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HomeMy WebLinkAbout05-2204 FRIEDMAN and KING, P.C. John F. King, Esquire ID #61919 600 North 2nd Street Penthouse Suite Harrisburg, PA 17101 (717)236-8000 Attorneys for Plaintiff Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA WILBUR MELLINGER, v. K-MART CORPORATION No. 05-2204 CIVIL ACTION - LAW Defendant. v. R&C ELECTRIC, INC., Additional Defendant : PRAECIPE Kindly file the attached Verification of the Plaintiffs; attach it to the Plaintiff's Reply to New Matter and so mark the record. Dated: August 9, 2005 Respectfully submitted, FRIEDMAN and KING, P.C. '\.'~ ",/ 9/1-" By: . ttL.I't.. (/ -c? John F. King, Esquire cf ID#61919 600 N. Second Street Penthouse Suite Harrisburg, P A 1710 I (717) 236-8000 Attorney for Plaintiff TO: Frank W. Baer, Esquire Gibleyand McWilliams, P.C. 524 N. Providence Road P.O. Box 1107 Media, PA 19063-0807 Attorney for Defendant C. Kent Price, Esquire Thomas, Thomas & Hafer, LLP 305 N. Front Street PO Box 999 Harrisburg, PA 17108 Attorney for Additional Defendant VERIFICATION I, Wilbur Mellinger, hereby acknowledge that I am the Plaintiff in the foregoing action; that we have read the foregoing Reply to New Matter and the facts stated therein are true and correct to the best of my knowledge, infonnation and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: 1- 0 t, - o.s- , 2005 P-.-~ M Wilbur Mellinger RE: Mellinger No. 05-2204 CERTIFICATE OF SERVICE I hereby certifY that I am on the q day of August, 2005, serving the foregoing substitution of verification upon the perLd in the manner indicated below which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. Service bv First Class Mail addressed as follows: Frank W. Baer, Esquire Gibleyand McWilliams, P.C. 524 N. Providence Road P.O. Box 1107 Media, PA 19063-0807 Attorney for Defendant C. Kent Price, Esquire Thomas, Thomas & Hafer, LLP 305 N. Front Street PO Box 999 Harrisburg, P A 17108 Attorney for Additional Defendant 'J' ~ h..:/i. I]~ " ' ShltITy Lauffer J !' ;~;.j . -'7 ~...-: ~ ~,,_.. ~7 ';-,:~, :f~ ~~ ~ (j ~~ ""-.., ....., C"" = <J'O ~ G> ~ o ~~~ :r; o .~-? :r. jj 90 ....-rn :3 ~ -" ::;:J: tf? o 1;:- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 06-J.~Q~ No. Civil Action - X Law o Equity WILBUR MELLINGER 1120 ROXBURY ROAD NEWBURG. PA 17240 K-MART CORPORATION 3100 W. BIG BEA VER ROAD TAX DEPARTMENT TROY. MI48087 c/o CT Corporation Systems 1515 Market Street vs Suite 1210 Philadelphia, PA 19102 Plaintift{s) & Address(es) Defendant( s) & Address( es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. Writ of Summons shall be issued and forwarded to X Attorney Sheriff Richard S. Friedman, Esquire Friedman & King. Pc. 600 N 2"d Street, Fifth Floor Harrisburg, PA 17101 717/236-8000 . Supreme Court lD No. 07176 Date: Avril ,~ 7 , 2005 Name/Address/Telephone No. of Attorney WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S) YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU. Prothonotary Date: by ~ -0 .t:a l}- f) ~'(}'1r :wJ (n:D _~o~ {;- -C... W -l:.. - " ~ -. S- :3 ? ::> ,..., CJo 0 ~ -1'1 _-l :r.:.-n rnF:: ~g i(3 0,1. ~:~ ~/- (""} _~cl ~;:L~~,fl:; ~~ :;.-,,", -~j ";/:) N 0::> 5;' cD >,~ :J.".:"' -<:. ,..;1 FRIEDMAN and KING, P.C. Richard S. Friedman, Esquire ID #07176 600 North 2 nd Street Penthouse Suite Harrisburg, PA 17101 (717)236-8000 Attorneys for Plainti ff WILBUR MELLINGER Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. K-MART CORPORATION, Defendant. NO. 05-2204 CIVIL ACTION - LAW CERTIFICATE OF SERVICE r hereby certifY that 1 am on the 28th day of April, 2005, serving the foregoing Writ of Summons upon the person and in the manner indicated below which service satisfies the requirements ofthe Pennsylvania Rules of Civil Procedure. Service by First Class Mail Certified RRR addressed as follows: fT Corporation Systems 515 Market Street uite 1210 . hiladelphia, P A 19102 . .,~~ Sharry Lauffer . ..D ru ru o ru ['- o <0 U.S. Postal Service ,. CERTIFIED MAil", RECEIPT (Domestic Maif Only; No Insurance Coverage Provided) Postage $ ru o o Return Reclept Fee o (Endorsement Required) o RestrIcted Delivery Fee U1 (Endorsement AequKeD) ['- o Certified Fee Postmark Here :r o o ['- Total Postage & Fees ~~ ff . I.~....~ I d' C 0 c.(tI). 4.~jEloti""'" CVM 7004 0750 0002 8072 0226 ,. .:!~"" '. 1~1540 ~: ;~-:, l t~ ~;~' ::< , ..0 fri ,21 -nrn :/JC? c~( ) ::.::J;'i', -, () in -u -"" t;? c...n Frank W. Baer, Esquire fbaer@l!iblevlaw.com Identification No. 43866 GIBLEY AND MCWILLIAMS, P.C. 524 North Providence Road P.O. Box 1107 Media, PA 19063-0807 Telephone No. (610) 627-9500 Attorney for Defendants Kmart Corporation (incorrectly identified as K-Mart Corporation Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY WILBUR MELLINGER v. NO.: 05-2204 KMART CORPORATION (incorrectly identified as K-Mart Corporation) Defendant. ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant Kmart Corporation (incorrectly identified as K-Mart Corporation) with regard to the above-referenced matter. A jury of twelve (12) is demanded. Respectfully submitted, GIBLEY AND McWILLIAMS, P.C. r:CJA-t/I5~ By: Frank W. Baer, Esquire Attorney for Defendant, Kmart Corporation (incorrectly identified as K-Mart Corporation) ---- '-':'''1 .-; ~ Frank W. Baer, Esquire fbaer@li!iblev1aw.com Identification No. 43866 GIBLEY AND MCWILLIAMS, P.C. 524 North Providence Road P.O. Box 1107 identified as Media, P A 19063-0807 Telephone No. (610) 627-9500 Attorney for Defendants Kmart Corporation (incorrectly K-Mart Corporation Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY WILBUR MELLINGER v. NO.: 05-2204 KMART CORPORATION (incorrectly identified as K-Mart Corporation) Defendant. PRAECIPE TO FILE COMPLAINT TO THE PROTHONOTARY: Please enter a Rule upon Plaintiff to file a Complaint within 20 days hereof or suffer an entry of a Judgment of Non Pros. Gibley and McWilliams, P.c. By: <--t -1,../' 6'''''J Frank W. Baer, Esquire Attorney for Defendant Kmart Corporation (incorrectly identified as K-Mart Corporation) RULE TO FILE COMPLAINT AND NOW, this~ay of f!2:aJ-' 2005, a Rule is hereby granted upon Plaintiff to file a Complaint herein with 20 days after service hereof or suffer the entry of a Judgment of Non Pros. Prothonotary "i\ It ....i,...r> FRIEDMAN and KING, P.C. John F. King, Esquire ID #61919 600 North 2nd Street Penthouse Suite Harrisburg, P A 17101 (717)236-8000 Attorneys for Plaintiff Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA WILBUR MELLINGER, v. K-MART CORPORATION No. 05-2204 CIVIL ACTION - LAW Defendant. JURY TRIAL PLAINTIFFS' REPLY TO NEW MATTER AND NOW comes the Plaintiff, Wilbur Mellinger, by and through his attorneys, Friedman & King, P.c., and replies as follows: The avennents contained in paragraphs I through 10 of the Plaintiff's Complaint are incorporated herein as though more fully set forth at length. 1. The avennents contained in paragraph 1 of the Defendant's New Matter are a conclusion oflaw to which no response is required. It is specifically denied that the Plaintiffs claims are barred, in whole or in part, by a statute oflimitations. 2. The avennents contained in paragraph 2 of the Defendant's New Matter are, conclusion oflaw to which no response is required. 3. The avennents contained in paragraph 3 of the Defendant's New Matter ar' conclusion oflaw to which no response is required. 4. The avennents contained in paragraph 4 of Defendant's New Matter are' conclusion oflaw to which no response is required. It is specifically denied that Plaintiff was contributorily negligence, assumed any risk or is subject to the Pennsylvania Comparative Negligence Act. 5. The avennents contained in paragraph 5 of Defendant's New Matter are a conclusion oflaw to which no response is required. It is specifically denied that Plaintiff assumed any risk. 6. The avennents contained in paragraph 6 of Defendant' s New Matter are specifically denied. For a further response, see answer to paragraph 4 above. 7. The avennents contained in paragraph 7 of Defendant's New Matter are specifically denied in that the Plaintiff sustained damages caused by a person or entity over whom Defendant had no control nor right of control, and proof thereof is therefore demanded. 8. The avennents contained in paragraph 8 of Defendant's New Matter in that the Plaintiff sustained damages caused by an individual over whom Defendant had no control nor right of control are specifically denied, and proof thereof is therefore demanded. 9. The avennent in paragraph 9 of Defendant's New Matter is the same as paragraph 7 of Defendant's New Matter. Please refer to answer to paragraph 7 above. 10 The avennents contained in paragraph 10 of Defendant's New Matter are a conclusion oflaw to which no response is required. It is specifically denied that the Plaintiffs' damages were caused by conditions for which Defendant is not responsible and proof thereof is therefore demanded. II The avennents contained in paragraph II of Defendant's New Matter are a conclusion oflaw to which no response is required. It is specifically denied that the Plaintiffs damages were caused by conditions for which Defendant is not responsible and proof thereof is therefore demanded. 12. The avennents contained in paragraph 12 of Defendant' s New Matter are specifically denied in that the Plaintiff sustained damages caused by persons or parties not a party to the lawsuit, and proof thereof is therefore demanded. 13. The avennents contained in paragraph 13 of Defendant's New Matter are specifically denied. It is specifically denied that plaintiff failed to notice an open and obvious condition and proof thereof is therefore demanded. 14. The avennents contained in paragraph 14 of Defendant's New Matter are specifically denied. It is specifically denied that Defendant had no notice of the dangerous condition and proof thereof is therefore demanded. 15. The avennents contained in paragraph 15 of the Defendant's New Matter are a conclusion oflaw to which no response is required 16. The avennents contained in paragraph 2 ofthe Defendant's New Matter are a conclusion of law to which no response is required WHEREFORE, Plaintiff seeks damages from the Defendant, Kmart Corporation, in an amount in excess of$25,OOO.OO, exclusive of interest and costs, and therefore not bound by compulsory arbitration. Dated: August I, , 2005 TO: Frank W. Baer, Esquire Gibley and McWilliams, P.C. 524 N. Providence Road P.O. Box 1107 Media, PA 19063 Attorney for Defendant Respectfully submitted, FRIEDMAN and KING, P.C. By: obn F. Kmg, Esquire ID#61919 600 N. Second Street Penthouse Suite Harrisburg, P A 1710 1 (717) 236-8000 Attorney for Plaintiff VERIFICATION I, John F. King, Esquire, hereby acknowledge that I am the attorney for the Plaintiff in the foregoing action; that I have read the foregoing Plaintiffs Reply to New Matter and the facts stated therein are true and correct to the best of my knowledge, infonnation and belief. The Plaintiff is temporarily out of this court's jurisdiction and unable to verify. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities./" /l //1 1/ ~/ ---~ /' \ 10hIJ; . King, Esquire ~rney for Plaintiff // Dated: ~/t/los- CERTIFICATE OF SERVICE I hereby certify that I am on the 4- day of Au <:1-- . 2005, serving the foregoing reply to new matter upon the person and in the marmtrindlcated below whIch ServICe satisfies the requirements of the Pennsylvania Rules of Civil Procedure. Service by First Class Mail addressed as follows: Frank W. Baer, Esquire Gibley and McWilliams, P.C. 524 N. Providence Road P.O. Box 1107 Media, PA 19063 Sharry~d~ (") ~; s" ,un) tp,\, ...... .~'" ~-r :- ~~~: 1>- 11'~,( j 6-- () ).,.c: ~ ,.." = = "'" :1:1oo c: <n I co > :x co ~ ~~ az '--f~r :f-H ,~(~ cY ..... ~ w FRIEDMAN and KING, P .C. John F. King, Esquire ID #61919 600 North 2nd Street Penthouse Suite Harrisburg, P A 17101 (717)236-8000 Attorneys for Plaintiff Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA WILBUR MELLINGER, v. K-MART CORPORATION No. 05-2204 CIVIL ACTION - LA W Defendant. NOTICE TO DEFENDANT NAMED HEREIN: You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LA WYER AT ONCE. IF YOU DO NOT HA VE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, P A 17013 1-800-990-9108 717-249-3166 Le han demandado a usted enla corte. Si usted qui ere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partie de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA A VERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, P A 17013 1-800-990-9108 717-249-3166 FRlliI}MA-N & KING, P .C. r ""', .' " \ \ J 0 . King, Esqui~ \60p North Second St. "''., R9'nthouse Suite P. O. Box 984 Harrisburg, P A 17108 (717) 236-8000 Dated: June _, 2005 FRIEDMAN and KING, P.C. John F. King, Esquire ID #61919 600 North 2nd Street Penthouse Suite Harrisburg, PAl 71 01 (717)236-8000 Attorneys for Plaintiff Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA WILBUR MELLINGER, v. K-MART CORPORATION No. 05-2204 CIVIL ACTION - LAW Defendant. COMPLAINT AND NOW comes the Plaintiff, Wilbur Mellinger, by and through his attorneys, Friedman and King, P.C., John F. King, Esquire, of counsel, and brings the within Complaint against the Defendant, K-Mart Corporation, and avers as follows: 1. Plaintiff, Wilbur Mellinger, is an adult individual who resides at 1120 Roxbury Road, Newburg, County of Cumberland, P A 17240. 2. Defendant, K-Mart Corporation, is a foreign corporation, with a principal place of business located at 3100 W. Big Beaver Road, Troy, MI, and trading and doing business in the State of Pennsylvania, with a place of business located at Walnut Bottom Road, Carlisle, County of Cumberland, P A (hereinafter the "Store"). 3. At all times mentioned herein, Defendant was in exclusive possession, management, and control of the Store, individually and through its employees who were acting within the course and scope of their employment by Defendant and in furtherance of Defendant's business. 4. On or about December 18,2003, Plaintiff was a business visitor to the store. During his visit, he entered the men's restroom located in the Store. 5. At the time of Plaintiffs entrance into the restroom, there existed an accumulation of water and/or liquid upon the floor which caused Plaintiff to slip, stumble, and fall, resulting in serious and permanent injuries as set forth below. 6. It is believed, and therefore averred, that the accumulation of water and/or liquid was caused by the commode/urinal. 7. The accident was caused exclusively and solely by the Defendant's negligence, and carelessness in that: A. Defendant caused or permitted water and/or liquid to accumulate upon the floor at a point where it posed an unreasonable risk of injury to Plaintiff and other business visitors; B. Defendant failed to make a reasonable inspection ofthe floor which would have revealed the existence of the dangerous condition posed by the accumulation of water; C. Defendant failed to give warning ofthe dangerous condition posed by the accumulation of water, erect barricades, or take any other safety precautions to prevent injury to the Plaintiff and other business visitors. D. Defendant failed to remove the accumulated water from the floor and keep the floor clear of water. 8. Solely as a result of Defendant's negligence and carelessness, Plaintiff sustained injuries to his right arm, elbow, wrist, hand and fingers internally and externally; including ulnar nerve entrapment, right elbow neuropraxia, cubital tunnel syndrome, severe denervation of hand muscles innervated by ulnar nerve, right carpal tunnel syndrome and aggravation of pre-existing diabetic peripheral neuropathy, all of which injuries have caused Plaintiff great pain and suffering, may continue for an indefinite time in the future and may be permanent 9. Solely as a result of Defendant's negligence and carelessness, Plaintiff has and will in the future be obliged to expend monies for medicine and medical care in order to treat and help cure his injuries. 10. Solely as a result of defendant's negligence and carelessness, Plaintiff has and will in the future be unable to attend to his usual and daily duties and employment, to his financial detriment and loss. WHEREFORE, Plaintiff claims damages of the Defendant in an amount in excess of $35,000.00, exclusive of costs, in this action. Dated: June.' , 2005 .., Jo F. King, Esqu e ID#61919 600 N. Second Street Penthouse Suite Harrisburg, PAl 71 0 1 (717) 236-8000 Attorney for Plaintiff TO: Gibley and McWilliams, P.C. Frank W. Baer, Esquire 524 North Providence Road PO Box 1107 Media, P A 19063 (610) 627-9500 Attorneys for Defendant . .. CERTIFICATE OF SERVICE (...;~....... I hereby certity that I am this 15- day of June, 2005, serving the foregoing Complaint upon the person and in the manner indicated below which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. Service by First Class Mail addressed as follows: Gibley and McWilliams, P.C. Frank W. Baer, Esquire 524 North Providence Road PO Box 1107 Media, P A 19063 .' \ :-'; ~./~ ,I> L 'l.U-.~" Sharry Lauffer () ,-- "',:J 25 t':'..t"l '- (0'_- o f1 =? .". ~'l f 11.-"- -rj rn l~j '..J ::~l ::""'J -, C".,) z...." -;<i,.. - - (,.,,,,) Frank W. Baer, Esquire fbaer(al.llibleviaw.com Identification No. 43866 GIDLEY AND MCWILLIAMS, P.c. 524 North Providence Road P.O. Box 1107 Media, PA 19063-0807 Telephone No. (610) 627-9500 Plaintiff, AS"-",A' " 'fflfJ(;6,\ I"",,,,,,, HI S, "LLt,oATIONS KIjmji:qr:P\ll'!,~iylll i~yjdentified as K-M'!I/il)t:lI1rpmMnif TO FE PENNSYLV1,NIA ~tjLES O? CrVLL f'P.OCEDlJii.E, YOU MUST FILE A RmC'CimE mADING THERi'iO c<millt' e'F OOMMbNEfJt!~!f.If ,QCUMENT. CUMBERLAND COUNTY WILBUR MELLINGER v. NO.: 05-2204 KMART CORPORATION (incorrectly identified as K-Mar! Corporation) Defendant. DEFENDANT KMART CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER And now, comes the defendant Kmart Corporation files its Answer and New Matter to Plaintiff's Complaint as follows: 1. Admitted upon infonnation and belief. 2. Admitted. 3. Denied as stated. It is admitted that defendant, Kmart Corporation, operated a retail outlet at Walnut Bottom Road, Carlisle, Cumberland County, PA on December 18, 2003. All other allegations contained in this paragraph are denied as conclusions of law to which no responsive pleadings are required. Iffactual pleadings are deemed required, the avennents set forth in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 4. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied arid strict proof is demanded thereof at time of trial. 5. Denied. The allegations set forth in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 6. Denied. The allegations set forth in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 7. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. If a responsive pleading is deemed required, all of the allegations contained in this paragraph, including its sub parts (a) through (d) are specifically denied and strict proof is demanded thereof at time of trial. By way of further answer, it is specifically alleged that defendant, Kmart Corporation, acted reasonably at all times relevant hereto. 8. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 9. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 10. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. -2- WHEREFORE, defendant Kmart Corporation demands judgment in its favor and against the plaintiff, together with attorney's fees and the costs of defending this litigation. NEW MATTER 1. The plaintiff s claims are barred in whole or in part by the applicable statute of limitations. 2. The plaintiff s Complaint fails to state a cause of action upon which relief may be granted. 3. The plaintiff s accident was caused by the plaintiff and thus, the alleged negligence of the answering defendant was not the proximate cause of the alleged accident, nor of plaintiffs' injuries, and/or was not a substantial factor of the cause of the injuries to the plaintiff or the accident out of which this case arises. 4. The plaintiff s claims are barred or appropriately reduced by operation of the Pennsylvania Comparative Negligence Act, the doctrine of Assumption of the Risk and/or the doctrine of Contributory Negligence. 5. The plaintiffs claims are barred in whole or in part by virtue of the plaintiffs assumption of the risk. 6. The incident in question was caused solely by the negligence of the plaintiff and this constitutes a complete defense to the within cause of action, 7. The incident in question was caused solely by a person or entity over which the answering defendants had no control nor right to control. 8. The incident in question was caused by an individual over whom the answering defendants had no control nor right to control. -3- 9. The incident in question was caused solely by a person or entity over which the answering defendants had no control nor right to control 10. The alleged negligence of the answering defendants, the existence of which is specifically denied, was not the proximate cause of the alleged accident, nor of plaintiffs' injuries, and/or was not a substantial factor of the cause of the injuries to the plaintiff or the accident out of which this case arises. II. Plaintiff s claims for damages, all of which are specifically denied, were not caused by the alleged negligence on the part of the answering defendants, this negligence being expressly denied, and this constitutes a complete defense to the claimed cause of action. 12. The plaintiff s claims for damages, all of which are expressly denied, were caused by a party or parties, and/or a person or persons not a party to tillS lawsuit and not the answering defendants, and this constitutes a complete defense to the within cause of action. 13. If the condition which the plaintiffs claims caused the plaintiff's alleged accident existed as alleged, which is denied, then the plaintiffs failed to notice an open and obvious condition and this constitutes a complete defense to the claimed cause of action. 14. If the condition which the plaintiff claims caused the plaintiffs' claimed accident existed as alleged, which is denied, then the defendant had no notice of its existence prior to the alleged accident and this constitutes a complete defense to the claimed cause of action. 15. Inasmuch as Pa.R.C.P. 1032 provides that a party waives all defenses not presented by way of Answer, defendants Kmart Corporation, upon the advice of counsel, hereby asserts all defenses enumerated in Pa.R.C.P. 1030, the said affirmative defenses being subject to demonstration during the discovery process and proof, as relevant, at time of trial. -4- 16. In the event it is detennined during the discovery process and/or at the time of trial that the litigation instituted and pursued by the plaintiffs against defendant has been brought in bad faith, is frivolous, unreasonable or arbitrarily vexatious, then the defendant, pursuant to, inter alia, 42 Pa.C.S.A. 2503(9) et al,. asserts the right to receive counsel fees and such other appropriate relief from plaintiffs as may be granted by the COUJrt. WHEREFORE, defendant, Kmart Corporation requests judgment in its favor and against the plaintiff, together with attorney's fees and the cost of defending this litigation. Respectfully submitted, GIDLEY AND McWILLIAMS, P.C. By: 4-1 ~84A_ Frank W. Baer, Esquire l Attorney for Defendant, Kmart Corporation (incorrectly identified as K-Mart Corporation) -5- Dated: 17172435372 KMART 7745 1:44R H~ LRSERJET 3330 PAGE 02 ".3 07113/2005 Ju 1 13 yERlne4.TION er, etllte that J am a refll'e~entAti"e of IUnart CotpOr81b.!1, the defendant in f84ts In the foreaoinll Answer to Plaintitr, Complaint with New Matler in 'the best of my knowledge, information and belief; and further tbllt this 10 lhe penaltic$<>fl8 Pa. C.S.A. i ~'904 relating to un~wom es. 1 iL4.J /1 < . RiChHW'~ .PWD) -6- (') S.;; .', <-~ c.::;) .;;....\ (.,.. c;. ,-' - OJ ~~;, ~:I -- n ,J -rl ..... '1: -rl [11-"- _"I=G ~:., c,? ~?:~}1 ~~~_ Ir::"-A "~) ~:::l 000 ,-<- -c :;:T;: "!? 1" CJ T7 Frank W. Baer, Esquire fbaer@l!i.b1ev1aw.com Identification No. 43866 GIBLEY AND MCWILLIAMS, P.C. 524 North Providence Road P.O. Box 1107 Media, P A 19063-0807 Telephone No. (610) 627-9500 Attorney for Defendants Kmart Corporation (incorrectly identified as K-Mart Corporation COURT m COMMON PLEAS CUMBERLAND COUNTY WILBUR MELLINGER Plaintiff, v. NO.: 05-2204 KMART CORPORATION (incorrectly identified as K-Mart Corporation) Defendant. v. R&C Electric, Inc. 61 Soutbmont Drive Enola, P A 17025 Additional Defendant : NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORm IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER mIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENS)~S OR OBJECTIONS TO mE CLAIMS SET FORm AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MA YPROCEED WITHOUT YOU AND A JUDGMENT MA YBEENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE ALA WYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE mE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELl'. CUMBERLAND COUNTY BAR ASSOC1A nON LAWYER REFERRAL AND lNFORMA TION SERVICE 32 SOUTH BEDFORD STREET CARLISLE, PENNSYLVANIA 17013 717-249-3166 A VISO Le han demandado a usted en la corte. Si usted qui ere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta ascentar una comparencia escrita 0 en persona 0 con un abogado y entregar a la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede continual' la demanda en contra suya sin previo aviso 0 notificacion. Ademas, la corte puede decidir a favor d,el demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero 0 sus propiendades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDlATAMENTE, SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE P AGAR TAL SERVICIO, VA Y A EN PERSONA 0 LLAMA POR TELEFONO A LA OFICINA CUYA DlRECCION SE ENCUENTRA ESCRlTA ABAJO PARA A VERlGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIA nON LAWYER REFERRAL AND INFORMA nON SERVICE 32 SOUTH BEDFORD STREET CARLISLE, PENNSYLVANIA 17013 717-249-3166 Frank W. Baer, Esquire fbaer@gibIeyIaw.com Identification No. 43866 GIBLEY AND MCWILLIAMS, P.C. 524 North Providence Road P.O. Box 1107 Media, P A 19063-0807 Telephone No. (610) 627-9500 Attorney for Defendants Kmart Corporation (incorrectly identified as K-Mart Corporation WILBUR MELLINGER Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY v. NO.: 05-2204 KMART CORPORATION (incorrectly identified as K-Mart Corporation) Defendant. v. R&C Electric, Inc. 61 Soutbmont Drive Enola, P A 17025 Additional Defendant : JOINDER COMPLAINT OF DEFENDANT KMART CORPORATION AGAINST ADDITIONAL DEFENDANT R&C ELECTRIC. INC. Defendant, Kmart Corporation (incorrectly identified as K-Mart Corporation) by and through their attorneys, Gibley and McWilliams, P.C., hereby files the following Joinder Complaint against additional defendant R&C Electric, Inc. and in support thereof aver as follows: 1. The instant action was commenced through a filing of a Writ of Summons on or about April 27, 2005. (A true and correct copy of Writ of Summons is attached hereto as Exhibit "A"). 2. Defendant Kmart Corporation served a Rule to File Complaint upon the plaintiff who complied by filing his Complaint under a cover letter directf:d to the Prothonotary dated June 8, 2005. (A true and correct copy of Plaintiff's Complaint is attached hereto as Exhibit "B"). 3. In the Complaint, it is alleged that on or about December 18,2003, plaintiff, while a shopper in the Kmart store was injured when he slipped and fell on water that had been leaking from a urinal in the restroom on the Kmart premises. It is alleged that plaintiff slipped, causing him to forcibly strike his right arm against the door jam of the n:stroom while his was leaving the restroom. (See Exhibit "B"). 4. In the Complaint, plaintiff alleges that the defendant Kmart Corporation's negligence and carelessness consisted of (a) defendant to cause or pennit water and/or liquid to accumulate upon the floor at a point where it posed an unreasonable risk of injury to plaintiff; (b) failed to make a reasonable inspection of the floor which would have revealed the existence of the dangerous condition posed by the accumulation of water; (c) failed to give warning of the dangerous condition posed by the accumulation of water, erect barricades, or take any other safety precautions to prevent injury to the plaintiff or other business visitors; and (d) failed to remove the accumulated water from the floor and keep the floor clear of water. (See Exhibit "B"). 5. Defendant Kmart Corporation incorporates by reJ)erence the factual avennents set forth in the pleadings, but in so doing, defendant Kmart does not admit such facts by reason of their incorporation herein. 6. Additional defendant R&C Electric, Inc. is an entity located in Cumberland County, Pennsylvania maintaining a principle place of business at 61 Southmont Drive, Enola, PA 17023. Further, it is alleged that all times relevant hereto R&C Electric, Inc. conducted business regularly in Cumberland County. -2- 7. At all time relevant hereto, additional defendant R&C Electric, Inc. acted through its agents, servants, workmen and/or employees who were acting within the course and scope of their agency or employment. 8. At all times material hereto, the defendant, Kmart Corporation and additional defendant R&C Electric, Inc. were parties to a contract and/or work order which, inter alia, required the proper installation ofa urinal in the men's room at the Kmartjust weeks before the incident made the subject of this lawsuit. It is believed that additional defendant R&C Electric, Inc. is in possession of the contract and/or work order. 9. Although defendant, Kmart Corporation has denied responsibility on plaintiff's cause of action, should liability and damages be found in favor of plaintiff, liability and damages must be found against additional defendant, R&C Electric, Inc. for sole liability, joint liability, several liability, and liability by way of contribution and indemnification. COUNT I Breach of Contract 10. Defendant, Kmart Corporation, hereby incorporates by reference the allegations in paragraphs one (1) through nine (9) above, as though fully set forth at length herein. 11. Should plaintiff be entitled to damages, which damages are denied, said damages were caused by additional defendant, R&C Electric, Inc.'s breach of the contract/work order tenns set forth in the contract/work order, including, but not limited to, the tenns of the contract which require R&C Electric, Inc. to provide and install a properly working urinal in the men's room of the Kmart facility. 12. Should plaintiff be deemed entitled to damages, which damages are denied, said damages were caused by the breach of contract/work order by additional defendant R&C -3- Electric, Inc.;s due to R&C Electric, Inc.'s failure to provide and properly install a urinal, free of any leaking condition, in the men's room facility at the subject Kmart store. 13. Should plaintiff be deemed entitled to damages, which damages are denied, additional defendant R&C Electric, Inc. is jointly liable, severally liable, or liable by way of contribution and/or indemnification over to defendant Krnart Corporation. WHEREFORE, defendant, Krnart Corporation, hereby demands judgment in its favor on plaintiff's cause of action against additional defendant, R&C Ekctric, Inc. for sole liability, joint liability, several liability, or liability by way of contribution and/or indemnification. COUNT II NCl!:li&ence 14. Defendant, Krnart Corporation, hereby incorporates by reference the allegations in paragraphs one (l) through thirteen (13) above, as though fully set forth at length herein. 15. Should plaintiff be deemed entitled to damages, which damages are denied, said damages were caused by the negligence and carelessness of R&C Electric, Inc. in the perfonnance of its duties under contract/work order with defendant Kmart Corporation. Said negligence and carelessness included: a) failing to provide a urinal free of defects; b) failing to properly install the urinal; c) failing to properly inspect the urinal upon installation to identify and remedy any leaking condition; d) failing to take proper and corrective measures to correct and remedy the leaking condition caused by the defective and/or improperly installed urinal; and e) pennitting or allowing an unreasonable and dangerous condition, as alleged by plaintiff, to exist in the men's room as a result of a leaking condition of the urinal. 16. Should plaintiff be deemed entitled to damages, which damages are denied, additional defendant R&C Electric, Inc. is solely liable, jointly liable, severally liable, or liable -4- by way of contribution and/or indemnification over to defendant, Kmart Corporation WHEREFORE, defendant, Kmart Corporation, hereby demands judgment in its favor on plaintiff's cause of action and against additional defendant, R&C Electric, Inc. for sole liability, joint liability, severally liability, or liability by way of contribution and/or indemnification. COUNT III Breach of Warranty 17. Defendant, Kmart Corporation, hereby incorporates by reference the allegations in paragraphs one (1) through sixteen (16) above, as though fully set forth at length herein. 18. Additional defendant R&C Electric, Inc. manufa,ctured, prepared, supplied, distributed, assembled and/or sold the urinal and/or component parts of the urinal allegedly involved in this incident for retail sale, expressly and impliedly and warranted to the general public, including plaintiff, but it was fit, safe and suitable for nonnal use. 19. Additional defendant R&C Electric, Inc. expressly and impliedly warranted that the urinal and/or any component parts of the urinal in question, including the urinal and/or any component parts of the urinal allegedly involved in the incident, was of merchantable quality, fit, safe and in proper condition. 20. Additional defendant R&C Electric, Inc. breach allY of the expressed and implied warranties of merchantability and fitness for the particular purpose as follows: a) R&C Electric, Inc. did not have the urinal and/or l:Omponent part ofthe urinal adequately and properly tested; b) the urinal and/or any component part of the urinal was not off air, average quality in the trades; c) the urinal and/or any component part of the urinal was not fit for the ordinary -5- purpose for which it was customarily used; d) R&C Electric, Inc. knew or should have known that the urinal and/or any component part of the urinal was unreasonably dangerous and likely to create condition that would cause injuries; e) the urinal and/or any component part of the urinal was not of merchantable quality and not in confonnity with safety standards; f) R&C Electric, Inc. expressly and impliedly warranted that the urinal and/or any component part of the urinal was safe; g) R&C Electric, Inc. expressly and impliedly misrepresented that the urinal and/or any component part of the urinal was safe for use; h) the urinal and/or any component part of the urinal was not in confonnity with those generally used in the trade; i) R&C Electric, Inc. knew or should have known that the urinal and/or any component part of the urinal was unreasonably dangerous to users; and j) R&C Electric, Inc. failed to warn of the unreasonably dangerous, defective or hazardous condition of the urinal and/or any component part of the urinal. WHEREFORE, if plaintiff proves his claims at the trial of this case, any liability on the part of the defendant Kmart Corporation being specifically denied, then additional defendant R&C Electric, Inc. is solely liable to plaintiff, jointly and severally liable to defendant Kmart Corporation, or liable over to the defendant Kmart Corporation for contribution and/or indemnity. -6- Respectfully submitted, GIBLEY AND McWILLIAMS, P.C. ;:::v! ~8a/7 -7- VERIFICATION I, Rich Hunsinger, state that I am a representative of Kmart Corporation, the defendant in this matter and that the facts in the foregoing Joinder Complaint are true and correct within the best of my knowledge, infonnation and belief; and further that this statement is made subject to the penalties of 18 Pa. C.S.A. 94904 relating to unsworn falsification to authorities. Dated: 7ll)r JlL/)/~- Rich Hunsinger (Mellinger, Wilbur - FWB) -8- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENl'IlSYL VANIA 65 - ),20 c.f No. Civil Action - X Law o Equity WILBUR MELLINGER 1120 ROXBURY ROAD NEWBURG, PA 17240 K-MART CORPORATION 3100 W. BIG BEAVER ROAD TAXDEPARTMENT TROY, MI48087 ",-')i t;: cia CT Corporation Systems 1515 Market Street vs Suite 1210 Philadelphia, PA 19102 Plaintiff(s) & Address(es) Defendant( s) & Address( es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. Writ of Summons shall be issued and forwarded to X Attornf:Y Sheriff Richard S. Friedman, Esquire Friedman & King, P.c. 600 N. 2"d Street, Fifth Floor Harrisburg, PA 17101 717/236-8000 .~",,,. ""preme Court ill No. 07176 Date: Avril ;;.. 1. 2005 NamelAddresslTelephone No. of Attorney WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S) YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAlNTIFF(S) HAS/HA VE COMMENCED AN ACTION AGAINST YOU. Prothonotary Date: by Re: Mellinger v. K-Mart No. 052004 CERTIFICATE OF SERVJCE I hereby certify that I am on the 28th day of April, 2005, serving the foregoing Writ of Summons upon the person and in the manner indicated below which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. Service bv First Class Mail Certified RRR addressed as follows: CT Corporation Systems 1515 Market Street Suite 1210 Philadelphia, PA 19102 Sh~da~ FRIEDMAN and KING, P .C. John F. King, Esquire ID #61919 600 North 2nd Street Penthouse Suite Harrisburg, P A 17101 (717)236-8000 Attomeys for Plaintiff Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA WILBUR MELLINGER, v. K-MART CORPORATION No. 05-2204 CIVIL ACTION - LAW Defendant. NOTICE TO DEFENDANT NAMED HEREIN: You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, P A 17013 1-800-990-9108 717-249-3166 Le han demandado a usted en/a corte. Si usted quien~ dettmderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partie de la fecha de la demanda y 1a notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en 1a corte en fonna escrita sus defensas () sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion Y pOl' cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros del'echos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDlATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DlRECCION SE ENCUENTRA ESCRITA ABAJO PARA A VERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Stn:et Carlisle, P A 17013 1-800-990-9108 717-249-3166 , King, Esqui \ 60 North Second St. thouse Suite P. O. Box 984 Harrisburg, P A 17108 (717) 236-8000 , Dated: June _, 2005 FRIEDMAN and KING, P.C. John F. King, Esquire 10#61919 600 North 2nd Street Penthouse Suite Harrisburg, PA 17101 (717)236-8000 Attorneys for Plaintiff Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA WILBUR MELLINGER, v. K-MART CORPORATION No. 05-2204 CIVIL ACTION - LAW Defendant. 'COMPLAINT AND NOW comes the Plaintiff, Wilbur Mellinger, by and through his attorneys, Friedman and King, P.C., John F. King, Esquire, of counsel" and brings the within Complaint against the Defendant, K-Mart Corporation, and avers as follows: 1. Plaintiff, Wilbur Mellinger, is an adult individual who resides at 1120 Roxbury Road, Newburg, County of Cumberland, P A 17240. 2. Defendant, K-Mart Corporation, is a foreign c:orporation, with a principal place of business located at 3100 W. Big Beaver Road, Troy, MI, and trading and doing business in the State of Pennsylvania, with a place of business located at Walnut Bottom Road, Carlisle, County of Cumberland, P A (hereinafter the "Store"). 3. At all times mentioned herein, Defendant was in exclusive possession, management, and control of the Store, individually and through its employees who were acting within the course and scope of their employment by Defendant and in furtherance of Defendant's business. 4. On or about December 18, 2003, Plaintiff was a business visitor to the store. During his visit, he entered the men's restroom located in the Store. 5. At the time of Plaintiffs entrance into the restroom, there existed an accumulation of water and(or liquid upon the floor which caused Plaintiff to slip, stumble, and fall, resulting in serious and pennanent injuries as set forth below. 6. It is believed, and therefore averred, that tht~ accumulation of water and/or liquid was caused by the commode/urinal. 7. The accident was caused exclusively and solely by the Defendant's negligence, and carelessness in that: A. Defendant caused or permitted water and/or liquid to accumulate upon the floor at a point where it posed an unn~asonable risk of injury to Plaintiff and other business visitors; B. Defendant failed to make a reasonabltl inspection of the floor which would have revealed the existence of the dangerous condition posed by the accumulation of water; C. Defendant failed to give warning of the dangerous condition posed by the accumulation of water, erect barricades, or take any other safety precautions to prevent injury to the Plaintiff and other business visitors. D. Defendant failed to remove the accumulated water from the floor and keep the floor clear of water. 8. Solely as a result of Defendant's negligence and carelessness, Plaintiff sustained injuries to his right arm, elbow, wrist, hand and fingers internally and externally; including ulnar nerve entrapment, right elbow neuropraxia, cubital tunnel syndrome, severe denervation of hand muscles innervated by ulnar nerve, right carpal tunnel syndrome and aggravation of pre-existing diabetic peripheral neuropathy, all of which injuries have c.aused Plaintiff great pain and suffering, may continue for an indefinite time in the future and may be pennanent 9. Solely as a result of Defendant's negligence and carelessness, Plaintiff has and will in the future be obliged to expend monies for medicine, and medical care in order to treat and help cure his injuries. 10. Solely as a result of defendant's negligence and carelessness, Plaintiff has and will in the future be unable to attend to his usual and daily duties and employment, to his financial detriment and loss. WHEREFORE, Plaintiff claims damages ofthe Deftmdant in an amount in excess of $35,000.00, exclusive of costs, in this action. ,.,< Dated: June '1/ , 2005 Jo F. King, Esquh:e 10#61919 ""- 600 N. Second Street Penthouse Suite Harrisburg, P A 17101 (717) 236-8000 Attorney for Plaintiff TO: Gibley and McWilliams, P.C. Frank W. Baer, Esquire 524 North Providence Road PO Box 1107 Media, P A 19063 (610) 627-9500 Attorneys for Defendant CERTIFICATE OF SERVICE ....."'/ I hereby certify that I am this ,s( day of June, 2005, serving the foregoing Complaint upon the person and in the manner indicated below which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. Service bv First Class Mail addressed as follows: Gibley and McWilliams, P.c. Frank W. Baer, Esquire 524 North Providence Road PO Box 11 07 Media, PA 19063 I;O~ :+~ Sharry Lauffer Frank W. Baer, Esquire fbaer@lliblevlaw.com Identification No. 43866 GIBLEY AND MCWILLIAMS, P.C. 524 North Providence Road P.O. Box 1107 Media, P A 19063-0807 Telephone No. (610) 627-9500 Attorney for Defendants Kmart Corporation (incorrectly identified as K-Mart Corporation WILBUR MELLINGER Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY v. NO.: 05-2204 KMART CORPORATION (incorrectly identified as K-Mart Corporation) Defendant. v. R&C Electric, Inc. 61 Southmont Drive Enola, P A 17025 Additional Defendant : CERTIFICATE OF SERVIC~ I, Frank W. Baer, Esquire, hereby certify that a copy of the attached has been served upon the following individual by first class, United States mail, postage pre-paid, this 18th day of July, 2005. Richard S. Friedman, Esquire FRIEDMAN & KING, P.c. 600 N. 2nd Street, Fifth Floor Harrisburg, P A 171 0 1 Respectfully submitted, GIBLEY AND McW1LLIAMS, P.C. By: 1wr/l~ Frank W. Baer, Esquire Attorney for Def,mdant, Kmart Corporation (incorrectly identified as K-Mart Corporation) I;::::::; -:-) c; -' ~'" -- Q, ,-' -c /,~, " c;~? CJ -- ) ((\ ) 'c' ''!:;. ->;) :4 . THOMAS, THOMAS & HAFER, LLP C, Kent Price, Esquire l.0. No. 06776 305 North Front Street P. O. Box 999 Harrisburg, P A 17108 (717) 255-7632 kprice@ttblaw.com Attomey for Additional Defendant WILBUR MELLINGER, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 05-2204 KMART CORPORATION (incorrectly identified as K-Mar! Corporation) Defendant : CNIL ACTION - LAW v. R&C ELECTRIC, INC., Additional Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of THOMAS, THOMAS & HAFER, LLP as counsel on behalf of Additional Defendant R&C Electric, Inc. in the above-captioned matter. All papers may be served upon the undersigned at P.O. Box 999, Harrisburg, PA 17108-0999. THOMAS, THOMAS & HAFER, LLP r ~~(j ~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, P A 17108 (717) 255-7632 LD. No. 06776 CERTIFICATE OF SERVICE ~ AND NOW, this ~ day of August, 2005, I, C. KENT PRICE, ESQUlRE, for the finn of THOMAS, THOMAS & HAFER, LLP, attorneys for Additional Defendant, hereby certify that I have this day served the within Praecipe for Entry of Appearance by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: John F. King, Esquire Friedman and King, P.e. 600 North 2nd Street Penthouse Suite Harrisburg, P A 171 0 1 Frank W. Baer, Esquire Gibley and McWilliams, P.c. 524 North Providence Road P.O. Box 1107 Media, PA 19063-0807 THOMAS, THOMAS & HAFER, LLP L~Jc~k:J~ C. Kent Price', Esquire .....' ,= ,~':_, <,,.i' -:;1 '. o '" ~-;:J'71 :"',1 c:. :-,'.. ~ ,~., ~:-? C,J I Frank W. Baer, Esquire fbaer@lliblevlaw.com Identification No. 43866 GIBLEY AND MCWILLIAMS, P.C. 524 North Providence Road P.O. Box 1107 Media, PA 19063-0807 Telephone No. (610) 627-9500 Attorney for Defendants Kmart Corporation (incorrectly identified as K-Mart Corporation WILBUR MELLINGER Plaintiff, v. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 05-2204 KMART CORPORATION (incorrectly identified as K-Mart Corporation) Defendant. v. R&C Electric, Inc. 61 Southmont Drive Enola, PA 17025 Additional Defendant PROOF OF SERVICE TO THE PROTHONOTARY: Please allow the docket to reflect that Kmart Corporation's Joinder Complaint has been served upon Additional Defendant R&C Electric, Inc. as referenced in the attached Sheriff's Affidavit of Service. Respectfully submitted, GIBLEY AND McWILLIAMS, P.C. By: ~~(~ Frank W. Baer, Esquire Attorney for Defendant Kmart Corporation b.t1.J:jotCL,t<ol:'" b .K.J:jTU.tti\J - .K..t!..I...:rU1.Ji-U<. CASE NO: 2005-02204 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MELLINGER WILBUR VS KMART CORPORATION KENNETH GOSSERT Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE was served upon R&C ELECTRIC INC the ADD'TL DEFEND. , at 0015:55 HOURS, on the 28th day of July , 2005 at 61 SOUTHMONT INC ENOLA, PA 17025 by handing to RON ANDERSON (OWNER) a true and attested copy of NOTICE together with JOINDER COMPLAINT and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 12.00 .00 10.00 .00 40.00 ~~~t::~~ R. Thomas Kline 07/29/2005 GIBLEY & MCWILLIAMS A.D. Sworn and Subscribed to before By: me this day of Prothonotary Q ~.,;;. <.,... 'l) t-r:' fTl1 i -:;;' ", &,';; -<..-; r:;'L :r"; I~ ~t;< ~ ..., g en C """ ~ ., -'t'1 :;J: ~ N Cf,) ~ ~ r,,:n~ :g (',) .'-\ , ;t:R ~- 0'" ='-\ ~ THOMAS. THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, P A 17108 C. Kent Price, Esquire Attorney J.D. 06776 717.255.7632 Attorneys for Defendants WILBUR MELLINGER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANlA v. NO. 05-2204 KMART CORPORATION, Defendant CIVIL ACTION - LAW v. R&C ELECTRIC, INe., Additional Defendant mRY TRIAL DEMANDED ~1liJUPlC.~_B~9t~l'i~ ,'_.'-'" '., " '.,', -"", >,:,0'.1';\ - ",' ." -< _.>"-'-'/ p..,....."."...,..,,",....,..... .... .... '. . As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant certifies that: 1. Plaintiff does not object to the subpoenas and waives the Notice of Intent to Service Subpoenas to Produce Documents and Things for Discovery Pursuant to Rule 4009.21; 2. A copy of a letter dated August 22, 2005, and executed by Plaintiffs counsel, John F. King, Esquire, indicating no objections and waiver of the notice of intent is attached to this Certificate; 3. A copy of the proposed subpoenas are attached to this certificate; and 4. The subpoenas which wiJI be served are identical to the subpoenas which are attached to this certificate. Date: 3- 2 '1-0 S- THOMAS, HOMAS & HAFER, LLP Cl- C. Kent Price, Esquire J.D. Number: 06776 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 237-7132 376515.1 ATTORNEYS AT LAW ~ www.tthlaw.com THOMAS, THOMAS & HAFER LLP 305 North Front Street, P.O. Box 999, Harrisburg, PA 17108 Phone: (717) 237-7100 Fax: (717) 237-7105 Rick L Stains, Jr." Paralegal (717) 441-7056 rstains@tthlaw.com August 22, 2005 John F. King, Esquire Friedman and King, P.C. nd 600 North 2 Street Penthouse Suite Harrisburg,PA 17101 RE: Mellinger v. Kmart Corporation v. R&C Electric, Inc. Docket No.: 05-2204 (Cumberland County) Our File No.: 347.51166 Dear Attorney King: Enclosed please find a Notice oflntent to Serve Subpoenas to David C. Baker, MD., and Joseph A. Pion, D.O., pursuant to Rule 4009.21. If you have no objection to the subpoenaing of these records and are willing to waive the 20-day notice period, please: sign where indicated and return a copy of this letter to me at your earliest convenience. Thank you for your attention to this matter. Sincerely, THOMAS, THOMAS & HAFER LLP By: ~ Rick StalJ.'1S, Jr., Paraleg'al" C. Kent Pric,~ /rls:375371.1 Enclosures cc: Frank W. Baer, Esquire I, --.JOl'lfl , Esquire, counsel for Pla.intiff, have no objection to the serving of the subpoenas identifi d in the attached Notice of Intent and hereby waive the 20-day notice period. Counsel for Additional Defendant shall provide me ,with copies of all records they obtain pursuant to these subpoenas. Date: !'/~~I OS . 'IJjYW7f~~ LehIgh VaJley OffIce: 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 . Phone: (610) 868-1675 . ~-I702 WILBUR MELLINGER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 05-2204 KMART CORPORATION, Defendant CNIL ACTION.. LAW v. JURY TRIAL DEMANDED R&C ELECTRIC, INC. Additional Defendant Additional Defendant intends to serve subpoenas identical to the ones that are attached to this notice. You have twenty (20) days from the date listed be:low in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. THOMAS, THOMAS & HAFER, LLP Date: f;/n/o> By: Q.~~ C. Kent Price, Esquire Identification Number: 06776 305 North Front Street P.O. Box 999 Harrisburg, PAl 7 I 08-0999 (717) 255-7632 Attorney jbr Additional Defendant 375369,1 WILBUR MELLINGER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-2204 KMART CORPORATION, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED v. R&C ELECTRIC, INC. Additional Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, David C. Baker, M.D., 19 Brookwood Avenue, #104, Carlisle, PA 17013. (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to pl\)(.1uce the following documents or things: Any and all correspondences, hospitalization and medical records regarding treatment rendered on behalf of WILBUR MELLINGER, SSN: 164-36-5157, 0/0/13: 08/14/1945, in.:luding, but not limited to patient histories, charts, progress notes, consultation reports, medication charts. statements of injury, diagnosis, prognosis, x-rays or other diagnostics, diagnostic test results and reports without limitation. at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, P.O. Box 999, Harrisburg, PA 17108. You may deliver or mall legible copies of the documents or produce things requested by this subpoena, together 'Nith the certificate of compliance. to the party making this request at the address listed above. You have tl1e right to seek., in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena. within twenty (20) Ijays after its service, the party serving this subpoena may seek a court order ccmpelllng you to ccrnply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: C. Kent Price. Esquire ADDRESS 305 N. Front Street. P. O. Box 999 HarrisburQ. PA 17108 TELEPHONE: (717) 255-7632 SUPREME COURT ID No: 06776 ATIORNEY FOR: Defendant Prothonotary/Clerk, Civil DiviSIon Oepuly DATE: Seal of the COurt 375363.1 WILBUR MELLINGER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-2204 KMART CORPORATION, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED v. R&C ELECTRIC, INC. Additional Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, David C. Baker, M.D.. 19 Brookwood Avenue, #104, Carlisie, PA 17013. (Name of Person or Entity) Within t\venty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all correspondences, hospitalization and medical records regarding treatment rendered on behalf of WILBUR MELLINGER, SSN: 164-36-5157, DIO/B: 08114/1945, including, but not limited to patient histories, charts, progress notes, consultation reports, medication charts, st~ltements of injury, diagnosis, prognosis, x-rays or other diagnostics, diagnostic test results and reports without limitation. at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, P.O. Box 999, Harrisburg, PA 17108. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, "lMthln twenty (20) days after its service, the party serving this subpoena may seek a court order cc:mpelllng you to comply 'v\'fth it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: C. Kent Price. Esauire ADDRESS 305 N. Front Street. P. O. Box 999 Harrisbura, PA 17108 TELEPHONE: (717) 255-7632 SUPREME COURT 10 No: 06776 ATTORNEY FOR: Defendant Prothonotary/Cieri<, Civil Division Deputy DATE: Seal of the Court 375363.1 CERTIFICATE OF SERVICE I, Rick Stains, Jr., Paralegal for the law firm Thomas, Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing a copy of the same in the United States mail, first class mail, directed to their office addresses as follows: John F. King, Esquire Friedman and King, P.C. 600 North 2nd Street Penthouse Suite Harrisburg, PA 17101 Frank W. Baer, Esquire Gibley and McWilliams, F'.C. 524 North Providence Road P.O. Box 1107 Media, P A 19063-0807 THOMAS, THOMAS & HAFER, LLP r: By: Date: 'i/"2-'2(Dr 375369, I CE&'rtttcAftOFsmvtcE 1, Rick Stains, Jr., a Paralegal for the law finn Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placing same in the United States mail, postage prepaid, on the date set fbrth below: John F. King, Esquire Friedman and King, P.c. 600 North 2nd Street Penthouse Suite Harrisburg, P A 17101 THOMAS, THOMAS & HAFER, LLP By: .. Rick Stains, Jr., Paral C. Kent Price Date: 'if1.yoS- 376515,1 .." <= 0 c.:;:? -n CJ' ';''','''' -.... ..... c::: ;11 "T'1 G') ;= , ,) 'T1 n""'; .' ;J (:J 0 'el, , () -'C' -.? , " :~~ ~:_~ , rn - ,._..t (~ .,,,~ ~).,? (..) -< IN,THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MELLINGER Vs. NO. 052204 KMART CORP CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena(s) for documents and things pursuant to Rule 4009.22 FRANK W BAER, ESQUIRE certifies that: 1. A Notice of Intent to Serve the Subpoena(s) with a copy of the subpoena{s) attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena(s) is sought to be served, 2. A copy of the Notice of Intent, including the proposed subpoena(s) is attached to this certificate, 3. No objection to the subpoena(s) has been received, and 4. The subpoena{s) which will be served is identical to the subpoena(s) which is attached to the Notice of Intent to Serve the Subpoena{s). Date: 09/16/05 ~~ FRANK W BAER, ESQUIRE 524 N PROVIDENCE RD PO BOX 1107 MEDIA, PA 19063 610-627-9500 ATTORNEY FOR DEFENDANT INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA PA 19135 (215) 335-4907 File #: M324569 By: Patrice Laporte IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MELLINGER Vs. KMART CORP No. 052204 TO: RICHARD FRIEDMAN, ESQ (PLAINTIFF) C KENT PRICE NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 DEFENDANT intends to serve a subpoena(s) identical to the one(s) attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Date: 08/25/05 FRANK W BAER, ESQUIRE 524 N PROVIDENCE RD PO BOX 1107 MEDIA, PA 19063 ATTORNEY FOR DEFENDANT INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA, PA 19135 (215) 335-4907 By: Patrice Laporte Enc(s): Copy of subpoena(s) Counsel return card File #: M324569 ~TH OF PENNSYLVANIA a:xJm'Y OF aJMBEmAND MELLINGER VS. Fi le No. 052204 KMART CORP SUBPOENA TO PRODU:E [)OCUoENTS OR iH I 1m FOR DISCOVERY PURSUANT TO RULE 4009.22 CARLISLE HaSP, 246 PARKER ST, CARLISLE PA 17013 TO: ATTN: MEDICAL RECORDS DEPT (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following doct.rnent!'; or things: A... SEE ATTAUlliJJ ftUDENJJUIvI at MEDICAL LEGAL REPRODUCTIONS{A~~s1940 DISSTON ST., PHILA., PA You may deliver or mail legible copies of the documents or produce things requeste~ h, this subpoena, together with the certificate of carp liance , to the party making thi, request at the address listed above. You have the right to seek in advance the reasonabl~ cost of preparing the copies or producing the things sought. If you fail (20) days after COTpe 11 ;ng you to to produce the documents or its serv~ce, the party carply with it. things required by this subpoena within t~enty serving t.hh ~;ubpoena may seek a court orde" iHl S SUBPOENA WAS NA/'E: ADDRESS : I SSUED AT iHE REQUEST OF iHE FOLLON I NG PERSON: FRANK W BAER, ESQ S2~ N PRO"IDENCE RD M.I:!:IJ.LA, JJA .L:;ub3 TELEPI-KJNE : SUPREI'E OOJRT I D # ATTORNEY FOR: 215-335-3212 DEFENDANT BY iHE COURT: Division M324569-01 DATE: ~'~it~~ t~:'~~{ Deputy (Eff. 1/97) ADDENDUM TO SUBPOENA MELLINGER Vs. No. 052204 KMART CORP CUSTODIAN OF RECORDS FOR: CARLISLE HOSP Any and all hospital records, including microfilm, microfiche emergency room reports, x-ray reports, out-patient records physical therapy records, and any other information pertaining to: NAME: WILBUR MELLINGER ADDRESS: 1120 ROXBURY RD NEWBURG PA DATE OF BIRTH: 08/14/45 SSAN: 164365157 ALL FEES MUST BE APPROVED PRIOR TO RECORDS BEING FORWARDED. RECORD CUSTODIAN - COMPLETE AND RETURN RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. NO DOCUMENTS AVAILABLE: I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX) : RECORDS X-RAYS PATIENT BILLING RECORDS / XRAYS have been destroyed Authorized s~gnature for CARLISLE HaSP Date CUMBERLAND M324569-01 *** SIGN AND RETURN THIS PAGE *** exMDNWEALTH OF PENNSYLVANIA CXXJNl'Y OF aJMBERIAND MELLINGER Vs. File No. 052204 KMART CORP SUBPOENA TO PRClCll.a: oo::::LM:NTS OR TH I NGS FOR 0 I SCXlVERY PURSUANT TO RULE 4009. 22 TO: DR DAVID BAKER, 19 BROOKWOOD AVE, CARLISLE PA 17013 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the fo I lowing docunent", or things: SEE ATTACllliD ADD.I!;NDLJM at MEDICAL LEGAL REPRODUCTIONS(A~s1940 DISSTON ST., PHILA., PA You may deliver or mail legible copies of the documents or produce things requested ~\ th i s subpoena, together wi th the cert; f i cate of carp Ii ance, to the party mak i ng th i, request at the address listed above. You have the right to seek in advance the rea~onablE cost of preoaring the copies or producing the things sought. If you fail (20) days after CClJl)e 11 i ng you to to produce the documents or its serv~ce, the party c:arply with it. things required by this subpoena within t~enty serving .thh subpoena may seek a court orde" TIllS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLClNING PERSON: NA/'E: FRANK W BAE..lL.- ESQ ADDRESS : ::;24 N rROVIDENCE RD MEDIA, PA 19063 215-335-3212 TELF.PI-ONE: SUPREI'E CXlU'lT 10 # ATTORNEY FOR: DEFENDANT BY THE CXJURT: M324S69-02 DATE: n ,,/ ';;h'~} .::1'1 o<OI'~s Se of the Court ivision Deputy (Eff. 7/97) ADDENDUM TO SUBPOENA MELLINGER Vs. No. 052204 KMART CORP CUSTODIAN OF RECORDS FOR: DR DAVID BAKER ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: WILBUR MELLINGER ADDRESS: 1120 ROXBURY RD NEWBURG PA DATE OF BIRTH: 08/14/45 SSAN: 164365157 CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. RECORD CUSTODIAN - COMPLETE AND RETURN RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. ] NO DOCUMENTS AVAILABLE: I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX) : RECORDS X-RAYS PATIENT BILLING RECORDS / XRAYS have been destroyed Date Author~zed signature for DR DAVID BAKER CUMBERLAND M324569-02 ** * SIGN AND RETURN THIS PAGE ** * ~TH OF PmNSYLVANIA axJNrY OF aJMBERIAND MELLINGER VS. File No. 052204 KMART CORP SUBPOENA TO PRocxx:E oc:a..t1ENTS OR TIi I NGS FOR D I SOOVERY PURSUANT TO RULE 4009. 22 PENN REHAB ASSOCS, 1 DUNWOODY DR, CARLISLE PA 17013 TO: (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following docunent!': or things: SEE ATTACtllW A1JU~NuLllvl at MEDICAL LEGAL REPRODUCTIONS(A~ss1940 DISSTON ST., PHILA., PA You may deliver or mail legible copies of the documents or produce things requested h, this subpoena, together with the certificate of carpliance, to the party making thi, request at the address listed above. You have the right to seek in advance the reasonablE cost of preoaring the copies or producing the things sought. If you fail (20) days after carpe 11 ; ng you to to produce the documents or things required by this subpoena within t~enty its serv~ce, the party serving thin subpoena may seek a court orde;- carply with it. TIi I S SUBPOENA WAS I SSUED AT TIiE REQUEST OF TIiE FOLLON I NG PERSON: ~: FRANK W BAER, ESQ ADDRESS : 521 N PROVIDENCE RD MEDIA, l'A l:iUb3 TELEPH:lNE: SUPREI"E OJURT I D # ATTORNEY FOR: 215-335-3212 DEFENDANT BY 11-IE OOJRT: ivision M324569-03 DATE: ~,.d :1,\ 200{ Se of the Court Deputy (Eff. 1/97) ADDENDUM TO SUBPOENA MELLINGER Vs. No. 052204 KMART CORP CUSTODIAN OF RECORDS FOR: PENN REHAB ASSOCS ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: WILBUR MELLINGER ADDRESS: 1120 ROXBURY RD NEWBURG PA DATE OF BIRTH: 08/14/45 SSAN: 164365157 CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. RECORD CUSTODIAN - COMPLETE AND RETURN [ RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. NO DOCUMENTS AVAILABLE: I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX) : RECORDS X-RAYS PATIENT BILLING RECORDS / XRAYS have been destroyed Date Authorized s~gnature for PENN REHAB ASSOCS CUMBERLAND M324569-03 ** * SIGN AND RETURN THIS PAGE * ** CCJI'oM)NWEALTH OF PENNSYLVANIA axJNrY OF aJMBERIAND MELLINGER VS. File No. 052204 KMART CORP SUBPOENA TO PRocxx:E oc:a..t1ENTS OR TIi I NGS FOR D I SOOVERY PURSUANT TO RUlE 4009. 22 DR JOSEPH PION, 100 S HIGH ST, NEWVILLE PA 17241 TO: (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce. the following document!': orS~~n'AT'lA(;HEU AuDENDUM at MEDICAL LEGAL REPRODUCTIONS{A~~~~s'940 DISSTON ST., PHILA., PA You may deliver or mail legible copies of the documents or produce things requested h, t.his subpoena, together- with the certificate of carpliance, to the party making thi, request at the address listed above. You have the right to seek in advance the reasonablE cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within t~enty (20) days after its serv~ce, the party serving thin ~;ubpoena may seek a court orde'- c.:aq:>e 11 ing you to carp ly with it. TH I S SUBPOENA WAS NA/'E: ADDRESS : I SSUED AT 11-fE REQUEST OF TIiE FOLLON 1 NG PERSON: FRANK W BAER, ESQ 921 N PRO"ID];:];TCE RD IVJ.t;1J.lA, .r'A J.::1uo3 TELF.PH:lNE: SUPREI"E COURT I D# ATTORNEY FOR: 215-335-3212 DEFENDANT BY 11-IE OOJRT: Division M324569-04 DATE: OUJt.uJ- .:2-'1. ;J.{)o( Se of the Court Deputy (Eff. 1/97) ADDENDUM TO SUBPOENA MELLINGER Vs. No. 052204 !<MART CORP CUSTODIAN OF RECORDS FOR: DR JOSEPH PION ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: WILBUR MELLINGER ADDRESS: 1120 ROXBURY RD NEWBURG PA DATE OF BIRTH: 08/14/45 SSAN: 164365157 CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. -------- ------------------------- - --- --- RECORD CUSTODIAN - COMPLETE AND RETURN ] RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. [ NO DOCUMENTS AVAILABLE: I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX) : ( ) RECORDS ( ) X-RAYS PATIENT BILLING RECORDS / XRAYS have been destroyed Date Author~zed s~gnature for DR JOSEPH PION CUMBERLAND M324569-04 *** SIGN AND RETURN THIS PAGE *** (') "-> 0 = c C~ -n c-', U) ~ In :TI ~"YJ f"-: ~, ~" -,.~ C::J Cl <~i:~) ~ (:~~ ~~ -,..... ~) rn ,;:::. C~ .-=-1 , ?lJ =< 0) -< SHERIFF'S RETURN - REGULAR CASE NO: 2005-02204 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MELLINGER WILBUR VS KMART CORPORATION KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE was served upon R&C ELECTRIC INC the ADD'TL DEFEND. , at 0015:55 HOURS, on the 28th day of July 2005 at 61 SOUTHMONT INC ENOLA, PA 17025 by handing to RON ANDERSON (OWNER) a true and attested copy of NOTICE together with JOINDER COMPLAINT and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 12.00 .00 10.00 .00 40.00 .~~--~~? R. Thomas Kline 07/29/2005 GIBLEY & MCWILLIAMS me this A.D. Sworn and Subscribed to before By: day of IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY " "..", MELLINGER Vs. NO. 052204 KMART CORP CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena(s) for documents and things pursuant to Rule 4009.22 FRANK W BAER, ESQUIRE certifies that: 1. A Notice of Intent to Serve the Subpoena(s) with a copy of the subpoena(s) attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena(s) is sought to be served, 2. A copy of the Notice of Intent, including the proposed subpoena(s) is attached to this certificate, 3. No objection to the subpoena(s) has been received, and 4. The subpoena(s) which will be served is identical to the subpoena(s) which is attached to the Notice of Intent to Serve the Subpoena(s) . Date: 03/13/06 FRANK W BARR, ESQUIRE 524 N PROVIDENCE RD PO BOX 1107 MEDIA, PA 19063 610-627-9500 ATTORNEY FOR DEFENDANT INQUIRIBS SHOULD BB ADDRBSSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA PA 19135 (215) 335-4907 By: Patrice Laporte File #: M329073 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY . - MELLINGER Vs. KMART CORP No. 052204 TO: RICHARD FRIEDMAN, ESQ (PLAINTIFF) C KENT PRICE NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 DEFENDANT intends to serve a subpoena(s) identical to the one(s) attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Date: 02/20/06 FRANK W BAER, ESQUIRE 524 N PROVIDENCE RD PO BOX 1107 MEDIA, PA 19063 ATTORNEY FOR DEFENDANT INQUIRIBS SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA, PA 19135 (215) 335-4907 By: Patrice Laporte Enc(s): Copy of subpoena(s) Counsel return card File #: M329073 . ~TH OF PENNSYLVANIA axJNrY OF aJMBERLAND VS. KMART CORP Fi le No. 2005 2204 MELLINGER SUBPOENA TO PRocxx:E DCXU1ENTS OR TIi I NGS FOR DISOOVERY PURSUANT TO RULE 4009.22 TO: EXCEL UNILEVER (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following document!': or things: **SEE ATTACHED ADDENlJUMU at MEDICAL LEGAL REPRODUCTIONS INC 4940 DISSTON ST PHILA PA 19135 (Address) You may deliver or mail legible copies of the documents or produce things requested hI this subpoena, together with the certificate of carpliance, to the party making thi, request at the address 1 isted above. You have the right to seek in advance the reasonab IE cost of preoaring the copies or producing the things sought. I f you fai 1 to produce the docunents or things required by this subpoena within t~enty (20) days after its serv~ce. the party serving t.hin mJbpoena may seek a court orde.- corpel1ing you to carply with it. TIi I S SUBPOENA WAS J SSUED AT TIiE REQUEST OF 11-IE FOlLCW 1 NG PERSON: ~: FRANK BAER, ESQ ADORESS: 524 N PROVIDEi.CE MEDIA PA 19063 (215) 335-3212 RD TELEPH:lNE: SU"REr-E OJURT ATTORNEY FOR: ID# DEFENDANT DATE: st'....0 . ClJ/. ozaJ c:, Sea 1 of the Court BY TIiE OOJRT: /51 ~- p-~ Prothonotary/Cler , Civi I Division ~~4tA- ?- ~A,. W Deputy (Eff. 1/97) . . ADDENDUM TO SUBPOENA MELLINGER Vs. No. 052204 KMART CORP CUSTODIAN OF RECORDS FOR: EXCEL UNlLEVER ANY EMPLOYMENT APPLICATIONS, EARNINGS, LEDGER SHEETS, TIME CARDS REVIEWS, ATTENDANCE SHEETS, ANY AND ALL MEDICAL RECORDS AND REPORTS AND PRE-EMPLOYMENT PHYSICALS, WORKMEN'S COMPENSATION CLAIMS MADE, ANY W-2 WITHHOLDING TAX FORMS, AND ANY OTHER INFORMATION PERTAINING TO: NAME: WILBUR MELLINGER ADDRESS: 1120 ROXBURY RD NEWBURG PA DATE OF BIRTH: 08/14/45 SSAN: 164365157 CERTll<1~D PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RECORD CUSTODIAN - COMPLETE AND RETURN [ ] RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. [ NO DOCUMENTS A VAlLABLE: I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX) : ( ) RECORDS ( ) X-RAYS PATIENT BILLING RECORDS / XRAYS have been destroyed Date Authorized signature for EXCEL UNILEVER CUMBERLAND M329073-01 *** SIGN AND RETURN THIS PAGE *** n r: ~ ,:-'::; (-~,''''' """ ~;; r,' o '~ -7J :r:: o -" --' '"1: --n ;llF ~nnJ -ilC,~ . :~~;~ ""C) .:~\rr1 )]~ ~ \',:-.) en CO - --- . Frank W. Baer, Esquire ibaerl@l!iblevlaw.com Identification No. 43866 GIDLEY AND MCWILLIAMS, P.c. 524 North Providence Road P.O. Box 1107 Media, PA 19063-0807 Telephone No. (610) 627-9500 WILBUR MELLINGER Plaintiff, v. KMART CORPORATION (incorrectly identified as K-Mar! Corporation) Defendant. . Attorney for Defendants Kmar! Corporation (incorrectly identified as K-Mar! Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 05-2204 ORDER TO SETTLE. DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above matter settled, discontinued and ended. FRIEDMAN & KING, P.c... By: Rich S. Friedman, Esquire Attorney For Plaintiff Wilbur Mellinger /""". ....... C- rT- ,-~ c,:) c.;:.., w'.... () -n ---1 -,- flip' .::S~~ L_ c- C" c.) : ~':< l ~.:; . - :;J .<