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Home My WebLink About05-2801 r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM, CIVIL DIVISION Plaintiff, G.D. No.:OS?o (fw? ???j2„vyl v. PENNSYLVANIA TURNPIKE COMPLAINT COMMISSION, Filed on Behalf of Plaintiff: Defendant. Counsel of Record for This Party: Louis M. Tarasi, Jr., Esquire PA I.D. # 01042 C. William Kenny, Esquire PA I.D. #82225 TARASI, TARASI & FISHMAN, P.C. Firm No. #469 510 Third Avenue Pittsburgh, PA 15219 P: (412) 391-7135 F: (412)4712673 s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM CIVIL DIVISION G.D. No.: Plaintiffs, COMPLAINT V. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objection 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 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 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 TO GET LEGAL HELP]. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CAN NOT AFFORD TO HIRE A LAWYER. THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 1 Courthouse Square Carlisle, Pennsylvania 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM Plaintiffs, V. PENNSYLVANIA TURNPIKE COMMISSION, CIVIL DIVISION G.D. No.: OE - -? 901 COMPLAINT Defendant. COMPLAINT AND NOW, comes the Plaintiff, Ezekiel E. Graham, and by and through their attorneys, C. William Kenny, Esquire and the Tarasi, Tarasi & Fishman, P.C. and files this Complaint. The Plaintiff, Ezekiel E. Graham, resides at 2879 S. Conway Road, Apartment 254, Orlando, Florida, 32812. 2. The Defendant is the Pennsylvania Turnpike Commission whose mailing address is 700 South Eisenhower Boulevard, Middletown, Dauphin County, Pennsylvania, 17057. PERTINENT FACTS 3. On or about February 6, 1994, Ezekiel Graham, who was approximately 7 years old at the time was sledding on the property his apartment was located, 611-615 Wayne Drive, Mechanicsburg, Pennsylvania 17055, (hereinafter referred to as Apartment property). Plaintiff turned eighteen years of age on March 7, 2004. 4. The Apartment property runs adjacent to the Pennsylvania Turnpike and right- of-way of the Defendant's on which a fence sits separating the Apartment property from the Turnpike. 5. On 2/6/94 Ezekiel Graham's foot got caught in a wide opening in the Defendant's right-of-way fence while sled riding. 6. The wide opening in the fence caused Ezekiel Graham's foot to be caught in the fence, causing Ezekiel's right foot, ankle and leg to sustain sever damage. COUNTI Deborah L. Graham, as parent and natural guardian v. Pennsylvania Turnpike Commission Negligence Pursuant to 42 Pa.C.S.A. §8522(b)4 Paragraphs 1 through 6 are incorporated by reference, as fully as if they were set forth at length herein. 8. The Defendant, owns, operates and maintains the subject fence. 9. The Defendant knew or should have known that children play and sled ride near the subject fence and that the children could get their limbs caught in the fence causing injury. 10. The Defendant knew or should have known that the wide openings in its fence could hurt a child. 11. The Defendant was negligent in designing, maintaining, buying, building, installing and inspecting the subject fence in that the openings in the fence were metal and the openings were too large causing Ezekiel Graham's foot to get caught when he hit the fence while sled riding. POST & POST, LLC BY: JONATHAN DEISHER, ESQ. I.D. #: 67287 1660 VALLEY CENTER PARKWAY Suite 400 ATTORNEY FOR DEFENDANT, PENNSYLVANIA TURNPIKE COMMISSION BETHLEHEM, PA 18017 (610) 861-9180 FAX: (610) 861-0509 EZEKIEL E. GRAHAM, Plaintiff, V. PENNSYLVANIA TURNPIKE COMMISSION Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL TERM NO.05-2801 JURY OF TWELVE DEMANDED DEFENDANT, PENNSYLVANIA TURNPIKE COMMISSION'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Plaintiff instituted the within action by filing a Complaint which was served upon Defendant, Pennsylvania Turnpike Commission, on or about June 7, 2005. A true and correct copy of Plaintiffs Complaint is attached hereto and marked as Exhibit "A". 2. Plaintiffs Complaint alleges that Defendant was negligent in connection with a sledding accident that is alleged to have occurred over eleven (11) years ago, on or about February 6, 1994. See Exhibit "A", MOTION TO STRIKE PLAINTIFF'S COMPLAINT FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT 3. On February 2, 1996, Debra Graham initiated an action against the Pennsylvania Turnpike Commission on behalf of her minor-son, Ezekiel Graham, by filing a Writ of Summons in the Cumberland County Court of Common Pleas. A true and correct copy of the Writ of Summons is attached hereto and marked as Exhibit "B". In addition, a true and correct copy of the docket entries from the 1996 action is attached hereto and marked as Exhibit «C, 4. A full two years then elapsed before Plaintiffs filed a Complaint on February 2, 1998. A true and correct copy of Plaintiffs' Complaint in the 1996 action is attached hereto and marked as Exhibit "D". 5. Plaintiffs' Complaint alleged that on February 6, 1994, Minor-Plaintiff s foot became caught in an opening in Defendant's right-of-way fence while Minor- Plaintiff was sledding. See Exhibit "D" paragraph 5. 6. Plaintiffs' Complaint further alleged that the sledding accident caused injury to Minor-Plaintiff's right foot and leg. See Exhibit "D" paragraph 6. 7. On January 13, 2003, after three and one half years of docket inactivity, the above-described action was dismissed by this Honorable Court pursuant to Pa.R.J.A. 1901 and Cumberland County Local Rule 228. See Exhibit "B". 8. The order dismissing Plaintiff's 1996 action was a final order which terminated the action and, as such, was immediately appealable. Pilon v. Bally Engineering Structures, 435 Pa. Super. 227, 645 A.2d 282 (1994). 9. Plaintiff did not appeal this Court's January 13, 2003 Order. 10. Plaintiff did not petition for reactivation of the 1996 action. 11. Plaintiff did not petition for permission to bring a second action. 12. Instead, Plaintiff simply began another action under another Court term and number, more than nine (9) years after the initial action, and more than eleven (11) years after the alleged incident. 13. The averments contained in Plaintiff's 2005 Complaint concerning the alleged sledding incident and Plaintiffs alleged injuries are identical to the averments in the 1996 action. See Exhibit "A", paragraphs 5 and 6, and Exhibit "D", paragraphs 5 and 6. 14. Under longstanding Pennsylvania case law, a plaintiff may not, as a matter of course, reinstate a case that was dismissed pursuant to Pa. R.J.A. 1901 for inactivity of record. 15. Pennsylvania Rule of Civil Procedure 1028(a)(2) provides for the filing of Preliminary Objections to a Complaint for failing to conform to law or rule of court. WHEREFORE, Defendant, Pennsylvania Turnpike Commission, respectfully requests that this Honorable Court dismiss Plaintiffs Complaint for failure to conform to law or rule of court. Respectfully submitted, POST & POST, LLC B Dated: 8-1-05 ZACK, ESQUIRE N DEISHER, ESQUIRE ORNEYS FOR DEFENDANT, PENNSYLVANIA TURNPIKE COMMISSION POST & POST, LLC BY: JONATHAN DEISHER, ESQ. I.D. #: 67287 1660 VALLEY CENTER PARKWAY Suite 400 ATTORNEY FOR DEFENDANT, PENNSYLVANIA TURNPIKE COMMISSION BETHLEHEM, PA 18017 (610) 861-9180 FAX: (610) 861-0509 EZEKIEL E. GRAHAM, Plaintiff, V. PENNSYLVANIA TURNPIKE COMMISSION Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL TERM NO.05-2801 JURY OF TWELVE DEMANDED CERTIFICATE OF SERVICE I, JONATHAN DEISHER, ESQUIRE, hereby certify that on this 1st day of August, 2005 I caused a true and correct copy of the foregoing Preliminary Objections to Plaintiffs Complaint in support thereof, to be served upon the following persons via First Class mail, postage prepaid: Louis M. Tarasi, Jr., Esquire Tarasi, Tarasi & Fishman, P.C. 510 Third Avenue Pittsburgh, PA 15219 POST & POST, LLC By. DEISHER, ESQUIRE EYS FOR DEFENDANT, PENNSYLVANIA TURNPIKE COMMISSION VERIFICATION I, Jonathan Deisher, Esquire, hereby state the statements made in the foregoing pleading are true and correct to the best of my information, knowledge and belief. I undersigned understand that the statements made therein are subject to the penalties of Pa.C.S. §4904 relating to unworn falsification to authorities. BY*JDZISHER, ESQUIRE DATED: k - 0,5' rc+ 41+1: Al IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM, Plaintiff, V. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. CIVIL DIVISION G.D. No.: 09 -aJ0d' l_. UL.,C`? COMPLAINT Filed on Behalf of Plaintiff: Counsel of Record for This Party: Louis M. Tarasi, Jr., Esquire PA I.D. # 01042 C. William Kenny, Esquire PA I.D. #82225 TARASI, T ARASI & FISHMAN, P.C. Firm No. #469 510 Third Avenue Pittsburgh, PA 15219 P: (412) 391-7135 F: (412) 4712673 TRUE COPY FROM RECORD Is T ny< wi wA. i we unto set my head srd fire $04 of said cowl as Caritsle, Ps. ? rL?Y _ ... PLC `Ftwmater'' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM CIVIL DIVISION G.D. No.: Plaintiffs, COMPLAINT V. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objection 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 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 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 TO GET LEGAL HELP]. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CAN NOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association I Courthouse Square Carlisle, Pennsylvania 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM CIVIL DIVISION G.D. No.: Plaintiffs, COMPLAINT V. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. COMPLAINT AND NOW, comes the Plaintiff, Ezekiel E. Graham, and by and through their attorneys, C. William Kenny, Esquire and the Tarasi, Tarasi & Fishman, P.C. and files this Complaint. The Plaintiff, Ezekiel E. Graham, resides at 2879 S. Conway Road, Apartment 254, Orlando, Florida, 32812. 2. The Defendant is the Pennsylvania Turnpike Commission whose mailing address is 700 South Eisenhower Boulevard, Middletown, Dauphin County, Pennsylvania, 17057. PERTINENT FACTS 3. On or about February 6, 1994, Ezekiel Graham, who was approximately 7 years old at the time was sledding on the property his apartment was located, 611-615 Wayne Drive, Mechanicsburg, Pennsylvania 17055, (hereinafter referred to as Apartment property). Plaintiff turned eighteen years of age on March 7, 2004. 4. The Apartment property runs adjacent to the Pennsylvania Turnpike and right- of-way of the Defendant's on which a fence sits separating the Apartment property from the Turnpike. 5. On 2/6/94 Ezekiel Graham's foot got caught in a wide opening in the Defendant's right-of-way fence while sled riding. 6. The wide opening in the fence caused Ezekiel Graham's foot to be caught in the fence, causing Ezekiel's right foot, ankle and leg to sustain sever damage. COUNTI Deborah L. Graham, as parent and natural guardian v. Pennsylvania Turnpike Commission Negligence Pursuant to 42 Pa.C.S.A. §8522(b)4 7. Paragraphs 1 through 6 are incorporated by reference, as fully as if they were set forth at length herein. 8. The Defendant, owns, operates and maintains the subject fence. 9. The Defendant knew or should have known that children play and sled ride near the subject fence and that the children could get their limbs caught in the fence causing injury. 10. The Defendant knew or should have known that the wide openings in its fence could hurt a child. U. The Defendant was negligent in designing, maintaining, buying, building, installing and inspecting the subject fence in that the openings in the fence were metal and the openings were too large causing Ezekiel Graham's foot to get caught when he hit the fence while sled riding. 12. When Ezekiel Graham's foot got caught in the fence he sustained a sever foot injury and has developed related injuries due to the deformity of his foot caused by the initial injury. The wide metal opening in the fence caused the injuries. 13. The foot injury has caused and will continue to cause Ezekiel Graham great pain and suffering, loss of income, loss of enjoyment of life, deformity, shortening of the foot, and embarrassment. 14. The injuries have created large medical bills. WHEREFORE, the Plaintiff, Ezekiel E. Graham demands damages of the Defendant, Pennsylvania Turnpike Commission, in an amount in excess of the jurisdictional limitations, plus costs of suit and interest. Respectfully submitted, TARASI, TARASI: & FISHMAN, P.C. C. William Kenny, Esquire PA. ID. #82225 510 Third Avenue Pittsburgh, PA 15219 P:412-391-7135 F: 412-471-2673 VERIFICATION I, Ezekiel Graham, hereby certify that the statements in the foregoing Complaint is correct to the best of my knowledge, information and belief. This statement and verification, is made subject to the Penalties of Pa. C.S.A. §4904 relating to unsworn falsification to Authorities, which provides that if 1 knowingly make false statements, I may be subject to criminal penalties. DATE:Mw"t L) 2 e-v5- OrA 2m- 0 - E ekiel Graham Commonwealth of Pennsylvania County of Cumberland Deborah L. Graham, Individually and as parent and natural guardian of Ezekiel E. Graham 615 Wayne Drive, Mechanicsburg, PA 17055 Vs. Pennsylvania Turnpike Commission Harrisburg East Interchange Highspire, PA 17034 ®« a cc s Q OE /O M ? 4 v CC a C`?q-al Ltd. m .;. 43 tr. a.° C7 s+ :.. C7 <, ir- r J Court of Common Pleas No. _96=606 C_i_v_il- -Term ---------- -------7(kj In - __ Civil_ AI_tion- -- -Law ----------- -------------- To Pennsylvania Turnpike_ Commission You are hereby notified that Deborah L. Graham, Individually and Ezekiel E. Graham ------------------------------------- the Plaintiffs have commenced an action in --CiviL-Act-ion-Law--_.------------------------- against you which you are required to defend or a default judgment may be entered against you. (SEAL) Lawrence E. Welker ------------------------------------------------- Prothonotary Q s a r ?r Date __ February 2nd ------------ 1926__ By -- i 1 ?? lcrl r _\C \:\ Deputy ,Y ?Y- if N x N ` w m S d w :a bf -^? rte{ YN ?£ f W Cr ? ? j f f N i f A It ' G f f ? f pf f f N D ro N N d x (0 n N O N?*t ? tP ?Y i Y ? ' f my n ' rt ? m ? p, n C Y F . Y H } Sy,fG d 7 x 0 elJ011 l ULLW=I1allU VVUll I. ?' t1V1. 11viiV . u ?.Y o v._..-?... Civil Case Print ?...?., y 1996-00606 GRAHAM DEBORAH L ET AL (vs) PENNSYLVANIA TURNPIKE COMM Reference No..: Filed........: 2/02/1996 Case Type.....: WRIT OF SUMMONS Time.........: E ti D t 3:25 0/00 Judgment..... 00 e xecu on a /0000 Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: DISMISSED Disposed Date. 1/13/2003 ------------ Case Comments ---- --------- Higher Crt 1.: Higher Crt 2.: ******************************** ************************************************ General Index Attorney Info GRAHAM DEBORAH L PLAINTIFF DOUGLAS WILLIAM P 615 WAYNE DRIVE MECHANICSBURG PA 17055 GRAHAM EZEKIEL E PLAINTIFF DOUGLAS WILLIAM P 615 WAYNE DRIVE MECHANICSBURG PA 17055 PENNSYLVANIA TURNPIKE DEFENDANT COMMISSION HARRISBURG EAST INTERCHANGE HIGHSPIRE PA 17034 ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 2/02/1996 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED ------------------------------------------------------------------- 2/28/1996 SHERIFF'S RETURN (SERVED DEFT PENNSYLVANIA TURNPIKE COMMISSION 2/7/96; ATTORNEY GENERAL 2/9/96) SHERIFF'S COSTS $77.25 PD ATTY ------------------------------------------------------------------- 2/02/1998 COMPLAINT ------------------------------------------------------------------- 3/27/1998 PRELIMINARY OBJECTIONS OF DEFENDANT PENNSYLVANIA TURNPIKE COMMISSION TO THE COMPLAINT OF DEBORAH L GRAHAM AND EZEKIEL E GRAHAM ------------------------------------------------------------------- 4/21/1998 RESPONSE IN OPPOSITION TO PRELIMINARY OBJECTIONS ------------------------------------------------------------------- 11/13/1998 NOTICE OF SERVICE OF PLAINTIFF'S FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT ------------------------------------------------------------------- 1/29/1999 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY C WILLIAM KENNY ESQ DEFENDANT'S PRELIMINARY OBJECTIONS -------------------------------------------------------------------RDER E TO BE FROM 2/11/1999 COURT LLISTOFOR 3/3D/99D-2BYOGEORGESE HOFFERRPJO- NOTICE MAIL DGUMENT ------------------------------------------------------------------- 3/18/1999 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY MARK S SILVER ESQ DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT -------------------------------------------------------------------ORDER PRELI 5/25/1999 DOPINION EFENDANTN- DENIED -D BYEKEVIN5A9HESSIJ - COPIESMMAILEDINARY OF ------------------------------------------------------------------- 6/08/1999 DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFFS' COMPLAINT ------------------------------------------------------------------- 6/28/1999 CERTIFICATE AND PROOF OF SERVICE OF DEFENDANT'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS ------------------------------------------------------------------- 6/28/1999 CERTIFICATE AND PROOF OF SERVICE OF INTERROGATORIES OF DEFENDANT PENNSYLVANIA TURNPIKE COMMISSION ADDRESSED TO PLAINTIFFS DEBORAH L GRAHAM AND EZEKIEL E GRAHAM - FIRST SET ------------------------------------------------------------------- 1/13/2003 ORDER OF COURT - AND NOW, THIS 13TH DAY OF JANUARY, 2003, IN ACCORDANCE WITH THE CALL OF THE 2002 PURGE LIST OF OCTOBER 22, 2002, AND PURSUANT TO PA R J A 1901, THE ABOVE CASE IS HEREBY DISMISSED. BY THE COURT - CURTIS R. LONG, PROTHONOTARY - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information Civil Case Print 1996-00606 GRAHAM DEBORAH L ET AL (vs) PENNSYLVANIA TURNPIKE COMM Reference No..: Filed........: 2/02/1996 Case Type.....: WRIT OF SUMMONS Time...... 3:25 Judgment...... 00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: DISMISSED Disposed Date. 1/13/2003 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: * Fees & Debits Bw*Bal*** mt*s/Add End Bal ***********************************P***** ******************************* WRIT OF SUMMONS 35.00 35.00 .00 TAX ON WRIT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 --------------- 5.00 ---- .00 45.50 ----- --- 45.50 --------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FRAOM RECORD in Tsist;sro;a} vwt!e7!X.9, I hers Unto set M bath fio sd t! 11 at wild CMI'l at, c lisle. Pay. `ocT3 i7:ev-v a WD?r c ?- arot n arv IN THE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DEBORAH L. GRAHAM, Individually and COURT OF COMMON PLEAS as parent and natural guardian of EZEKIEL E. GRAHAM No. 96-606 Civil Term 615 Wayne Drive, Mechanicsburg, PA 17055 In Civil Action Plaintiffs, VS. PENNSYLVANIA TURNPIKE COMMISSION HARRISBURG EAST INTERCHANGE HIGHSPIRE, PA. 17034 Defendants. COMPLAINT Filed on Behalf of Plaintiffs Counsel of Record for this Party Matthew A. Hartley, Esq. PA I.D. #65435 THE TARASI LAW FIRM, P.C. Firm #469 510 Third Avenue Pittsburgh, PA 15219 (412) 391-7135 JURY TRIAL DEMANDED. NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally, or by attorney, and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you, and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TARE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 IN THE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DEBORAH L. GRAHAM, Individually and as parent and natural guardian of EZEKIEL E. GRAHAM 615 Wayne Drive, Mechanicsburg, PA 17055 Plaintiffs, VS. PENNSYLVANIA TURNPIKE COMMISSION HARRISBURG EAST INTERCHANGE HIGHSPIRE, PA. 17034 Defendants. COMPLAINT COMMON PLEAS No. 96-606 Civil Term In Civil Action AND NOW, comes the Plaintiff, Deborah L. Graham, individually and as parent and natural guardian of Ezekiel E. Graham, and by and through their attorneys, Matthew A. Hartley, Esquire and the Tarasi Law Firm, P.C. and files this Complaint. 1. The Plaintiff, Deborah L. Graham, resides at 615 Wayne Drive, Mechanicsburg, PA 17055 and is the parent and natural guardian of her minor son, Ezekiel E. Graham. 2. The Defendant is the Pennsylvania Turnpike Commission whose mailing address is P.O. Box 67676 Harrisburg, PA 17106-7676. PERTINENT FACTS 3. On or about 2/6/94, Ezekiel Graham, who was approximately 2 7 years old at the time was sledding on the property his apartment was located, 611-615 Wayne Drive, Mechanicsburg Pennsylvania 17055, (hereinafter referred to as Apartment property). 4. The Apartment property runs adjacent to the Pennsylvania Turnpike and right-of-way of the Defendant's on which a fence sits separating the Apartment property from the Turnpike. 5. On 2/6/94 Ezekiel Graham's foot got caught in a wide opening in the Defendant's right-of-way fence while sled riding. 6. The wide opening in the fence caused Ezekiel Graham's foot to be caught in the fence, causing Ezekiel's right foot, ankle and leg to sustain severe damaged. COUNT I Deborah L. Graham, as parent and natural guardian v. Pennsylvania Turnpike Commission Negligence Pursuant to 42 Pa.C.S.A. §8522(b)4 7. Paragraphs 1 through 6 are incorporated by reference, as fully as if they were set forth at length herein. 8. The Defendant, owns, operates and maintains the subject fence. 9. The Defendant knew or should have known that children 3 play and sled ride near the subject fence and that they children could get their limbs caught in the fence causing injury. 10. The Defendant knew or should have known that a child could get hurt by the wide openings in it's fence. 11. The Defendant was negligent in designing, maintaining, buying, building, installing and inspecting the subject fence in that the openings in the fence were metal and the openings were too large causing Ezekiel Graham's foot to get caught when he hit the fence while sled riding. 12. when Ezekiel Graham's foot got caught in the fence he sustained a severe foot injury. The injuries were caused by the wide metal opening in the fence. 13. The foot injury has caused and will continue to cause Ezekiel Graham great pain and suffer, loss of income, loss of enjoyment of life, deformity, shortening of the foot, and embarrassment. 14. The injuries have created large medical bills. WHEREFORE, the Plaintiff, Deborah L. Graham individually and as parent and natural guardian of Ezekiel E. Graham demands damages of the Defendant, Pennsylvania Turnpike Commission, in an amount in 4 excess of the jurisdictional limitations, plus costs of suit and interest. COUNT II Deborah L. Graham v. Pennsylvania Turnpike Commission 15. Paragraphs 1 through 14 of the Complaint are incorporated by reference as if fully set forth herein. 16. As a result of Eziekel Graham's injuries, which were caused by the Defendant's negligence, Deborah L. Graham has sustained injuries in her own right. 17. Deborah L. Graham has had to pay for the medical bills of Ezekiel E. Graham and has lost the services, assistance and companionship that Ezekiel had provided. 18. Deborah L. Graham has provided extensive time and effort providing Ezekiel E. Graham care and assistance. 19. When Deborah L. Graham discovered the injuries she experienced, shock, emotional distress, pain and suffering and still suffers to this day. WHEREFORE, the Plaintiff requests that this court provide her damages in excess of the jurisdictional limit for the loss of services, medical bills, assistance and companionship, medical 5 bills, shock, emotional distress, pain and suffering together with costs and interest. Respectfully submitted, THE TARASI LAW FIRM, P.C. M ew rtley, Esquire PA I.D. #65435 510 Third Avenue Pittsburgh, PA 15219 (412) 391-7135 6 V E R I F I C A T I O N I, Matthew A. Hartley, Esquire, hereby acknowledge that I am the attorney for the Plaintiff in the foregoing action; I have read the foregoing Complaint, and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification and authorities. Dated: 3'12Y?}, CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing COMPLAINT was served on the Defendant on the, 2nd day of February, 1998, by United States Mail, First Class, Postage pre- paid Certified Mail - Return Receipt Requested addressed as follows: Office of Chief Counsel Pennsylvania Turnpike Commission P.O. Box 67676 Harrisburg, PA 17106-7676 THE TARASI LAW FIRM, P.C. By: o/' 4?1 11 !1( hew A. Hartley, squire #Atorney for Plaintiff 510 Third Avenue Pittsburgh, PA 15219 (412) 391-7135 U ? ? oo F 9 12. When Ezekiel Graham's foot got caught in the fence he sustained a sever foot Injury and has developed related injuries due to the deformity of his foot caused by the initial injury. The wide metal opening in the fence caused the injuries. 13. The foot injury has caused and will continue to cause Ezekiel Graham great pain and suffering, loss of income, loss of enjoyment of life, deformity, shortening of the foot, and embarrassment. 14. The injuries have created large medical bills. WHEREFORE, the Plaintiff, Ezekiel E. Graham demands damages of the Defendant, Pennsylvania Turnpike Commission, in an amount in excess of the jurisdictional limitations, plus costs of suit and interest. Respectfully submitted, TARASI, TARASI & FISHMAN, P.C. (?Z 4( C. William Kenny, Esquire PA.ID.#82225 510 Third Avenue Pittsburgh, PA 15219 P:412-391-7135 F:412-471-2673 VERIFICATION I, Ezekiel Graham, hereby certify that the statements in the foregoing Complaint is correct to the best of my knowledge, information and belief. This statement and verification, is made subject to the Penalties of Pa. C.S.A. §4904 relating to unsworn falsification to Authorities, which provides that if I knowingly make false statements, I may be subject to criminal penalties. DATE:Mw'1 z) ?Sve-15- 1 E ekiel Graham n ?. c r- ,= POST & POST, LLC BY: JOSEPH G. ZACK, ESQ. ATTORNEY FOR DEFENDANT, PENNSYLVANIA TURNPIKE I.D. #: 53053 AUTHORITY 200 BERWYN PARK, SUITE 102 920 CASSATT ROAD BERYWN, PA 19312 (610) 240-9180 FAX: (610) 240-9185 EZEKIEL E. GRAHAM, Plaintiff, V. PENNSYLVANIA TURNPIKE COMMISSION Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL TERM NO.05-2801 JURY OF TWELVE DEMANDED ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL Kindly enter my appearance on behalf of the Pennsylvania Turnpike Commission, defendant, in the above-captioned matter. Also, please enter at this time my demand for a trial by twelve jurors. POST & POST, LLC BY: JOS ZACK, SQUIRE c? ?,,, ?: _ ? ? ,?: ;. ?- C T a "l h} ?? N off„ O 7C? ""' Jt? r ' -a -''rj N y ;_rrt ? ;?i SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-02801 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GRAHAM EZEKIEL E VS PENNSYLVANIA TURNPIKE COMMISSI R. Thomas K1 Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: PENNSYLVANIA TURNPIKE COMMISSION but was unable to locate Them deputized the sheriff of DAUPHIN serve the within COMPLAINT & NOTICE County, Pennsylvania, to On June 16th , 2005 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dep Dauphin Co Postage So answ 18.00 9.00 10.00 P. Thomas Kline 30.00 Sheriff of Cumberland County .74 67.74 06/16/2005 TARASE TARASI & FISHMAN Sworn and subscribed to before me this )Iz+ day of vZUt9b? A. D. <L V / Q ?h ' Prothonota y' in his bailiwick. He therefore In The Court of Common Pleas of Cumberland County, Pennsylvania Ezekiel E. Graham VS. Pennsylvania Turnpike Commission No 05-2801 civil No. Now, June 31 2005 hereby deputize the Sheriff of deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to _ a and made known to copy of the original the contents thereof. So answers, Sheriff of Sworn and subscribed before me this ^ day of 20` 20,, at o'clock M. served the , I, SHERIFF OF CUMBERLAND COUNTY, PA, do Dauphin County to execute this Writ, this COSTS SERVICE $ MILEAGE AFFIDAVIT County, PA I (Office of ttr,*4rrt f f Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph:(717)255-2660 fm:(717)255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania GRAHAM EZEKIEL E vs County of Dauphin PENNSYVANIA TURNPIKE COMMISSION Sheriff's Return No. 1012-T - - -2005 OTHER COUNTY NO. 05-2801 CIVIL TERM AND NOW:JUne 7, 2005 at 2:20PM served the within COMPLAINT upon PENNSYVANIA TURNPIKE COMMISSION by personally handing to CAROL HANK, LEGAL SECRETARY 1 true attested copy(ies) of the original COMPLAINT and making known to him/her the contents thereof at 700 S EISENHOWER BLVD MIDDLETOWN, PA 17057-0000 Sworn and subscribed to before me this 8TH day of JUNE, 2005 . QGt/ NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2006 So Answers, ' e,; t? Sheriff of Dauphin County, Pa. K! By Q Deputy Sheriff Sheriff's Costs:$30.00 PD 06/06/2005 RCPT NO 207514 TW IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM, Plaintiff, V. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. CIVIL DIVISION G.D.No.: OS -0??6l' C)LLc- Ryn RESPONSE IN OPPOSITION TO PRELIMINARY OBJECTIONS Filed on Behalf of Plaintiff: Counsel of Record for This Party: Louis M. Tarasi, Jr., Esquire PA I.D. # 01042 C. William Kenny, Esquire PA I.D. #82225 TARASI, TARASI & FISHMAN, P.C. Firm No. #469 510 Third Avenue Pittsburgh, PA 15219 P: (412) 391-7135 F: (412) 4712673 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM CIVIL DIVISION G.D. No.: Plaintiffs, COMPLAINT V. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. RESPONSE IN OPPOSITION TO PRELIMINARY OBJECTIONS AND NOW, comes the Plaintiff, Ezekiel E. Graham, and by and through their attorneys, C. William Kenny, Esquire and the Tarasi, Tarasi & Fishman, P.C. and files this Response in Opposition to Preliminary Objections, of which the following is a statement: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. By way of further answer, undersigned counsel did not receive notice of the Rule to Show cause, nor of the Order dismissing that action. Further, Further, the legal effect of the entry of a judgment of non pros is not such as to preclude the plaintiff who suffers such a judgment from instituting another suit on the same cause of actions, provided, however, that the second suit is brought within the period of the statue of limitations 8. Denied as a conclusion of law. Further, the legal effect of the entry of a judgment of non pros is not such as to preclude the plaintiff who suffers such a judgment from instituting another suit on the same cause of actions, provided, however, that the second suit is brought within the period of the statue of limitations. 9. Admitted. By way of further answer, undersigned counsel did not receive notice of the Rule to Show cause, nor of the Order dismissing that action. Further, the legal effect of the entry of a judgment of non pros is not such as to preclude the plaintiff who suffers such a judgment from instituting another suit on the same cause of actions, provided, however, that the second suit is brought within the period of the statue of limitations. 10. Admitted. By way of further answer, undersigned counsel did not receive notice of the Rule to Show cause, nor of the Order dismissing that action. Further, the legal effect of the entry of a judgment of non pros is not such as to preclude the plaintiff who suffers such a judgment from instituting another suit on the same cause of actions, provided, however, that the second suit is brought within the period of the statue of limitations. 11. Admitted. By way of further answer, undersigned counsel did not receive notice of the Rule to Show cause, nor of the Order dismissing that action. Further, the legal effect of the entry of a judgment of non pros is not such as to preclude the plaintiff who suffers such a judgment from instituting another suit on the same cause of actions, provided, however, that the second suit is brought within the period of the statue of limitations. 12. Admitted. By way of further answer, undersigned counsel did not receive notice of the Rule to Show cause, nor of the Order dismissing that action. Further, the legal effect of the entry of a judgment of non pros is not such as to preclude the plaintiff who suffers such a judgment from instituting another suit on the same cause of actions, provided, however, that the second suit is brought within the period of the statue of limitations. 13. Admitted. By way of further answer, the current complaint at issue alleges as part of the basis of the complaint that the matter is filed pursuant to the infant tolling statute. Further, the legal effect of the entry of a judgment of non pros is not such as to preclude the plaintiff who suffers such a judgment from instituting another suit on the same cause of actions, provided, however, that the second suit is brought within the period of the statue of limitations. 14. Denied as a conclusion of law. By way of further answer, it is well established that when a case is dismissed on the basis of a non pros it does not bar a subsequent suit for the same cause of actions so long as filed within the applicable statute of limitations. Gutman v. Giordano, 348 Pa. Super. 78, 83, 557 A.2d 782, 784 (1989) citing Gordon-Stuart Ltd. V. Allen Shops, 239 Pa. Super 35, 361 A.2d 770 (1976); Bucci et al. v. Detroit Fire and Maine Ins., Co. 109 Pa. Super. 167, 167 A. 425 (1933); Donner v. Jowitt and Rodgers Co., 299 Pa. Super. 492, 445 A.2d 1237 (1982); Haefuer v. S;Prague, 343 Pa. Super. 342, 494 A.2d 1115 (1985) (The legal effect of the entry of a judgment of non pros is not such as to preclude the plaintiff who suffers such a judgment from instituting another suit on the same cause of actions, provided, however, that the second suit is brought within the period of the statue of limitations.) 15. The allegations of this paragraph are a conclusion of law to which no response is required. WHEREFORE, Plaintiff respectfully requests that the Defendant's Preliminary Objection be denied. Respectfully submitted, TARASI, TARASI & FISHMAN, P.C. C. William Kenny, Esquire PA. ID. 482225 510 Third Avenue Pittsburgh, PA 15219 P: 412-391-7135 F:412-471-2673 CERTIFICATE OF SERVICE I, C. William Kenny, Esquire do herby certify that the forgoing Response in Opposition to Preliminary Objections was served upon the following by U.S. First Class Mail on the 22nd of August, 2005 Jonathan Deisher, Esquire Post & Post, LLC 1660 Valley Center Parkway Suite 400 Bethlehem, PA 18017 TARASI, TARASI & FISHMAN, P.C. (:?? V4. \ C. William Kenny, Esquire PA. ID. #82225 510 Third Avenue Pittsburgh, PA 15219 P:412-391-7135 F:412-471-2673 ?? ? > ? =n C, cs? ,s. ? ?? 4' ,r G > -n fr, N ?."? Lri ? ? ?- ?7 -, M L,? ` ? Y ? .. ..? Uj PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) EZEKIEL E. GRAHAM, VS. PENNSYLVANIA TURNPIKE COMMISSION (Plaintiff) (Defendant) No. OS-2A01 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminarv Obiections 2. Identify counsel who will argue cases: (a) for plaintiff: Louis M. Tarasi,Jr., Esquire, The Taraci Law Firm (Name and Address) 510 Third Avenue, Pittsburgh, PA 15219 (b) for defendant: Jonathan C_ Deisher, Esquire, Post R Pnct, T.LC (Name and Address) 1660 Valley Center Pkwy., Suite 400, Bethlehem, PA 18017 3. 1 will notify all parties in writing within two days that this case has been listed for argument. Yes 4. Argument Court Date: Date: Attorney for r ? ? t. ? " - ii ?* J1 t+ -' _.. y -? C:-= 4 - . } -? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) '10 THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) Ezekiel E. Graham (Plaintiff) vs. Pennsylvania Turnpike Commission (Defendant) No. 05-2801 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): np pendant t 5 Pral i mi na rv (lhiarl-i nna _ 2. Identify counsel who will argue cases Term (a) for plaintiff: C. William Kennedy, Esq., Tarasi, Tarasi & Fishman, P.C. (Name and Address) 510 Third Avenue, Pittsburg, PA 15219 (b) for defendant: Joseph G. Zack, Esq., Post & Post, LLC 200 Berwyn Park (Name and Address) Suite 102, 920 Cassatt Rd. Berwyn, PA 19312 3. 1 will notify all parties in writing within two days that this case has been listed for argument. Yes 4. Argument Court Date: February 15, 2006 Date: 1/ 1 7/ 0 6 Signature Joseph G. Zack, Esquire Prim your name Defendant Attorney for r"'7 : ? ,.. n i 'J EZEKIEL E. GRAHAM, PLAINTIFF V. PENNSYLVANIA TURNPIKE COMMISSION, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 05-2801 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF DEFENDANT TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of March, 2006, the preliminary objection of defendant to plaintiffs complaint, IS DISMISSED. By the Court, Edgar 13713'aytIty, J. C. William Kenny, Esquire 510 Third Street Pittsburgh, PA 15219 For Plaintiff Joseph G. Zack, Esquire 200 Berwyn Park, Suite 102 920 Cassatt Road Berwyn, PA 19312 For Defendant sal ?1,. EZEKIEL E. GRAHAM, PLAINTIFF V. PENNSYLVANIA TURNPIKE COMMISSION, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 05-2801 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF DEFENDANT TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., March 7, 2006:-- On May 21, 2005, plaintiff, Ezekiel E. Graham, filed a complaint against defendant, Pennsylvania Turnpike Commission. Plaintiff avers that on February 6, 1994, when he was seven years old, he was injured in a sledding accident when his foot caught in an opening of a right-of-way fence at the property of defendant that was next to the property where he was living. Plaintiff alleges that his injuries were caused by the negligence of defendant in the maintenance of the fence. He avers that he reached the age of eighteen on March 7, 2004. Defendant filed preliminary objections to the complaint containing factual allegations. Plaintiff filed an answer. The following facts are admitted: (1) On February 2, 1996, an action was instituted by a writ of summons in this court at 96-606, by Deborah L. Graham, individually and as parent and natural guardian 05-2801 CIVIL TERM of Ezekiel E. Graham, against the Pennsylvania Turnpike Commission. (2) In a complaint, damages were sought for injuries incurred by Ezekiel E. Graham in the sledding accident of February 6, 1994. (3) On January 13, 2003, after no response was made by Deborah Graham, a dismissal was entered for inactivity pursuant to Cumberland County Local Rule of Court 228.' (4) No appeal was filed from the dismissal. (5) No permission was filed seeking to reinstate the action at 96-606, or to initiate the current action. In its preliminary objection, defendant avers that plaintiffs complaint must be dismissed for failure to conform to law or rule of court .2 Citing Bon Homme Richard Restaurants, Inc. v. Three Rivers Bank and Trust Company, 298 Pa. Super. 454 (1982), defendant maintains that, "[w]here the initial Complaint is dismissed for inactivity Rule 228 provides: The Prothonotary shall list, for general call on the last Tuesday of October of each year, all civil matters which are not at issue, and in which no proceedings of record have occurred during the two years or more immediately prior thereto. The Prothonotary shall, in the manner provided by Pa.R.J.A. 1901(c), notify counsel of record and any parties for whom no appearance has been entered, that the matter has been so listed. If no action is taken, and no written objection is filed in a listed matter prior to the time set for the general call, the Prothonotary shall strike the matter from the list, and enter an Order as of course dismissing the matter for failure to prosecute. If, at the call of the list, no good cause is shown why a matter should be continued, the Court shall enter an Order dismissing the matter with prejudice. z Pa. Rule of Civil Procedure 1028(a)(2). -2- 05-2801 CIVIL TERM or staleness pursuant to Pa.R.J.A. 1901, the plaintiff must seek permission from the court" seeking reinstatement of its action. In Bon Homme Richard Restaurants, the complaint of plaintiff was dismissed under a local rule promulgated pursuant to Pennsylvania Rule of Judicial Administration 1901. Plaintiff then filed another action under another docket number after the statute of limitations had run. A preliminary objection to the new action was sustained. The Superior Court affirmed, stating: Whether the party requests that the original case be reinstated or requests permission to start the same cause of action under a new term and number is evidently not material. What is important is that he shall give cogent reasons for his inactivity, and that the court shall determine whether permission to proceed will be forthcoming. Plaintiff in this case had a remedy to pursue, but simply chose to make and "end run" around the Rules. The court below was proper in refusing to permit this action. The Judicial Code at 42 Pa.C.S. Section 5533(b), provides: Infancy.- (1)(i) If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced. Such person shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this subchapter. The statute of limitations for the within personal injury action is two years. 42 Pa.C.S. § 5524. Under Section 5533(b), Ezekiel Graham had two years from his eighteenth birthday, March 7, 2004, to commence an action for injuries sustained in a sledding accident that occurred when he was a minor. He commenced this action on May 21, 2005, within that two year period. This action, in his own right, is not precluded -3- 05-2801 CIVIL TERM by the dismissal for inactivity of the complaint filed by his mother as his guardian when he was a minor. Ezekiel did not have to have court permission to file it.3 Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of March, 2006, the preliminary objection of defendant to plaintiff's complaint, IS DISMISSED. By the Court, Edgar B. Bayley, J. C. William Kenny, Esquire 510 Third Street Pittsburgh, PA 15219 For Plaintiff Joseph G. Zack, Esquire 200 Berwyn Park, Suite 102 920 Cassatt Road Berwyn, PA 19312 For Defendant sal 3 The infancy clause at Section 5533(b) would not have saved the claim that Ezekiel's mother made individually at 96-606. See Hathi v. Krewstown Park Apartment, 385 Pa. Super. 613 (1989). -4- POST & POST, LLC ATTORNEY FOR DEFENDANT, BY: BENJAMIN A. POST, ESQ. PENNSYLVANIA TURNPIKE I.D. #: 42182 AUTHORITY 200 BERWYN PARK, SUITE 102 920 CASSATT ROAD BERYWN, PA 19312 (610) 240-9180 FAX: (610) 240-9185 EZEKIEL E. GRAHAM, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff, V. PENNSYLVANIA TURNPIKE COMMISSION CIVIL TERM NO.05-2801 JURY OF TWELVE DEMANDED Defendant ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL Kindly enter my appearance as co-counsel on behalf of the Pennsylvania Turnpike Commission, defendant, in the above-captioned matter. Also, please enter at this time my demand for a trial by twelve jurors. PrT & POST, LLC BY: BENJAMI A. POST, ESQUIRE C^:+ ll ,„ J POST & POST, LLC BY: JOSEPH G. ZACK, ESQ. I.D. #: 53053 200 BERWYN PARK, SUITE 102 920 CASSATT ROAD BERYWN, PA 19312 (610) 240-9180 FAX: (610) 240-9185 EZEKIEL E. GRAHAM, Plaintiff, V. PENNSYLVANIA TURNPIKE COMMISSION Defendant ATTORNEY FOR DEFENDANT, PENNSYLVANIA TURNPIKE COMMISSION IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL TERM NO.05-2801 JURY OF TWELVE DEMANDED ANSWER AND NEW MATTER OF DEFENDANT, PENNSYLVANIA TURNPIKE COMMISSION, TO PLAINTIFF'S COMPLAINT Defendant, Pennsylvania Turnpike Commission ("Answering Defendant"), by and through its counsel, Post & Post, LLC, hereby answers plaintiff's Complaint as follows: Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph and strict proof thereof is demanded at trial. 2. Admitted. 3. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph and strict proof thereof is demanded at trial. 4. Admitted in part, denied in part. It is admitted only that "the Apartment property" is adjacent to property owned by Answering Defendant. As to the remainder of the allegations contained in this paragraph, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to their truth and strict proof thereof is demanded at trial. 5 - 6. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in these paragraphs and strict proof thereof is demanded at trial. COUNTI The responses contained in paragraphs 1 through 6 above are incorporated herein by reference. 8. Admitted in part, denied in part. It is admitted only that Answering Defendant owns and maintains a right-of-way fence which is situated on its property. It is denied that Answering Defendant "operates" such fence, as it has no working parts. 9. Denied. The allegations contained in this paragraph are denied pursuant to Pa. R.Civ.P. 1029(e). 10. Denied. The allegations contained in this paragraph are denied pursuant to Pa. R.Civ.P. 1029(e). 11. Denied. It is denied that Answering Defendant was negligent. On the contrary, Answering Defendant acted at all times in accordance with accepted standards of care. The allegations contained in this paragraph are further denied as conclusions of law to which no responsive pleading is required. 12. Denied. It is denied that Answering Defendant was negligent. On the contrary, Answering Defendant acted at all times in accordance with accepted standards of care. As to the remainder of the allegations contained in this paragraph, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to their truth and strict proof thereof is demanded at trial. 13 - 14. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in these paragraphs and strict proof thereof is demanded at trial. WHEREFORE, Defendant, Pennsylvania Turnpike Commission, demands that judgment be entered in its favor and that plaintiff s Complaint against it be dismissed. NEW MATTER 15. The responses contained in paragraphs 1 through 14 above are incorporated herein by reference. 16. The Plaintiff has failed to state a cause of action upon which relief may be granted. 17. Answering Defendant was not negligent. 18. Any acts or omissions of Answering Defendant alleged to constitute negligence were not substantial causes or factors of the subject incident and/or did not result in the injuries and/or losses alleged by the Plaintiff. 19. The incidents and/or damages described in Plaintiff's Complaint may have been caused or contributed to by the Plaintiff. 20. If Plaintiff sustained the injuries alleged, proof of which is specifically demanded, said injuries may have been the result of the negligent or careless acts and/or omissions of Plaintiff and/or other person and/or entities over whom Answering Defendant exercised no control. 21. The negligent acts or omissions of other individuals and/or entities may have constituted intervening superseding causes of the damages and/or injuries alleged to have been sustained by Plaintiff. Furthermore, Answering Defendant had no control over such acts or omissions and such acts or omissions were not due to or caused by default, lack of care, negligence or breech of any duty of Answering Defendant. 22. The incident, injuries and/or damages sustained by the Plaintiff were not proximately caused by Answering Defendant. 23. The Plaintiff's claims may have been barred by the Doctrine of the Assumption of Risk. 24. The Plaintiff's claims may be barred by the Doctrine of Contributory Negligence. 25. The Plaintiff's claims may be barred or reduced by the provisions of the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. § 7201 et. seq., the relevant portions of which are incorporated herein by reference as though same were set forth herein more fully at length. 26. The Plaintiff failed to mitigate any damages allegedly sustained. 27. The Plaintiff's claims and/or requests for damages are barred or limited and/or precluded by the Doctrines of Res Judicata and/or Collateral Estoppel. 28. If there is a judicial determination that Pa. R.C.P. 238 is unconstitutional, said constitutionality being expressly challenged as a violation of the Due Process and the Equal Protection Clauses of the 14`e Amendment to the United States Constitution, 42 U.S.C. § 1983, Article I, Sections 1, 6, 11, 26, and Article IV, Section 10(c) of the Pennsylvania Constitution, then payment of interest shall be suspended for any period of delay not occasioned by Answering Defendant. 29. The Plaintiff's claims may be barred by the Doctrine of Release. 30. The Plaintiff's claims may be barred by the applicable Statute of Limitations. 31. The Plaintiff's claims are barred by the doctrine of Sovereign Immunity. WHEREFORE, Defendant, Pennsylvania Turnpike Commission, demands that judgment be entered in its favor and that plaintiff's Complaint against it be dismissed. POST & POST, L.L.C. By: Dated: 3 r,/cLo JOSEP G. CK, ESQUIRE ATTORN OR DEFENDANT, PENNSYLVANIA TURNPIKE COMMISSION VERIFICATION I, Elizabeth J. Little, Claims Supervisor, of the Pennsylvania Turnpike Commission, state that I am authorized to make this verification on behalf of the Pennsylvania Turnpike Commission; that I have reviewed the averments in the foregoing Answer and New Matter; and that these averments are true and correct to the best of my knowledge, information, and belief and are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsifications to authorities. BY Eliz beth J. Little Dated: ?( z /O l`1 r?? l? r z,? 1t , --i ?` .Y ? 77 C: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM, Plaintiff, vs. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. CIVIL DIVISION GD No: 05-2801 MOTION TO COMPEL ANSWERS TO PLAINTIFF'S FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS Filed on Behalf of Plaintiff Counsel for Record For this Party: C. William Kenny, Esquire PA I.D. #82225 TARASI & TARASI, P.C. Firm No: 469 510 Third Avenue Pittsburgh, PA 15219 P: (412) 391-7135 F: (412) 471-2673 E: cwk@tarasilaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM, Plaintiff, CIVIL DIVISION GD No: 05-2801 VS. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. MOTION TO COMPEL ANSWERS TO PLAINTIFF'S FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS AND NOW, comes the Plaintiff, Ezekiel E. Graham, by and through his attorneys, TARASI & TARASI, P.C., and C. William Kenny, Esquire, and files this Motion to Compel Discovery: 1. Plaintiff's First Set of Interrogatories and Request for Production of Documents Directed to Defendant, Pennsylvania Turnpike Authority was served on counsel for the Defendant, Joseph G. Zack, Esquire on July 3, 2006. A copy of the Interrogatories and Request for Production of Documents is attached hereto and marked as Exhibit A. 2. At the deposition of Ezekiel Graham on November 9, 2006, the undersigned asked counsel for Defendant when he could expect to receive Answers to Plaintiff's First Set of Interrogatories and Request for Production of Documents. Counsel for the Defendant said that we would get them shortly. 3. At the deposition of Deborah Graham on July 17, 2007, the undersigned again asked counsel for Defendant when he could expect to receive Answers to Plaintiff's First Set of Interrogatories and Request for Production of Documents. Again, counsel for the Defendant said that we would get them shortly. 4. On August 3, 2007, counsel for Plaintiff sent a letter to counsel for the Defendant asking for their answers. On August 10, 2007, counsel for the Defendant sent a letter indicating that the responses were being worked on and they would forward them in the near future. A copy of these letters are attached as Exhibit B and C. 5. On March 6, 2008, April 8, 2008, May 2, 2008 and May 8, 2008 letter were sent requesting the Answers to the discovery. These letters are attached as Exhibit D, E. F. and G. 6. To date, Defendant has failed to file answers to, or otherwise respond to Plaintiff's First Set of Interrogatories and Request for Production of Documents. 7. Plaintiff is being prejudiced by Defendant's failure to provide them with the discovery to which they are entitled. WHEREFORE, Plaintiff Ezekiel E. Graham, request that this Honorable Court enter an Order directing Defendant Pennsylvania Turnpike Commission to file full and complete answers to Plaintiff's First Set of Interrogatories and Request for Production of Documents within twenty (20) days, or suffer those sanctions as this Court may deem advisable. 2 Respectfully submitted, TARASI & TARASI, P.C. C, wkc 1 By. C. William Kenny, Esq Attorney for Plaintiff 510 Third Avenue Pittsburgh, PA 15219 P: (412) 391-7135 F: (412) 471-2673 E: cwkC@_tarasilaw.com 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM, CIVIL DIVISION Plaintiff, G.D. No.: 05-2801 v. PENNSYLVANIA TURNPIKE COMMISSION, PLAINTIFFS FIRST SET OF Defendant. INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT, PENNSYLVANIA TURNPIKE AUTHORITY Filed on Behalf of Plaintiff: Counsel of Record for This Party: C. William Kenny, Esquire PA I.D. #82225 TARASI & TARASI, P.C. Firm No. #469 510 Third Avenue Pittsburgh, PA 15219 P: (412) 391-7135 F: (412) 4712673 EXHIBIT A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM CIVIL DIVISION Plaintiff, G.D. No.: 05-2801 V. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. PLAINTIFFS FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT, PENNSYLVANIA TURNPIKE COMMISSION AND NOW, come the Plaintiff, Ezekiel E. Graham, by and through his attorneys, Tarasi & Tarasi, P.C. and C. William Kenny, Esquire, pursuant to the provisions of Rules 4005, et seq. of Pennsylvania Rules of Civil Procedure, and demand that Pennsylvania Turnpike Commission, file Answers to Plaintiff's First Set of Interrogatories and Request for Production of Documents within thirty (30) days after service upon the attorney for Defendant. These Interrogatories shall be deemed continuing so as to require Supplemental Answers under oath if the Defendant Pennsylvania Turnpike Commission, and/or his attorneys obtain further information not contained in the Answers to the following Interrogatories between the date Answers are served and the time of trial in accordance with Pennsylvania Rules of Civil Procedure, Rule 4007.4. If objections to any of the following Interrogatories are filed, it is demanded that the Interrogatories not objected to be answered within the aforesaid period. Please answer the following Interrogatories in the appropriate spaces. If you require more spaces for your answers, annex extra pages. DEFINITIONS 1. Document: The term "document" means any written, printed, typed or other graphic matter of any kind or nature however produced or reproduced, whether sent or received or neither., including drafts and copies bearing notations or marks not found on the original, and includes, but is not limited to: (a) all contracts, agreements, representations, warranties, certificates, opinions; (b) all letters or other forms of correspondence or communication, including envelopes, notes, telegrams, cables, telex messages, messages (including reports, notes, notations and memoranda of or relating to telephone conversations or conferences); (c) all memoranda, reports, financial statements or reports, notes, transcripts, tabulations, studies, analyses, evaluations, projections, work papers, corporate records, or copies thereof, lists, comparisons, questionnaires, surveys, charts, graphs, summaries, extracts, statistical records, compilations; (d) all desk calendars, appointment books, diaries; (e) all books, articles, press releases, magazines, newspapers, booklets, circulars, bulletins, notices, instructions, manuals; ( all minutes or transcripts of all meetings; (g) all photographs, microfilms, phonograph, tapes or other records, punch cards, magnetic tapes, discs, data cells, drums, print-outs and other data compilations from which information can be obtained. 2. "Communication": The term "communication" means not only oral communications but also any "documents" (as such term is defined in paragraph 1 above), whether or not such document or the information contained therein was transmitted by its author to any other person. 3. "Identify", "Identity" or "Identification": (A) When used in reference to a natural person, the terms "identify", "identity" or "identification" mean provide the following information: (i) full name; (ii) present or last known business and residence addresses; (iii) present or last known business affiliation; and (iv) present or last known business position (including job title and a description of job functions, duties and responsibilities). (B) When used with reference to any entity other than a natural person, state: (i) its full name; (ii) the address of its principal place of business; (iii) the jurisdiction under the laws of which it has been organized or incorporated and the date of such organization or incorporation; (iv) the identity of all individuals who acted and/or authorized another to act on its behalf in connection with the matters referred to; (v) in the case of a corporation, the names of its directors and principal officers; and (iv) in the case of an entity other than a corporation, the identities of its partners or principals or all individuals who acted or who authorized another to act on its behalf in connection with the matters referred to. (C) When used in reference to a document, the terms "identify", identity" or "identification" mean provide the following information: (i) the nature of the document (e.g., letter, contract, memorandum) and any other information (i.e., its title, index or file number) which would facilitate in the identification thereof, (ii) the date of preparation; (iii) its present location and the identity (as defined in paragraph 3 (A) hereof) of its present custodian or, if its present location and custodian are not known, a description of its last known disposition; (iv) its subject matter and substance or, in lieu thereof, annex a legible copy of the document to the answers to these Interrogatories; (v) the identity (as defined in paragraph 3 (A) hereof) of each person who performed any function or had any role in connection therewith (i.e., author, contributor of information, recipient, etc.) or who has any knowledge thereof, together with a description of each such person's function, role or knowledge; and (vi) if the document has been destroyed or otherwise is no longer in existence or cannot be found, the reason why such document no longer exists, the identity (as defined in paragraph 3 (A) hereof) of the people responsible for the document no longer being in existence and of its last custodian. (D) When used in connection with a meeting or an oral communication, the terms "identify", "identity" and "identification" mean provide the following information: (i) its general nature (i.e., conference, telephonic communication, etc.); (ii) the time and place of its occurrence; (iii) its subject matter and substance; (iv) the identity (as defined in paragraph 3 (A) hereof) of each person who performed any function or had any role in connection therewith or who has any knowledge thereof, together with a description of each such person's function, role or knowledge; and (v) the identity (as defined in paragraph 3 (C) hereof) of each document which refers thereto or which was used, referred to or prepared in the course as a result thereof. 4. "Describe" or "Description": (A) When used with respect to any act, action, accounting, activity, audit, practice, process, occurrence, occasion, course of conduct, happening, negotiation, relationship, scheme, communication, conference, discussion development, service, transaction, instance, incident or event, the terms "describe" or "description" mean provide the following information: (i) its general nature; (ii) the time and place thereof, (iii) a chronological account setting forth each element thereof, what such element consisted of and what transpired as a part thereof; (iv) the identity (as defined in paragraph 3 (A) hereof)of each person who performed any function or had any role in connection therewith (i.e., speaker, participant, contributor of information witness, etc.) or who has any knowledge thereof together with a description of each person's function, role or knowledge; (v) the identity (as defined in paragraph 3 (C) hereof) of each document which refers thereto or which was used, referred to or prepared in the course or as a result thereof, and (vi) the identity (as defined in paragraph 3 (D) hereof) of each oral communication which was a part thereof or referred thereto. 5. Answer by Reference to Documents: If any interrogatory is answered by reference to a document or group of documents, with respect to each such answer, identify (as defined in paragraph 3 (C) hereof) the specific document or documents containing the requested information. 6. The word "representative" shall be liberally construed and shall include, but not be limited to, all agents, employees, officials, officers, executives, directors, and any other who directly or indirectly represent, in any manner, the Defendant. 7. The term "Accident" as referred to in these Interrogatories is defined as the accident which occurred on February 6, 1994, involving the fence located in the Pennsylvania Turnpike Right of Way near Call Box 236.6 on the Pennsylvania Turnpike which abuts property identified as 611-615 Wayne Drive, Mechanicsburg, Pa 17055. 8. The term "fence" or "right of way" refers to the fence and right of way within 1/4 mile in each direction of the accident site. 9. Miscellaneous: (A) The singular includes the plural; the plural includes the singular; the masculine gender includes the feminine and neuter gender; the neuter gender includes the masculine and feminine genders. (B) "And" means and/or; "or" means and/or. INTERROGATORIES 1. State the name, address, and relationship to the Defendant of the individual answering these interrogatories. ANSWER: :?. Identify the party responsible for design and maintenance of the fence and right of way at the accident site. ANSWER: 3. Have any actions been filed against Defendant by anyone other than Plaintiff herein as a result of an injury caused by the fence at issue within the past 15 years? If your answer is in the affirmative, state: (1) The date it was filed; (2) The name and address of the person who filed it; (3) The address and title of the Court in which it was filed; (4) The file and docket number of the action; and (5) the present status of the action, indicating any determination made. ANSWER: 4. Identify the dates of any repair work performed on the fence at the accident site within the past 15 years and state the nature of the repair performed. ANSWER: State the dates within the past 15 years when the fence and/or right of way at the accident site were inspected by the Defendant. ANSWER: 6. State the date when the fence at the accident site was constructed or installed. ANSWER: %. Have there been any changes made to the fence or right of way at the accident site in the last 15 years. If your answer is in the affirmative, for each change state: (a) The date it was made; (b) The name and address of the person, firm or entity who made the change; and (c) A description of the change. ANSWER: If you claim that any injuries suffered by the plaintiff resulted from PlaintifFs own lack of care, or that Plaintiff contributed to her injuries, please set forth what acts, conduct, or omissions constituted such lack of due care. ,ANSWER: 91. Did any official, agent, or employee of Defendant have knowledge that the accident site was used by children? If your answer is in the affirmative, state: (a) When such knowledge was acquired. (b) How was it acquired. (c) Who acquired it. ANSWER: 10. State whether any official, agent or employee of Defendant has ever made or given any statement, whether oral or in writing, to anyone regarding the alleged events detailed within the complaint. If your answer is in the affirmative, state: (a) The name and address of each such person to whom any such statements were provided: (b) The date of each such statement; (c) The form of each such statement, whether oral, written, stenographic transcription, or otherwise; (d) The name and address of each person now having possession or custody of a copy of any such statement; and (e) the substance and content, as best you can recall, of each such statement. ANSWER: 11. Has any report or other documentation regarding the allegations within the Complaint been provided to Defendant=s liability insurance carrier? If your answer is in the affirmative, identify any reports or other documentation provided, and attach copies. ANSWER: 12. Has any report or other documentation regarding the allegations within the Complaint been provided to Defendant=s liability insurance carrier? [f your answer is in the affirmative, identify any reports or other documentation provided, and attach copies. ANSWER: 13. Has Defendant's liability insurance carrier ever sent in a questionnaire or other forms for completion pertaining to this matter? If your answer is in the affirmative, identify the document and attach a copy. ANSWER: 14. Had Defendant or its attorney secured or obtained any knowledge of any statement, oral or written, made by any individuals, including parties who claim any knowledge whatsoever with regard to or pertaining in any way to the events alleged in the Complaint? If your answer is in the affirmative, state: (a) The name and address of each such person; (b) The date of the recording of any such statement in writing; (c) The substance or content of any such statement; and (d) The way in which you acquired knowledge of such statement or written report. ANSWER: 15. State the name and addresses of all persons who may be called as non-expert witnesses at time of trial and provide a summary of the information they will provide. ANSWER: 16. Do you agree to supplement your answers to these interrogatories as new information becomes available? ANSWER: IT List all exhibits which you intend to utilize at trial. ANSWER: 1 8. List the names and addresses of all investigations, representatives, adjusters, or other individuals who investigated the incident described in the complaint. With respect to each such person, state the following: (a) Name and address; (b) Scope of investigation; and (c) content of any oral, written or other reports, including but not limited to surveillance. ANSWER: 19. Identify any plans, drawings, maps, photographs, films, charts, graphs, documents, or other tangible objects in your possession, which in any way relate to the facts, issues, claims or defenses of this action. ANSWER: 20- Was any complaint made by anyone to a representative of Defendant prior to the date of the accident, with regard to the condition of the fence or right of way at the accident site? If your answer is in the affirmative, for each compliant, state: (a) The date it was made; (b) The name and address of the person who made it; (c) The name, address and job title to whom the complaint was made; (d) The substance of the words used in making any oral compliant; (e) Whether any action was taken because of the complaint, and if so, a description of such action; (fl The name and address of the person who has custody or control of each written complaint; and (g) Attach a copy of each written complaint to your answers to these interrogatories. ANSWER: REQUEST FOR PRODUCTION OF DOCUMENTS All documents identified in your answers to the foregoing interrogatories. 2. All investigative material including but not limited to witness statements. 3. All records regarding construction, repair and inspection of the fence and right of way at the accident site. 4. All documents regarding construction, inspection and repair of the fence at the accident site. Respectfully submitted, TARASI & TARASI, P.C. B Y• C. William Kenny, Esquire PA ID # 82225 Louis M. Tarasi, Jr., Esquire PA ID # 01042 Attorneys for Plaintiffs 510 Third Avenue Pittsburgh, PA 15219 (412) 391-7135 CERTIFICATE OF SERVICE I, C. William Kenny, Esquire do hereby certify that the forgoing PLAINTIFFS FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT was served upon the following by U.S. First Class Mail on the 3rd day of July, 2006: Joseph G. Zack, Esquire Post & Post, LLC 1660 Valley Center Parkway Suite 400 Bethlehem, PA 18017 TARASI & TARASI, P.C. C. William Kenny, Esquire PA. ID. #82225 510 Third Avenue Pittsburgh, PA 15219 P: 412-391-7135 F: 412-471-2673 LOUIS M. TARASI., JR. ' TARAS I & TARAS I , P.C. ELIZABETH M. TARASI Attorneys and Counselors At Law CHRISTINA K. HURNYAK' C. WILLIAM KENNY 510 Third Avenue GIANNI FLORO Pittsburgh, Pennsylvania 15219-2191 Phone: (412) 391-7135 Fax: (412) 471-2673 Website: www.tarasilaw.com Email: lawyers@tarasilaw.com August 3, 2007 Joseph G. Zack, Esquire POST & POST. LLC 200 Berwyn Park, Suite 102 Cassatt Road Berwyn, PA 19312 RE: Graham v. Pa Turnpike Commission Cumberland County No 05-2801 Dear Attorney Zack: Please allow this correspondence to follow up on our conversation during Ms. Graham's deposition, and our prior conversations relative to the outstanding discovery requests sent to you last July. Please provide me with answers to my discovery within the next ten days. If I do not receive the discovery responses in the next ten days I will prepare and file a Motion to Compel your answers. Should you have any questions or concerns, please feel free to call me directly. Sincerely, TARASI & TARASI, P.C. C. William Kenny, Esquire Dictated but not read. EXHIBIT B 'Certified Civil Trial Advocate by the National Board of Trial Advocacy. A Pennsylvania Supreme Court Approved Agency POST & PosTLLC A T T O R Iii E Y S A T I, A W 200 BERWYN PARK, SUITE 102 920 CASSATT ROAD BERWYN, PENNSYLVANIA 19312 TELEPHONE (610) 240-9180 FACSIMILE (610) 240-9185 WWW.POSTANDPOST.COM ,JOSEPH G. ZACK, ESQUIRE JZACK(3 POSTANOPOST.COM PHONE EXT. 103 OUR FILE NO. 000104 August 10, 2007 C. William Kenny, Esquire Tarasi, Tarasi & Fishman, P.C. 510 Third Avenue Pittsburgh, PA 15219-2191 RE: Graham v. Pennsylvania Turnpike Commission Dear Bill: Thank you for your letter of August 3, 2007. I am working with my client to prepare responses to your discovery requests and should have those to you in the near future. Thank you for your attention to this matter. Very tru urs, JO H G. ZACK JGZ.jj EXHIBIT C LOUIS M. TARASI, JR. * ' TARASI & TARASI P C ELIZABETH M. TARAS( . . Attorneys and Counselors At Law CHRISTINA K. HURNYAK C. WILLIAM KENNY 510 Third Avenue GIANNI FLORO Pittsburgh, Pennsylvania 15219-2191 Phone: (412) 391-7135 Fax: (412) 471-2673 Website: www.tarasilaw.com Email: lawyers0tarasilaw com March 6, 2008 Joseph G. Zack, Esquire POST & POST, LLC 200 Berwyn Park, Suite 102 920Cassatt Road Berwyn, PA 19312 RE: Graham v. Pennsylvania Turnpike Commission CCP Cumberland County No. 05-2801 Dear Attorney Zack: As a follow up to your correspondence of February 7, 2008, enclosed please find the report of Dr. Mark P. Holencik. Mr. Graham has a new job and expects to have medical coverage which will enable him to following up with treatment suggested by Dr. Holencik's report. Please provide me with answers to my outstanding discovery as soon as possible so that we can move forward to resolve this matter, specifically so that I may identify deponents and schedule depositions. Sincerely, TARASI & TARASI, P.C. C. William Kenny, Esquir Enclosure CWK/dlw EXHIBIT D *Certified Civil Trial Advocate by the National Board of Trial Advocacy. A Pennsylvania Supreme Court Approved Agency LOUIS M. TARASI, JR. * TARASI & TARASI, P.C. ELIZABETH M. TARASI CHRISTINA K. HURNYAK Attorneys and Counselors At Law C. WILLIAM KENNY 51(1 Third Avenue GIANNI FLORO Pittsburgh, Pennsylvania 15219-2191 Phone: (412) 391-7135 Fax: (412) 471-2673 Website: www.tarasilaw corn Email: lawverscatarasilaw corn April 8, 2008 Joseph G. Zack, Esquire POST & POST, LLC 200 Berwyn Park, Suite 102 920Cassatt Road Berwyn, PA 19312 RE: Graham v. Pennsylvania Turnpike Commission CCP Cumberland County No. 05-2801 Dear Attorney Zack: As a follow up to my correspondence of February 7, 2008, regarding outstanding discovery, please advise me of the status of your responses. Sincerely, TARASI & TARASI, P.C. 61. 4 ?? C. William Kenny, Esquire C WK/dlw EXHIBIT E 'Certified Civil Trial Advocate by the National Board of Trial Advocacy. A Pennsylvania Supreme Court Approved Agency LOUIS M. TARASI, JR. * ELIZABETH M. TARA SI TAFtAs i & TARAs i, P. C. CHRISTINA K. HURNYAK Attorneys and Counselors At Law C. WILLIAM KENNY 51 GIANNI FLORO 0 Third Avenue Pittsburgh, Pennsylvania 15219-2191 Phone: (412) 391-7135 Fax: (412) 471-2673 Website: www.tarasilaw.com Email: lamersatarasilaw com May 2, 2008 Joseph G. Zack, Esquire POST & POST, LLC 200 Berwyn Park, Suite 102 920Cassatt Road Berwyn, PA 19312 RE: Graham v. Pennsylvania Turnpike Commission CCP Cumberland County No. 05-2801 Dear Attorney Zack: As a follow up to my correspondence of March 6 and April 8, 2008, regarding outstanding discovery, unless I receive your answers by Friday, May 9, 2008, I will be filing a motion to compel. Sincerely, TARASI & TARASI, P.C. , S C. William Kenny, quire CWK/dlw EXHIBIT F *Certified Civil Trial Advocate by the National Board of Trial Advocacy. A Pennsylvania Supreme Court Approved Agency LOUIS M. TARASI, JR. * TARAsi & TARASI, P.C. ELIZABETH M. TARASI Attorneys and Counselors At Law CHRISTINA K. HURNYAK " C. WILLIAM KENNY 510 Third Avenue GIANNI FLORO Pittsburgh, Pennsylvania 15219-2191 Phone: (412) 391-7135 Fax: (412) 471-2673 Website: www.tarasilaw.com Email: lawyers a0tarasilaw.com May 8, 2008 Joseph G. Zack, Esquire POST & POST, LLC 200 Berwyn Park, Suite 102 920 Cassatt Road Berwyn, PA 19312 RE: Graham v. Pennsylvania Turnpike Commission CCP Cumberland County No. 05-2801 Dear Attorney Zack: Please allow this correspondence to memorialize our conversation of yesterday, wherein you called in response to my latest letter requesting answers to my outstanding discovery. You advised me at that time that your client is willing and has authorized you to make an offer of $10,000.00. I have communicated your client's offer to my client and my client declines your client's offer. Accordingly, please submit to me complete and full responses to outstanding discovery by no later then May 16th, or I will file a Motion to Compel. Sincerely, TARASI & ARASI, P.C. 01( C. William Kenny, CWK/dlw EXHIBIT G "Certified Civil Trial Advocate by the National Board of Trial Advocacy. A Pennsylvania Supreme Court Approved Agency . CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing MOTION TO COMPEL ANSWERS TO PLAINTIFF'S FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT was served upon Defendants' counsel via First Class Mail, postage pre-paid on this 24`n day of _ July , 2008, upon the following: Joseph G. Zack, Esquire POST & POST, LLC 200 Berwyn Park, Suite 102 920 Cassatt Road Berwyn, PA 19312 TARASI & TARASI, P.C. By: C. William Kenny, Esquire Attorney for Plaintiff 510 Third Avenue Pittsburgh, PA 15219 (412) 391-7135 ?1 • R IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM, Plaintiff, vs. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. CIVIL DIVISION GD No: 05-2801 Filed on Behalf of Plaintiff AMENDED MOTION TO COMPEL ANSWERS TO PLAINTIFF'S FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS Counsel for Record For this Party: C. William Kenny, Esquire PA I.D. #82225 TARASI & TARASI, P.C. Firm No: 469 510 Third Avenue Pittsburgh, PA 15219 P: (412) 391-7135 F: (412) 471-2673 E: cwk@tarasilaw.com % t IN THE COURT OF COMMON PLEAS O CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM, Plaintiff, CIVIL DIVISION GD No: 05-2801 vs. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. AMENDED MOTION TO COMPEL ANSWERS TO PLAINTIFF'S FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS AND NOW, comes the Plaintiff, Ezekiel E. Graham, by and through his attorneys, TARASI & TARASI, P.C., and C. William Kenny, Esquire, and files this Motion to Compel Discovery: 1. This case was previously heard on Preliminary Objections by the Honorable Edgar B. Bayley. 2. Plaintiff's First Set of Interrogatories and Request for Production of Documents Directed to Defendant, Pennsylvania Turnpike Authority was served on counsel for the Defendant, Joseph G. Zack, Esquire on July 3, 2006. A copy of the Interrogatories and Request for Production of Documents is attached hereto and marked as Exhibit A. 3. At the deposition of Ezekiel Graham on November 9, 2006, the undersigned asked counsel for Defendant when he could expect to receive Answers to Plaintiff's First Set of Interrogatories and Request for Production of Documents. Counsel for the Defendant said that we would get them shortly. 4. At the deposition of Deborah Graham on July 17, 2007, the undersigned again asked counsel for Defendant when he could expect to receive Answers to Plaintiff's First Set of Interrogatories and Request for Production of Documents. Again, counsel for the Defendant said that we would get them shortly. 5. On August 3, 2007, counsel for Plaintiff sent a letter to counsel for the Defendant asking for their answers. On August 10, 2007, counsel for the Defendant sent a letter indicating that the responses were being worked on and they would forward them in the near future. A copy of these letters are attached as Exhibit B and C. 6. In compliance with Rule 208.3(x)(9), on March 6, 2008, April 8, 2008, May 2, 2008 and May 8, 2008 letters were sent to counsel for the Defendant requesting the Answers to the discovery. These letters are attached as Exhibit D, E. F. and G. Counsel for Defendant has indicated on numerous occasions that he would comply, but has repeatedly failed to do so, and therefore it is assumed that he does not concur in this motion. 7. To date, Defendant has failed to file answers to, or otherwise respond to Plaintiff's First Set of Interrogatories and Request for Production of Documents. 8. Plaintiff is being prejudiced by Defendant's failure to provide them with the discovery to which they are entitled. WHEREFORE, Plaintiff Ezekiel E. Graham, request that this Honorable Court enter an Order directing Defendant Pennsylvania Turnpike Commission to file full and complete answers to Plaintiff's First Set of Interrogatories and Request for Production of Documents within twenty (20) days, or suffer those sanctions as this Court may 2 i It It IN THE COURT OF COMMON PLEAS O CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM, Plaintiff, CIVIL DIVISION GD No: 05-2801 vs. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. ORDER OF COURT AND NOW, to wit, this day of , 2008, upon consideration of the foregoing Motion to Compel Discovery, it is hereby ORDERED, ADJUDGED and DECREED that the same is granted, and that the Defendant Pennsylvania Turnpike Commission is Ordered to file full and complete responses without objection to Plaintiff's First Set of Interrogatories and Request for Production of Documents within twenty (20) days from the date of this Order, or suffer those sanctions as this Court may deem appropriate. BY THE COURT: J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM, CIVIL DIVISION Plaintiff, G.D. No.: 05-2801 V. PENNSYLVANIA TURNPIKE COMMISSION, PLAINTIFFS FIRST SET OF Defendant. INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT, PENNSYLVANIA TURNPIKE AUTHORITY Filed on Behalf of Plaintiff: Counsel of Record for This Party: C. William Kenny, Esquire PA I.D. #82225 TARASI & TARASI, P.C. Firm No. #469 .510 Third Avenue Pittsburgh, PA 15219 P: (412) 391-7135 F: (412) 4712673 EXHIBIT A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM CIVIL DIVISION Plaintiff, G.D. No.: 05-2801 V. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. PLAINTIFFS FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT, PENNSYLVANIA TURNPIKE COMMISSION AND NOW, come the Plaintiff, Ezekiel E. Graham, by and through his attorneys, Tarasi & Tarasi, P.C. and C. William Kenny, Esquire, pursuant to the provisions of Rules 4005, et seq. of Pennsylvania Rules of Civil Procedure, and demand that Pennsylvania Turnpike Commission, file Answers to Plaintiff's First Set of Interrogatories and Request for Production of Documents within thirty (30) days after service upon the attorney for Defendant. These Interrogatories shall be deemed continuing so as to require Supplemental Answers under oath if the Defendant Pennsylvania Turnpike Commission, and/or his attorneys obtain further information not contained in the Answers to the following Interrogatories between the date Answers are served and the time of trial in accordance with Pennsylvania Rules of Civil Procedure, Rule 4007.4. If objections to any of the following Interrogatories are filed, it is demanded that the Interrogatories not objected to be answered within the aforesaid period. Please answer the following Interrogatories in the appropriate spaces. If you require more spaces for your answers, annex extra pages. DEFINITIONS 1. Document: The .term "document" means any written, printed, typed or other graphic matter of any kind or nature however produced or reproduced, whether sent or received or neither, including drafts and copies bearing notations or marks not found on the original, and includes, but is not limited to: (a) all contracts, agreements, representations, warranties, certificates, opinions; (b) all letters or other forms of correspondence or communication, including envelopes, notes, telegrams, cables, telex messages, messages (including reports, notes, notations and memoranda of or relating to telephone conversations or conferences); (c) all memoranda, reports, financial statements or reports, notes, transcripts, tabulations, studies, analyses, evaluations, projections, work papers, corporate records, or copies thereof, lists, comparisons, questionnaires, surveys, charts, graphs, summaries, extracts, statistical records, compilations; (d) all desk calendars, appointment books, diaries; (e) all books, articles, press releases, magazines, newspapers, booklets, circulars, bulletins, notices, instructions, manuals; (f) all minutes or transcripts of all meetings; (g) all photographs, microfilms, phonograph, tapes or other records, punch cards, magnetic tapes, discs, data cells, drums, print-outs and other data compilations from which information can be obtained. 2. "Communication": The tern "communication" means not only oral communications but also any "documents" (as such term is defined in paragraph 1 above), whether or not such document or the information contained therein was transmitted by its author to any other person. 3. "Identify". "Identity" or "Identification": (A) When used in reference to a natural person, the terms "identify", "identity" or "identification" mean provide the following information: (i) full name; (ii) present or last known business and residence addresses; (iii) present or last known business affiliation; and (iv) present or last known business position (including job title and a description of job functions, duties and responsibilities). (B) When used with reference to any entity other than a natural person, state: (i) its full name; (ii) the address of its principal place of business; (iii) the jurisdiction under the laws of which it has been organized or incorporated and the date of such organization or incorporation; (iv) the identity of all individuals who acted and/or authorized another to act on its behalf in connection with the matters referred to; (v) in the case of a corporation, the names of its directors and principal officers; and (iv) in the case of an entity other than a corporation, the identities of its partners or principals or all individuals who acted or who authorized another to act on its behalf in connection with the matters referred to. (C) When used in reference to a document, the terms "identify", identity" or "identification" mean provide the following information: (i) the nature of the document (e.g., letter, contract, memorandum) and any other information (i.e., its title, index or file number) which would facilitate in the identification thereof; (ii) the date of preparation; (iii) its present location and the identity (as defined in paragraph 3 (A) hereof) of its present custodian or, if its present location and custodian are not known, a description of its last known disposition; (iv) its subject matter and substance or, in lieu thereof, annex a legible copy of the document to the answers to these Interrogatories; (v) the identity (as defined in paragraph 3 (A) hereof) of each person who performed any function or had any role in connection therewith (i.e., author, contributor of information, recipient, etc.) or who has any knowledge thereof, together with a description of each such person's function, role or knowledge; and (vi) if the document has been destroyed or otherwise is no longer in existence or cannot be found, the reason why such document no longer exists, the identity (as defined in paragraph 3 (A) hereof) of the people responsible for the document no longer being in existence and of its last custodian. (D) When used in connection with a meeting or an oral communication, the terms "identify", "identity" and "identification" mean provide the following information: (i) its general nature (i.e., conference, telephonic communication, etc.); (ii) the time and place of its occurrence; (iii) its subject matter and substance; (iv) the identity (as defined in paragraph 3 (A) hereof) of each person who performed any function or had any role in connection therewith or who has any knowledge thereof, together with a description of each such person's function, role or knowledge; and (v) the identity (as defined in paragraph 3 (C) hereof) of each document which refers thereto or which was used, referred to or prepared in the course as a result thereof. 4. "Describe" or "Description": (A) When used with respect to any act, action, accounting, activity, audit, practice, process, occurrence, occasion, course of conduct, happening, negotiation, relationship, scheme, communication, conference, discussion development, service, transaction, instance, incident or event, the terms "describe" or "description" mean provide the following information: (i) its general nature; (ii) the time and place thereof; (iii) a chronological account setting forth each element thereof, what such element consisted of and what transpired as a part thereof; (iv) the identity (as defined in paragraph 3 (A) hereof)of each person who performed any function or had any role in connection therewith (i.e., speaker, participant, contributor of information witness, etc.) or who has any knowledge thereof together with a description of each person's function, role or knowledge; (v) the identity (as defined in paragraph 3 (C) hereo) of each document which refers thereto or which was used, referred to or prepared in the course or as a result thereof; and (vi) the identity (as defined in paragraph 3 (D) hereof) of each oral communication which was a part thereof or referred thereto. 5. Answer by Reference to Documents: If any interrogatory is answered by reference to a document or group of documents, with respect to each such answer, identify (as defined in paragraph 3 (C) hereof) the specific document or documents containing the requested information. 6. The word "representative" shall be liberally construed and shall include, but not be limited to, all agents, employees, officials, officers, executives, directors, and any other who directly or indirectly represent, in any manner, the Defendant. 7. The term "Accident" as referred to in these Interrogatories is defined as the accident which occurred on February 6, 1994, involving the fence located in the Pennsylvania Turnpike Right of Way near Call Box 236.6 on the Pennsylvania Turnpike which abuts property identified as 611-615 Wayne Drive, Mechanicsburg, Pa 17055. 8. The term "fence" or "right of way" refers to the fence and right of way within 1 /4 mile in each direction of the accident site. 9. Miscellaneous: (A) The singular includes the plural; the plural includes the singular; the masculine gender includes the feminine and neuter gender; the neuter gender includes the masculine and feminine genders. (B) "And" means and/or; "or" means and/or. INTERROGATORIES 1. State the name, address, and relationship to the Defendant of the individual answering these interrogatories. ANSWER: 2. Identify the party responsible for design and maintenance of the fence and right of way at the accident site. ANSWER: 3. Have any actions been filed against Defendant by anyone other than Plaintiff herein as a result of an injury caused by the fence at issue within the past 15 years? If your answer is in the affirmative, state: (1) The date it was filed; (2) The name and address of the person who filed it; (3) The address and title of the Court in which it was filed; (4) The file and docket number of the action; and (5) the present status of the action, indicating any determination made. ANSWER: 1 1 4. Identify the dates of any repair work performed on the fence at the accident site within the past 15 years and state the nature of the repair performed. ANSWER: 5. State the dates within the past 15 years when the fence and/or right of way at the accident site were inspected by the Defendant. ANSWER: ti I 6. State the date when the fence at the accident site was constructed or installed. ANSWER: 7. Have there been any changes made to the fence or right of way at the accident site in the last 15 years. If your answer is in the affirmative, for each change state: (a) The date it was made; (b) The name and address of the person, firm or entity who made the change; and (c) A description of the change. ANSWER: , Y . . 8. If you claim that any injuries suffered by the plaintiff resulted from Plaintiff=s own lack of care, or that Plaintiff contributed to her injuries, please set forth what acts, conduct, or omissions constituted such lack of due care. ANSWER: 9. Did any official, agent, or employee of Defendant have knowledge that the accident site was used by children? If your answer is in the affirmative, state: (a) When such knowledge was acquired. (b) How was it acquired. (c) Who acquired it. ANSWER: 1, . 10. State whether any official, agent or employee of Defendant has ever made or given any statement, whether oral or in writing, to anyone regarding the alleged events detailed within the complaint. If your answer is in the affirmative, state: (a) The name and address of each such person to whom any such statements were provided: (b) The date of each such statement; (c) The form of each such statement, whether oral, written, stenographic transcription, or otherwise; (d) The name and address of each person now having possession or custody of a copy of any such statement; and (e) the substance and content, as best you can recall, of each such statement. ANSWER: t. 11. Has any report or other documentation regarding the allegations within the Complaint been provided to Defendant=s liability insurance carrier? If your answer is in the affirmative, identify any reports or other documentation provided, and attach copies. ANSWER: 12. Has any report or other documentation regarding the allegations within the Complaint been provided to Defendants liability insurance carrier? If your answer is in the affirmative, identify any reports or other documentation provided, and attach copies. ANSWER: r, 13. Has Defendant's liability insurance carrier ever sent in a questionnaire or other forms for completion pertaining to this matter? If your answer is in the affirmative, identify the document and attach a copy. ANSWER: 14. Had Defendant or its attorney secured or obtained any knowledge of any statement, oral or written, made by any individuals, including parties who claim any knowledge whatsoever with regard to or pertaining in any way to the events alleged in the Complaint? If your answer is in the affirmative, state: (a) The name and address of each such person; (b) The date of the recording of any such statement in writing; (c) The substance or content of any such statement; and (d) The way in which you acquired knowledge of such statement or written report. ANSWER: 15. State the name and addresses of all persons who may be called as non-expert witnesses at time of trial and provide a summary of the information they will provide. ANSWER: 16. Do you agree to supplement your answers to these interrogatories as new information becomes available? ANSWER: 17. List all exhibits which you intend to utilize at trial. f 1 f ANSWER: 18. List the names and addresses of all investigations, representatives, adjusters, or other individuals who investigated the incident described in the complaint. With respect to each such person, state the following: (a) Name and address; (b) Scope of investigation; and. (c) content of any oral, written or other reports, including but not limited to surveillance. ANSWER: l . 1 19. Identify any plans, drawings, maps, photographs, films, charts, graphs, documents, or other tangible objects in your possession, which in any way relate to the facts, issues, claims or defenses of this action. ANSWER: 20. Was any complaint made by anyone to a representative of Defendant prior to the date of the accident, with regard to the condition of the fence or right of way at the accident site? If your answer is in the affirmative, for each compliant, state: (a) The date it was made; (b) The name and address of the person who made it; (c) The name, address and job title to whom the complaint was made; (d) The substance of the words used in making any oral compliant; (e) Whether any action was taken because of the complaint, and if so, a description of such action; (f) The name and address of the person who has custody or control of each written complaint; and (g) Attach a copy of each written complaint to your answers to these interrogatories. ANSWER: r REQUEST FOR PRODUCTION OF DOCUMENTS 1. All documents identified in your answers to the foregoing interrogatories. 2. All investigative material including but not limited to witness statements. 3. All records regarding construction, repair and inspection of the fence and right of way at the accident site. 4. All documents regarding construction, inspection and repair of the fence at the accident site. Respectfully submitted, TARASI & TARASI, P.C. By C. William Kenny, Esquire PA ID # 82225 Louis M. Tarasi, Jr., Esquire PA ID # 01042 Attorneys for Plaintiffs 510 Third Avenue Pittsburgh, PA 15219 (412) 391-7135 CERTIFICATE OF SERVICE I, C. William Kenny, Esquire do hereby certify that the forgoing PLAINTIFFS FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT was served upon the following by U.S. First Class Mail on the day of July, 2006: Joseph G. Zack, Esquire Post & Post, LLC 1660 Valley Center Parkway Suite 400 Bethlehem, PA 18017 TARASI & TARASI, P.C. C. William Kenny, Esquire PA. ID. #82225 510 Third Avenue Pittsburgh, PA 15219 P: 412-391-7135 F: 412-471-2673 LOUIS M. TARASI, JR. - TARAS I & TARAS I , P.C. ELIZABETH M. TARASI Attorneys and Counselors At Law CHRISTINA K. HURNYAK " 510 Third Avenue C. WILLIAM KENNY Pittsburgh, Pennsylvania 15219-2191 GIANNI FLORO Phone: (412) 391-7135 Fax: (412) 471-2673 Websfte: wm%tarassilaw.com Emall: lawvers0tarasilaw.com August 3, 2007 Joseph G. Zack, Esquire POST & POST. LLC 200 Berwyn Park, Suite 102 Cassatt Road Berwyn, PA 19312 RE: Graham v. Pa Turnpike Commission Cumberland County No 05-2801 Dear Attorney Zack: Please allow this correspondence to follow up on our conversation during Ms. Graham's deposition, and our prior conversations relative to the outstanding discovery requests sent to you last July. Please provide me with answers to my discovery within the next ten days. If I do not receive the discovery responses in the next ten days I will prepare and file a Motion to Compel your answers. Should you have any questions or concerns, please feel free to call me directly. Sincerely, TARASI & TARASI, P.C. C. William Kenny, Esquire Dictated but not read. EXHIBIT B 'Certified Civil Trial Advocate by the National Board of Trim Advocacy. A Pennsylvania Supreme Court Approved Agency r ?? • POST & POSTLLC A T T O R N E Y S AT L A W 200 BERWYN PARK, SUITE 102 920 CASSATT ROAD BERWYN, PENNSYLVANIA 19312 TELEPHONE (610) 240-9180 FACSIMILE (610) 240-9185 WWW.POSTANDPOST.COM JOSEPH G. ZACK, ESQUIRE JZACKCZPOSTANDPOST.COM PHONE EXT. 103 OUR FILE NO. 000104 August 10, 2007 C. William Kenny, Esquire Tarasi, Tarasi & Fishman, P.C. 510 Third Avenue Pittsburgh, PA 15219-2191 RE: Graham v. Pennsylvania Turnpike Commission Dear Bill: Thank you for your letter of August 3, 2007. I am working with my client to prepare responses to your discovery requests and should have those to you in the near future. Thank you for your attention to this matter. Very tru urs, JO rH. ZACK JGZ:jj EXHIBIT C LOUIS M. TARASI, JR. * TARASI & TARAS I r P.C. . ELIZABETH M. TARASI Attorneys and Counselors At Law CHRISTINA K. HURNYAK * MID Third Avenue C. WILLIAM KENNY Pittsburgh, Pennsylvania 15219-2191 GIANNI FLORO Phone: (412) 391-7135 Fax: (412) 471-2673 Website: www tarasPALcom Email: ImMramtarmilew,com March 6, 2008 Joseph G. Zack, Esquire POST & POST, LLC 200 Berwyn Park, Suite 102 920Cassatt Road Berwyn, PA 19312 RE: Graham v. Pennsylvania Turnpike Commission CCP Cumberland County No. 05-2801 Dear Attorney Zack: As a follow up to your correspondence of February 7, 2008, enclosed please find the report of Dr. Mark P. Holencik. Mr. Graham has a new job and expects to have medical coverage which will enable him to following up with treatment suggested by Dr. Holencik's report. Please provide me with answers to my outstanding discovery as soon as possible so that we can move forward to resolve this matter, specifically so that 1 may identify deponents and schedule depositions. Sincerely, TARASI & TARASI, P.C. C. William Kenny, Esquir Enclosure CWK/dlw EXHIBIT D "Certified Civil Trial Advocate by the National Board of Trial Advocacy. A Pennsylvania Supreme Court Approved Agency 60UIS M. TARASI, JR. * TARAs i & TARAs i , P.c. ELIZABETH M. TARASI Attorneys and Counselors At Law CHRISTINA K. HURNYAK C. WILLIAM KENNY 510 Third Avenue CGIANNI AM KE Pittsburgh, Pennsylvania 15219-2191 FLORO Phone: (412) 391-7135 Fax: (412) 471-2673 Website: vrww.tarasilaw.com Email: Iawversttarasilaw.com April 8, 2008 Joseph G. Zack, Esquire POST & POST, LLC 200 Berwyn Park, Suite 102 920Cassatt Road Berwyn, PA 19312 RE: Graham v. Pennsylvania Turnpike Commission CCP Cumberland County No. 05-2801 Dear Attorney Zack: As a follow up to my correspondence of February 7, 2008, regarding outstanding discovery, please advise me of the status of your responses. Sincerely, TARASI & TARASI, P.C. ev9j? C. William Kenny, Esquire CWK/dlw EXHIBIT E *Certified Civil Trial Advocate by the National Board of Trial Advocacy. A Pennsylvania Supreme Court Approved Agency LOUIS M. TARASI, JR. " 1 r'1RASI a f ARASI r P.C. ELIZABETH M. TARASI Attorneys and Counselors At Law CHRISTINA K. HURNYAK * 510 Third Avenue C. WILLIAM KENNY Pittsburgh, Pennsylvania 15219-2191 GIANNI FLORO Phone: (412) 391-7135 Fax: (412) 471-2873 Website: www.tarasllexcom Email: May 2, 2008 Joseph G. Zack, Esquire POST & POST, LLC 200 Berwyn Park, Suite 102 920Cassatt Road Berwyn, PA 19312 RE: Graham v. Pennsylvania Turnpike Commission CCP Cumberland County No. 05-2801 Dear Attorney Zack: As a follow up to my correspondence of March 6 and April 8, 2008, regarding outstanding discovery, unless I receive your answers by Friday, May 9, 2008, I will be filing a motion to compel. Sincerely, TARASI & TARASI, P.C. , - 4 C. William Kenny, quire CWK/dlw EXHIBIT F "Certified Civil Trial Advocate by the National Board of Trial Advocacy. A Pennsylvania supreme Court Approved Agency At r LOUIS M. TARASI, JR. " TARASI & TARAsi, P.C. ELIZABETH M. TARASI Attorneys and Counselors At Law CHRISTINA K. HURNYAK " ' C. WILLIAM KENNY 610 Third Avenue C C. WILLIAM KE Pittsburgh, Pennsylvania 15219-2191 Phone: (412) 391-7135 Fwc (412) 471-2873 website Email: May 8, 2008 Joseph G. Zack, Esquire POST & POST, LLC 200 Berwyn Park, Suite 102 920 Cassatt Road Berwyn, PA 19312 RE: Graham Y. Pennsylvania Turnpike Commission CCP Cumberland County No. 05-2801 Dear Attorney Zack: Please allow this correspondence to memorialize our conversation of yesterday, wherein you called in response to my latest letter requesting answers to my outstanding discovery. , You advised me at that time that your client is willing and has authorized you to make an offer of $10,000.00. I have communicated your client's offer to my client and my client declines your client's offer. Accordingly, please submit to me complete and full responses to outstanding discovery by no later then May I e, or I will file a Motion to Compel. Sincerely, TARASI & ARASI, P.C. C. William Kenny, C WKldlw EXHIBIT G "Certified Civil Trial Advocate by the National Board of Trial Advocacy. A Pennsylvania Supreme Court Approved Agency 44 #*W 1, CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing AMENDED MOTION TO COMPEL ANSWERS TO PLAINTIFF'S FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT was served upon Defendants' counsel via First Class Mail, postage pre-paid on this t day of August , 2008, upon the following: Joseph G. Zack, Esquire POST & POST, LLC 200 Berwyn Park, Suite 102 920 Cassatt Road Berwyn, PA 19312 TARASI & TARASI, P.C. By: C. William Kenny, Esq Attorney for Plaintiff 510 Third Avenue Pittsburgh, PA 15219 (412) 391-7135 _ ___' ? _ _ S vi ., „'i - _. ? t _ ?.. ;."< EZEKIEL E. GRAHAM, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW PENNSYLVANIA TURNPIKE COMMISSION, Defendant NO. 05-2801 CIVIL TERM ORDER OF COURT AND NOW, this 8 h day of August, 2008, upon consideration of Plaintiff's Motion To Compel Answers to Plaintiff's First Set of Interrogatories and Request for Production of Documents, and of Plaintiff's Amended Motion To Compel Answers to Plaintiff's First Set of Interrogatories and Request for Production of Documents, a Rule is hereby issued upon Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. UiiI& liam Kenny, Esq. Tarasi, P.C. 510 Third Avenue Pittsburgh, PA 15219 Attorney for Plaintiff ?eph G. Zack, Esq. Post & Post, LLC 200 Berwyn Park Suite 102 920 Cassatt Road Berwyn, PA 19312 Attorney for Defendant :rc p? 0 0? BY THE COURT, 1J °?7 onv az 31J do IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM, Plaintiff, V. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. CIVIL DIVISION G.D. No.: 05-2801 Filed on Behalf of Plaintiff: NOTICE OF SERVICE OF REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO THE PENNSYLVANIA TURNPIKE COMMISSION Counsel of Record for This Party: Louis M. Tarasi, Jr., Esquire PA I.D. #01042 C. William Kenny, Esquire PA I.D. #82225 TARASI & TARASI, P.C. Firm No. #469 510 Third Avenue Pittsburgh, PA 15219 P: (412) 391-7135 F: (412) 4712673 E: cwk@tarasilaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM CIVIL DIVISION G.D. No.: 05-2801 Plaintiffs, V. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. Please take notice that Plaintiff's' Request for Production of Documents Directed to the Pennsylvania Turnpike Commission and this notice was served upon counsel for Defendant by U.S. First Class Mail, postage prepaid, the original of said Requests this 22"d day of January, 2009: Joseph G. Zack, Esquire POST & POST, LLC 200 Berwyn Park, Suite 102 920Cassatt Road Berwyn, PA 19312 By: Respectfully submitted, TARASI & TARASI, P.C. 61? C. William Kenny Esquire Attorney for Plaintiff 510 Third Avenue Pittsburgh, PA 15219 P: (412) 391-7135 F: (412) 471-2673 E: cwk@tarasilaw.com CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing NOTICE OF SERVICE OF REQUEST FOR PRODUCTION.OF DOCUMENTS DIRECTED TO THE PENNSYLVANIA TURNPIKE COMMISSION was served upon counsel for the Defendant on this 22nd day of January, 2009, by United States Mail, First Class, postage prepaid addressed as follows: Joseph G. Zack, Esquire POST & POST, LLC 200 Berwyn Park, Suite 102 920Cassatt Road Berwyn, PA 19312 TARASI & TARASI, P.C. By: C. William Kenny, E: Attorney for Plaintiff r-x ` a C i -Tl w ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM, Plaintiff, V. PENNSYLVANIA TURNPIKE COMMISSION, CIVIL DIVISION G.D. No.: 05-2801 C r? C) rn Z? z? z r- -0m ?p o C) Z ?? - .-f A - C 1 = O n Qn ?,C N Srn ? -< r-n c'T A PETITION TO WITHDRAW PETITION TO WITHDRAW APPEARANCE Defendant. Filed on Behalf of Plaintiff: Counsel of Record for This Party: Louis M. Tarasi, Jr., Esquire PA I.D. # 01042 Elizabeth M. Tarasi, Esquire PA I.D. #62057 TARASI & TARASI, P.C. Firm No. #469 510 Third Avenue Pittsburgh, PA 15219 P: (412) 391-7135 F: (412) 4712673 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM CIVIL DIVISION G.D. No.: 05-2801 Plaintiff, v. PENNSYLVANIA TURNPIKE COMMISSION, Defendant. PETITION TO WITHDRAW PETITION TO WITHDRAW APPEARANCE AND NOW, come Louis M. Tarasi, Jr., Esquire, Elizabeth M. Tarasi, Esquire and the law firm of Tarasi & Tarasi, P.C. and file this Petition to Withdraw Petition to Withdraw Appearance, and avers the following. 1. On or about January 11, 2011 Petitioners filed their Petition to Withdraw Appearance in the instant matter. 2. Plaintiff has requested that Petitioners continue to represent him. WHEREFORE, Petitioners respectfully request this Court approve this Petition to Withdraw Petition to Withdraw Appearance. RESPECTUFULLY SUBMITTED, TARASI & TARASI, P.C. 7c Louis M. Tarasi, Jr., Esquire PETITIONERS 510 Third Avenue Pittsburgh, PA 15219 412 391-7135 (ph) 412 471-2673 (fax) CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing PETITION TO WITHDRAW PETITION TO WITHDRAW APPEARANCE was served upon all parties on this day of January, 2011, by United States Mail, First Class, postage prepaid addressed as follows: Joseph G. Zack, Esquire POST & POST, LLC 200 Berwyn Park, Suite 102 920Cassatt Road Berwyn, PA 19312 Mr. Ezekiel E. Graham 902 Allenview Drive Mechanicsburg, PA 17055 TARASI & TARASI, P.C. Y Louis M. Tarasi, Jr., Esquire Petitioners I, 0, 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM CIVIL DIVISION i G.D. No.: 05-2801 Plaintiff, C*) 3 ° -i V. MW C- tST'tT' -cam x; x r- ? PENNSYLVANIA TURNPIKE COMMISSION, cr 3 zn Defendant. X? w c m o ORDER OF COURT AND NOW, this Z? St day of an, y! , 2011, it is hereby ORDERED AND DECREED that the foregoing Petition to Withdraw Petition to Withdraw Appearance, it is hereby GRANTED. BY THE COURT E zakiel E . Gr ham , Pi#' C?` +"'f 0juei . PC arl? ?T?+nc? o, '??.?ose Ph (3. Za&, eN M , t 41? l DO i ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA EZEKIEL E. GRAHAM, Plaintiff, CIVIL DIVISION G.D. No.: 05-2801 V. PENNSYLVANIA TURNPIKE COMMISSION, C rn _j Nr c? c, { G W .rs PRAECIPE TO SETTLE AND DISCONTINUE Defendant. Filed on Behalf of Plaintiff: Counsel of Record for This Party: Louis M. Tarasi, Jr., Esquire PA I.D. # 01042 Elizabeth M. Tarasi, Esquire PA I.D. #62057 TARASI & TARASI, P.C. Firm No. #469 510 Third Avenue Pittsburgh, PA 15219 P: (412) 391-7135 F: (412) 4712673 PRAECIPE TO SETTLE AND DISCONTINUE TO THE PROTHONOTARY: Please mark the above-captioned matter settled and discontinued with prejudice. RESPECTFULLY SUBMITTED, TARASI & TARASI, P.C. By ,?-?L lh?I Louis M. Tarasi, PA ID No. 01042 510 Third Avenue Pittsburgh, PA 15219 (412) 391-7135 SWORN TO AND SUBSCRIBED -7 BEFORE ME THIS / / DAY OF. W Jk r 2011. Notary ublic WAAl Ty f?R v?w1A Mart" r CRY of w r ?0 Public COni(ri ahr H?0 1:J(Aj h9ny County Member Pars D". 2.2012 , Penns yivanfa Asaodatlon of Notaraes Jr., Esq.