 1. Count II of the Plaintiffs' Complaint purports to set forth a cause of action for punitive damages. Punitive damages are only justified when the Defendant's conduct is outrageous due to the Defendant's evil motive or reckless indifference to the rights of others. 3. Ordinary negligence alone, such as inad--rtence, mistake or error of judgment is an insufficient basis tn ustify punitive damaaes. 4. the Plaintiff's Complaint does not contain any facts to sufficiently plead a cause of action for punitivc,, darr:,ges. Wk,L,ARFFORE, ,,fardan Dale I. Kaplan, requests this Court to strike Count II of the Plaintiffs' Complaint and to dismiss the Plaintiffs' claim for punitive damages. Respectfully ubmitted, GOLDREIW, KATZMAN & SHIPMAN, P.C. Joh' A. Statier, Esquire T. 043812 3/9 Market Street P.O. Pox 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant DATE: 3fai c69 CERTIFICATE OF SERVICE' T hereby certify that T am this day serving a copy of the foregoing document upon the person(s) and in the manner indirated below, which service satisfies the requirement!; of the Pennsylvania Pules of Civil Procedure, by depositing a copy of same in the United States mail, Harrishura, Pennsvlvania, which first-class postage, prepaid, as follows: William H. Andring, EsciAre r -reek Ro Camp Hill, PA 17011 GOLDRER(, KAT7MAN & SF' MAN, P.C. F3Y: DATE: 31 ai c6t/ ohn A. _atier, Esau T.D. 812 319 arket Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant, David I. Kaplan PRAFCIPL FOR L1STi CAM- 1OR AR6UMLNT C.41ost be typewritten and 8Uhinitted in duplicate) TO THE PRO1 HON° TARY;01. CUMKI KLAN!) OUNTN !lease list the within ina er itJt th rICX! ;X' !Hai Argumeirt ( uw Alt U190.11tuu CAPTION 01; CAM.: (entire caption must be stated in hill) LINDA A. SPRAGUE and C. BARTLETT SPRAGUE, (111ainto VS, DALE I. KAPLAN, vs. No. 4010_ 1. State matter to be Jrgued ti. e., plaintif Is 'notion tor new trial, defendant's demurrer to nplant, etc.) Defendant's Preliminary Objections 2. Identifycouitsel who will argue as: 19 88_ (a) wriAwntof, William H. Andring, Esquire 248 Creek Road, Camp Hill, PA 17011 0)) fordefendant: John A. Statier, Esquire 319 Market St., P.O. Box 1268, Harrisburg, PA 17108-1 3, 1 will notify all parties in writing within two days that this case has been listed for argument._ Dated: 4/3/89 Attorne) Defendant John Statier, Esquire 319 Market St., P 0 Box 411110 Harrisburg, PA 17108-1268 LINDA A. SPRAGUE and : fN THE COURT OF COMMON PLEAS C. BARTLETT SPRAGUE, : CUMEFPLAND roTTNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW NO. 4010 - 1988 DALE 1. KAPLAN, Defendants : JURY TRIAL DEMANDED STIPULATION TO DTP,ITSS COUNT 11 OF PLAINTIFFS' COMPLAINT It is hereby agreed and stipulated between the parties that Count 11 of the Plaintiffs' Complaint is dicmissed with prejudice. All parties agree that the claim for punitive damages is disfaied with prejudice. GOLDBERG, KATZMAN & SHYPMAN, P.C. : By: DATE: John . Stat ,r, Esquire Att ney for Defendant William H. Andrinq, P.9s Attorney for Plaintitk's PROOF OF SERVICE 1, William H. Andring, Esq., hereby certify that on this, the day of May, 1989, I served a copy of the attached document by causing it to be deposited in the United States Mail, First Class Postage Prepaid, addressed .s follows: John A. Statler, Esquire Goldberg, Katzman & Shipman, P.C. 319 Market Street PO Box 1268 Harrisburg, PA 17108-1268 William H. Andring, Esqu' e 248 Creek Road Camp Hill, PA 17011 ( 17) 737-9847 LINDA A. SPRAGUE and C. BARTLETT SPRAGUE, Plaintiffs vs. DALE I. KAPLAN, Defendant IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 4010 CIVIL 1988 JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTION AND NOW, this BEFORE HOFFER, J. AND HESS, J. ORDER OF COURT day of June, 1989, the defendant's preliminary objection in the nature of a demurrer to the claim of plaintiff, C. Bartlett Sprague, for loss olconsortium, is SUSTAINED. BY THE COURT, William H. Andring, Esquire For the Plaintiffs John A. Statler, Esquire C1 For the Defendant :rlm Kevin .A. Hess, J. Calk e 39 f. 4i IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LINDA A. SPRAGUE and C. BARTLETT SPRAGUE, Plaintiffs V. : CIVIL ACTION - LAW No. 4010 CIVIL 1988 DALE I. KAPLAN, : JURY TRIAL DEMANDED Defendant PRAECIPE TO ENTER JUDGEMENT TO THE PROTHONOTARY: Please enter judgement in favor of Defendant Kaplan and against Plaintiff C. Bartlett Sprague in the present action, pursJant to ttte Order Court dated June 20, 1989. William H. Andring Attorney for Plaintiff 248 Creek Road Camp Hill, PA 17011 (717) 737-9847 LINDA A. SPRAGUE and IN THE COURT OF COMMON PLEAS OF C. BARTLETT SPRAGUE, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs . CIVIL ACTION LAW vs. NO. 4010 CIVIL 1988 DALE I. KAPLAN, Defendant : JURY TRIAL DEMANDED I *' RE: DEFENDANT'S PRELIMINARY OBJECTION BEFORE HOFFER, J. AND HESS, J. ORDER OF COURT AND NOW, this 2-0 day of June, 1989, the defendant''s prelim}nary objection in the nature of a demurrer to the claim of plaintiff, C. Bartlett Sprague, for loss of consortium, is SUSTAINED. BY THE COURT, William H. Andring, Esquire For the Plaintiffs John A. Statler, Esquire For the Defendant ;r1m PROOF OF SERVICE 1, William H. Andring, hereby certify that on this, the 20th day of July, 1989, I served a copy of the attached document by causing it to be deposited in the United States Mail, first class postage pre -paid, addressed as follows: John A. Statler, Esquire Goldberg, Katzman t, Shipman, P.C. 319 Market Street P.O. Box 1268 Harrisburg, PA 17108 William H. Andring Attorney for Plai),Liffs 248 Creek Road Camp Hill, PA 17011 (717) 737-9847 �: t 1 w IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LINDA A. SPRAGUE and C. BARTLETT SPRAGUE, Plaintiffs V. • CIVIL ACTION - LAW : No. 4010 CIVIL 1988 DALE I. KAPLAN, : JURY TRIAL DEMANDED Defendant NOTICE OF APPEAL Notice is hereby given that C. Bartlett Sprague, Plaintiff above named, hereby appeals to the Superior Court of Pennsylvania from the order entered in this matter on the 20th day of June, i989. This ord€ na. bee eitere6 in the docket as evidenced by the attached copy of the docket entry. William H. Andring Attorney for Plaint' 248 Creek Road Camp Hill, PA 17011 (717) 737-9847 PROOF OF SER CE I~ William H. AUdring, hereby certify that on this, the 20th day of July, 1989, } served a copy of the attached document by causing it to be deposited in the United States Mail, first class postage pre -paid, addressed as follows: John A. Statler, Esquire Goldberg, Katz & Shipman, P.C. 319 Market Street P.O. Box 1268 Harrisburg, PA 17108 The Honorable Kevin A. Hess Cumberland County Cour house Carlisle, PA 17013 William H. Andring Attorney for Plaintiff� 248 Creek Road Camp Hill, PA 17011 (717) 737-9847 4010 SUITS, Date ot Entry Appearances: Plaintiff: Defendant: i'ipratpe, J,And D310 i. Kaplan ,Jectatber 19. 19 Hsat M Entry hy Summons COMW:Aint I x Petition ) Appeal ) Revival ) l law x ) Fob 21, 1989, Praocipe, filed. Please reinstate the complaint in the above captioned 'lotion By WI 11ia H Andriug, Arty for Tiff March 2, 1989, Praecip- filed. Please enter the appearance of John A. Stealer, Esq., of Cioldberg, Katmnan & Shipren, as counsel on behalf of Deft., Dale I. Kaplan, in the captioned action. By John A. Statler, Atty for Deft. March 6, 1989, Deft's Preliminary Objections to the Plff's Corplaint, filed. April 4, 1989, Praecipe fur ListAg case for Argument, May 4, 1989, Stipulat:ot, t= Pisr-.ss Count '7 of Plfts' Complat t filed. It is hereby agreed no stIpuiated between the parties that Count II of the Plffs' ' H't;rtut;:a,-J with prejudice. All parties aores, fht tee tt4,14- C:ir punitive age',-, llsrussed with pfejun;(,--. Dy John A Statiet, ty for Deft. By H. Andrinu, Atty for Piff jun 21, 1989, Order of court, file. AND NOW, this 20th Jay ofJune, 1989, the defts. preliminary objection in the nature of a demurrer to the claim of plaintiff, C. Bartlett Sprague, for lost of consortium, is Stl!-:TAINED. Action in Assumpsit 1 Trespass ( ) Habeas Corpus ( ) Divorce ( ) Grounds Equity ) Mortgage Foreclosure ( ) Ejectment Quiet Title 71plevin Condemnation /-!: Service by SHF: ate Return: By the court, Kevin July 20, 1989. Praecipe to eater Judgment. tiled. Please Cr,ntjudgment in laver of Defendant Kaplan and against PIJitoAff Uartiett tague In toe preent action, pntsuant to the Order of (lourt dated Juno 20, William H. Andring r ttruoy ftsr P1 Irt If A. Hess, J. Jw,igI P,:ge 9 sL K Page 3 Taxation of Costs p; 535.50 pd atty W liin 1, Atr.au Re' clot of Fees 4.1 froAN, ',1111 i• 11'1 01 111 ):4 I I 4t . 11 1444 P/f.:4,/ 1),)1.1':1-, 1 11441 4J1 I1I: L1 4 (Jv.)„ 0 44 1 0 i ("tt (.1JPIP•1'1i.flt4i) CO(10 144401) r y iltH CAl<1 1:14 :At4 44 IA 1 I 1)1j ,A14. H1- r.'/'dY4I H 4111. 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OFFICE OF THE COURT REPORTERS CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 ;:f ; t tg-1`.;,t tdif 1-'1111 0%!" OtA:rii%tH. I Fit LINDA L. SPRAGUE and IN THE COURT OF COMMON PLEAS C. BARTLETT SPRAGUE, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. NO. 4010-1988 DALE I. KAPLAN, Defendant : JURY TRIAL DEMANDED 'AJJef*S 4t, INTERROGATORIES OF THE DEFENDANT, DALE I. KAPLAN FOR ANSWER BY THF PLAINTIFF, LINDA L. SPRAGUE TO: Linda L. Sprague, Plaintiff and William H. Andring, Esquire 248 Creek Road Camp Hill, PA 17011 Attorney for Plaintiffs PLEASE TAKE NOTICE that you are hereby required, pursuant to Pennsylvania Rules of Civil Procedure No. 4001, et seq., to serve upon the undersigned, within thirty (30) days after service of this Notice, your Answers in writing under oath to the following Interrogatories. GOLDBERG, KATZMAN & SHIPMAN, P.C. DATED: By: \ John . Statler, Esquire 319 Mark Street P.O. Box 1268 Harrisburg, PA 17108 (717) 234-4161 Attorneys for Defendant, Dale I. Kaplan DEFINITIONS AND INSTRUCTIONS (A) Whenever the term "document" is used herein, it includes (whether or riot specifically called for) all printed, typewritten, handwritten, graphic or recorded matter, however produced or reproduced and however formal or informal. (B) Whenever you are asked. to "identify" a document, the following information should be given as to each document of which you are aware, whether or not you have possession, custody or control thereof: (1) The nature of the document (e.g., letter, memorandum, computer print-out, minutes, resolution, tape recording, (2) ,As date (or if it bears no date, the date when it was prepared); (3) The name, address, employer and position of the signer or signers (or if there is no signer,- of the person who prepared it) (4) The name, address, employer and position of the person, if any, to whom the document was sent; () If you have possession, custody or control of the document, the location and designation of theplace or file in which it is contained, and the name, address and position of the person, having custody of the document; (6) If you do not have possession, custody or control of the document, the present location thereof and the name and address of e organization having possession, custody or control hereof; and (7) A brief statement of the subject matter of, such document. (C) Whenever you are asked to "identify" an oral communication, the following information should be given as to each oral communication of which you are aware, whether or not you or others were present or participated therein: (1) The means of communication (e.g., telephone, personal conversation, etc.); (2) Where it took place; (3) Its date; (4) The names, addresses, employers and positions (a) of all persons who participated in the communication; and (b) of all other persons who were present during or who overheard that communication; (5) The substance of who said what to whom and the order in which it was said; and (6) Whether that communication or any part thereof is recorded, described or referred to in any document (however informal) and, if so, an identifi- cation of such document in the manner indicated above. (D) If you claim that the subject matter of a document or oral communication is privileged, you need not set forth the brief statement of the subject matter of the document, or the substance of the oral communication called for above. You shall, however, otherwise "identify" such document or oral communication and shall state each ground on which you claim that such document or oral communication is privileged. (E) Whenever you are asked to "identify" a person, the following information should be given: (1) The name, present address and present employer and position of the person; and (2) Whether the person has given testimony by way of deposition or otherwise in any proceeding related to the present proceeding and/or whether that person has given a statement whLher oral, written, or otherwise, and if so, the title and nature of any such proceeding, the date of the testimony, whether you have a copy of the transcript thereof, the name of the person to whom the ftatement was given, where the statement is presently located if written or otherwise transcribed, and the present location of such transcript or statement if not in your possession. (F) The term "you" shall he deemed to mean and refer to the party to whom these interrogatories have been propounded for answer and shall also be deemed to refer to, but shall not be limited to, your attorneys, consultants, sureties, indemnitors, insurers, investigators, and any other agents insofar as the material requested herein in n privileged. (G) The wfrd "incident" shall be deemed to mean and refer to the incident as alleged to have occurred and as set forth in your Complaint. These Interrogatories shall be deemed to be continuing Interrogatories. Between the time of your answers to said Interrogatories and the time of trial, if you or anyone acting in your behalf learns the identity or whereabouts of other witnesses not disclosed in your answers, or if you obtain or learn of additional information requested herein, but not supped in your answers, then you shall promptly furnish a supplemental answer under oath containing the same. DATED SI -43 9 JAS010 .4* GOLDBERG, KATZMAN & By: PMAN, P.C. John A. Statler, Esqu 319 Market Street P.O. Box 1268 Harrisburg, PA 17108 (717) 234-4161 Attorneys for Defendant, Dale I. Kaplan 4 Have you been employed since tile time of the incident referred to in the Complaint? If so, state: (a) The name and address of your employer; (h) The position held and the nature of work being performed; (c) Hours worked per week; (d) Present weekly wages, earnings, income or profit; (e) Name of your immediate boss, foreman or other superior to whom you are responsible; (f) Whether a physical examination was required, and if so, state the date, place and person giving the examination; (g) For each employee, whether you made any representations in writing or answer in writing any questions concerning your physical examination. ANSWER: Plaintiff Lit'cla A. Sprague was employed from the time of the incident referred to in the Complaint until approximately April 25, 1988, by The Kichen Works, located in the Capital City Mall, Camp Hill, Pennsylvania. Plaintiff was employed as a store manager, working approximately 50 hours per week, and earning approximatel-, $12,000 per year. The name of her immediate supervisor was Steve Barnett. From approximately April 26, 1988, to the present, Plaintiff Linda A. Sprague has been employed as an office manager by Dr. Daniel S. Romm. Plaintiff works 40 hours per week at this position, at an hourly wage of $8.43. Dr. Romm's address is the Medical Arts Building, Camp Hill, Pennsylvania. No physical examination was required for either of these positions, and no representations were made concerning any physical examination. 2. Were you employed during thefive year period prior the incident referred to in the Complaint? If so, state for each employment: (a) The name and address of your employer; (b) The position held and the nature of work being performed; (c) Hours worked per week; (d) Your yearly gross and net income; (e) The name and address of the person, firm or corporation having custody of any papers pertaining to your income. ANSWER: From approximately October, 1978, until approximately :JAy 7, 1986, Plaintiff Linda A. Sprague was employed by Dr. Richard W. Fideler, 56 Erford Road, Camp Hill, Pennsylvania. Plaintiff was employed a6 an office manager, wurking approximately 40 hours per w.:„ for approximately $26,000 year. to 3. Have you made a claim for lost wages or income as a result of the incident referred to in the Complaint? If so, state: (a) Did 'you continue to receive any wages, or profits from your employer or business during the time you contend that you were disabled; (b) The nature and amount of wages or income you received during the time you contend that y(Al were disabled; and (c) The name and address of the agency, company, person, corporation, state or government who made such payments to you. ANSWER: No. 3 4. Have you ever suffered any injuries in any accident, either before or after the incident referred to in the Complaint? if so, state: (a) Date and place of such injury; (b) A detailed description of all the injuries you received; (c) The name and address of any hospitals rendering treatment; (c3) The names and addresses of all physicians, surgeons, osteopaths, chiropractors or other medical practitioners rendering treatment; (e) The nature and extent of recovery, and, if any permanent disability was suffered, the nature and extent of the permanent disability; and (f) If you were compensated in any manner for any such injury, state the names and addresses of each and every person or organization paying such compensation and the amount thereof. 'ER: n August 26, 1983, Plaintiff Linda A. Sprague fell on a stairway at work, suffering abrasions and bruises co tree right arm, right hip, and back of head. Plaintiff was treated by Patterson, Litton, Lonergan, Yucha, and foal, 875 Poplar Church Road, Camp Hill, 2ennsylvania. Plaintiff had a complete recovery, and all bills were paid by Blue Cross and Blue Shield insurance coverage. On July 14, 1984, Plaintiff Linda A. Sprague was involved in an automobile accident which exaggerated the previous injuries. Treatment for both accidents was also provided by Dr. Gerald Dincher, and claims paid by the Aetna Insurance Company. Plaintiff has recovered completely from these injuries. 4 5. Have you ever had any serious illness, sickness, disease or surgical operations, either before or after the incident referred to in the Complaint? If so, state: (a) The date and place; (b) A detailed description of your symptoms; (c) The names and addresses of any hospitals renderig treatment; (d) The names and addresses of all physicians, surgeons, osteopaths, chiropractors or medical practitioners rendering treatment; (e) The approximate date of your recovery; and (f) If you did not recover fully, the date your condition became stationary, and a description of your condition at that time. ANSWER: In 1974, Plainiiff suffered from cancer. In November ,=f 1985, Plaintiff suffered from pneumola, with (t nEil recurrences through June of 1987. Plaintiff received treatment in 1974 at Holy Spirit Hospital, Carp Hill, Pennsylvania, from Dr. Stepho- J. Davis. Plaintiff has ,covered fully from the previously -specified conditions. 6. Do you have a family physician or other medical practitioner with whom you consult for a general, physical or mental complaint? If so, give his name and address and the date upon which you last consulted him or her, and the reason for such consultation. ANSWER: Dr. Stephen Davis, 220 Grandview Avenue,Camp Hill, Pennsylvania 17011. 7. Have you ever entered, or been committed to, any institution, either public or private, for the treatment or observations of mental conditions, alcoholim, narcotic or drug addiction, or disorders of any kind? If so, state: (a) The name and address of such institution; (b) The length of Your stay, and the dates thereof; (c) The purpose or reason for your entry into such institution; and (d) The name and address of the doctor, cr doctors, who treated you for such condition. ANSWER: Have you ever pleaded guilty to or been convicted of any crime in this or any other jurisdiction other than traffic violations? If so, F:tate: (a) The nature of the offense; (b) The date; (c) The county and state in which you were tried, or pled guilty; and (d) The sentence, if any, given to you. ANSWER: No. 9. Y'f- the time of the incident referred to in your Complaint, did you have any condition for which you wore eyeglasses, or for which eveglasses had been prescribed for you, and if so, state: (a) A brief description of the condition.; (b) Were you wearing eyeglasses at the time of the incident referred to in your Complaint; and (c) The name and address of the doctor or person who prescribed eyeglasses for you. ANSWER: At the time of the. incident, Plaintiff Linda Sprague was far-sighted, and wore contact lenses. Plaintiff was wearing the contact lenses at the time of the incident. The lenses were obtained from Fairview Vision Center, old York Road, Etters, Pennsylvania. 10. State in detail the nature of the injury or injuries you allege that you suffered as a result of the incident referred to in the Complaint, and with respect thereto, state the following: (a) The extent and nature of any disability; (b) Describe in detail the location of any pain suffered and the duration and intensity of such pain; and (c) Whether you suffered any restraint of your normal activities due to the injuries allegedly suffered, and describe in detail the nature of such restraint and the date you suffered the pain. ANSWER: Plaintiff Linda Sprague suffered injuries to her head, neck, back, spine, right arm, and right hand. She experienced aches, pains, numbness, dizziness, shaking, asthma attacks, and mental anguish. The aches and pains have been severe, and continued for approximately 6 months. Plaintiff was un- able to engage in normal activities, such as sitting, standing or walking without pain, performing household work, participa- ting fully in her marraige ceremony, inqaging L normal marital relations, and engaging in other similar everyday activities. 11. If you received any treatment with respect to the injuries allegedly suffered, state: (a) The names and address of each hospital in which you were treated or admitted; (h) The dates on which said treatment was rendered, including the dates of entry and discharge into and from said hospital or hospitals; (c) Itemize the services rendered by each of the hospitals listed above; (d) The name and address of each physician, surgeon, osteopath, chiropractor, or medical or dental practitioner of any type whatsoever who has examined or treated yo1, or conferred with you with respect to the injuries alleged; and (e) Itemize the costs and expenses of each such examination or treatment by those listed in (d) above. ANSWER: Dr. Geald M. Dincher, D.O. , 2704 Mar'f.ec Street, Lamp Hill, Pennsylvania 17011, and Dr. Romm. Expenses with Dr. Dincher have totalled $1,225.00. 9 12. If you have incurred any medical bills or expenses of any kind in connection with the alleged injuries not heretofore listed, state: (a) The person with whom such bill was incurred; (b) The amount of such bill; and (c) The service or thing for which the bill was rendered. ANSWER: 13. If you are still receiving medical services or treatment or any nature whatsoever, state. ANS (a) The name or names of the person or persons attending you; (b) The approximate frequency of said. treatment of service; and (c) The date you last received said treatment or service. R: None. 10 14. Please list all medicine purchased or used hy you in connection with the treaLment of injuries complained of, the cost thereof, and the store or place from which they were purchased or obtained. ANSWER: Natural muscle relaxer. 15. Have you ever been involved in any other legal action for personal injury or property damage, either as a defendant or a plaintiff? If so, state: (a) The date and place each such action was filed, giving the name of the court, the name of the other party or parties Involved, the number of such action and the names of the attorneys representing each party; (b) A descriptio;, ..)f the nature of each such cir7n; and (c) The result of each such action, whether there was an appeal and the result of the appeal. ANSWER: No. ii k. 16. State whether or not you sustained any injuries or had any disease, deformity or impairment prior to the incident her involved which in any way whatever affected those parts of your body which you claim were injured as a result of the incident herein involved, and state: (a) The nature of such injury, disease, deformity, or impairment; (b) The name and address of any hospital or institution to which you had gone for treatment, and/or examination, and the dates thereof; and (c) The name and address of any doctor or other person to whom you had gone for treatment and/or examination and the date thereof. ANSWER: No. 12 Trial Expert Witnesses 17. State the names, business and residence addresses, and employers of each person whom you will call as an expert witness at the trial of this matter, including medical witnesses identified with regard to the issues of liability (1) and damages (D), and with regard to each expert state: (a) The subject wafter on which the expert is expected to testify; (b) The substance of the facts and opinions to which the expert is expected to testify; (c) A summary of the grounds for each opinion; (d) Whether the facts and opinions to which the expert is expected to testify are contained in any written report, memorandum, or other document, and, if so, identify the name and address of the present custodian of said report, memorandum or other document. (A copy of Lhe ,,xpert repor may be attached in lieu of answering Interrogatory 5.) ANSWER: At the present time, it is anticipated that Dr. Dincher would be called to testify as to the injuries sustained by Plaintiff and the treatment which he pzovided- 1 3 Non -Expert Witnesses 18. State the names, residence and business addresses, and employers of each person whom you will call to testify on your behalf at the trial of this matter, and briefly state the subject matter of their proposed testimony. ANSWER: Kimberly M. Coonradt, Jami E. Coonradt, and Daniel T. Koonradt, all of 207 N. 24th Street, Camp Hill, PA 17011; B. Garrdell Peters, 11 West Green Street, Mechanicsburg, PA 17055; and C. Bartlett Sprague, 207 N. 24th Street, Camp Hill PA 17011. Exhibits 19. Identify by date of preparation, description, and name of person preparing, all documents or other objects which you will introduce as exhibits at the trial of this matter, identified with regard to the issues of liability (L) and damages (D). ANSWER: Exhibits will consist of copies of all medical bills, and receipt for cleaning from Capen Careful Cleaners, dated 1/15. 14 •As to the condition or defect which you contend caused the accident, state: (a) The description of the condition which made the surface dangerous; (b) Each fact which indicates the length of time the condition existed prior to the accident; (c) Each act which tends to show that the defendant knew, or should have known, of the condition; (d) Each act which the defendant failed to perform to make the premises reasonably safe for use; (e) Whether you knew of the condition before the accident, and if so (i) The manner in which you acquired such knowledge; (ii) The time you acquired such knowledge; (iii) Any act performed by you to avoid the accident after you acquired such knr,,ledge. ANSWER: Packed snow and rutted ice constituted the condition which made the surface dangerous. The fact that the snow and ice were packed and rutted, and dirty, indicates that the condition existed for a substantial period of time prior to the accident. It would have been impossible for the Defendant to enter or leave his business premises without observing the condition. Plaintiff was not aware of the condition before the accident. The snow and ice should have been removed from the area between Defendant's parking lot and Defendant's business establishment. 15 21. Describe the weather conditions at the time of the accident, indicating what lighting was available from natural sources. ANSWER: The incident occurred out-of-doors, in the day time. 22. Describe the shoes you were wearing at the time the accident occurred, and heel size, if any. ANSWER: Plaintiff was Wearing flat, leather loafer at the time of the accident, v—th normal shoe heels (not high heels). 23. Did you sustain any injury as a result of a fall within the past five (5) years, other than the fall involved in this action? ANSWER: No. 16 / 24. If so, for each such (a) The date of it; al: , state: (h) The description and the circumstances surrounding the fall; (c) The address of the premises on which the fall occurred. ANSWER: 25. Were you carrying anything at the time of the accident? ANSWER; Plaintiff was carrying one bridesmaid dress at the time of the accident. 17 26. If so, for each such item state: (a) A description of it; (b) The size of it, including its shape, length breadth, depth and weight; (c) Whether your vision was in any way obstructed by such item(s), and, if so the rxtent of the obstruction. ANSWER: The bridesmaid dress was the normal size of a dress, and did not obstruct the vision of Plaintiff. 18 Prior Litigation 27. Prior to this accident, have you ever received any disability, pension, income, insurince or workers' compensation from any agency, company, person, corporation, state or 9overnment? If so, state: (a) The nature of such payments; (b) The date you received such income; (c) From what injury or disability you received it, and how such injury occurred and disability arose; (d) By whom paid; (e) Whether you now have any present disability as a result of such injuries or disabilities; (f) If so, the nature and extent of such disability; (g) Whether you had any disability at the time of the incident referred to in the Complaint; (h) If so, the nature and extent of such disability. ANSWER: 19 28. Please identify (name and address) all physicians, psychologists, chiropractors or other medical practitioner who examined or treated you for any illness, condition, diFease or injury from 1980 to the present. As to each person, please state: (a) The name and complete business address of the practitioner; (b) The date(s) on which you consulted with the practitioner; (c) The reason for seeing the practitioner; (d) The examinations, tests, treatment and recommendations given by the practitioner; (e) The area of your body in which you were receiving treatment; and (f) Whether the illness, condition, disease or injury had completely resolved prior to December 31, 1987. ANSWER: All of these ote have been answered previously. 20 LINDA L. SPRAGUE and : TN THE COURT OF COMMON PLEAS C. BARTLETT SPRAGUE, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. : NO. 4010-1988 DALE I. KAPLAN, Defendant : JURY TRIAL DEMANDED PROOF OF SERVICE OF INTERROGATORIES I, John A. Statler, Esquire, of the law firm of Goldberg, Katzman & ShiTian, P.C., attorneys for Defendant, Dale I. Kaplan, do hereby certify that I this date served the original and two copies of said Interrogatories on the following individual, by depositing the same in the United States mail, postage prepaid, Harrisburg, Pennsylvania, addresser to: William H. Andring, Esquire 248 Creek Road Camp Hill, PA 17011 GOLDBERG, KA'"ZMAN & SHIPMAN, P.C. By: John . SttlPT 319 MarkP S P.O. Box 1268 Harrisburg, PA 17108 (717) 234-4161 Attorneys for DpfPndant, Dale T. Kaplan DATED: VERIFICATION I verify upon my personal knowledge, infnrmatinn, and belief that the statement. mc1e herein are true and correct. I understand that false statements herein are made r.uhjert to the penalties of 1R Pa.C.S. Section 4904, relating to unsworn falsification to authoritiec. LINDA A. SPRAGUE and IN THE COURT OF COMMON PLEAS OF C. BARTLETT SPRAGUE, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW vs. DALE I. KAPLAN, NO. 40/0 CIVIL 1988 Defendant JURY TRIAL DEMANDED OPINION PURSUANT TO RULE 1925 This case arises out of injuries allegedly sustained by the plaintiff, Linda A. Sprague, as a result of her falling on ice and snow during the morning hours of December 31, 1987, while she was on the property of Capen Careful Cleaners, a business establishment owned by the def,.;ndal On tie day she fell, the plaintiff, Linda, was engaged to be married to the plaintiff, C. Bartlett; in fact, their nupt,711 ceremr , was held later that sante New Year's Eve. Thus, at the time the complaint was filed, the plaintiffs were wife and husband. Notwithstanding, we have dismissed Mr. Sprague's claim for loss of consortium because he was not married to the plaintiff, Linda, at the time she slipped and fell on the defendant's property. Mr. Sprague has appealed from our order dismissing his cause of action. The question presented in this case is the same confronted by the court in Saternow v. Byknish, 31 D & C.3d 9 (1983): The only issue presented is whether defendants are entitled to judgment as a matter of law on plaintiff husband's claim for loss of consortium. In other words, should an action for loss of consortium be sustained where the underlying injuries to one's spouse predated the marriage? It has long been established in Pennsylvania that either spouse is entitled to recover for loss of consortium. Hopkins v. Blanco, 457 Pa. 90, 320 NO. 4010 CIVIL 1988 A.2d 139 (1974). IL is also well established that an action for loss of consortium at common law is not permitted where the injuries predate a legal marriage cememony. See e.g., Felch v. Air Florida, Inc., 562 F.Supp. 383 (D,D.C. 3983) (applying Virginia law); Weaver v. G.D. Searle & Co., 558 F.Supp. 720 (N.D. Ala. 1983) (applying Alabama law); Navarre v. Wisconsin Barge Line, Inc., 502 F.Supp. 360 (S.D. Iii. 1980)(applying general maritime law); Wagner v. International Harvester Co., 455 F.Supp. 168 (D. Minn. 1978) (applying Minnesota law); Tremblay v. Carter, 390 So.2d 816 (Fla. Dist. Ct. App. 1980); Sostock v. Reiss, 92 Ill. App. 3d 200, 415 N.E.2d 1094 "980); Angelet v. Shiver, 602 S.W.2d 185 (Ky. Ct. App. 1980); Childers v. Shannon, 183 N.J. Super. 591, 444 A.2d 1141 (1982); Sawyer v. Bailey, 413 A.2d 165 (Me. 1980); Miller v. Davis, 107 Misc. 2d 343, 433 N.Y.S.2d 974 (1980); Rademacher v. Torbenson, 257 A.D. 91, 13 N.Y.S.2d 124 (1939); Booth v. Baltimore & O.R. CO., 77 W. Va. 100, 87 S.E. 84 (1915). See also Annot., 5 A.L.R.4th 301 (1981), and W. Prosser, Law of Torts sec. 124, at 974 4th d. 1977). Likewise, Pennsylvania courts have uniformly held tr he rigid rule that an award for loss of consortinm will not be permitted unless a legal marriage existed at the time of the injury. Akers v. Martin, 14 Pa. D.&C.3d 325 (1980); Rockwell V. Liston, 71 Pa. D.&C.2d 756 (1975); Sartori V. Gradison Auto Bus Co., 42 Pa. D.&C.2d 781 (1967); Fontana v. Mellott, 4 Adams Cty. L.J. 162 (C.P. 1963); Donough v. Vile, 61 D.&C. 460 (1947). But see Sutherland v. Auch Inter -Borough Transit Co., 366 F. Supp. 127 (E.D. Pa. 1973), and Orga v. Pittsburgh Railways Co., 155 Pa. Super. 82, 38 A.2d 391 (1944) (obiter dictum). The rationale for this rule of long standing has been variously described. "Damages for the loss of consortium are intended to compensate for an injury done to the connubial relationship. It would therefore appear that where the marriage relationship does not exist at the time of the tort, a cause of action cannot be created by a marriage subsequent thereto." Donouqh v. Vile, 61 D.E.C. 460 (1947). One who subsequently becomes a husband has "no right whatsoever to the services of his prospective wife" at the time of the injury and thus -2- NO. 4010 CIVIL 19V is not entitled to recover for loss of consortium. Fontana V. Mellott, 4 Adams Cty. L.J. 162 (C.P. 1963). "A subsequent husband should not acquire any right to sue for loss of consortium. He should not be entitled to marry a cause of action. The tortfeasor, we are frequently told, takes his victim as he finds him. The victim should not acquire new parties as she proceeds along the roads of romance." Sartori v. Gradison Auto Bus Co., 42 D.&C.2d 781 (1967). One federal case from the Eastern District of Pennsylvania would carve an exception to the rule. In the case of Sutherland v. Auch Inter -Borough Transit Co., 366 F.Supp 127 (1973), husband and wife were married less than a month after the wife was injured while riding as a passenger on the defedant's bus. In Sutherland, supra, the federal court, attempting to predict what the Pennsylvania Supreme c. urt would do when faced with the same set of facts, yet dealing with lower court opinions such as that in Sartori v. Gradison Auto Bus Co., supra, noted: The Sartori holding turned on the theory that a prospective husband takes his future bride as he finds her and should not be permitted to marry a cause of action. In Sartori, the plaintiff wife was injured on December 24, 1963 and the Sartoris were married on September 12, 1964, approximately nine months later. In our case, the accident occurred on May 11, 1968, and plaintiffs were married on June 7, 1968, less than a month later. Although the Sartori court did not expound on the time interval involved between accident and marriage, we are of the opinion that the Supreme Court of Pennsylvania would make some modification of the holding in that case where, at the time of the accident, plaintiffs were engaged to be married and the wedding date was less than a month away. However, plaintiff Donald Sutherland is only entitled to recover for loss of consortium from the date of his marriage.... NO. 4010 CIVIL 1988 Even after Su nd, our courts of common have continued to hold that a spouse cannot recover for loss of consortium where the cause of action arose prior to the marriage. See, for example, Akers v. Martin, 14 D.&C.3d 325 (1980), Rockwell v. Liston, 71 D.&C.2d 756 (1975), Saternow v. Byknish, supra. Having encountered not a single common pleas case nor any Pennsylvania appellate case which supported the plaintiff husband's position, we entered our one sentence order of June 20, 1989, sustaining the demurrer to the claim of the plaintiff, C. Bartlett Sprague, for loss of consortium. If, however, there was ever a case in which the facts suggest a departure from the, thus far, well-established rule, this is the case. As we have previously noted, not only were the plaintiffs engaged to be married on the day of Mrs. Sprayue's fail but (according to answers to interrogatories filed in the case), Mrs. Sprague was carrying a bridesmaid's dress at the time of the accidr. It is apparent that the couple had already obtained a civil license to be married and the sole remaining act necessary to formalize their intentions was the ceremony itself. Any attempts to modify he existing rule will yield no "bright line." Engagements to be married do not come in prescribed lengths nor do they require adherence to a particular set of procedures. They do not always end in marriage. It is also true that the effect of injury, by the tortious acts of third parties, is the same upon a spouse even if there was no thought of marriage at the time of the injury. It is, in part, because any standard, other than marriage itself, is too "vague and indefinite" (Rockwell v. Liston, supra.), -4- 19° toos NO. 4010 CIVII, 1988 that our courts of comic >n pleas, including this one, refuse to attenuate the existing rule. October J , 1989 William H. Andring, Esquire For the Plaintiffs John A. Statler, Esquire For the Defendant rlm lc COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND LINDA A. SPRAGUE and IN THE COURT OF COMMON PLEAS C. BARTLETT SPRAGUE, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. NO. 4010 - 1988 DALE I. KAPLAN, Defendant JURY TRIAL DEMANDED PLAINTIFFS' BRIEF IN OPPOSITION TO PRELIMINARY OBJECTIONS OF bEFENDANT In the Complaint filed in the present action, Plaintiff Lind Spr,4gue seeks damages for injuries incurred when she slipped and fell on ice and rutted snow on the property of Capen Careful Clean --s on the morning of December 31, 1987. Capen Careful Cleaners is owned by Defendant, Dale 1. Kaplan. That evening, Plaintiff Linda Sprague married Plaintiff C. Bartlett Sprague, pursuant to a preexisting engagement. Plaintiff C. Bartlett Sprague has sought damages from the Defendant for loss of consortium resulting from the injuries sustained by his wife on December 31, 1987. Defendant contends in his Preliminary Objections that Plaintiff C. Bartlett Sprague is not entitled to recover for loss of consortium, as he was not actually married to Plaintiff Linda Sprague at the time she slipped and fell on Defendant's property. To support this contention, Defendant relies upon the case of Saternow v. Byknish, 31 D&C, 3d 9 (C.P. Mercer 1983). In Saternow, the plaintiffs were unmarried at the time of an accident, but married less than 30 days later. In holding that the plaintiff husband was not entitled to recover damages for loss of consortium resulting from injuries suffered by his wife, the court stated "The nonexistence of marriage at the time of the injury, therefore, precludes that cause of action." The Court in Saternow also cited a number of other common pleas decisions L. accord with the court's ruling. Apparently, no appellate level Pennsylvania court has decided this issue. A similar factual situation was addressed by the court in Sutherland v. Auch Inter -Borough Transit Company, 366 F. Supp. ,-) l27((.,) where an accident causing Injury to the plaintiff wife occurred on May 11, 1968, plaintiff wife and plaintiff husband were -arried on June 7, 1968, and the plaintiff subsequently brought an action in which plaintiff husband sought damages for loss of consortium. The court permitted the husband to recover damages for loss of consortium from the date of the marriage. The court held that where the wedding date was less than a month away from the accident date, some modification of the general rule, prohibiting recovery for loss of consortium when the parties are not married at the time of the accident, was necessitated. In the present case, the Plaintiffs had obtained a marriage license and made extensive plans for the performance of the marriage ceremony. Plaintiff Linda Sprague had gone to Defendant's business establishment to pick up dresses for the wedding party, to be worn in the wedding ceremony th.;t_ cventhg. It was while on this errand that she slipped and fell in Defendant's parking lot. Under these circumstances, Plaintiffs contend that the denial to Plaintiff husband of damages for loss of consortium would be improper and unjust. APRImPPRompiummimpolg ftil1eemW911,f,"t This relationship entitles both husband and wife to the society, companionship and affection of each other in their life together. Any interference with this right of consortium by the negligent injury to one spouse should afford the other spouse a legal cause of action to recover damages for that interference. Burns v. Pepsi-Cola Metropolitan Bottling Co, 35.. Pauper. 571, 510 A. 2d 810 (1986). 101110111101atikibmiii, * 6 * t. In the present case, Plaintiff contends that public policy considerations and their resulting limitations on legal causation should not operate to bar recovery for loss of consortium where a marriage license has been issued, the Plaintiffs are engaged, and the injury occurs on the day of the wedding. b.v,,,,towweelowmwegme-ifoost lev-gre--9gal.liecause the aceident-occurred,oevezal,hours before g ceremony, rather than one hour—affer the'eeremony. _ rrrnTrr7777Uests this Court to follow the precedent Plain and hold that in the present case, ett Sprague's claim for los of of consortium is Respectfully submitted, wiivamr Andring, Attorney for Plaintiff 248 Creek Road Camp Hill, PA 17011 (717) 738-9847 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND LINDA A. SPRAGUE and C. BARTLETT SPRAGUE, Plaintif V. DALE I. KAPLAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 4010 - 1988 JURY TRIAL DEMANDED PROOF OF SERVICE I, William H. Andring, Esq., hereby certify that on this, the Second day of June, 1989, I served a copy of the attached document by causing it to be deposited in the United States Mail, First Class Postage Prepaid, addressed as follows: John A. Statler, Esquire Goldberg, KatTman & Shipman, F.C. 319 Market Street PO Box 1468 Harrisburg, PA 17108-1268 William H. Andring, Esqi Attorney for Plaintiffs 248 Creek Road Camp Hill, PA 17011 (717) 737-9847 re LINDA A. SPRAGUE, Plaintiff DALE I. KAPLAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW No. 4010 - 1988 JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW, comes the Defendant, Dale I. Kaplan, by his attorneys, Goldberg, Katzman & Shipman, P.C., and moves this Court for a Summary Judgment in his favor based on the following: A. ASSUMPTION OF RISK 1. P7,:rtiff has sued the Defendant for injuries sustained on December 31, 1987, in a slip -and -fall accident on the Defendant's property. 2. Plaintiff fell on ice at the Camp Hill location of Capen Careful Cleaners. 3. The Plaintiff's deposition testimony and Reply to New Matter unequivocally reveal that she was fully aware of the icy condition before she walked over the area both on the morning of her accident and the evening before her accident. 4. Plaintiff knowingly and voluntarily assumed the risk of her injuries under the circumstances. S. Summary Judgment should be entered in favor of the Defendant based on asswnption of risk because there is no genuine issue a.c., to any material fact and because the Defendant is entitled to a iudqment as a matter of law. B. NO EVIDENCE THAT HILL OR RIDGE OF ICE CAUSED THE FALL 6. The Plaintiff's deposition testimony reveals that there is no evidence that a hill or ridge of ice actually caused the Plaintiff ) fall. 7. Without proof that a dangerous hill or ridge of ice caused the fall, the Plaintiff cannot meet her burden of proving negligence on the part of the Defendant. WHEREFORE, Defendant, Dale I K.Iplan, requests a Summary Judgent in his favor nd against the Plaintiff. B DATE: GOLDBERG, KATZMAN & SHIPMAN, P.C. JO N A STATLER, ESQ. Attorn y I.D. #43812 320E Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Counsel for Defendant, DALE I. KAPLAN CERTIFICATE OF SERV CE I HEREBY CERTIFY that I' served a true and correct copy of the foregoing document upon all counsel of record by depositing the same in the United States Mail, first class, postage prepaid, at Harrishurg, Pennsylvania, on the ,;12) day of 11-k , 1990, addressed as follows: William H. Andring, Esq. 248 Creek Road Camp Hill, PA 17011 GOLDBERG, KAT'MAN & SHIPMAN, P.C. JOHN . STATLER, ESQ. Attor ey I.D. 43812 320E Market Street P. O. Hox 1268 Harrisburg, PA 17108-1268 (717) 734-4161 Counsel for Defendant, DALE I. KAPLAN LI!, A A. SPRA6VE, Plaintiff, DALF 1. KAPLAN, TO: Defendant. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA. : CIVIL ACTION - LAW No. 4010 - 1988 JURY TRIAL DEMANDED NOTICE TO PLEAD Linda A. Sprague and William H. Andring, Esq. 248 Creek Road Camp Hill, PA 17011 Y hcrhy notir4.od to plead to the enclosed NPW Matter within twenty (20) days from service hereof or a default ludoment may be ,,rtered aw.ins,t you. GOLDBERG, KATZMAN & SHIPMN, P.C. Date: , (90 By: JOHN A. S7.TLER, ESO. T.D. *43612 370E Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant. LINDA A. SPRAGUE Plaintiff v. DALE T. KAPLAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 4010 - 1988 JURY TRIAL DEMANDED ANSWER INCLUDING NEW ATTER D NOW, comes the Defendant, David T. Kaplan, by his attorneys, Goldberg, Katzman & Shipman, P.C., and files the following Answer Including New Matter to the Plaintiff Complaint: COUNT I 1, Denied. After reasonable investigation, D. endant is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 2. Admitted. 3. Denied as stated. By way of further answer, Capen Careful Cleaners is the trade name of Dale T. Kaplan, Inc. Dale 1. Kaplan is the President of Dale I. Kaplan, Inc. 4. Denied. After reasonable investigation, Defendant. is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at tine of trial if deemed material. 5. Denied. After reazonable investigation, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 6. Denied. After reasonable inve ti.;ion, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 7. Denied. 8. It is specifically denied that the parking lot contained a large ridrle of rutted, lumpy ice and denied that Linda Sprague was required to cross this area in order to gain entrance to Capen Cleaners. By way of further answer, n fendant is without information sufficient to form a belief as to the truth or falsity of the balance of the averments - 2 - in this paragraph and, therefore, denies the same and demands strict proof at time of trial if deemed material. 9. The averments in this paragraph constitute conclusions of law to which no response is required. in the event a response is deemed to he required, it is sper: ically denied that Dale I. Kaplan was careless and negligent in failing to maintain the parking lot in a safe and reasonable manner. By way of further answer, it is specifically denied that the Defendant was careless and negligent in creating an unreasonably dangerous condition or in permittinq an unreasonably dangerous condition ts: exst or in tiling to exercise due care in the operation of Caren Clean,,rs and the maintenarce of the parking lot. 10. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, Defendant specifically denies each and every allegation of negligence and carelessness. By way of additional answer, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments concerning the injuries and damages allegedly sustained by the Plaintiff and, therefore, denies the same and demands strict proof at time of trial if deemed material. 11. The averments in this pa agraph constitute conciusions of law to which no respot,se is required. In the event a response is deemed to be required, Defendant specifically denies each and every allegation of negligence and carelessness. By way of additional answer, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments concerning the injuries and damages allegedly sustained by the Plaintiff and, therefore, denies the same and dernand strict proof at time of trial if dePmed material. 12. The averments in this parag aph constitute conclusions of law to which no response is r.Nuired- In the event. a response is deemed to be required, Defendant specifically denies each and every allegation of negligence and carelessness. By way of additional answer, Defendant is without information sufficient to form a belief as to the truth or falsity of the averments concerning the injuries and damages allegedly sustained by the Plaintiff and., therefore, denies the same and demands strict proof at time of trial if deemed material. WHEREFORE, Defendant, Dale I. Kaplan, respectfully regu.sts that the Plaintiff's Complaint he dismissed and that Tiudgment be entered in favor of the Defendant and against the Plaintiff. 4 COUNT it 13. The averments in Count IT of the Plaintiff's Complaint have been stricken and dismissed by agreement of the parties as evidenced by the signed Stipulation filed with the Court. WHEREFORE, Defendant, Dale I. Kaplan, demands that, Count II of the Plaintiff's Complaint be dismissed pursuant to agreement agreernent af the parties. NEW MATTER By way of additional answer and reply, the Defendant interposes the followinc New Matter: 14. Plaintiff Linda A. Sprague knowingly and voluntarily assumed the risk of her injuries under the conditions then and there existing. 15. Plaintiff Linda A. Sprague saw the ice, prior to attempting to cross it. 16. Plaintiff Linda A. Sprague appreriated the slippery nature of the ice that she saw prior to attempting to rross it. NY, 17. Despite seeing the ice and appreciating its slippery character, Plaintiff Linda A. Sprague nevertheless voluntarily proceeded to encounter the ire. 18. Plaintiff Linda A. Sprague: failed to exercise reasonable care for her own safety. 19. The Plaintiff's claim is barred in whole or in part by the Pennsylvania Comparative Negligence Act and/or by the doctrine of comparative negligence. 20. The Plaintiff failed to wear suitable sho€ on the of the .;ident. 21. The Plaintiff's claim is barred in whole or in part by the applicable statute of lirnitations. 22. The Plaintiff's alleged injuries and medical conditions pre-existed the date of the incident complained of in the Complaint. 23. The Plaintiff's injuries and damages were caused by an occurrence other than the occurrence complained of in the Plaintiff's Complaint. 6 24. Plaintiff Linda Sprague has failed to mitigate her damages. 25. The Plaintiff, Linda Sprague, noticed an alternate and safer route of travel, but elected not to take that route of travel in or out of the cleaners. WHEREFORE, Defendant, Dale T. Kaplan, respectfully requests that the Plaintiff's Complaint be dismissed and that judgment be entered in favor of the Defendant and against the Plaintiff. DATE: Respectfully submi GOLDBERG, KATZMAN & SHTPrAN, P.C. By: 4 John . Statler, Esqire T.D. t43812 319 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant VERIFICATION I, DALE I. KAPLAN, hereby acknowledge that I am the Defendant in this action; that I have read the foregoing Answer Including New Matter; and that thefacts stated therein are true and correct to the best of my knowledge, information and belief. 1 understand that any false stat7-ments made herein are subject to penaltis of 18 Pa. C.S. §4904, relating to unsworn faisificatio- to authorities. A `£ DALE 1.r KA LAN CER TrA OF SE ICE I hereby certify that I' am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsy'-ania Rules of Civil Procedure, by depositing a copy of same in the United States mail, Harrisburg, Pennsylvania, which first-class postage, prepaid, as follows: DATE: 5 William H. Andring, Esquire 24 Creek Road Camp Hill, PA 17011 C GOLDBERG, KATZMAN & SHIPMAN, P.C. Stat r, ire 43812 arket Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant, David I. Kaplan LINDA A. SPRAGUE and : IN THE COURT OF COMMON PLEAS C. BARTLETT SPRAGUE, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : CIVIL ACTION - LAW : NO. 4010 - 1988 DALE I. KAPLAN, Defendants : JURY TRIAL DEMANDED DEFENDANT'S BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS I. FACTUAL BACKGROUND Plaintiff Linda Sprague aliegedlv slipped and fell on some i -r o the pr pertv of Capen Careful Cleaners during the morning of December 31 1987. Later that day, in the evening hours. she wed C. Bartlett Sprague. Plaintiffs have brought this personal injury action for the injuries sustained by Linda Sprague in the accident. II. LEGAL ISSUES A. May a loss of consortium claimbe successfully brought if the parties are not married at the time of the in ury? (Suagested Answr: No.) B. May punitive darnaaes be recovered in an ordinary negligence action? (Suggested Answer: No.) III. ARGUMENT A. MR. SPRAGUE MAY NOT BRING A CLAIM FOR LOSS OF CONSORTIUM SINCE HE WAS NOT MARRIED TO MRS. SPRAGUF AT THE TIME OF THE ACCILJT. Plaintiffs admit in their Complaint that Linda Spraque's falldown occurred during the mornina of :).ecember 31, 19e,. I1ail,4iffs further admit that the Spraques did not wed until the evening of December 31, 1987. Because the Sp--gues we-- not legally married at the time of Linda Spraque's injury, Mr. Sprague does not have a valid consortium claim and should be dismissed as a party from this liwsuit. Pennsylvania law is clear that an award for loss of consortium will not he permitted unless a leaal marriage existed at the time of iniurv. See McMullen v. Nimes, 69 Erie L.J. 95 /1986); and Sat e noy v. yknish, 31 DGC 3d 9 (C.P. Mercer 1983). Since M. and Mrs. Sprague did not be husband and wife until after Linda Sprague' accident, Mr. Spraaue may not recover for loss of consortium. Therefore, because Mr. Sprague has no viable consortiwn claim, he should be dismissed as a party from this lawsuit. B. PUNITIVE DAMAGES MAY NOT RE AWARDED TN AN ORDINARY NEGLIGENCE ACTION. Defendant requests this Court to strike the Plaintiffs' request for punitive damages found in Count II of the Complaint. The gravamen of the Plaintiffs' Complaint is that the Defendant was negligent in failing to maintain the parking lot and r-gligent in failing to remove the ice fLom the property. Fairly read, the Plaintiffs' have set forth a Lause action ui 'rdinary negligence. Punitive damages in a negligence suit are onlv available to the Plaintiff when the Defendant's conduct is outrageous due to the Defendant's evil motive or reckless indifference to the right of others. Ordinary negligence alone, such as inadvertence, mistakeor error of judgment, is an insufficient. basis to award punitive damages. Lara v. Fitness America, Inc., 108 Dauphin Co. Rep. 225 (1988). Moreover, it is not the characterization f the conduct as "gross and wanton" that determines whether punitive damages are appropriatr,,. Herr v. Snelgrove, 30 Adams Co. L.J. 139 (1988). Rather, it is the factual allegations upon which the characterizations are based. Id. TherefQre, because the Plaintiffs have only pleaded facts which, if proven, would support a claim for ordinary negligence, the punitive damages claim must be dismissed. IV. CONCLUSION Rased on the foregoing, Defendant requests that this honorable Court grant the Defendant's Preliminary Objections. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. Stat I.D.*43812 319 Market Street P. . Box 1268 Harrisburg, PA (717) 234-4161 17108-1268 Attorneys for Defendant Dale 1. Kaplan DATE: 3 12.1 fa CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsvlv,—ia Rule F of Civil Procedure, by depositing a copy of same in the Pennsylvania, which follows: DATE: Ii United States mail, Harrisbura first-class postage, prepaid, as William H. Andring, Esquire 248 Creek Road Camp Hill, PA 17011 GOLDBERG, KATZMAN & SRIPAN, P.C. 13v: S a _e I.D. 43812 319 Market Street P.s. Box 1268 Harrisburg, PA (717) 234-4161 17108-1268 Attorneys for Defendant, David I. Kaplan Paye N 1 -- 5 8 _ 12 - 19 20 rc' 1�ci'tit C ut d t'rtte'{k d kis thitt !i;` r, suit(rt4lri ieatitit cri ferns t%U[it3 ti itint,tutiit the tettl'iutti KFI1N'IPY and 423 t{BG.. 1989 4910 CiV11 1crtrt. 11N $ A. PAc;111: ditsJ t..' RAPT 1.1' ;I'PAG0E, husband ,anal wife AE'. I. KAPLAN December 19, 1 ri88, {:.:amp id.i nt t c=c1 .icanuc ry 13, 1 e Ht), heri f t returns file' F'ebruary 21 19 g9, x 1a ac i1tf' !Heti: 1et.1: P3.., i`_;c: ,; : t.<tt t h( Complaint ental d y W 11i;an H. And t t y [ <) r' i 1 :t 1 t: t t f ?larch 1, 19i;'1, :;;1rf,!ur Itted Please ise e'tit,,E; 'dt+i rt ,jt 1= . Goldberg, Katzman W hipman, "'+::x i.toutint'i Defendant, Dale I. Kaplan, i_n the capt.:ionecl By John A. tet ler, Esq. Mc rch b , 1 i✓ < De tend ' s Preliminary lath j i .:_tit Plaintiff's Cot tilal< int f le April 4, 1989, Praecipe fc r Listing Case for r'rqument filed May 4, 1989, t ipulat is n T o Dismiss Count 1 1 orf Paint if'f's Complaint filed It is hereby ayre d and stipulated between the parties that Count I1 of he Plaintiff's Complaint is dismissed with prejudice. Ail Fart ies agree that the claim for punitive darnag is dismissed with ctrejudice. By John A. Statler, Atty. for Def. William H. Andrincj, Atty tor Plff. June 2 1 , 1989, IN RE: DEFENDANT'S PRELIMINARY OBJECTION BEE©RE ttOFFER, J. AND HESS, �J. , _ORDFROF COURT filed: AND NOW, this defendant''s urc 1itrtin:ary ebl+,'£'t i .)n in the nature of Zi demurrer f o the f'.r'irn if plaintiff, . 1 ial'tiett Spr. qut7, E'crt les of :ons=artium, is SUSTAINED. y 20, 19hct i r lecl 1 tis t e>t.ir'>;tlrit"i No t. 't:r !et',. t'by by tie 'oust, Ke tr, , 1t ;; , t k.t t t tt i t r>= above named, hereby appe, to the Stipewrior court of Pa. from the order entered in thi::; matter f'P thr, 20th June, 1989. This order has been entered tn the docket as evidenced by the attached copy of the docket entry. By William H. Andring, / - 30 August 1, 1989, No. 423 HBG. 1989 assigned by the Superior Court of Pennsylvania - 57 August 8, 1989, Answers to Interrogatoriesof the Defenriant, Dale 1. Kaplan, for Abnswer by the Plaintiff, Linda L. Sprague filed - 62 October 3, 1989, OPINION PURSUANT TO RULE 1925 filed - 67 Plaintiffs' Brief filed Commonwealth 01 Penns> Is a ma Count> ol Cionberland 1, Law..1.','"1.4,(:‘e , Prothonotar> of the Court of Common Pleas in and for said County, do hereby refill> that the harping is a ull. true :ind correct cop 01the whole record (tithe case therein stated. wherein LiJ_SprftLC... _ 13a r t t t Sp r q9e,,,. us. nd w Plaini!fl. and _ ! i i K.tuL I n 1)etcodant as same. remains of record helorc the said Court al NO) 4010 arld423 11/3G. 1989 Venn. Al), 19 68 In 1 IS Ft MO5 Y W 111 R FOF. 1 ha> e hereunto sct m> hand and affixed the sea+ of said Court das A I) A 19...1k9 th:LL-, . Iudci *1 Onariet, composed the omit> ol Curnheir31:i"nd:kli t.leurtitgitcs _ Pro 1-2`)01)"t. h horn the aituesed rceord. ceistis.atz and attestation were made and g:vco. and *hu his own prott.:r handwriting. thereunto subscribed his name and affixed he Neal Oi iliC Court of Common Pl..'as id said C(iutily, WaS, Jt thi time of so doing_ and now is Prothonotary in and for said Counts of Curibc,r 1i nd the Commonwealth of Pcnnsylva ma. d uly cormn issioned and qualified to all ol wh ose acts as suchfullfaith and credit are and ought to be given as well Counts ot judicature as elsewhere. and that the said record. certificate and attestation are in due form 01 law and made h the proper Miro. P,1",..tdc 104,1p: Commonwealth 01 Penn' kania Count> of Cumberland 1. -__Lawr...auc.,...1.1-141.1.4, car Prothonotary of the Court of Common Pleas in arid tor the said Count>, do certify that the Honorahle _ by whom the foregoing at tcso t ion was made. and who has thereunto subscribed his name, was. at the time of mals mg thereof, and still i. President Judge of the Court of Common Pleas, Orphan' Court 4nd Court est Quarter Sessions elfthe Peace in and tor said Count>, duly Commisstoned and qwtlifiedto all whose acts as such lull lath and credit are and ought to be gr'en, as well in Coons Judicature as elsewhere 15 IISIIM()NY Will,Rl()E 1 have hereunto set in hand and allised the seal of said Court this da> ol ()( 1.,.01)(rA 1) 19 b9 r No 4OCiyiL Irm 19-84 No 4 lerm 19-119 __Liadia_A-511raGue and - C. J3tJ t_t_ Spraque nuatiand arid_wife_ tIe Ktptan \ ' 9.11) }o(01t1) lo:1, ('oun 1 Enicrcd ard Filed 19 Lawrence E. Welke P,itlhOttsltUti LINDA A. PRAGUE, Plaintiff v. DALE I. KAPLAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW, N'o. 4010-1988 JURY TRIAL DEMANDED PRAECIPE FOR DISCONTINUANCS To The Prothonotary: Please discontinue the above -captioned action, and mark the docket settled and discontinued. H. ANDRING Attorney for Plain 248 Creek Road Camp Hill, PA 17011 (717) 737-9847 PROOF of sBRVICE William H. Andring, Esq., hereby certify that on this, the 2 day of , 1991, 1 served a copy of the attached document by causing it to be deposited in the United States Mail, First Class Postage Prepaid, addressed as follows: John A. Stat .er, Esquire Goldberg, Katzman & Shipman, P.C. 320 E. Market Street P© Box 1268 Harrisburg, 'A 1710-1268 ( William H. Andring, Esqui e 248 Creek Road Camp Hill, PA 17011 (717) 737-9847 !DA A. SPRAGUE, Plaintiff v. DALE I. KAPLAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW No. 4010 -S- )988 JURY TRIAL DEMANDED DEFENDANT'S PRETRIAL MEMORANDUM T. LIABILITY On December 31, 1987, Linda Sprague sustained injuries when she slipped and fell in the Capen Careful Cleaners parking lot in Camp Hill. Plaintiff claims that the Defendant was negligent in failing to remove a dangerous condition of ice and snow. Defendant denies that he was negligent. Defendant asserts that the Plaintiff's evidence will fail to meet the requirements of the "hills and ridges doctrine." Defendant further asserts that the Plaintiff was contributorily negligent and that she knowingly and voluntarily assumed the risk of her injuries. II. DAMAGES The Plaintiff Linda A. Sprague, claims injuries to her back, neck, elbow and head as a result of this accident, She received chiropractic treatment from Gerald Dincher, D.C., a local chiropractor. Mrs. Sprague had been treated by Dr. Dincher prior to this falldown accident for ongoing problems with her back and neck. Prior to this accident, Linda Sprague had been involved in another falldown accident and two a..L.tomobile accidents. She was involved in a third automobile accident on May 27, 1988 five months after the falldown at Capen Cleaners. In May 1988, Dr. Dincher advised Linda Sprague that she would require only six or seven more chiropractic treatments before release. Lever, she was injured in the May 27, 1988 automobile accident and continued to treat with Dr. Dincher. Plaintiff claims pain and suffering from the falldown accident for a period of approximately six months. Plaintiff claims that Dr. Dincher' medical bills have totaled 41,225. The Defendant's insurance company, Aetna Casualty and Surety ,o., ha F paid $997 worth of those medical bills. If Plaintiff plans to introduce all of her medical bills into evidence, Defendant should be given a $997 credit in the form of a molded verdict. There is no wage loss claim. III. PRINCIPAL ISSUES OF LIABILITY AND DAMAGES A. Liability 1. Hills and Ridges Doctrine 2. Notice 3. Contributory Negligence 4. Assumption of Risk B. Damages 1. Causation of Inuries 2. Other Accidents 3. Credit for Medical Bills Paid. IV. EVIDENTIARY ISSUES If Plaintiff introduces all of her chiropractic bills, Defendant requests a stipu.ation that. Aetna paid $997 worth of these bills and is entitled to a credit set-off from any verdict. V. WITNESSES - Defense 1. Dale 1. Kaplan VI. EXHIBITS 1. Medical records 2. Complaint against Timothy Grams and Nancy Kerlin (May 1988 auto accident VII. SETTLE . Check stub showing payment to Herd Clinic in the amount of $997. ENT NEGOTIATIONS In addition to the $997 in chiropractic bilis already paid, Defendant has offered an additional $2,750 to settle this case. Plaintiff's demand is $6,000. Respectfully submitted: GOLDBERG, KATZMAN E, SHIPMAN, P.C. Date: By \ JOHN A. IThTLER, ESQ.. I.D. #3812 320E Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Counsel fox. Defendant, DALE I. KAPLAN CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all counsel of record by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, on the day of 1 1, William H. Andrinq, Esq. 248 Creek Road Camp Hill, PA 17011 , 1991, addressed as follows: GOLDBERG, KATZMAN & SHIPMAN, P.C. OHN A. TATLER, ES I.D. it/43812 320E Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161. Counsel for Defendant, DALE I. KAPLAN OON,SLZ.. M .AR14, $K$A0Aft LAC Stars$A$A$t PA$P. ”04:1AttS.01 COOPrP AL SPENNA LAAViD C Mt AAMA M SmtArrAN Ni*ttfAtt, A 0014*$ A STAAAtii AA$$$R, L :1•RAAitr UAAA StPAPC AtAtArraltv,t. tOriN $ tAstAttr OPOOAS AttrASON S$PPAAAA MAFIGAPET M ,CA$AOWS.,0 “i (-/(31„I)11ERO, KATY:MAN & SHIPMAN, }C, Allaltlir "TOSE:El 'I ft AWIAKPIlet SVIARA: I. ( tH)X HAIMIStiUttt$, VASIA 171101W4 IEP/iuN (n 7J :.14-41(n trAx (n7) :1:44-ontoi Honorable George E. Hoffer Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 March 18, 1991 Re: Linda Sprague v. Dale Kaplan vi Action N. 4010 S 1988 Dear Judge Hoffer: ASA,AAA SA. - A, rrA rrrt $,PAr d'QtAA ,At #14) t PAPA& A St "'OPP, PA CIAO! 1751) 04'1 794 :$ ,ARt SPQN0 mtkAAP$SPOP, Orrftt. is my ,,derstanding that you will be presiding ov the Pretrial Conference scheduled in this action on Wednesday, March 20, 1991. Therefore, I am providing you with a copy of Defendant's Pretrial Memorandum. -- - Very John JAS:sjb Enclosure cc: William H. Andring, Esq. PERIOR COURT OF PENNSYLVANIA MIDDLE DISTRICT CERTIFICATE OF CONTENTS OF REMANDED AND NOTICE OF REMAND UNDER PENNSYLVANIA RULES OF APPELLATE PROCEDURE 2571 AND 2572 THE UNDERSIGNED, Deputy Prothonotary of the Superior Court of Pennsylvania, the said court being a court of record, does hereby certify that annexed to the original hereof is a true and correct copy of the whole and entire record as remanded from said court, in the following matter: Linda A. Sprague & C. Bartlett Sprague v. No. 423 Harris urg, 1989 Dale I. Kaplan of: C. Br' -err Sr-lgue (Cumberland Co. No. 4010 Civil 1988) in compliance with Pennsylvania Rule of Appellate Procedure 2571. The date on which the record has been remanded is 5-18-90 An additional copy of this certificate is enclosed with the Original hereof and the clerk or prothonotary of the lower court or the head, chairman, deputy or secretary of the other government unit is hereby directed to acknowledge receipt of the reanded record by executing such copy at the place indicated and by forthwith returning the same. J -A09008/90 LINDA A. SPRAGUE AND C BARTLETT ) IN THE SUPERIOR COURT OF SPRAGUE ) PENNSYLVANIA ) V. ) ) DALE I. KAPLAN ) ) APPEAL OF: C BARTLETT SPRAGUE ) NO. 00423 HARRISBURG, 1989 Appeal from the Order entered in the Court of Common Pleas of Cumberland County, Civil Division, No. 4010 Civil 1988 BEFORE: WIEAND, TAMILIA and POPOVICH, JJ. OPINION BY TAMILL., J.: FILED: APRIL 10, 1990 On December 31, 1987, Linda Sprague fell on ice and snow while on the property of appellee's business establishment, Capen Careful Cleaners, where she was picking up a bridesmaid's dress for her wedding that evening. Despite the fall, the wedding was held as planned, however Linda and her husband eventually brought suit for her injurs and his loss of consortium. The trial court dismissed appellant husband's claim for loss of consortium because the parties were not husband and wife at the time of the accident. Appellant argues he is entitled to his claim since the injury occurred subsequent to the issuance of a marriage license but prior to completion of the ceremony and his loss is just as real as if the accident occurred an hour after the ceremony instead of several hours before. The court's decision reflects the current state of the law in Pennsylvania. Several Pennsylvania trial courts have addressed this issue and resolved it unfavorably to appellant's position but the appellate courts, thus far, have been silent on this issue, making this case one of first impression for this Court. We agree J -A09008/90 with the line of cases issued by the trial courts and hold that a cause of action for loss of consortium is not available to a party who was not married to the injured party at the time of the injury. Loss cf consortium has been recognized in this Commonwealth as a right evolving out of the marriage relationship and is grounded on the loss of a spouse's service after injury. Burns 1, .psi -cola Metropolitan Bottiing, Pa. Super. , 510 A.2d 810 (1986). In Comstock v. Kleckner, 49 D. & C.3d 465 (1988), husband pursued a claim for loss of consortium due to an injury to his wife 17 months prior to their marriage. In response to a motion for summary judgment by deiendants, husband alleged he was married to his wife at the time of the accident under common law and the marriage ceremony was a reaffirmation of their common law marriage. The trial court granted the motion for summoLy judgment after finding the claim for loss of consortium must be based on an actual marriage.1 We are mindful that the cause of loss of consortium appears to be recognized by the federal courts. In Sutherland v. Auch Inter -Borough Transit Company, 366 F. Supp. 127 (1973) a husband was allowed to recover for the loss of consortium based on premarital injuries to his wife. In auPlerland the husband's recovery appears to be based on the closeness in time of the incident to the wedding. 366 F. Supp. at 134. 1We note that a common law marriage in Pennsylvania is an "actual" marriage and a formal marriage ceremony is not necessary. The trial court in Comstock, however, did not give a factual analysis as to the validity of the husband's assertion a common law marriage did exist and this question may have been pursued had an appeal been taken. We cite to Comstock for the principles contained therein as they pertain to couples not married according to Pennsylvania law. 2 J -A09008/90 However, in V t.r Co 577 F. Supp. 991 (1984), the U S District Court for the Eastern District of Pennsylvania concluded that the law of Pennsylvania does not allow a claim for loss of consortium for injuries before marriage. In Curry, the birth of three children from the union and cohabitation for 15 years were insufficient to permit a claim for loss of consortium. In Bulloch v. United States, 487 F. Supp. 1078 (D.C., N.J. 1980), a cohabitant was allowed to maintain a claim for loss of consortium. In that case the federal court made its decision based upon an attempt to predict a change in the New Jersey law. 487 F. Supp. at 1082. In this regard, the New Jersey court has considered the federal court's prediction of how it would hold concerning the issue, and found the federal court to be a poor prognosticator. The holding in ,Leonardis v. Morton Chemical Co., 184 N.J. Super. 10, 445 A.2d 45 (1982), and Childers v. Shannon, 103 N.J. Super. 591, 444 A.2d 1141 (1982) has specifically rejected 151.11190c, supra. The reaoning of the New Jersey Superior Court .n Childers, supra, offers good reason to base the loss of corsortium claim on an actual marriage ceremony: "Marriage, however, is the only legal touchstone by which the strength of a male-female relationship may be tested. It is not the function of this court to sift through the myriad relationships of a party in a negligence action to determine which of those near and dear have suffered an injury proximately caused by tortious conduct. Should this court allow this plaintiff's claim for loss of consortium, other courts will be forced to determine which plaintiffs have relationships sufficiently meaningful to entitle them to claim consortium. Plaintiffs here were engaged to be married at the time of the accident; how long an engagement will support a claim? One month? One week? 'Going steady'? Or is cohabitation to be the test, as it apparently was in tiulloch? Again: For how long? Was there joint payment of rent? Grocery bills? "Presumably, when partners wish social and legal recognition of their relationship, they marry. To accord consortium to an unmarried plaintiff is to force upon him or her a status which he or she had not, at the time of the injury, asserted: it is an ill-conceived intrusion into the private lives of individuals." Bullock, supra. J-A09C08/90 Id. at 468-69. Other trial courts have held to this same "bright line" test. (agg Lexbensperger v. Kev, 39 D. & C.3d 532 (1986), and - +w v sh, 31 D. & C.3d 9 (1983).) In fact, most jurisdictions do not allow recovery for loss of consortium for injuries arising prior to marriage due to the difficulty of determining an actual relationship and the need to draw the line at some point without engaging in a case-by-case analysis. (See Gillespie -Linton v. Miles, 58 Md. App. 484, 473 A.2d 947 (1984); Angelet v. Shivar, Ky. App., 602 S.W.2d 185 (1980); 5ostack v. Reiss, 92 Iii. App.3d 200, 47 Ill. Dec. 781, 415 N.E.2d 1094 (1980).) For the for!goi^g reasons, we affirm the Order of the trial court. Order ffirmed- JUDGMENT ENTERED ATTEST: APRIL 10, 199() DEPUTY PROTHONOTARY 4 ArErrtuR L tr0;. CrErr 040.r 4000,4•0,D **1400r4•400 r**0414,0 C00,40444,4040 r LEE S••••PEErs 444.0..... it,•.'i4E40 PAUL .0 ESPOSITO. 044.0.00rE0Srvir CC,OPC ',SOMAS E erIESSE44 DAY•0 C hr•LLP ,•0444ES 0.4 Sr*Ererws 00•Cri*Er.* 4:04,0 tI•i.:PAP3 mAcAApot.-00.. ,rOiM4 STATLEP AP*44,,, STRANG KN1',14,1 eARsARA y b GOY N ON00,,Ti I.Auf c,EFICES GOLI,)BEliO, KATZMAN & SHIPMAN, RC. MARK ET STREET 11`. 0 tIOX If A It141$1313 PENNSYLVA NIA 17100-W04J The Honorable Kevin A. Hess Cumberland County Courthouse Hanover and High Streets Carlisle, PA 17013 Re: Sprague v. Kaplan No. 4010 - 1988 Dear Judge iess January 22, 1988 P.Onot 7) 344 14,0 (71,}ea4 eime 1CRIA Orr CC r MAriirrr ST PA •74(3,. 0:701;'• 043 76,42 C!"..3fikT.f;p0Nr; .-!ARIPs'EsuRG OCL In resoonse to your law clerk's telephone call of Friday, StIptember 22, 1989, T am enclosing e-"itional copies Df tht- Defenda“, Preliminary Objections and Supporting Brief. I am also enclosing another copy of the Plaintiffs Brief in opposition to Preliminary Objections. These duplicate copies were requested by your law clerk. Very tr Yours John A. JAS/ksd Enclosures cc: William H. Andring, Esquire PRAECIPE FOR LISTING C.ASE FOR TRIAL 'Must be typewritten andt.11.JT ?red in duplicate TO THE PROTHONOTARY OF CUMBERLAND COUNTY Flease !t.s; the foilowIngase. t XX ) (or JURY total at the next term jit. ;our:. ) for trial without alury. C.APT1ON OF CASE (entire caption must he stated in full) (onto( str,e) LINDA A. SPRAGUE, (Platnuf DALE I. KAPLAN (1)efendant) Y. ( ) ) ) Assurnpsit Trespass Trespass (Motor Veluctej (other) The trial list will be called on 3/12/9, and 3/26/91 Trials commence on 4/15/91 ?retrials will be held on 3/20/91 • (Briefs are due 5 days before pre - trials.) (The party listing this case for tri. shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214-1.) No. 4010 Cv 19 88 Indicate the attorney who will try case for the party who tiles this praec;pe: John A. Statler, Esquire Indicate trial counsel for other pate s if known: William H. Andring, Es Date: This case s ready for trial. Sigr.eo. Pnnt NArrte: John A. Stat At:orne for. Do f clIdant er, Esq. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe upon all counsel of record by depositing the same in the United States mail, first class, postage prepaid, at Harrisburg, Pennsylvania, on the day of , 1991, addressed as follows: William H. Andring, Esq. 248 Creek Road Camp Hill, PA 17011 GOLDBERG, KATZMAN & I PM N, P.C. BY \ JOHN A. TATLER, Attorn y I.D. 43812# 320E Market Street P. 0. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Counsel for Defendant, DALE I. KAPLAN LINDA A. SPRAGUE, PLAINTIFF V. DALE I. KAPLAN, DEFENDANT NO IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW 4010 CIVIL 19 ANT FOR S AND NOW, this ORE BAYLEY, J., AND HESS, J. ORDER OF COURT day of October, 1990, the motion of defendant for summary judgment, IS DENT. the Cour William H. Andring, Esquire For Plaintiff John A. Statler, For Defendant Esquire Edgar B. Bayley. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LINDA A. SPRAGUE CIVIL ACTION - LAW Plaintiff DOCKET NO. V. DALE I. KAPLAN JURY TRIAL DEMANDED Defendant IN TRESPASS PLAINTIFF'S ANSWER TO NEW MATTER OF DEFENDANT AND NOW COMES LINDA A. SPRAGUE, PLAINTIFF, and makes the following Answer to the New Matter of Defendant: 14. The averments contained in this Paragraph constitute conclusions of law Co which no responsive pleading is required. To the extent a responsive pleading is renuired, it is denied that Plaintiffknowing 7oluntarily assumed any risk )ij injuries under thr, existing conditions. 15. Admitted. 16. Admitted. 17. Denied. Plaintiff was required to cross the ice in order to gain entrance to Defendant's establishment. 18. The averments contained in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, it is denied that Linda A. Sprague failed to exercise reasonable care for her own safety. Plaintiff exercised all care possible under the circumstances. 19. The averments contained in this ParagraPh constitute conclusions of law to which no responsive pleading is required. 20. Denied. The shoes worn by Plaintiff on the date of the incident wore entirely suitable and appropriate. 21. The averments contained in this Paragraph constitute conclusions of law to which no responsive pleading is required. 22. Denied. The injuries for which Plaintiff is seeking damages were caused by the negligence of Defendant, as alleged in the Complaint. 23. Denied. The injuries for which Plaintiff is seeking damages were caused by the occurrence - alleged in the Complaint. 24, The averments contained in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required, Plaintiff contends that she has taken all reasonable actions to mitigate he damages. 25. Denied. No alternate and safer route of travel into or out of the c'lea,lr- existe!. Respectfully subm 4illiam H. Andring Attorney for Plaintiff 248 Creek Road Camp Hill, PA 17011 (717) 787-7347 VERIFICATION I verify upon my personal knowledge, information, and belief that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. 5'. 5 ,5054' 3555 .-8prague / tate . F AECIFE FOR (Must CASE FOR ARG ENT en and subinittul In duplicate) TO THE PRGT110tslOTARY/OF CUMBERLAND COUNTY: Meese list the within matter f�, the nut: C3 Pre•Trlai Argument COW ( 1 0 / 10 / 9 0) LJArgument Court 11.0WV.....WWWOMMMO......wrn*WO 00. CAPTION OF CASE (entire caption must be stated In full) LINDA A. SPRAGUE, s. DALE I . KA ,AN , (Plaintiff) (Defendant) No. 4f1 0, C14 I988- 1. State matter to be argued (1. e., plabstiffe motion for new Mal, defendant's demurrer to complaint, ett.): Defendant's Motion for Summary Judgment . Identify counsel who will argue case: (I) for plaintiff: (b) for defendant: . 1 will notify all pasties In listed lot atiument_ Dated: 8/24/90 that this e se hes bun orneyfrr De f endant UIIN A. STATLER, ES