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Home My WebLink About05-4094Stephen G. Held, Esquire Attorney I.D. No. 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Tale: (717) 238-2000 Fax: (717) 233-3029 HELD(cr).HHRLAW.COM IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MILDRED COSTA 45 Village Court Mechanicsburg, PA 17050 V. Plaintiff PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Defendant Please issue A Writ of Summons in the above-captioned action. X Writ of Summons Shall be issued and forwarded to ( )Attorney (X)Sheriff Stephen G. Held[ 1300 Linglestown Road (?T /-u?/? Harrisburg PA 17110 Sg?of?r y` (717) 238-2000 Supreme Court ID No. 72663 Name/Address/Telephone No. of Attorney Date: August 4. 2005 Attorney for Plaintiff No.S2-`t?y Civil Action - (XX) Law PINNACLE HEALTH HOSPITAL 409 S. Second Street Suite 2D Harrisburg, PA 17104 N Lrl Q 't- Stephen G. Held, Esquire Attorney I.D. No. 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Tele: (717) 238-2000 Fax: (717) 233-3029 HELD an.HHRLAW.COM IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MILDRED COSTA 45 Village Court Mechanicsburg, PA 17050 V Plaintiff WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED ACTION AGAINST YOU. Date: (D '264L-19 ( ) Check here if reverse is used for additional information PROTHON. - 55 Defendant PLAINTIFF(S) HAS/HAVE COM NCED AN Prothon ry Deputy No. DS - Civil Action - (XX) Law GU I.L?Jz_ ? PINNACLE HEALTH HOSPITAL 409 S. Second Street Suite 2D Harrisburg, PA 17104 Attorney for Plaintiff THOMAS, THOMAS a HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant To the Prothonotary: Evan Black, Esquire Attorney I.D. 17884 Gerryanne Cauler, Esquire Attorney I.D. 90539 (717) 441-7051 Attorneys for Defendants Pinnacle Health Hospital IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED Kindly enter my appearance on behalf of the Defendant, Pinnacle Health Hospital, relative to the above-captioned action. Respectfully submitted, Thomas, Thomas Et Hafer, LLP EvaK)Black, Esquire Attorney I.D. No. 17884 Gerryanne Cauler, Esquire Attorney I.D. No. 90539 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorneys for Defendant Pinnacle Health Hospital Date: October -3 , 2005 CERTIFICATE OF SERVICE I, Joan L. Wolfe, employee of the law firm of Thomas, Thomas £t Hafer, LLP, hereby certify that a true and correct copy of the foregoing document was sent to the following counsel of record by placing a copy of same by First Class in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: Stephen G. Held, Esquire HANDLER, HENNING It ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 -THOMAS, THOMAS & HAFER, LLP 1 Date: It Joan L. Wolfe, Legal Assistant m C} ? Q - T C7 (IlT TF?? i i. 4 . ?cr SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-04094 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND COSTA MILDRED VS PINNACLE HEALTH HOSPITAL R. Thomas Kline , 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: PINNACLE HEALTH HOSPITAL but was unable to locate Them deputized the sheriff of DAUPHIN serve the within WRIT OF SUMMONS County, Pennsylvania, to On August 23rd , 2005 , this office was in receipt of the attached return from DAUPHIN %.'"' Sheriff's Costs: So answer Docketing 18.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Dauphin County 47.00 Sheriff of Cumberland County Postage .74 84.74 08/23/2005 HANDLER HENNING ROSENBERG Sworn and subscribed to before me this J-{ day of ?C40 aoo A.D. I ,P;o of a rv/ in his bailiwick. He therefore In The Court of Common Pleas of Cumberland County, Pennsylvania Mildred Costa vs. Pinnacle Health Hospital 409 South Second St., Suite 2D Harrisburg, PA 17104 No. 2005-4094 Civil Term Now, August 15, 2005, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Now, within Sheriff of Cumberland County, PA Affidavit of Service 20 , at o'clock M, served the at by handing to of the original and made known to the contents thereof. So answers, Sheriff of COSTS Sworn and subscribed before SERVICE $ me this day of ,20 MILEAGE AFFIDAVIT County, Ofd-Ire of *e ,' '?hrriff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph:(717)780-6590 fax:(717)255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania COSTA MILDRED vs County of Dauphin PINNACLE HEALTH HOSPITAL Sheriff's Return Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy No. 1456-T - - -2005 OTHER COUNTY NO. 4094 CIVIL 2005 AND NOW:August 17, 2005 WRIT OF SUMMONS at 8:15AM served the within upon PINNACLE HEALTH HOSPITAL by personally handing to KATHLEEN BARDIKALIE - MARKETING ASST 1 true attested copy(ies) of the original WRIT OF SUMMONS and making known to him/her the contents thereof at 409 S SECOND ST SUITE 2D HARRISBURG, PA 17104-0000 Sworn and subscribed to before me this 17TH day of AUGUST, 2005 'IOU - fit/ NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2006 So Answers, Sheriff f Dauphin County, Pa. By Deputy Sheriff Sheriff's Costs:$26.26 PD 08/17/2005 RCPT NO 209810 MLYNEK THOMAS, THOMAS @ HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Evan Black, Esquire Attorney I.D. 17884 Gerryanne Cauler, Esquire Attorney I.D. 90539 (717) 441-7051 Attorneys for Defendants Pinnacle Health Hospital MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY OF SAID COURT: Please issue a Rule on Plaintiffs to file a Complaint in the above case within twenty (20) days after service of the Rule or suffer a judgment of non pros. Respectfully submitted, THOMAS, THOMAS B HAFER, LLP Date: a 'D (7 By: EVAN BBLACK,b1EtSQUIRE Attorney I.D. No. 17884 THOMAS, THOMAS Et HAFER, LLP 305 N. Front Street, P.O. Box 999 Harrisburg, PA 17108 MILDRED COSTA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO.: 05.4094 V. CIVIL ACTION - LAW PINNACLE HEALTH HOSPITAL, JURY TRIAL DEMANDED Defendant RULE TO FILE COMPLAINT TO: Mildred Costa c/o Stephen G. Held, Esquire Handier, Henning Et Rosenberg 1300 Linglestown Road Harrisburg, PA 17110 You are hereby directed to file a Complaint against Defendant within twenty (20) days or non pros seq. reg. S rot onotary DATED: aC/ a? CERTIFICATE OF SERVICE I, Joan L. Wolfe, employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that a true and correct copy of the foregoing document was sent to the following counsel of record by placing a copy of same by First Class in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 ?1 _ 12 THOMAS, THOMAS Et HAFER, LLP Date: d U > D? "? /Wg-rk Joan L. Wolfe C) -t1 ,t -1 - . t` "? .% _ A.7 4 MILDRED COSTA, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO.: 05-4094 PINNACLE HEALTH HOSPITAL : CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, Mildred Costa, by and through her attorneys, HANDLER, HENNING & ROSENBERG, LLP, by Stephen G. Held, Esquire, and brings forth this Complaint against Defendant, Pinnacle Health Hospital, and avers as follows: 1. Plaintiff, Mildred Costa, is an adult individual residing at 45 Village Court, Mechanicsburg, Cumberland County, Pennsylvania, 17050. 2. Defendant, Pinnacle Health Hospital, a not-for-profit corporation, registered and established under the laws of Pennsylvania, with a registered office located at P.O. Box 2353, Harrisburg, Dauphin County, Pennsylvania, 17105. 3. At all times material hereto, Defendant, Pinnacle Health Hospital, was in ownership, possession, management, and/or control of the Premises located at PinnacleHealth Fredrickson Outpatient Center, 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050 (hereinafter "Premises"). 4. At all times material hereto, Plaintiff, Mildred Costa, was a contractor and/or invitee upon said Premises. 1 5. At all times material hereto, Defendant, who had exclusive control of said Premises, allowed the stairwell on said Premises to exist without proper lighting and which should have been properly lit. 6. At all times material hereto, there were no warning signs posted on the Premises warning of the improperly lit stairwell. 7. On or about November 3, 2003, at approximately 5:45 pm, Plaintiff, Mildred Costa, was lawfully on said premises. While traversing upon the stairwell on the Premises, Plaintiff was caused to slip and fall down said stairwell due to insufficient lighting. 8. As a direct and proximate result of the negligence of the Defendant, Pinnacle Health Hospital, the Plaintiff sustained extensive injuries as set forth more specifically below. COUNTI - NEGLIGENCE Mildred Costa v. Pinnacle Health Hospital 9. Paragraphs 1 - 8 are incorporated herein by reference as if fully set forth at length. 10. At all times material hereto, Plaintiff, Mildred Costa, believes and therefore avers that Defendant, Pinnacle Health Hospital, was in possession, management, and/or control of the Premises and was responsible for maintaining the safe condition of the Premises located at PinnacleHealth Fredrickson Outpatient Center, 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050. 11. At all times material hereto Defendant, Pinnacle Health Hospital, assumed the duty to provide a reasonably safe environment for all individuals who were lawfully on said Premises at the site located at PinnacleHealth Fredrickson Outpatient Center, 2025 2 r Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050 . 12. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Mildred Costa, were caused directly and proximately by the negligence of Defendant, Pinnacle Health Hospital, by its agents, servants, workmen and/or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In causing or permitting insufficient lighting in the stairway of said Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the Premises; (b) In causing or permitting insufficient lighting in the stairway to remain when Defendant knew or should have known of the likelihood that the insufficient lighting in the stairway could cause injury; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the insufficient lighting in the stairway, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (d) In failing to ensure the lighting in the stairway of said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) In failing to post a warning sign or device in the area to notify of the dangerous condition of the insufficient lighting in the stairway of said Premises; 3 I• (f) In failing to fix or remedy the insufficient lighting in the stairway of said Premises so as to avoid the situation in which the Plaintiff fell; and (g) In failing to maintain the stairway ofthe Premises in a reasonably safe condition that would prevent Mildred Costa from slipping and falling due to lack of sufficient lighting. 13. Defendant, Pinnacle Health Hospital, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was insufficient lighting in the stairway where Plaintiff, Mildred Costa, fell. 14. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, sustained serious injuries, including, but not limited to, a left heel fracture and left ankle sprain. 15. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has undergone great physical pain, discomfort, and mental anguish, and she will continue to enure the same for an indefinite period of time in the future, to her great detriment and loss, physically, emotionally and financially. 16. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has been, and will in the future be, hindered from attending to her daily duties to her great detriment, loss, humiliation and embarrassment. 17. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has, and will in the future, suffer a loss of life's pleasures. 18. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has suffered lost wages/income and will in the 4 future continue to suffer a loss of income and/or loss of earning capacity. 19. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has been compelled, in order to affect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention and will be required to expend large sums of money for the same purposes in the future, to her great detriment and loss. WHEREFORE, Plaintiff, Mildred Costa, seeks damages from Defendant, Pinnacle Health Hospital, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT II - BREACH OF CONTRACT Mildred Costa v. Pinnacle Health Hospital 20. Paragraphs 1 through 19 are incorporated herein as if fully set forth at length. 21. The main thoroughfare of the property located at and known as PinnacleHealth Fredrickson Outpatient Center, 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050 contains a stairwell leading to its parking lot. 22. On or about November 3, 2003, Plaintiff was an employee of Jones, Daly & Coldren. 23. Pursuant to a contract, agreement and/or lease between Jones, Daly & Coldren and Defendant, Pinnacle Health Hospital, Defendant was responsible for the maintenance of the lighting fixtures on said Premises and/or was responsible for maintaining the safe condition of the property, including but not limited to all lighting forthe outdoor stairwell located at and known as PinnacleHealth Fredrickson Outpatient Center, 5 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050. (Plaintiff does not have copy of the aforementioned agreement however its existence has been evidenced through correspondence.) 24. Pursuant to the aforementioned agreement between Jones, Daly & Coldren and Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, was a third party beneficiary of the contract. 25. Defendant, Pinnacle Health Hospital, failed to properly maintain the stairwell and keep it sufficiently lit. 26. The occurrence of the aforementioned incident and the resulting, aforementioned injuries to Plaintiff, Mildred Costa, were a direct result of the failure of the Defendant, Pinnacle Health Hospital, to properly and/or timely repair the lighting fixtures on the Premises, thereby breaching the terms of the contract/agreement. WHEREFORE, Plaintiff, Mildred Costa, seeks damages from Defendant, Pinnacle Health Hospital, in an amount in excess of the compulsory arbitration limits of Cumberland County. Respectfully submitted, HENNWq & ROSENBERG, LLP Dated: A l? F-F I.D. # 72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff 6 VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 (c) STEPHEN G. HELD, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attomey, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to unsworn falsification to authorities. Date: L l STE G HELD, QUIRE 11 MILDRED COSTA, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO.: 05-4094 PINNACLE HEALTH HOSPITAL : CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 11"' day of April, 2006, 1 hereby certify that I have served the within document upon Counsel for Defendant by sending a true and correct copy of the same to them via First Class United States mail, postage prepaid, and addressed as follows: First Class U. S. Mail. Evan Black, Esq, Thomas, Thomas & Hafer, LLP 305 North Front Street P O Box 999 Harrisburg, PA 17108-0999 Gerryanne Cauler, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P O Box 999 Harrisburg, PA 17108-0999 HANDLER, HENNING & ROSENBERG, LLP "IY1an,?cz.. I.U p ?p? Maria Wells, Legal Secretary to Stephen G. Held, Esquire ct ..a ,. ..-t (? ._ ?. MILDRED COSTA, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. PINNACLE HEALTH HOSPITAL : NO.: 05-4094 CIVIL ACTION - LAW Defendant TO THE PROTHONOTARY: PRAECIPE Please substitute the attached Verification for the attorney's Verification in the recently filed Complaint in this matter. Thank you. HANDL , ENNING & ROSENBERG, LLP By J47PStephe G. H 91d, Esq. Attorney I.D. #72663 1300 Linglestown Rd. Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff DATE: I THE UNDERSIGNED hereby verifies that the statements in the foregoing document are based on information that was gathered by counsel in preparation of this lawsuit. The language of the above-named document is of counsel and not my own. I have read the said document and, to the extent that it is based on information that I gave to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the contents of the said document is that of counsel, I have relied upon my counsel in preparing this Verification. THE UNDERSIGNED also understands that the statements therein are made subject to the penalties of 18 Pa.R.C.P. 2252(d) C.S. Section 4904, relating to unsworn falsification to authorities. Date: 7eW4"-d "'61 Mildred Costa MILDRED COSTA, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO.: 05-4094 PINNACLE HEALTH HOSPITAL : CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE AND NOW, this 19`h day of April, 2006, 1 hereby certify that I have served the within document upon Counsel for Defendant by sending a true and correct copy of the same to them via First Class United States mail, postage prepaid, and addressed as follows: First Class U. S. Mail. Evan Black, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P O Box 999 Harrisburg, PA 17108-0999 Gerryanne Cauler, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P O Box 999 Harrisburg, PA 17108-0999 HANDLER, HENNING & ROSENBERG, LLP ") Y1 af- l? I,&)-, Q? Maria Wells, Legal Secretary to Stephen G. Held, Esquire Y w Evan Black, Esquire Attorney I.D. 17994 Hugh P. O'Neill, III, Esquire Attorney I.D. 69986 THOMAS, THOMAS & HAFER, LLP 305 North Front Street p.0. Box 999 17108 Harrisburg, 9A (717) 441-7051 MIL RED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant Attorney for Defendant Pinnacle Health Hospital ERI-D COMMON PLEAS IN THE COURT OF UN CUMBC NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED W?7,t I. Factual Back round Plaintiff initiated this premises liability action against Defendant by filing of a 1. Writ of Summons and subsequently a Complaint on or about April 11, 2006. Plaintiff claims rtain ersonal injuries as a result of a fall which allegedly took place at the place of her ce p t Frederickson Outpatient Medical Building located in Mechanicsburg, Cumberland employmen , enns lvania, on November 3, 2003. (See copy of Complaint attached hereto as Exhibit County, P Y A.) 2. Plaintiff's Complaint alleges that Defendant leased a portion of the medical office building to the Plaintiff s employer, Jones, Daly & Coldren medical practice. 1 3. Plaintiff claims that a stairwell leading from the medical building to the parking garage was hazardous in that it was improperly illuminated and/or Defendant failed to post signs warning of this alleged defect. 4. Plaintiff claims that she is a third-party beneficiary of the lease agreement between Defendant and the Jones Daly medical practice. (See redacted copy of the lease agreement attached hereto as Exhibit B.) 5. Paragraph 12(g) fails to comply with the Pennsylvania Rules of Civil Procedure in that it contains vague unspecified allegations of negligence. 6. Plaintiff's breach of contract claim is duplicative of her negligence claim and should be stricken. 7. Defendant files these Preliminary Objections against the aforementioned deficiencies in Plaintiff's Complaint. II. Defendant's Preliminary Obiection in the nature of a Demurrer - Count II of Plaintiffs Complaint alleeine breach of contact 8. Count H of Plaintiff's Complaint alleging breach of contract should be stricken for failure to state a claim as the claim is duplicative of the negligence count. Secondly, Plaintiff is not a third-party beneficiary of the lease agreement between Defendant and Jones Daly & Coldren Associates, Plaintiffs employer. (See lease agreement attached as Exhibit B.) 9. Pennsylvania Contract Law has recognized a third-party beneficiary status and has adopted Restatement (Second) of Contract §302 in Guy v. Liederbach, 459 A.2d 744 (Pa. 1983); Chen v. Chen, 893 A.2d 87 (Pa. 2006). 10. Restatement (Second) of Contracts §302 provides as follows: Intended and incidental beneficiaries 2 1. Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance and the beneficiary is appropriate to effectuate the intentional of the parties and either (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance. 2. An incidental beneficiary is a beneficiary who is not an Intended beneficiary. 11. Comment A to Restatement (Second) of Contracts §302 provides in pertinent part. This section distinguishes between an "intended" beneficiary, who acquires a right by virtue of a promise, from "incidental" beneficiary, who does not. 12. The Guy Court adopted a two part test to determine whether one is a third-party beneficiary to a contract which requires: (1) the recognition of the beneficiary's right must be appropriate to effectuate the intention of the parties; and (2) the performance must satisfy an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the proomisee intends to give the beneficiary the benefit of the promise performance. Guy, 459 A.2d at 751. Burks v. Federal Insurance Co., 883 A.2d 1086 (Pa. Super. 2005). 13. The Pennsylvania Supreme Court in Scarpitti v. Weborg, 609 A.2d 174 (Pa. 1992), held that a party becomes a third-party beneficiary only where both parties to the contract express an intention to benefit the third-party in the contract itself unless the circumstances are so compelling that recognition of the beneficiary's right is appropriate to effectuate the intention of the parties, and the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicates that the promise intends to give the beneficiary the benefit of the promise performance. Sc itti, 609 A.2d at 150-151. 3 14. Moreover, if the party claiming third-party beneficiary status has an alternative source of redress then the modified test adopted by the Guy Court does not apply. See, Sc itti, 609 A.2d at 151; Guy, 459 A.2d at 751. 15. In this case, Plaintiff is not a third-party beneficiary (intended beneficiary of the lease agreement between her employer and the Defendant as she does not appear in the contract, she cannot satisfy the two part Guy test and she has an alternative theory of redress against the Defendant, i.e., a cause of action of negligence). Alternatively, even if this Court were to determine that Plaintiff is a third-party beneficiary to the lease agreement between her employer and Defendant, her breach of contract claim is duplicative of her negligence claim and should be stricken with prejudice. See, Baily v. Altland, 39 Pa. D. & C. 3d (C.P. York 1983); Murphy v. Aesthetic and Reconstructive Surgerv. 2 Pa. D. & C. 4th 273 (C.P. Erie 1989). III. Defendant's Preliminary Obiection in the nature of a Motion to Strike Paragraph 1260 of Plaintiffs Complaint for failure to comply with Rule of Court. 16. Pennsylvania is a fact pleading state. 17 Paragraph 12(g) of Plaintiff's Complaint contains vague and nonspecific claims of negligence against Defendant which violate the Pennsylvania Rules of Civil Procedure. See, also Conner v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983). 18. Accordingly, Paragraph 12(g) should be stricken with prejudice for failure to comply with Rule of Court. 4 IV. Conclusion 19. For the reasons set forth above, it is respectfully requested that this Honorable Court sustain Defendant's Preliminary Objections and enter an Order in the form proposed. Respectfully submitted, THOMAS, THO S & HAFER, LLP By: Ev lac ",squire I.D. #17884 Hugh P. O'Neill, III, Esquire I.D. # 69986 P.O. Box 999 305 N. Front Street Harrisburg, PA 17108-0999 (717)237-7101 Attorneys for Defendant Pinnacle Health Hospital Date: 1/02 610 6 5 xhibl+ e MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL : Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, Mildred Costa, by and through her attorneys, HANDLER, HENNING & ROSENBERG, LLP, by Stephen G. Held, Esquire, and brings forth this Complaint against Defendant, Pinnacle Health Hospital, and avers as follows: 1. Plaintiff, Mildred Costa, is an adult individual residing at 45 Village Court, Mechanicsburg, Cumberland County, Pennsylvania, 17050. 2. Defendant, Pinnacle Health Hospital, a not-for-profit corporation, registered and established under the laws of Pennsylvania, with a registered office located at P.O. Box 2353, Harrisburg, Dauphin County, Pennsylvania, 17105. 3. At all times material hereto, Defendant, Pinnacle Health Hospital, was in ownership, possession, management, and/or control of the Premises located at PinnacleHealth Fredrickson Outpatient Center, 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050 (hereinafter "Premises"). 4. At all times material hereto, Plaintiff, Mildred Costa, was a contractor and/or invitee upon said Premises. 1 5. At all times material hereto, Defendant, who had exclusive control of said Premises, allowed the stairwell on said Premises to exist without proper lighting and which should have been properly lit. 6. At all times material hereto, there were no warning signs posted on the Premises warning of the improperly lit stairwell. 7. On or about November 3, 2003, at approximately 5:45 pm, Plaintiff, Mildred Costa, was lawfully on said premises. While traversing upon the stairwell on the Premises, Plaintiff was caused to slip and fall down said stairwell due to insufficient lighting. 8. As a direct and proximate result of the negligence of the Defendant, Pinnacle Health Hospital, the Plaintiff sustained extensive injuries as set forth more specifically below. COUNT I - NEGLIGENCE Mildred Costa v. Pinnacle Health Hospital 9. Paragraphs 1 - 8 are incorporated herein by reference as if fully set forth at length. 10. At all times material hereto, Plaintiff, Mildred Costa, believes and therefore avers that Defendant, Pinnacle Health Hospital, was in possession, management, and/or control of the Premises and was responsible for maintaining the safe condition of the Premises located at PinnacleHealth Fredrickson Outpatient Center, 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050. 11. At all times material hereto Defendant, Pinnacle Health Hospital, assumed the duty to provide a reasonably safe environment for all individuals who were lawfully on said Premises at the site located at PinnacleHealth Fredrickson Outpatient Center, 2025 2 IL Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050 . 12. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Mildred Costa, were caused directly and proximately by the negligence of Defendant, Pinnacle Health Hospital, by its agents, servants, workmen and/or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In causing or permitting insufficient lighting in the stairway of said Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the Premises; (b) In causing or permitting insufficient lighting in the stairway to remain when Defendant knew or should have known of the likelihood that the insufficient lighting in the stairway could cause injury; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the insufficient lighting in the stairway, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (d) In failing to ensure the lighting in the stairway of said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) In failing to post a warning sign or device in the area to notify of the dangerous condition of the insufficient lighting in the stairway of said Premises; 3 t (f) In failing to fix or remedy the insufficient lighting in the stairway of said Premises so as to avoid the situation in which the Plaintiff fell; and (g) In failing to maintain the stairway of the Premises in a reasonably safe condition that would prevent Mildred Costa from slipping and falling due to lack of sufficient lighting. 13. Defendant, Pinnacle Health Hospital, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was insufficient lighting in the stairway where Plaintiff, Mildred Costa, fell. 14. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, sustained serious injuries, including, but not limited to, a left heel fracture and left ankle sprain. 15. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has undergone great physical pain, discomfort, and mental anguish, and she will continue to enure the same for an indefinite period of time in the future, to her great detriment and loss, physically, emotionally and financially. 16. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has been, and will in the future be, hindered from attending to her daily duties to her great detriment, loss, humiliation and embarrassment. 17. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has, and will in the future, suffer a loss of life's pleasures. 18. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has suffered lost wages/income and will in the 4 e r future continue to suffer a loss of income and/or loss of earning capacity. 19. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has been compelled, in order to affect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention and will be required to expend large sums of money for the same purposes in the future, to her great detriment and loss. WHEREFORE, Plaintiff, Mildred Costa, seeks damages from Defendant, Pinnacle Health Hospital, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT II - BREACH OF CONTRACT Mildred Costa v, Pinnacle Health Hospital 20. Paragraphs 1 through 19 are incorporated herein as if fully set forth at length. 21. The main thoroughfare of the property located at and known as PinnacleHealth Fredrickson Outpatient Center, 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050 contains a stairwell leading to its parking lot. 22. On or about November 3, 2003, Plaintiff was an employee of Jones, Daly & Coldren. 23. Pursuant to a contract, agreement and/or lease between Jones, Daly & Coldren and Defendant, Pinnacle Health Hospital, Defendant was responsible for the maintenance of the lighting fixtures on said Premises and/or was responsible for maintaining the safe condition of the property, including but not limited to all lighting forthe outdoor stairwell located at and known as PinnacleHealth Fredrickson Outpatient Center, 5 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050. (Plaintiff does not have copy of the aforementioned agreement however its existence has been evidenced through correspondence.) 24. Pursuant to the aforementioned agreement between Jones, Daly & Coldren and Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, was a third party beneficiary of the contract. 25. Defendant, Pinnacle Health Hospital, failed to properly maintain the stairwell and keep it sufficiently lit. 26. The occurrence of the aforementioned incident and the resulting, aforementioned injuries to Plaintiff, Mildred Costa, were a direct result of the failure of the Defendant, Pinnacle Health Hospital, to properly and/or timely repair the lighting fixtures on the Premises, thereby breaching the terms of the contract/agreement. WHEREFORE, Plaintiff, Mildred Costa, seeks damages from Defendant, Pinnacle Health Hospital, in an amount in excess of the compulsory arbitration limits of Cumberland County. Dated: Respectfully submitted, HAN R, HE NN & ROSENBERG, LLP Step n d I . D. # 72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff 6 VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 (c) STEPHEN G. HELD, ESQUIRE, states that he is the attorney forthe party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to unsworn falsification to authorities. Date: L STE G HELD, QUIRE MILDRED COSTA, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff " . V. NO.: 05-4094 PINNACLE HEALTH HOSPITAL : CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 111n day of April, 2006, 1 hereby certify that I have served the within document upon Counsel for Defendant by sending a true and correct copy of the same to them via First Class United States mail, postage prepaid, and addressed as follows: First Class U. S. Mail. Evan Black, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P O Box 999 Harrisburg, PA 17108-0999 Gerryanne Cauler, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P O Box 999 Harrisburg, PA 17108-0999 HANDLER, HENNING & ROSENBERG, LLP -71 0ru 0- LU p Maria Wells, Legal Secretary to Stephen G. Held, Esquire -?- B Exh? bi Database: MRISYS Lease Id: 000312 - 010801 Master Occupant Id: 31210801-1 N Jones, Daly & Coldren Assoc. A Pinnacle Medical Office Bldg. M 2025 Technology Parkway E Mechanicsburg PA Legal Name Contact Name Phone No. Fax No. Lease Profile MRI Production Database a Jones, Daly & Coldren Assoc. I T 2025 Technology Parkway L O Suite 108 17050 L Mechanicsburg PA 17050 Tenant Id Tenant Type Id SIC Group Lease Stop N Page: 3 Date: 5/9/01 Time: 09:15 AM suite Infdrmation - Current Recurring Charges Building Id 000312 Leased S ft Effective Monthly Annual Amount q 4,707 Cat. Description Sgft. Date Amount Amount Lease Id 010801 Pro-Rata Share 0.14 PSF Suite Id 00108 Annual Mkt Rent PSF 20.00 000 Rent Charge 12/1/00 15.30 Occupancy Status C Current Rate Change History j Execution 5/8/00 Beginning 12/1/00 0 Pent Charge 4,707 12/1/01 Occupancy Rent Start 12/1/00 000 Rent Charge 4,707 12/1102 15.51 Expiration 11130/06 Vacate 15.72 000 Rent Charge 4,707 12/1/03 16.15 000 Rent Charge 4,707 12/1/04 16.57 000 Rent Charge 4,707 12/1/05 17.00 Cease Notes Effective Date Ref 1 Ref 2 Note 11/1 /00 BUSTYPE laboratory services for patients 11/1/00 CAM all o eratin co ov r r 1111/00 MISC 6 yr ease Security deposit is being held by PHH 111/00 OPTIONS 1 option for additional 5 yrs ?INCEPTION AMENDMENT 1I ` { f AGREEMENT made this r'. day of? between PINNACLE HEALTH HOSPITALS, ("Landlord"), and JONES, DALY & OLDREN ASSOCIATES, INC., ("Tenant"). BACKGROUND A. Tenant and Landlord entered into a lease dated May 8, 2000 wherein Tenant leased approximately 4„000 square feet of PinnacleHealth Outpatient Health Center- Medical Office Building (MOB), ('the "Building"), Mechanicsburg; Pennsylvania. The aforesaid lease is herein referred to as the "Lease." B. The commencement of said Lease shall be amended as set forth herein. NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows: 1. Effective for the period December 1, 2000 through November 30, 2006, Tenant shall have the right to occupy said facility. under the same terms and conditions as stated in the Lease, except that the rent shall be pro-rated as set forth herein: 2 During the above-stated period, all the terns and conditions of the original leaAhal remain in full force and effect subject to the following. The parties to the above referenced Lease amend Basic Lease Information, Sections 8, 10, 12, 13, and 14, by replacing those sections with the following: 7. Term Commencement: December 1, 200# 8. Expiration Date: November 30, 2006 10. Rentable Area of the Premises: 4,707 s uare feet ' 12. Tenant's Proportionate Share: 13. Tenant's Proportionate Share of Electrical Expense: 14. Initial Annual Base Rental: IN WITNESS WHEREOF, the parties, intending to be legally bound, have signed this Amendment as of the day of r LANDLORD PINNACLE HEALTH HOSPITALS 7Z ft By Date Tale: ??!a la rf:v ter. TENANT JONES, DALY & COLDREN ASSOCIATES, INC. BY IL'u 1 ?t f ?s C?(`"?'7 Title: By Title: 4 OFFICE LEASE AGREEMENT BASIC LEASE INFORMATION 1. Date: s???b 2. Landlord: Pinnacle Health Hospitals 3. Tenant: Jones Daly & Coldren Associates T-N1c-, cat a+t? 4. Guarantor(s): 5. Building: PinnacleHealth Outpatient. Sure Center - Medical Office Building (MOB) 6. Premises: approximately 4,000 square feet on the ground floor of the MOB _ 7. Commencement Date:,Uooncomnrefinn-FP-..._ 8. Expiration Date Six years from Commencement Date 9. Rentable Area of the Building 60,000 Rentable square feet 10. Rentable Area of the Premises: approximately 4 000 _Rentable square feet 11. Rentable Area of Tenant's Floor Ito be determined) _Rentable square feet 12. Tenant's Proportionate Share (other than electric 13. Tenant's Proportionate Share of Electrical Expenses: 14. Initial Annual Base Rental 15. Initial Annual Base Rental Rater ,. per Rentable square foot 16. Annual Base Rental Rate Increase (Cumulative) See attached Rental Rate Schedule 17. Annual Operating Expense Allowance: Base per item 18 below 18. Initial Annual Operating Expe-rrse Rate shall be determined durin Initial O eratin YaaL-O eratin EXDenses in the Init' I Operation ve w ?? w r ap nsibility „Tenant shall pay Annual Operating Expense pass through in excess of the Initial Annual Operating Expense Allowance as defined in Article 6, subsequent to the Initial Operating Year. 19. Base Year.., jo 4, ? vv r I , ZC>O -4p June 30, Z,00Z 20. Security Deposit Lease is signed. Payable at the time the 21. First Rent Check of payable upon Lease commencement. 22. Landlord's Broker: High Associates Ltd 23. Tenant irnprovement Alfowance? 24. Tenant's Broker. 25. Landlord's Address for Notices: 17 S. Market Square P.O. Box 8700, Harrisburg PA 17105-8700 Attention: Carol Helt 26. Tenant's Address for Notices: Prior to occupancy: 2645 N Third Street Suite 150 Harrisburg. PA 17110-2091 • after occupancy, at the Premises 27. Restrictions on use of Premises: Tenant shall not use the Premises for the sale of pharmaceuticals or durable medical equipment and supplies; provision of X-ray or other diagnostic imaging services; physical or cardiopulmonary rehabilitation services; diagnostic cardiology services; sleep study services; laboratory services; optometry services; or surgical services, without the prior written consent of Landlord. Landlord consents to the following: level 2 or 3 laboratory services for Tenant's patients. 28. Moving Allowance: Upon commencement of the lease, Landlord will contribute per rentable square foot towards the actual moving expenses incurred by Tenant. EXHIBITS A - G identified below, and the Rental Rate Schedule are a part of this Lease: Exhibit A - Floor Plan Exhibit B - Description of Real Estate Exhibit C - Description of Leasehold Improvements Exhibit D - Services Provided by Landlord i Exhibit E.- Rules and Regulations Exhibit F - Description of Parking Rights Exhibit G - Renewal Options The foregoing Basic Lease Information is hereby incorporated into and made a part of the Office Lease Agreement which is described herein and attached. Each reference in the Lease to any information and definitions contained in the Basic Lease Information shall mean and refer to the information and definitions hereinabove set forth. In the event of any conflict between any Basic Lease Information and the Lease, the Basic Lease Information shall control. Landlord: By:-0) Tenant: ? ?1: ?? RENTAL RATE SCHEDULE Landlord: Pinnacle Health Hospitals Tenant: Jones, Daly, Coldren Associa#s Building: PinnacleHealth Outpatient Surgery Center- Medical Office Building Premises: Approximately 4,000 square feet Rental Rate: Lease Year l er square foot and tenant specific electric Lease Year 2 er square foot and tenant specific electric Lease Year 3 er square foot and tenant specific electric v Lease Year 4 er square foot and tenant specific electric Lease Year 5 er square foot and tenant specific electric Lease Year 6 er square foot and tenant specific electric 3 TABLE OF CONTENTS Page ARTICLE 1- PREMISES .................................................... 1 ARTICLE 2 - TERM .................................................................... 1 ARTICLE 3 - DELIVERY OF THE PREMISES TO TENANT ........................... .. ... 2 ARTICLE 4 - ACCEPTA CE-QF THE PREMISES AND BUILDING BY TENANT.-..---..... 2 ARTICLE -5-= RENTAL .. .................................................................................... ARTICLE 6 - OPERATING COfTS .............................................. ........................................... 3 ARTICLE 7 - SERVICES BY LANDLORD .............................. . ARTICLE 8 - UTILITIES .............................................. ARTICLE 9 - USE ARTICLE 10 - LAWS, ORDINANCES, AND REQUIREMENTS OF PUBLIC AUTHORITIES -...-.. ........................• 8 ARTICLE 11 - OBSERVANCE OF RULES AND REGULATIONS .................................... 8 ARTICLE 12 -ALTERATIONS .... .................................................. ARTICLE 13 - LIENS ........ ........................................... 9 ARTICLE 14 - ORDINARY REPAIRS ........................... ....... ......................................- 10 ...... i ARTICLE 15 -INSURANCE ............................................................................................. 10 ARTICLE 16 - DAMAGE BY FIRE OR OTHER CAUSE ..................................... ARTICLE 17 - CONDEMNATION..: ........... I .............. I ............ ...ARTICLE 18 -ASSIGNMENT AND SUBLETTING................. ........................... 15 ARTICLE 19 - INDEMNIFICATION .................................. ARTICCLE 20 - SURRENDER OF THE PREMISES ..................... ARTICLE 21 - ESTOPPEL CERTIFICATES .......................... 17 ................................... ARTICLE 22 - SUBORDINATION ............................................ ARTICLE 23 - PARKING. ................. I ...... ...... 19 OFFICE LEASE AGREEMENT THIS Lease, dated as of the date specified in the Basic Lease Information which is attached hereto and incorporated herein for all purposes, is made between Landlord and Tenant. ARTICLE 1 Premises Section 1.01. Landlord leases to Tenant, and Tenant Leases from Landlord for the Term (as defined below) and subject to the provisions hereof, to each of which Landlord and Tenant mutually agree, the Premises, which Premises is more particularly described in the floor plans in Exhibit A hereto, together with its appurtenances, including the right to use, in common with others, (a) the lobbies, entrances, stairs, elevators, off street loading areas (for loading and unloading of materials and supplies), and other public portions of the Building, which Building is situated on the real property described in Exhibit B hereto. The Premises shall constitute part of the "Rentable Area." For purposes of this Lease, the Rentable Area of the Building and the Rentable Area of the Premises are as provided in the foregoing Basic Lease Information. The term "Common Areas" shall mean all of the common facilities now or hereafter under, over, in or adjacent to the Building designed and intended for use by all Tenants in the Building in common with Landlord and each other. The term "Service Areas" shall mean areas within the outside walls used for vertical penetrations (but excluding any such areas that are for the specific use of the particular Tenant) and in addition, the Building's service rooms and areas (such as electrical, mechanical and elevator rooms and loading docks). Section 1.02. The parties agree that the Rental Area of the Premises is as stated on the foregoing Basic Lease Information. 'Upon completion of the Building, Tenant or Landlord shalt have the right to have the Rental Area of the Premises remeasured at the requesting party's expense. In the event the Premises is not remeasured prior to the Commencement Date, the terms contained in the Basic Lease information attached hereto shall control. Measurements of the Premises shall be made in accordance with the Standard Method for Measuring Floor Area contained in ANSI/BOMA Standard Z65.1-1996, unless otherwise agreed to in writing. In the event such remeasurement is completed, the area measurements related to the Premises on the Basic Lease Information attached hereto shall be appropriately modified. ARTICLE 2 Term Section 2.01. The term of this Lease (the "Term") shall begin on the Commencement Date. The Commencement Date shall be the earlier of the date: (a) specified in the Basic Lease Information, provided Landlord has delivered the Premises with the Building Standard Leasehold Improvements, substantially completed; or (b) of Tenant's occupancy of the Premises for the conduct of Tenant's business (i.e., not occupancy for construction purposes') (the "Commencement Date")_ Unless sooner terminated, the Term shall end at midnight on the Expiration Date specified in the Basic Lease Information. Section 2.02. Provided Tenant performs all of Tenant's obligations under this Lease, including Tenant's covenant for the payment of Rental [as defined below], Tenant shall, during the Term, peaceably and quietly enjoy the Premises without disturbance from Landlord; subject, however, to the terms of this Lease and the mortgages, restrictive covenants, ground leases, easements, and other encumbrances to which this Lease is subject, or may become subject, and subordinate. ARTICLE 3 Delivery of the Premises to Tenant Section 3.01. If for any reason Landlord cannot deliver the Premises to Tenant by the Commencement Date, this Lease shall not be void or voidable, except, that the Rental shall be waived for the period between the Commencement Date and the date when. Landlord can deliver possession. Tenant may not enter or occupy the Premises until it is tendered by Landlord, except to complete construction work and to inspect and make investigations of the Premises. The Leasehold improvements shall be deemed substantially completed and possession delivered when Landlord delivers them in accordance with Exhibit C. The terms of Exhibit C hereto shall govern the construction and installation of all Leasehold Improvements. The term "Standard Leasehold improvements" as used herein shall mean those Leasehold Improvements which Landlord shall construct at Landlord's sole cost and expense. The term "Non-Standard Leasehold Improvements" as used herein shall mean all Leasehold Improvements which exceed or deviate from Standard Leasehold Improvements and which shall be constructed at Tenant's sole cost and expense. The terms "Standard" and "Non- Standard" as used herein shall have the meanings specified in Exhibit C hereto. Tenant shall have access to the Premises for the time described in Section 8.01(b) below. Tenant shall have all keys necessary to allow access to the Premises at all times as needed ARTICLE 4 Acceptance of the Premises and Building by Tenant Section 4.01. Taking possession of the Premises by Tenant shall be conclusive evidence that Tenant accepts the Premises as suitable for the purposes for which they are leased, except and to the extent of an punch list developed upon delive of the Premises. Punch fist items will be repaired"within fourteen (14) days of delivery of the Premises. Landlord shall not be liable, except for negligence or willful misconduct of itself, its contractors agents employees, . licensees, tenants (other than Tenant) invitees or representatives, to Tenant or any of its agents, employees, licensees, or invitees for any injury or damage to persons.or property due to the condition of or any defect in the Premises or the Building or its mechanical systems and equipment which may exist or occur, and Tenant, for itself and its agents, employees, licensees, and invitees, expressly assumes all risks of injury or damage to person or property, either proximate or remote, resulting from the condition of the Premises or the Building. 2 ARTICLE 5 Rental Section 5.01. Tenant covenants and agrees to pay to Landlord as Rental for the Premises, in lawful money of the United States, 1/12 of the Annual Base Rental specified in the Basic Lease Information, payable monthly in advance, without notice or demand, on the first day of each calendar month. In the event of any late payment (ten (10) days or more following the date payment was due), Tenant agrees to. pay a late charge equal to five (5%) percent of the Rental due. Rental shall be paid to Landlord, without deduction or offset, at the address of Landlord specified in the Basic Lease Information or such other place as Landlord may designate. The first monthly installment of Rental shall be paid on the Commencement Date, except that if the Commencement Date is a date other than the first day of a calendar month, then the monthly Rental for the first and last fractional months of the Term shall be appropriately prorated. The tern "Rental" as used herein means the sum of Annual Base Rental, Proportionate Share of Operating Cost Excess (as defined in Section 6.01), and all other sums, whether or not expressly denominated as rent, shall constitute Rental for the purposes of Section 502(b)(7) of the Bankruptcy Code U.S.C. 502(b)(7). No payment by Tenant or receipt by Landlord of a lesser amount than the monthly installment due under this Lease shall be deemed to be other than on account of the earliest Rental due hereunder, nor shall any endorsement or statement on any check or payment as Rental be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rental or pursue any other remedy provided for in this Lease or by law. Section 5.02. Upon the first anniversary of the Commencement Date of this Lease, and upon each and every anniversary date thereafter, the then current Annual Base Rental shall be increased in accordance with the Basic Lease Information. ARTICLE 6 Operating Expenses Section 6.01. Tenant shall pay on a monthly basis in advance, without demand, on the first day of each calendar month, as part of the Annual Base Rental, Tenant's Proportionate Share of Operating Expenses (as defined below) in excess of the Operating Expense Allowance ("Operating Expense Excess"). Such payments shall be made as follows: (a) Before the beginning of each Fiscal Year during the Term, Landlord shall furnish Tenant with Landlord's reasonable estimate of the Operating Expense Excess for such Fiscal Year. Provided Landlord has provided such estimate, then by the first day of each month during such Fiscal Year, Tenant shall pay, in monthly installments, Tenant's Proportionate Share of the estimated Operating Expense Excess for such Fiscal Year. Tenant shall not be responsible for Operating Expenses during the initial Fiscal Year of operation of the Premises (b) By the first day of September of each Fiscal Year during Tenant's occupancy, or as soon thereafter as possible, Landlord shall furnish to Tenant a statement of Landlord's actual Operating Expense Excess for the previous Fiscal Year (or fraction thereof if the Commencement Date occurred after the first day of the previous Fiscal Year). If Landlord has underestimated the amount of Operating Expenses then Tenant shall pay a lump sum adjustment payment within thirty (30) days following Landlord's delivery of an actual Operating Expense Statement equal to Tenant's Proportionate share. If Landlord has overestimated the amount of Operating Expense Excess, then Tenant will receive a credit for Tenant's proportionate share of such excess, which credit shall be applied against Estimated Operating Expense Excess for the current fiscal year. The effect of this reconciliation payment or adjustment is that the Tenant shall pay during each Fiscal Year during the Term, in addition to the Annual Base Rental, Tenant's Proportionate Share of Operating Expenses in excess of an amount equal to the Operating Expense Allowance for that particular Fiscal Year. Said amount is based upon twelve (12) months of Building operation with all Tenants utilizing all services provided by Landlord pursuant to Article 7 and Article 8. Electrical service is metered by floor and Tenant's expense will be based on its proportionate share of the expense for the floor it occupies, determined based upon the percentage of Tenant's leased area of the floor to the total area leased on the same floor. (c) The Annual Operating Expense Allowance shall be increased by three (3%) percent each Fiscal Year. The Annual Operating Expense Allowance may be adjusted if expenses are removed from the Allowance or separately metered. (d) With respect to the last Fiscal Year or partial Fiscal Year, as the case may be, during the Term, an adjustment will be made between Landlord and Tenant pursuant to Section 6.02, at the appropriate time after the Expiration Date. The provisions of Section 6.01 shall survive termination of this Lease with respect to such adjustment and any payments owning by either party to the other after termination hereof. Section 6.02. As used herein, "Operating Expense" means all expenses, costs, and disbursements of every kind which Landlord reasonably shall be required to pay, incur, or becomes obligated to pay, in connection with the ownership, operation (including, without limitation, the costs of utilities), and maintenance of the Building, Parking Areas, and exterior areas contained within the boundaries described in Exhibit B upon which the Building is situated. All Operating Expenses shall be determined according to generally accepted Accrual Basis account principles which shall be consistently applied. Operating Expenses shall include, but are not limited to, the following; (a) Wages, salaries, and fees of all personnel or entities (exclusive of Landlord's executive personnel) directly engaged in the operation, maintenance, repair or security of the Building, including taxes, insurance and benefits relating thereto. As to personnel not involved exclusively with the administration and operation of the Building, only those portions of such expenses reasonably allocable to the Building shall be included as "Operating Expenses." The Building management fee, shall be included in the Operating Expenses. (b) All supplies and materials used in the operation and maintenance of the Building, except for special lighting relamping and ballasts within any Tenant space. 4 (c) Expenses of all maintenance, janitorial, security and service agreements for the Building and the equipment therein, including, without limitation, alarm service, janitorial services, exterior window cleaning, elevator maintenance, landscaping, irrigation, parking facility maintenance, roadway and utility maintenance and cleaning, etc. (d) Expenses of all insurance relating to the Building for which Landlord is responsible hereunder, or which is reasonably necessary for the operation of the Building, including, without limitation, the cost of property, casualty and liability insurance applicable to the Building and Landlord's personal property used in connection therewith, and the cost of business interruption or rental insurance. (e) All taxes, assessments, and other governmental charges, now or hereafter applicable to the Building, or any portion thereof, or to Landlord's personal property used in connection therewith, and dues (including those levied by any Association managing all common areas and easements) attributable to the Building or its operation, exclusive of any permit or application fees or assessments associated with the contemplated improvements to the Building, and of any inheritance, gift, franchise, capital stock, income, corporate or profit taxes which may be assessed against Landlord. (f) Expenses of repairs and general maintenance, excluding, however, repairs and general maintenance paid by proceeds of insurance or by Tenant or other third parties; alterations attributable solely to Tenants of the Building; and structural .maintenance and repairs (including, without limitation, roof, steel, masonry and the like). (g) Landlord's costs related to fees paid to individuals or companies engaged in rendering services for the benefit of the Building. (h) All utility costs to Landlord of the Building (exclusive, however, of such special utility services as are provided in Section 8.02 hereof), including, without limitation, water, power, fuel, heating, lighting, air conditioning and ventilation. Section 6.03. Operating Expenses shall not include specific costs especially billed to and paid by specific Tenants such as Non-Standard janitorial service, Non-Standard utility service, or other Non-Standard services. Section 6.04. Tenant shall be liable for all taxes levied or assessed against personal property, furniture, fixtures, or Non-Standard Leasehold Improvements placed by Tenant in the Premises. If any such taxes for which Tenant is liable are levied or assessed against Landlord or Landlord's property, and Landlord elects to pay the taxes based on such increase, Tenant shall pay to Landlord, upon demand, that part of such taxes for which Tenant is liable hereunder; provided that Tenant shall have the right to contest such taxes if Tenant shall have furnished Landlord with sufficient security for the payment thereof. Section 6.05. As used herein, Tenant's Proportionate Share of Excess Operating Expenses shall be based on a percentage derived by dividing the Rentable Area of the Premises by the Rentable Area of the Building, provided that at least ninety (90%) percent of the Rentable Area 5 of the Building is occupied. In the event that greater than fifty (50%) percent but less than ninety (90%) percent of the Rentable Area of the Building is occupied, Tenant's Proportionate Share of Excess Operating Expenses shall be based on the percentage of Tenant's Rental Area of the Premises in relation to the aggregate leased area of the Building; provided, however, that such increased Proportionate Share shall be limited to variable and not fixed operating expenses. If fifty (50%) percent or less of the Rentable Area of the Building occupied, Tenant shall not be responsible for anv Excess nnPrnfinn Fxn,-ncoc ARTICLE 7 Services by Landlord Section 7.01. While Tenant is--occupying the Premises and is not in default under this Lease, Landlord shall, at its expense, but subject to the provisions of Articles 6 and 8 hereof, maintain the Building and Common Areas in first class condition, and shall furnish the Premises with services listed in Exhibit D, attached hereto. ARTICLE 8 Utilities Section 8.01. While Tenant is occupying the Premises and is not in default under this Lease, Landlord shall furnish Tenant with the following services: (a) potable water; (b) heating, ventilating, and/or air conditioning in season on business days from 7:00 a.m. toaTenant's close and on Saturdays and Sundays from 7:00 a.m. to 2:00 p.m.; and (c) electric lighting for public areas of the Building, (d) access to the premises twenty-four hours per day, subject to security procedures I outside of normal business hours, as defined in Section 29.03 all of which services shall be provided to Tenant and included in the Operating Expenses. If Tenant requires air conditioning or heating outside the hours and days specified above,. Landlord shall furnish it only at Tenant's request. Provided Tenant's use is more than incidental or occasional, Tenant shall bear the entire variable charge therefor, which will be an amount equal to the rate charged to Landlord, at that time. Whenever machines or equipment that generate abnormal heat. are used in the Premises by Tenant which affect the temperature or humidity otherwise maintained by the central air conditioning system, Landlord will have the right to install supplemental air conditioning units in the Premises, and the full total cost thereof will be paid by Tenant to Landlord, on demand. Notwithstanding anything in this Lease to the contrary, Tenant shall be responsible for all costs associated with maintaining any Non- Standard lighting within the Premises. All such charges to Tenant shall be invoiced within ninety (90) days following the end of the Fiscal Year or shall be deemed waived by Landlord. 6w Section 8.02. While Tenant is occupying the Premises and is not in default under this Lease, Landlord will furnish, and each tenant shall Pay for through separate metering sufficient power for lighting, typewriters, dictaphones, calculating machines, and other normal office machines of similar low electrical consumption, all of which power shall be paid for by Landlord and included in the Operating Expenses. Tenant acknowledges that Landlord's aforesaid obligation does not include the provision of power for: (a) special mainframe type computers and/or electronic data processing equipment; (b) special lighting which has electrical consumption in excess of the Building Standard lighting; or (c) any item which consumes more than 0.5 kilowatts at rated capacity or requires voltage other than 110-120 volt single phase, and such consumption by Tenant shall be deemed excessive usage for which Tenant shall pay Landlord upon receipt of an invoice for the cost to Landlord of such usage. Notwithstanding the aforementioned, Tenant acknowledges that the Building electrical feeders have normal design limitations, such that (i) in no event shall lighting have a design load greater than an average of 2.00 watts per useable square foot; and (ii) collectively, Tenant's equipment and lighting shall not have an electrical design load greater than an average of 3.75 watts per useable square foot. Section 8.03. Landlord will not be liable in any way to Tenant for failure or defect in the supply or character of electric energy or any other utility service furnished to the Premises because of any requirement, act or omission of the public utility servicing the Building. All installations of electrical fixtures, appliances and equipment within the Premises shall be subject to Landlord's prior approval. Landlord's obligation to furnish utility services shall be subject to the rules and regulations of any municipal or other governmental authority regulating the business of providing utility services. When Tenant's use of the Premises consumes power in excess of the Building Standard lighting and for typewriters, dictaphones, calculating machines and other normal office machines, then the usage of such additional consumption shall be determined, at Landlord's election, either (a) by a survey performed by a reputable consultant selected by Landlord (and paid for by Tenant when such additional consumption is proven); or (b) by separate meter in the Premises to be installed, maintained and read by Landlord at Tenant's sole expense. Section 8.04. Failure to furnish, or any stoppage of the services provided for in Article 7 above and in this Article 8, resulting from any cause other than Landlord's gross negligence or willful misconduct shall not make Landlord liable in any respect for damages to either person, property or business, nor be construed as an eviction of Tenant, nor entitle Tenant to any abatement of Rental, nor relieve Tenant from its obligations under this Lease. Landlord will, with reasonable diligence, repair any malfunction of the Building Improvements or facilities, but Tenant will have 7 no claim for rebate, abatement of Rental, or damages because of any malfunctions or interruptions in service, other than Landlord's negligence or willful misconduct. ARTICLE 9 Use Section 9.01. The Premises shall be used for general and/or medical office purposes, and related medical uses, and for no other purpose, and Tenant agrees to use and maintain the Premises in a clean, careful, safe, lawful, and proper manner. ARTICLE 10 Laws. Ordinances and Requirements of Public Authorities Section 10.01. Tenant shall, at its sole expense: (a) comply with all laws, orders, ordinances, and regulations of federal, state, county and municipal authorities having jurisdiction over the Premises, which are unique to Tenant's actual use of the Premises; (b) comply with any direction made pursuant to law of any public officer or officers requiring abatement of any nuisance, or imposing any obligation, order or duty upon Landlord or Tenant arising from Tenant's actual use of the Premises or from conditions which have been created by or at the insistence of Tenant or required by reason of a breach of any of Tenant's obligations hereunder; (c) indemnify Landlord and hold Landlord harmless from any loss, cost, claim or expense which Landlord may incur or suffer by reason of Tenant's failure to comply with its obligations under clauses (a) or (b) above. If Tenant receives written notice of violation of any such law, order, ordinance or regulation, it shall properly notify Landlord thereof; h (d) the foregoing duties are not intended to obligate Tenant to comply (at Tenant's sole expense) with any of the foregoing requirements or directions applicable to the Building, or a majority of its Tenants, which shall be Landlord's responsibility. ARTICLE 11 Observance of Rules and Regulations Section 11.01. Tenant and its employees, agents, visitors and licensees shall observe faithfully and comply with all Rules and Regulations attached to this Lease as Exhibit E. Landlord shall at all times have the right to make reasonable exchanges in and additions to such Rules and Regulations. Any failure by Landlord to enforce any of the Rules and Regulations, now or hereafter in effect, either against Tenant or any other tenant in the Building, shall not constitute a waiver of any such Rules and Regulations. Landlord shall not be liable to Tenant for the failure or refusal by any other tenant, guest, invitee, visitor or occupant of the Building to comply ate-: with any of the Rules and Regulations, but Landlord shall, after receipt of notice, take reasonable action to assure compliance. ARTICLE 12 Alterations Section 12.01. Tenant may not, at any time during the Term, without Landlord's prior written consent (which shall not be unreasonably withheld or delayed), make any structural alterations to the Premises. All alterations shall be made at Tenant's expense, either by Tenant's contractors which have been approved in writing by Landlord, or at Landlord's option, by Landlord's contractors on terms reasonably satisfactory to Tenant. Tenant must provide Landlord with "as-built" plans for all renovations. Section 12.02. All Leasehold Improvements (whether Standard or Non-Standard), alterations and other physical additions made or installed by or for Tenant in or to the Premises shall be and remain Landlord's property and shall not be removed without Landlord's written consent, except Tenant's furniture, furnishings, equipment, personal property and moveable trade fixtures (all regardless of whether attached). ARTICLE 13 Liens Section 13.01. Tenant shall keep the Premises, the Building and the property on which the Building is located, free from any liens arising from any work performed, materials furnished or obligations incurred by or at the request of Tenant. Nothing contained in this Lease shall be construed as Landlord's consent to -any performance of labor or furnishing of any materials for any specific improvements, alteration, or repair of, or to, the Premises, that would result in any liens against the Premises or liability of the Landlord. If, based upon acts of Tenant, any lien is filed against the Premises, the Building, the Property on which the Building is located or Tenant's Leasehold interests therein, Tenant shall discharge same within thirty (30) days after its filing. If Tenant fails to discharge such lien within such period or, in the alternative, fails to provide Landlord with reasonable security.for the payment thereof, then, in addition to any other right or remedy of Landlord, Landlord may, at its election, discharge the lien by either paying the amount claimed to be due, obtaining the discharge by deposit with a court or a title company or by bonding. Tenant shall pay, on demand, any amount actually paid by Landlord -for reasonable attorneys' fees and other reasonable legal expenses of Landlord incurred in defending such action or in obtaining the discharge of such lien, together with all necessary disbursements in connection therewith, to 125% of the amount of the lien claim, plus a sufficient amount to cover any penalties, interest, attorneys' fees, court costs, and other legal expenses resulting from such contest. This bond shall name Landlord and such other parties as Landlord may direct as beneficiaries thereunder. ARTICLE 14 Ordinary Repairs Section 14.01. Landlord, as an Operating Expense, shall maintain the Premises and any fixtures, machinery or equipment initially installed as a Building Standard Leasehold Improvement, or any replacements thereof in good, attractive, safe and first class operating condition, excepting, however, Tenant's business equipment (computers, office equipment, medical equipment, telephones and the like, and special lighting, special equipment and special fixtures, which Tenant shall maintain and repair). Landlord shall maintain the structural components (roof, steel, masonry and the like) and mechanical systems of the Building in good, attractive, safe and operating condition (which shall not be an Operating Expense). The term "maintain" as used in this Lease shall include normal and customary repairs, replacements, redecorating, repainting and cleaning. Upon expiration or termination of the Term of this Lease, Tenant shall surrender the Premises to Landlord in as good condition and repair as existed on the date on which the Building Standard Tenant Improvements were completed, ordinary wear and tear alone excepted. Tenant shall, at all times, maintain and repair such portion of Premises as are required whether or not due to the negligence or willful misconduct of Tenant or any of its agents, employees, licensees or invitees and Tenant shall pay Landlord, on demand, Landlord's actual costs in making such repairs. ARTICLE 15 Insurance Section 15.01. Tenant shall, during the Term, at its sole expense, keep in force, with Tenant, Landlord, its agents, employees, representatives, or contractors and the mortgagees and ground lessors of Landlord named as additional insured thereunder (except with, respect to Worker's Compensation coverage) all as their respective interests may appear, the following insurance: (a) All Risk Insurance (including fire, extended coverage, vandalism, malicious mischief,4extended perils, sprinkler leakage and debris removal) upon property of every description and kind owned by Tenant and located in the Building or for which Tenant is legally liable, or installed by or on behalf of Tenant, including, without limitation, fittings, installations, fixtures, removable trade fixtures, Non-Building Standard Leasehold Improvements (as defined in Exhibit C), and alterations not made by Landlord or not as part of Tenant's original Improvements, in an amount not less than the full replacement cost thereof. If there is a dispute as to the amount which comprises full replacement cost, the decision of Tenant's insurance company shall be conclusive and binding. (b) Comprehensive ublic liability insurance coverage to include death, personal injury, bodily injury broad form property damage (not less fire sprinkler hazard, operations hazard, owner's protective coverage, contractual liability, and products and completed operations liability, with combined single liability limits not less tha Such coverage shall insure against all liability of Tenant and its authorized representatives and visitors arising out of, and in connection with, Tenant's use or occupancy of the Premises. 10 ' (c) Worker's Compensation and Employer's Liability Insurance, with a waiver of subrogation endorsement, in form and amount satisfactory to Landlord and similar to that customarily in force for, or with respect to, similar Premises. (d) Any other form or forms of insurance customarily in force for or with respect to similar Premises as Tenant or Landlord or the mortgagees of Landlord may reasonably require from time to time in form, in amounts, and for insurance risks against which a prudent Tenant of a comparable size and in a comparable business would protect itself. Section 15.02. All policies shall be issued by reputable insurers and shall be in form satisfactory to Landlord. Tenant agrees that certificates of insurance on the insurarme company's standard form, or certified copies of each such insurance policy, naming Landlord and its mortgagees as additional insured, will be delivered to Landlord no later than five (5) days prior to the date that Tenant takes possession of any part of the Premises. All policies shall contain an undertaking by the insurers to notify Landlord and the mortgagees of Landlord, in writing, by registered U.S. mail, not less than thirty (30) days before any material change, reduction in coverage, cancellation, or other termination thereof. So long as Tenant is not in default, proceeds of Tenant's insurance shall be immediately available to repair or replace the insured fixtures and equipment. Section 15.03. During the Term, Landlord shall insure the Building (but excluding Non-Building Standard Leasehold improvements and any other property which Tenant is obligated to insure under Section 15.01 hereof) against damage by fire, flood and standard extended coverage perils in an amount equal to the full replacement cost thereof, and shall provide public liability insurance in such amounts and with such deductions as Landlord considers appropriate. Landlord may, but shall not be obligated to, take out and carry any other form or forms of insurance as it or Landlord's mortgagees may reasonably determine available. Notwithstanding any contribution by Tenant to the cost of insurance premiums, as provided herein, Tenant acknowledges that it has no right to receive any proceeds from any insurance policies carried by Landlord. Landlord will not be required to carry insurance of any kind on any Non-Building Standard Leasehold jmprovements, -tenant's furniture or furnishings, or on any of Tenant's fixtures, equipment, improvements or appurtenances under this Lease; and Landlord shall not be obligated to repair or replace same. Section 15.04. Tenant shall not keep in the Premises any article which may be prohibited by any insurance policy periodically in force covering the Building which is not necessary for Tenant's permitted use. If Tenant's occupancy results in any increase in premiums for the insurance carried by Landlord, then to the extent not included in Building Operating Expenses, Tenant shall pay any such increase in premiums as additional Rental within ten (10) days after being billed therefor. Tenant shall promptly comply with all reasonable requirements of the insurance authority or any present or future insurer relating to the Premises and the Building. Section 15.05. If any of Landlord's insurance policies shall be cancelled or cancellation shall be threatened or the coverage thereunder reduced or threatened to be reduced, or if the premiums on any of Landlord's insurance policies are increased or threatened to be increased, in any way because of Tenant's use of the Premises for other than its permitted uses, and if Tenant fails to remedy the cause thereof within 48 hours after notice, Landlord may, at its option, exercise any 3 11 =a' of its Remedies set forth in Article 24, or peaceably enter upon the Premises and attempt to remedy such condition, and Tenant shall promptly pay the cost thereof to Landlord as additional Rental. Landlord shall not be liable for any damage or injury caused to any property of Tenant or of others located on the Premises resulting from such entry. If Landlord is. unable to remedy such condition, then Landlord shall have all of the remedies provided for in this Lease as if a default has occurred. Section 15.06. All policies covering real or personal property which either party obtains affecting the Premises shall, to the extent reasonably available, include a clause or endorsement denying the insurer any rights of subrogation against the other party to the extent rights have been waived by the insured before the occurrence of injury or loss. Landlord and Tenant hereby mutually waive any rights of recovery against the other for injury or loss due to hazards covered by insurance containing such a waive"f subrogation clause or endorsement to the extent of the injury or loss covered thereby. ARTICLE 16 Damage by Fire or Other Cause Section 16.01. Subject to Sections 16.02 and 16.03 hereof, if the Building is damaged by fire or other casualty so as to affect the Premises; Tenant shalt immediately notify Landlord, who shall (but only if the proceeds from Landlord's insurance available to Landlord (a) are free from collection by Landlord's mortgagee, ground or primary lessor, and (b) are sufficient) have the damage repaired with reasonable speed at the expense of Landlord, subject to delays which may arise by reason of adjustment of loss under insurance policies and to other delays beyond Landlord's reasonable control. Provided such damage was not the result of the negligence or willful misconduct of Tenant, or Tenant's employees or invitees, an abatement in the Rental hereunder shall be allowed as to that portion of the Premises rendered untenantable by such damage until such time as Landlord determines that such damaged portion of the Premises has been made tenantable. Section 16.02. If the Premises are damaged or destroyed by any cause whatsoever, and if, in Landlord's reasonable opinion, the Premises cannot be rebuilt or made fit for Tenant's purposes within four (4) months of the damage or destruction, or if the proceeds from insurance remaining after payment of any such proceeds to Landlord's mortgagee, ground, or Primary lessor, are insufficient to repair or restore the damage by destruction, Landlord may, at its option, terminate the Lease by giving Tenant, within (60) days after such damage or destruction, notice of termination, and thereupon Rental and any other payments for which Tenant is liable under this Lease shall be apportioned and paid to the date of such damage, and Tenant shall immediately vacate the Premises; provided, however, that those provisions of this Lease which are designated to cover matters of termination and the period thereafter shall survive the termination hereof. 12 Section 16.03. If either (a) the Building is damaged or destroyed to the extent that, in Landlord's reasonable opinion it would not be economically feasible to repair or restore such damage or destruction, or (b) in Landlord's reasonable judgment, the damage or destruction to the Building cannot be repaired or restored within four (4) months after such damage or destruction, Landlord may, at its option, terminate this Lease by giving Tenant, within sixty (60) days after such damage, notice of such termination requiring Tenant to vacate the Premises sixty (60) days after delivery of the notice of termination, and thereupon Rental and any other payments shall be apportioned and paid to the date on which possession is relinquished and Tenant shall immediately vacate the Premises according to such notice of termination; provided, however, that those provisions of this Lease which are designed to cover matters of termination and the period thereafter shall survive the termination hereof. Section 16.04. No damages shall be payable by Landlord for inconvenience, loss of business, or annoyance arising from any repair or restoration of any portion of the Premises, or the Building. Landlord shall use its best efforts to have such repairs made promptly so as not to unnecessarily and unreasonably interfere with Tenant's occupancy. Section 16.05. The provisions of this Article shall be considered an express agreement governing any cause of damage or destruction of'the Building, the Building Standard Leasehold Improvements, the Non-Building Standard Leasehold Improvements, the alterations, or the Premises by fire or other casualty. ARTICLE 17 Condemnation Section 17.01. Definitions: (a) "Condemnation" shall mean (i) the exercise of any governmerital power, whether by legal proceedings or otherwise, by a condemnor and (ii) a voluntary sale or transfer by Landlord to any condemnor, in lieu of condemnation, under threat of condemnation or while legal proceedings for condemnation are pending. (b) "date of taking" shall mean the date the condemnor has the right to possessionof the property being condemned. (c) "Award" shall mean all compensation, sums, or anything of value awarded, paid or received on a total or partial condemnation. f 4 13 (d) "Condemnor" shall mean any public or quasi-public authority, or private corporation or individual having the power of condemnation. Section 17.02. If, during the Term, there is any taking of all or any part of the Premises or any interest in this Lease by condemnation, the rights and obligations of the parties shall be determined pursuant to this paragraph. Section 17.03. If the Premises are totally taken by condemnation, this Lease shall terminate on the date of taking, but the Tenant shall be entitled to damages as set forth in Section 17.07 below as though the Lease continued and, at Tenant's option, as though the renewal options were exercised. Section 17.04. If any portion of the Premises is taken by condemnation this Lease shall remain in effect, except that Tenant can elect to terminate this Lease if the remaining portion of the Building or other improvements or the parking area that are a part of the Premises is rendered unsuitable for Tenant's continued use of the Premises, or materially adversely affects the continued use or economic vitality. of Tenant's business on the Premises. Landlord can elect to terminate this Lease if, in Landlord's judgment, the taking materially adversely affects the continued use of economic viability of the Building or the Tract If Landlord or Tenant elect to terminate this Lease, such party must exercise its right to terminate pursuant to this paragraph by giving notice to the other party within thirty (30) days after the last to occur of (a) the nature of the extent of taking have been determined, or (b) the date of taking. The party electing to terminate this Lease as provided in this paragraph shall specify the date of termination, which date shall not be earlier than sixty (60) days, nor later than one hundred eighty (180) days after the date of delivery of the notice of termination; except that this Lease shall terminate on the date of taking if the. date of taking falls on a date before the date of termination notice. If neither party terminates this Lease within the thirty (30) day period, this Lease shall continue in full force and effect, except that the monthly rent shall be reduced pursuant to this paragraph. Section 17.05. Effect on Rent - If any portion of the Premises is taken by condemnation and this Lease remains in full force and effect, on the date of taking the monthly rent shall be reduced by an amount that is in the same ratio to monthly rent as the value of the area of the portion of the Premises taken bears to the total value of the Premises immediately before the date of taking. Section 17.06. Restoration of Premises - If there is a partial taking of the Premises and this Lease remains in full force and effect, Landlord, at its cost, shall promptly accomplish all necessary restoration. Rent shall be abated or reduced during the period from the date of taking until the completion of restoration, but all other obligations of Tenant under this Lease shall remain in full force and effect. The abatement or reduction of rent shall be based on the extent to which the restoration interferes with Tenant's .use of the Premises. 14 Section 17.07. The entire award shall belong to and be paid to Landlord, except that Tenant shall receive for the award the following: (a) The sum attributable to the unamortized portion of Tenant's Leasehold interest; and (b) A sum attributable to Tenant's improvements or alteration made to the Premises by Tenant in accordance with this Lease, which Tenant improvements or alterations Tenant has the right to remove from the Premises pursuant to the provisions of this Lease, but elects not to remove; and (c) A sum attributable to that portion of the award constituting Tenant's relocation costs if included in the award; and (d) Any special damages which by their nature are awardable only to the Tenant and would not, under any circumstances, nor under any provision of this Lease, be awardable to Landlord. ARTICLE 18 Assignment and Subletting Section 18.01. If Tenant should desire to assign this Lease or sublet the Premises (or any part thereof), Tenant shall give Landlord written notice at least thirty (30) days in advance thereof. Landlord shall then have a period of thirty (30) days following receipt of such notice within which to notify Tenant in writing that Landlord elects either (a) to permit Tenant to assign or sublet such space, subject to Landlord's timely approval of the prospective subtenant; which approval shall not be unreasonably withheld. (b) to refuse to consent to Tenant's assignment or subleasing of such space and to continue this Lease in full force and effect as to the entire Premises, specifying the reasons thereto. No assignment or subletting by Tenant shall relieve Tenant of Tenant's obligations under this Lease. Any attempted assignment or sublease by Tenant in violation of the terms and provisions of this Section 18.01 shall be void. In no'event shall Tenant solicit assignees or subleases in other Buildings owned by Landlord, or at less than the Fair Market Value Rate. Section 18.02. Landlord may sell, transfer, assign, and convey all or any part of the Building and any and all of its rights under this Lease, provided Landlord's successor in interest assumes Landlord's obligations hereunder, and in the event Landlord assigns its rights under this Lease, Landlord shall be released from any further obligations hereunder (after the effective date of such assignment) and Tenant agrees to look solely to Landlord's successor in interest for performance of such obligations. 15 is ARTICLE 19 Indemnification Section 19.01. Tenant waives all claims against Landlord for damage to any property or injury to, or death of, any person in, upon, or about the Building, the Premises or Parking Facilities arising at any time and from any and all causes whatsoever other than by reason of negligence or willful misconduct of Landlord, its agents, employees, representatives, or contractors, and Tenant agrees that it will defend, indemnify, save and hold harmless Landlord from and against all claims, demands, actions, damages, loss, cost, liabilities, expenses and judgments suffered by, recovered from, or asserted against Landlord on account of any damage to any property or injury to, or death of, any person arising from the use of the Building, the Premises, or the Parking Facilities by Tenant or its employees or invitees, except such as is caused by the negligence or willful misconduct of Landlord, its agents, employees, representatives, or contractors. Tenant's foregoing indemnity obligation shall include reasonable attomeys' fees and all other reasonable costs and expenses incurred by Landlord. The provisions of this Article 19 shall survive the termination of this Lease with respect to any damage, injury or death occurring before such termination. If Landlord is made a party to any litigation commenced by or against Tenant or relating to this Lease or to the Premises, and provided that in any such litigation, or as part of any settlement Landlord is not finally adjudicated or determined to be at fault, then Tenant shall pay all costs and expenses, including attorneys' fees and court costs, incurred by or imposed upon Landlord because of any such litigation, and the amount of all such costs and expenses, including attorneys' fees and court costs, shall be a demand obligation owing by Tenant to Landlord, and shall be considered as additional Rental. Section 19.02. Landlord waives all claims against Tenant for damage to any property or injury to, or death of, any person in, upon,. or about the Building, the. Premises or Parking Facilities arising at any time and from any and all causes whatsoever other than by reason of negligence or willful misconduct of Tenant, its agents, employees, representatives, or contractors, and Landlord agrees that it will defend, indemnify, save and hold harmless Tenant from and against all claims, demands, actions, damages, loss, cost, liabilities, expenses and judgments suffered by, recovered from, or asserted against Tenant on account of any damage to any property or injury to, or death of+any person arising from the use of the Building, the Premises, or the Parking Facilities by Tenant or its employees or invitees, except such as is caused by the negligence or willful misconduct of Tenant, its agents, employees, representatives, or contractors. Landlord's foregoing indemnity obligation shall include reasonable attorneys' fees and all other reasonable costs and expenses incurred by Tenant. The provisions of this Article 19 shall survive the termination of this Lease with respect to any damage injury or death occurring before such termination. If Tenant is made a party to any litigation commenced by or against Landlord or relating to this Lease or to the Premises, and provided that in any such litigation, or as part of any settlement Tenant is not finally adjudicated or determined to be at fault, then Landlord shall pay all costs and expenses, including attorneys' fees and court costs, incurred by or imposed upon Tenant because of any such litigation, and the amount of all such costs and expenses, including attorneys' fees and court costs, shall be a demand obligation owing by Landlord to Tenant, and shall be considered as additional Rental. NO 16 (FY ARTICLE 20 Surrender of the Premises Section 20.01. Upon the expiration or other termination of this Lease, for any cause whatsoever, Tenant shall peacefully vacate the Premises in as good order and condition as the same were at the beginning of the Term or may thereafter have been improved by Landlord or Tenant, subject only to reasonable use and wear thereof, and repairs which are Landlord's obligations hereunder. Section 20.02. Landlord may require Tenant to remove any Non-Building Standard Leasehold Improvements, alterations, and physical additions installed in the Premises other than the original Tenant. Building Standard Leasehold Improvements, upon termination of this Lease. In the event Landlord so elects, and Tenant fails to remove the aforementioned items,. Landlord may remove and store same at Tenant's cost, and Tenant shall.pay Landlord, on demand, the cost of restoring the Premises to Building Standard. Tenant agrees to remove, at Tenant's expense, all of its furniture, furnishings, personal property, and moveable trade fixtures by the Expiration Date, and shall promptly reimburse Landlord for the cost of repairing all damage done to the Premises or the Building by such removal. Section 20.03. Should Tenant continue to hold the Premises after the termination of this Lease, whether the termination occurs by lapse of time or otherwise, such holding over shall, unless otherwise agreed to by Landlord in writing, constitute and be construed as a tenancy at will at a daily rental equal to one thirtieth (1130th) of an amount equal to two times the monthly Rental Rate for the Premises as of the date of termination. and subject to all of the other terms set forth herein, except any right to renew or expand this Lease. Tenant shall be liable to Landlord for all damage which Landlord suffers because of any holding over by Tenant, and Tenant shall indemnify Landlord against all claim's made by any other Tenant or prospective Tenant against Landlord resulting from delay by Landlord in delivering possession of the Premises to such other Tenant or prospective Tenant. ARTICLE 21 Estoppel Certificates Section 21.01. Tenant agrees to furnish, when requested by Landlord or the holder of any mortgage covering the Building, the Premises, or any interest of La.ndlord4herein, a certificate signed by Tenant certifying to such parties as Landlord may designate to the extent true matters with respect to the terms and status of this Lease and the Premises, stating that Tenant, as of the date of such certificate (Security. Deposits notwithstanding), has no charge, lien, or claim of offset under this Lease or otherwise against Rentals or other charges due or to become due hereunder; and such other matters as may be requested by Landlord or the holder of any such mortgage. To the extent any such statements requested are. not true, Tenant shall explain such facts in writing. Landlord agrees periodically to furnish, when reasonably requested in writing by Tenant, certificates signed by Landlord containing substantially the same information as described above. Section 21.02. In the event Tenant shall fail to execute any such instruments or certificates to ' carry out the intent of Articles 21 or 22 within fifteen (15) days of Landlord's written request to 1-7 execute such instruments or certificates, then Tenant hereby irrevocably appoints Landlord as attorney-in fact for Tenant with full power and authority to execute and deliver in the name of Tenant any such instruments or certificates. ARTICLE 22 Subordination Section 22.01. This Lease is subject and subordinate to any mortgages or other security instruments, and any other supplements or amendments thereto, which presently or may in the future cover the Building and the Premises or any interest of Landlord therein, and to any increases, renewals, modifications, consolidations, replacements, and extensions of any of such mortgages, or security instruments, from the holder or beneficiary of any mortgages or other security instruments that now or in the future may cover the Building and the Premises or any interest of Landlord therein which provides to Tenant a nondisturbance agreement providing that so long as Tenant pays its rent and otherwise complies with the Terms of this Lease, its possession shall not be disturbed. This provision is declared by Landlord and Tenant to be self-operative and no further instrument shall be required to effect such subordination of this Lease. Tenant shall, however, upon demand, execute, acknowledge, and deliver to Landlord any further instruments and certificates evidencing such subordination as Landlord may reasonably require. This Lease is further subject and subordinate to (a) all ground or primary Leases in existence at the date hereof and to any supplements, modifications, and extensions thereof heretofore or hereafter made, and (b) utility easements and agreements, covenants, restrictions, and other encumbrances, both existing and future, which do not interfere with Tenant's permitted use of the Premises. Section 22.02. Notwithstanding the generality of the foregoing provisions of Section 22.01 hereof, any such mortgagee or ground or primary lessor shall have the right, at any time, to subordinate any such ground or primary leases, mortgages, or other security instruments to this Lease on such terms and subject to such conditions as such mortgagee or ground or primary lessor may consider appropriate in its discretion. At any time, before or after the institution of any proceedings for the foreclosure of any such mortgages, or other security instruments or termination of any ground or primary lease, or sale of the Building under any such mortgages, or other security instruments or termination of any ground or primary lease, Tenant shall attom to such ground or primary lessor or such purchaser upon any such sale or the grantee under any'deed in lieu of such foreclosure and shall recognize such ground or primary lessor or such purchaser or grantee as Landlord under this Lease. The agreement of Tenant to attorn contained in the immediately preceding sentence shall survive any such termination of any ground or primary lease, foreclosure sale, trustee's sale, or conveyance in lieu thereof. Tenant shall, upon demand at any time, before or after any such termination, execute acknowledge, and deliver to Landlord's mortgagee or ground or primary lessor, any written instruments and certificates evidencing such attornment as Landlord's mortgagee or ground or.primary lessor may reasonably require. 18 ARTICLE 23 Parking Section 23.01. Landlord will provide adequate parking for Tenant's patients, principals, employees, customers and suppliers, sufficient to meet all governmental requirements and will permit Tenant to use the areas designated by Landlord ("Parking Facilities") for parking of vehicles in common with other Tenants in the Building during the Term as more fully. provided for in Exhibit F hereto. ARTICLE 24 Default and Remedies Section 24.01. The occurrence of any one or more of the following events shall, at Landlord's option, constitute an event of default of this Lease: (a) if Tenant shall fail to pay any Rental or other sums payable by Tenant hereunder within ten (10) days of written notice thereof from Landlord (provided, however, if such event of default shall occur more than once in a six (6) month period, Landlord shall not be required to provide any written notice of default and an event of default shall occur .as and when such Rental or other sums become due and payable); (b) if Tenant shall fail to perform or observe any other term hereof or any of the Rules and Regulations and such failure shalt continue for more than thirty (30) days after notice thereof from Landlord; provided, however, that if the default is not capable of cure within thirty (30) days, but Tenant commences and diligently proceeds with cure, then Tenant shall have a reasonable time to cure, not to exceed sixty (60) days, unless approved by Landlord (Tenant shall provide weekly progress reports to Landlord); (c) if Tenant deserts or vacates any substantial portion of the Premises without having nectotiated a reduction of the Premises, (d) if any petition is filed by or against Tenant under this Lease under any section or chapter of the present or any future Federal Bankruptcy Code or under any similar law or statute of the United States or any state thereof, which is ncUdischarged within sixty (60) days; (e) if Tenant becomes insolvent or makes a transfer in fraud of creditors; (f) if Tenant makes an assignment for the benefit of creditors; or (g) if a receiver, custodian, or trustee is appointed for Tenant or for any of the assets of Tenant which appointment is not vacated within thirty (30) days of the date of such appointment. Section 24.02. If an event of default occurs, at any time thereafter Landlord may do one or more of the following without any additional notice or demand: 19 (a) At any time, whether or not. Landlord has exercised any other remedy, accelerate and declare immediately due and payable, and Tenant shall then pay, the whole or any part of the rent for the entire unexpired balance of the term of this Lease, as well as all other charges, payments, costs and expenses herein agreed to be paid by Tenant. (b) Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to do so, Landlord may, without notice and without prejudice to any other remedy Landlord may have, peaceably enter upon and take possession of the Premises and expel or remove Tenant and its effects without being liable to prosecution or any claim for damages therefor; and Tenant shall be liable to Landlord for all loss and damage which Landlord may suffer by reason .of such termination, whether through inability to relet the Premises or otherwise, including any loss of Rental for the remainder of the Term. Any such loss of Rental shall be offset by any Rental received by Landlord as a result of reletting the Premises during the remainder of the Term. (c) Terminate this Lease, in which event Tenant's event of default shall be considered a total breach of Tenant's obligations under this Lease and Tenant immediately shall become liable for such damages for such breach amount, equal to the total of. (i) the cost of recovering the Premises; (ii) the unpaid Rental due as of the date of termination, plus interest thereon at a rate per annum, computed monthly, from the due date equal to three (3%) percent over the Prime Rate as reported by the Wall Street Journal; provided, however, that such interest shall never exceed the Highest Lawful Rate; (iii) the amount of excess of (1) the total rental and other benefits which Landlord would have received under the Lease for the remainder of.the Term, at the rental rates then in effect or to be effective, together with all other expenses incurred by Landlord in connection with Tenant's default, over (2) the f=air Market Value Rate of the balance of the Term as of the time of such breach, which excess shall be discounted at the rate of five (5%) percent per annum to the then present value; and (iv) all other sums of money and damages owing by Tenant and Landlord. (d) Enter upon and take possession of the Premises as Tenant's agent without terminating this Lease and without being liable to prosecution or any claim for damages therefor, and Landlord may relet the Premises as Tenant's agent and receive the Rental therefor, in which event Tenant shall pay to Landlord on demand the cost of renovating, repairing, and altering the Premises for a new tenant or tenants and any deficiency that may arise by reason of such reletting; provided, 20 however, that Landlord shall have no duty to relet the Premises and Landlord's failure to relet the Premises shall not release or affect Tenant's liability for Rental due at the time Landlord enters the Premises, or for damages, or rent reserved herein for the balance of the term hereof. Do whatever Tenant is obligated to do under this Lease and may enter the Premises without being liable to prosecution or any claim for damages therefor, to accomplish this purpose. Tenant shall reimburse Landlord immediately upon demand for any expenses which Landlord incurs in thus effecting compliance with this Lease on Tenant's behalf, and Landlord shall not be liable for any damages suffered by Tenant from such action, whether caused by the negligence of Landlord or otherwise. Section 24.03. No act or thing done by Landlord or its agents during the Term shall constitute an acceptance of an attempted surrender of the Premises, and no agreement to accept a surrender of the Premises or to terminate this Lease shall be valid unless made in writing and signed by Landlord. No reentry or taking possession of the Premises by Landlord shall constitute an election by Landlord to tenninate.this Lease, unless a written notice of such intention is given to Tenant. Notwithstanding any such reletting or reentry or taking possession, Landlord may at any time thereafter terminate this Lease for a previous default. Landlord's acceptance of Rental following an event of default hereunder shalt not be construed as a waiver of such event of default. No waiver by Landlord of any breach of this Lease shalt constitute a waiver of any other violation or breach of any kind of the terms hereof. Forbearance by Landlord to enforce one or more of the remedies herein provided upon a breach hereof shall not constitute a waiver of any other breach of this-Lease. Section 24.04. No provision of this Lease shall be deemed to have been waived by Landlord or Tenant unless such waiver is in writing and signed by Landlord or Tenant, as appropriate. Nor shall any custom or practice which may evolve between the parties in the administration of the terms of'this Lease be construed to waive or lessen Landlord's right to insist upon strict performance of the terms of this Lease. The rights granted to Landlord in this Lease shall be cumulative of every other right or remedy which Landlord may otherwise have at law or in equity or by statute, end the exercise of one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of other rights or remedies. Section 24.05. Tenant hereby accepts notice to quit, remove from, and surrender up possession of the Space to Landlord at the expiration of the term hereof, whenever it may be determined. On failure to pay rent due, or upon breach of any other condition of this Lease and after ten (10) days' written notice thereof, despite the distraint, Tenant shall be a nontenant, subject to dispossession by Landlord, with release of error and of damages, and Landlord may reenter the premises and dispossess Tenant without thereby becoming a trespasser. Tenant hereby waives the benefit(s) of all exemption laws of this Commonwealth that now are in force or may hereinafter be in force, or in any action or actions that may accrue on this Lease, and in any distress or distresses that may be made for collection of the whole of said rent, or any part thereof. Tenant also waives the benefit of stay of execution, inquisition, extension, right of appeal, certiorari and all errors, in all proceedings arising out of this Lease. Tenant does also hereby waive any and all demand for payment of the rent herein provided for, either on the day due or on any other day, either on the land itself or in any. other place, and agrees that such 21 demand shall not be a condition of reentry or of recovery of possession without legal process or by means of any action or proceeding whatsoever. Section 24.06. If rent and/or charges hereby reserved as rent shall remain beyond the day when the same ought to be paid, which are not paid or contested in good faith within ten (10) business days after written notice of payment thereof, Tenant hereby empowers any Prothonotary or Attorney of any court of record to appear for Tenant in any and all actions which may be brought for rent and/or the charges, payments, costs and expenses reserved as rent, or agreed to be paid by Tenant and/or to sign for Tenant an agreement for entering into any competent court an amicable action or actions for the recovery of rent or other charges or expenses, or actions for the recovery of rent or other charges or expenses, and in said suit(s) or in said amicable action or action to confess judgment against Tenant for all or any part of the rent specified in this Lease and then unpaid including the rent for the entire unexpired balance of the term of this Lease, and/or other charges, payments, costs and expenses reserved as rent or agreed to be paid by Tenant, and for interest and costs together with reasonable attorneys' fees; and judgment in ejectment as herein provided may be entered concurrently therewith, or separately, as provided below. Judgment may be confessed repeatedly until any deficiency is collected. Section 24.07. At the end of said term, whether the same shall be determined by forfeiture or expiration of the term, or upon the breach of any of the conditions of this Lease, Tenant authorizes any attorney of a court of record in Pennsylvania to appear for Tenant in an amicable action: in ejectment and confess judgment for possession against Tenant in such action, and Tenant in such event further authorizes the immediate issuance of a Writ of Possession for the same, with Writ of Execution for the costs, and with reasonable attorney's fees for prosecution of such action. Section 24.08. In case suit shall be brought or Landlord confesses judgment for recovery of possession of the Demised Premises, for the recovery of rent, or any other amount due under the provisions of this Lease, or because of any default by Tenant, Tenant shall pay to Landlord all expenses incurred therefor, including reasonable attorney's fees. Section 24.09. All remedies of Landlord shall be cumulative and concurrent. ARTICLE 25 Waiver by Tenant Section 25.01. To the extent permitted by applicable law. Tenant waives for itself and all claiming by, through, and under it, including creditors of all kinds (a) any right and privilege which it or any of them may have under any present or future constitution, statute or rule of law to redeem the Premises or to have a continuance of this Lease for the Term after termination of Tenant's right of occupancy by order orjudgment of any court or by any legal process or writ, under the terms of this Lease, or after the termination of the Term as herein provided, (b) the benefits of any present or future constitution, statute or rule of law which exempts property from liability for debt or for distress for rent, and 22 (c) the provisions of law relating to notice and/or delay in levy of execution in case of eviction of a Tenant for non-payment of rent, and (d) notice to quit. ARTICLE 26 Security Deposit Section 26.01. The Security Deposit shall be held by Landlord, without interest, as security for the performance of Tenant's obligations under this Lease. Landlord may, without prejudice to any other remedy, use the Security Deposit to remedy any default in any obligation of Tenant hereunder, and such use shall survive the termination of this Lease, and Tenant shall promptly, on demand, restore the Security Deposit to its original amount. If Tenant is not in default at the termination of this Lease any remaining portion of the Security Deposit shall be returned to Tenant. If Landlord transfers its interest in the Premises during the Term, Landlord shall assign the Security Deposit to the transferee who shall then become obligated to Tenant for its return, and thereafter- Landlord shall have no further liability for its return. ARTICLE 27 Attomeys' Fees and Legal Expenses Section 27. In any action or proceeding brought by either party against the other with respect to this Lease, the prevailing party shall be entitled to recover from the other party attorneys' fees, investigation costs, and other legal expenses and court costs incurred by such party in such action or proceeding as the court may find to be reasonable. The prevailing party shall be the. one who receives the net judgment in its behalf at the end of any action. . ARTICLE 28 Notices Section 28.01. Any notice or document required to be delivered hereunder shall be considered delivered, whether actually received or not, when hand delivered to the address of the other party during-normal business hours, or two (2) business days after deposited in the United States Mail, postage prepaid, registered or certified mall; return receipt requested, or one (1) business day after depositing with a national overnight delivery service requiring receipt (such as UPS, Federal Express, etc.), all addressed to the parties hereto at the respective addresses specified in the Basic Lease Information, or at such other address as they have subsequently specified by written notice. ARTICLE 29 Miscellaneous Section 29.01. Where this Lease requires Tenant to reimburse Landlord the cost of any item, if no such cost has been stipulated, such cost will be the reasonable and customary charge . 23 therefor reasonably established by Landlord subject to Tenant's right to audit and/or contest the reasonableness thereof. Failure to pay any such reasonable cost shall be considered as a failure to pay Rental. Section 29.02. Tenant represents and warrants that it has had no dealings with any broker or agent in connection with the negotiation or execution of this Lease except such brokers or agents as may be identified in the Basic Lease Information. Tenant shall indemnify and hold Landlord harmless from any costs, expenses, or liability for commission or other compensation or charges (the "Commissions") claimed by any person; broker or agent (other than those identified in the Basic Lease information), claiming through association with Tenant with respect to this Lease. Landlord shall be responsible for the payment of all Commissions of the brokers identified in the Basic Lease Information. Z ?Ot7 S o n c?za.(S Section 29.03. Subiect to Section 8.01 b above as used herein, the t rms."business days" c IG52 ?- means Monday through Friday (except for holida s); "normal business ours" means 7:00 a.m. toTrgg". on business days and 7:00 a.m. to - .. p .m. on Saturdays, and "holidays" means those holidays designated by Landford, *hich h@idays shall tie consistent with those holidays designated by Landlords of comparable office Buildings in the immediate area and town. Section 29.04. Every agreement contained in this Lease is, and shall be construed as, a separate and independent agreement. If any term of this Lease or the application thereof to any person or circumstances shall be invalid and unenforceable, the remainder of this Lease, or the application of such term to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected. Section 29.05. There shall be no merger of this Lease or of the Leasehold estate hereby created with the fee estate in the Premises or any part thereof by reason of the fact that the same person may acquire or hold, directly or indirectly, this Lease or the Leasehold estate . hereby created or any interest in this Lease or in any interest in such fee estate. In the event of a voluntary or other surrender of this Lease, or a mutual cancellation hereof, Landlord may, at its option, terminate all subleases, or treat such surrender or cancellation as an assignment of such subleases. Section 29.06. Any liability of Landlord to Tenant or Tenant to Landlord under the Terms of this *efici ase shall be li ited to Landlord's interest in the Building and the Premises Mars Whichever is greater and Landlord shall not be personally liable for any e ncy beyond suc . AW& Section 29.07. Whenever a period of time is herein prescribed for action, other than the payment of money, to be taken by either party hereto, such party shall not be liable or responsible.for, and there shall be excluded from the computation for any such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, governmental laws, regulations or restrictions, or any other cause of any kind whatsoever which is beyond the control of such party. Section 29.08. The article headings contained in this Lease are for convenience only and shall not enlarge or limit the scope or meaning of the various and several articles hereof. Words of any gender used in this Lease shall includeany other gender, and words in the singular number shall be held to include the plural, .unless the context otherwise requires. 24 Section 29.09. If there be more than one Tenant, the obligations hereunder imposed Tenant shall be joint and several, and all agreements and covenants herein contained shall be binding upon the respective heirs, personal representatives, successors, and to the extent permitted under this Lease, assigns of the parties hereto. If there is a guarantor of Tenant's obligations hereunder, Tenant's obligations shall be joint and several obligations of Tenant and such guarantor, and Landlord need not first proceed against Tenant hereunder before proceeding against such guarantor, nor shall any such guarantor be released from its guarantee for any reason, including, without limitation, any amendment, renewal, expansion or diminution of this Lease, any. forbearance by Landlord or waiver of any of Landlord's rights, the failure to give Tenant or such guarantor any notices, or the release of any party liable for the payment of Tenant's obligations hereunder. Section 29.10. Neither Landlord nor Landlord's agents or brokers have made any representations or promises with respect to the Premises or the Building except as herein expressly set forth and all reliance with respect to any representations or promises is based solely on those contained herein. Section 29.11. This Lease sets forth the entire agreement between the parties regarding the subject matter hereof and cancels all prior negotiations, arrangements, brochures, agreements and understandings, if any, between Landlord and Tenant regarding the subject matter of this Lease. No amendment or modification of this Lease shall be binding or valid unless expressly in a writing executed by the party sought to be bound thereby. Section 29.12. The submission of this Lease to Tenant shall not be construed as an offer, nor shall Tenant have any rights with respect thereto unless Landlord executes a copy of this Lease and delivers the same to Tenant. . Section 29.13. If Tenant signs as a corporation, each of the persons executing this Lease on behalf of Tenant represents and warrants that Tenant is a duly organized and existing corporation, that Tenant has- and is qualified to do business in the Commonwealth of Pennsylvania, that the corporation has full right and authority to enter into this Lease, and that all persons signing on behalf of the corporation were authorized to do so by appropriate corporation actions. If Tenant signs as a partnership, trust, or other legal entity, each of the persons executing this Lease on behalf of Tenant represents and warrants that Tenant has complied with all applicable laws, rules and governmental regulations relative to its right to do business in the Commonwealth of Pennsylvania, that such entity has the full right and authority to enter into this Lease, and that all persons signing an behalf of the Tenant were authorized to do so by any and all necessary or appropriate partnership, trust, or other actions. Section 29.14. If, in connection with obtaining financing for the Building or of any ground or underlying Lease, and lender shall request reasonable modifications in the Lease as a condition for such financing, Tenant will not unreasonably withhold, delay or defer its consent thereto, provided that such modifications do not increase the obligations of Tenant hereunder or materially adversely affect either the.Leasehold interest hereby created or Tenant's use and enjoyment of the Premises. Section 29.15. This Lease shall be governed by and construed under the laws of the Commonwealth of Pennsylvania. Any action brought to enforce or interpret this Lease shall be 25 brought in the court of appropriate Jurisdiction in Dauphin County, Pennsylvania. Should any provision of this Lease require judicial interpretation, it is agreed that the Court interpreting or considering same shall not apply the presumption that the terms hereof shall be more strictly construed against a party by reason of the rule or conclusion that a document should be construed more strictly against the party who itself or through its agent prepared the same, it being agreed that all parties hereto have participated in the preparation of this Lease and that legal counsel was consulted by each party before the execution of this Lease. Section 29.16. Any elimination or shutting off of light, air, or view by any structure which may be erected on land adjacent to the Building or modification of the amenities to the Building shall in no way affect this Lease or impose any liability on Landlord. Section 29.17. Landlord may, upon reasonable notice (except in the case of emergencies in Landlord's discretion) enter upon the Premises at reasonable hours to inspect same or clean or make repairs or alterations (but without any obligation to do so, except as expressly provided for herein) and to show the Premises to prospective lenders or purchasers, and, during the last six (6) months of the Term of the Lease, to show them to prospective Tenants at reasonable hours and, if they are vacated, to prepare them for re-occupancy. Landlord shall cause its officers, agents and representatives to exercise care with any such entry not to unreasonably interfere-with the operation and normal office routine of Tenant (except in the case of emergency). Section 29.18. Whenever-any action taken or to be taken by Tenant requires the approval of Landlord, Landlord shall not unreasonably withhold, delay or condition such approval as determined by reasonable commercial standards then prevailing. Furthermore, whenever any decision or determination is to be made by Landlord, unless otherwise expressly reserved, such determination shall be made consistent with reasonable commercial standards then prevailing. Section 29.19. The exhibits and numbered riders attached to this Lease are, by this reference, incorporated fully herein. The term "this Lease" shall be considered to include all such exhibits and riders. Section 29.20. No delay or omission in the exercise of any right or remedy of Landlord on any default by Tenant or otherwise shall impair such right or remedy or be construed a waiver. The receipt and acceptance.of rent by Landlord of any rent payment shall not constitute a waiver of any default; it shall constitute only a waiver of timely payment for the particular rent payment involved. Any waiver by Landlord of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Lease. 26 IN WITNESS WHEREOF, Landlord and Tenant have set their hands and seals to this Lease Agreement the day and year first above written. LANDLORD: V J&4 vt' TE NT: n? ? .1Y4 27 WITNESS: r EXHIBIT D SERVICES PROVIDED BY LANDLORD While Tenant is occupying the Premises and is not in default under the Lease, Landlord shall, at its expense, but subject to the provisions of Articles 6 and 8 of the Lease, maintain the Building and Common Areas in first class condition, and shall furnish the Premises with: (a) janitorial cleaning services as are customarily provided to office Tenants in comparable office Buildings in the Harrisburg, Pennsylvania area; (b) the utility services provided for in Article 8 of the Lease; (c) maintenance and repairs of the Building and Common Areas, including, without limitation, landscaping, gardening, lawn mowing, snow and ice removal; and (d) maintenance of the same insurance coverage, for Landlord, as required for Tenant in Article 15 of the Lease. f V ? EXHIBIT E RULES AND REGULATIONS 1. Definitions. Wherever in these Rules and Regulations the word "Tenant" is used,. it shall be taken to apply to and include the Tenant, and its agents, employees, invitees, licensees, subtenants and contractors, and is to be deemed of such number and gender as the circumstances require. The word "Landlord" shall be taken to include the employees and agents of Landlord. 2. Obstructions. The streets, sidewalks, entrances, halls, passages, stairways and other common areas shall not be.obstructed by Tenant, or used for any other purpose than for ingress and egress, and Tenant shall keep the same in a safe condition. 3. Washrooms. Toilet rooms, water closets and other water apparatus shall not be used for any purpose other than those for which they were constructed. 4. Insurance Regulations. Tenant shall not do anything in the Premises, or bring or keep anything therein, which will in any way increase or tend to increase the risk of fire or the rate of fire insurance, or which will conflict with the regulations of the Fire Department or the fire laws, or with any insurance policy on the building or any part thereof, or with any law, ordinance, rule or regulation affecting the occupancy and use of the Premises, now existing or hereafter enacted or promulgated by the public authority or by the Board of Fire Underwriters. 5. General Prohibitions. In order to insure proper use and care of the Premises, Tenant shall not: (a) Keep animals or birds in the Premises. (b) Use the Premises as sleeping apartments. (c) Allow any sign, advertisement or notice to be fixed to the building, inside or outside, without Landlord's consent, which consent shall not be unreasonably withheld, except that Tenant will be listed on any directories or signs of Landlord. (d) Make improper noises or disturbances of any kind, or otherwise do anything that tends to injure the reputation or character of the building. (e) Mark or defile water closets, toilet rooms, walls, windows, doors and any other part of the building. (f) Place anything on the outside of the building, including roof set-backs, window ledges and other projections, or drop anything from the windows, stairways or parapets, or place trash or other matter in the halls of the building. (g) Cover or obstruct any window, skylight, door or transom that admits light in such a manner as to injure the reputation or character of the building. - > (h) Operate any machinery other than small office equipment and computers without consent of the Landlord. (i) Interfere with the heating or cooling apparatus. (j) install any shades, blinds or awnings that would in any way tend to injure or change the character of the building. (k) Use any electric heating device without the permission of Landlord. (i) Install call boxes or any kind of wire in or on the building without Landlord's permission and direction. (m) Give Tenant's employees or other persons permission to go upon the roof of the building without the written consent of Landlord, for any purpose other than inspection, maintenance and repair. 6. Publicity. Landlord shall have the right to reasonably prohibit or require modification of any advertising by Tenant which, in its opinion, tends to impair the reputation of the building or its desirability as a building for offices; and upon written notice from Landlord, Tenant shall refrain from or discontinue such advertising. Signs on interior glass doors will be painted only by persons designated by Landlord, the cost of the painting to be paid by Tenant. 7. Weight. Tenant shall not place a load upon any floor of the Premises exceeding the floor load per square foot allowed by law. Landlord reserves the right to prescribe the installations which must be placed so as to distribute the weight. Business machines and mechanical equipment shall be placed and maintained by Tenant at Tenant's expense in settings sufficient in Landlord's judgment to absorb and prevent vibration, noise and annoyance. 8. Regulation Changes. Landlord shall have the right to make such other and further reasonable rules and regulations as, in the judgment of Landlord, may from time to time be necessary for the safety, appearance, care and cleanliness of the building and for preservation of good order therein. Landlord shall not be responsible to Tenant for any violation of Rules and Regulations by other tenants. 9. Water. No-water fountain, air conditioning unit or system-or other apparatus shall be installed or used by Tenant without written consent of Landlord. 10. Walls. Tenant, without Landlord's prior approval shall not mark, paint, drill into, use adhesives on or in anyway deface any partitions or walls in the Premises. ' 11. Parking. Tenant, Tenant's agents, servants, employees, contractors, licensees or visitors, shall not park any vehicles in driveways, service entrances or areas posted as "No Parking." Violators will be towed away. - EXHIBIT F DESCRIPTION OF PARKING RIGHTS While Tenant is occupying the Premises and is not in default under this Lease, Tenant shall have the right to use parking spaces in the Parking Facility adjacent to the Building. Such parking spaces shall be used in common with other Tenants in the Building and shall not be separately designated or marked. Within the Parking Facilities, Landlord shall provide sufficient handicap and special use spaces to meet governmental requirements. .a - 96 EXHIBIT G RENEWAL OPTIONS Provided Tenant is not then in default, Tenant shall have the option of renewing this Lease for one additional term of five (5) years, upon a mutually acceptable rental rate, and by providing Landlord notice of its desire to renew at least nine (9) months prio"r to expiration of the original term. r= N' CERTIFICATE OF SERVICE I, Betty K. Sheaffer, employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that a true and correct copy of the foregoing document was sent to the following counsel of record by placing a copy of same by First Class in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Date: THOMAS, THOMAS & HAFER, LLP Betty Sheaffer r AV Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiffs Fax: (717) 233-3029 E-mail: HELDnhhrlaw.com MILDRED COSTA, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO.: 05-4094 PINNACLE HEALTH HOSPITAL : CIVIL ACTION - LAW Defendant : PLAINTIFF'S RESPONSE TO DEFENDANT, PINNACLE HEALTH HOSPITAL'S PRELIMINARY OBJECTIONS 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, paragraph 12 (g) is specific enough in order to allow Defendant to defend this action. Y 6. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, Plaintiff's breach of contract claim is not duplicative of negligence act claim. 7. Admitted. 8. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, Count II of Plaintiff's Complaint is not duplicative of Count I of Plaintiffs Complaint. Furthermore, Plaintiff is a third party beneficiary. 9. Admitted. 10. This paragraph refers to a document which speaks for itself and as such, any characterization of this document is denied. 11. This paragraph refers to a document which speaks for itself and as such, any characterization of this document is denied. 12. Admitted. 13. Admitted. 14. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. 15. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, Plaintiff is a third party beneficiary. r Alternatively, breach of contract claim is not duplicative of her negligence claim. 16. Admitted. 17. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, Plaintiffs Complaint is specific enough to allow Defendant to defend this action, see Conner v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983). 18. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. Byway of amplification, Count II of Plaintiffs Complaint should not be stricken. 19. This paragraph is a statement of relief to which no responsive pleading is required. Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP J"V e e It. Held, Esq. I.D. #72663 1300 Linglestown Road Harrisburg, PA 17110 717-238-2000 Attorney for Plaintiff A Stephen G. Held, Esquire Attorney I.D. No. 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Tele: (717) 238-2000 Fax: (717) 233-3029 HELDCa HHRLAW.COM Attorney for Plaintiff MILDRED COSTA, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO.: 05-4094 PINNACLE HEALTH HOSPITAL : CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE AND NOW, this 18`h day of May, 2006,1 hereby certify that I have served the within document upon Counsel for Defendant by sending a true and correct copy of the same to them via First Class United States mail, postage prepaid, and addressed as follows: First Class U. S. Mail: Evan Black, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P O Box 999 Harrisburg, PA 17108-0999 Hugh P. O'Neill, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 HANDLER, HENNING & ROSENBERG, LLP OLA k o, L v 0 4.d Maria Wells, Legal Secretary to Stephen G. Held, Esquire P o? C <J W -_ ? t CV Evan Black, Esquire Attorney I.D. 17884 Hugh P. O'Neill, III, Esquire Attorney I.D. 69986 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorney for Defendant Pinnacle Health Hospital MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ARGUMENT TO THE PROTHONOTARY: (1) Argument date requested is next term of Argument Court (in accordance with Local Court Rule 211-A) (2) The matter to be argued is Defendant's Preliminary Objections. (3) The party who has the burden is Defendant Pinnacle Health Hospital (4) The following named judge ( ) should ( ) should not hear the case for the following reasons: (5) Cases on the argument and equity list must be submitted upon oral arguments and briefs unless the Court agrees to consider the case on briefs only without oral argument. See Local Rule of Court NCV 211 E. The Court (is) X (is not) _ requested to consider case on briefs only. (6) Case will be argued by: Stephen G. Held. Esquire Representing Plaintiffs 1300 Lin0estown Road. Harrisburg. PA 17110 (Address) Hugh P. O'Neill. III. Esquire 305 North Front Street. P.O. Box 999 Harrisburg. PA 17101 Date 5 CJ 292784.1 Representing Defendant Pinnacle Health Hospital (Address) I, Betty K. Sheaffer, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: Stephen G. Held, Esquire 1300 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiffs Date: ?/? O(Q THOMAS, THOMAS & HAFER, LLP _lj By: Bet K. 3 heaffer n n f_. ? u ('r "" ;T n n?r:, ? mi ? N -n V [? _ ??_? L. C17 i ,? ._,?_ C? C'> _ _ - N ;O?r; _ .?? S" :A7 " ,z?- G MILDRED COSTA, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 05-4094 CIVIL PINNACLE HEALTH HOSPITAL, : Defendant : JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT BEFORE BAYLEY, P.J., AND HESS, J. ORDER AND NOW, this y'` day of August, 2006, the preliminary objection of the defendant in the nature of a motion to strike paragraph 12(g) of the complaint is GRANTED. The preliminary objection in the nature of a demurrer to Count II, breach of contract, is SUSTAINED. BY THE COURT, Stephen G. Held, Esquire For the Plaintiff Evan Black, Esquire Hugh P. O'Neill, III, Esquire For the Defendant 0 o?? 'did A'KSNN3d kNncr, ±NYIIH3"m G1 -01 Wv 01 SAV900Z AdViON"Oldd 314130 MO-03144 MILDRED COSTA, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 05-4094 CIVIL PINNACLE HEALTH HOSPITAL, : Defendant : JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT BEFORE BAYLEY, P.J., AND HESS, J. OPINION AND ORDER Mildred Costa ("Costa") worked for Jones, Daly, & Coldren at a property known as Pinnacle Health Fredrickson Outpatient Center ("Premises") in Mechanicsburg, Pennsylvania. (Comp. ¶ 3.) The property was owned by Pinnacle Health Hospital ("Pinnacle"), and Jones, Daly, & Coldren rented their space from Pinnacle. (Comp. ¶ 3.) Plaintiff Costa alleges that on or about November 3, 2003, at approximately 5:45 pm, she was lawfully on the premises and while walking in a stairwell, slipped and fell down the stairwell due to insufficient lighting. (Comp. ¶ 6.) Costa also alleges that at all times material, Pinnacle allowed the stairwell to exist without proper lighting and that there were no warning signs posted on the premises warning of the improperly lit stairwell. (Comp. 15, 6.) Costa filed her Complaint on April 11, 2006. In count I, she alleged negligence on the part of Pinnacle, for breaching its duty to provide a reasonably safe environment for all individuals who were lawfully on the premises, contending that it knew or should have known that there was insufficient lighting in the stairway where Costa fell. (Comp. 19-14.) In count II of the complaint, Costa raised a breach of contract claim against Pinnacle. She alleges that pursuant to an agreement and/or lease with Jones, Daly, & Coldren, Pinnacle was responsible for NO. 05-4094 CIVIL the maintenance of the lighting fixtures on the Premises and/or was responsible for maintaining the safe condition of the property, including but not limited to all light for the outdoor stairwell located at the Premises. (Comp. 120-23.) Costa claims she was a third-parry beneficiary of the contract, and her injuries were the direct result of Pinnacle's failure to properly maintain the stairwell. (Comp. ¶ 24-26.) Pinnacle has filed two preliminary objections to Plaintiff s complaint. The first is a motion to strike paragraph 12(g) of the complaint because it contains vague and nonspecific claims of negligence. At oral argument, the plaintiff agreed that the paragraph could be stricken. Pinnacle's second preliminary objection is in the nature of a demurrer to count Il, Pinnacle contends that plaintiff s allegation of breach of contract should be stricken for failure to state a claim upon which relief can be granted because Costa is not a third-party beneficiary to the lease agreement between Pinnacle and Jones, Daly, & Coldren, and also because the count is duplicative of the negligence count. (Prelim. Obj. ¶ 8.) The Pennsylvania Supreme Court related the standard of review for preliminary objections in the nature of a demurrer in Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick: All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purpose of this review.] The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. NO. 05-4094 CIVIL 587 A.2d 1346, 1349 (Pa. 1991). Therefore, "a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted." County of Allegheny v. Commonwealth of Pennsylvania, 490 A.2d 402, 408 (Pa. 1985). The modern law dealing with the claims of "third-party beneficiaries" in Pennsylvania was first set forth in Spires v. Hanover Insurance Co., 70 A.2d 828 (Pa. 1950). • In a plurality opinion, the Pennsylvania Supreme Court held that in order for a third party to recover on breach of contract, both parties to the contract must have expressed an intention, in the contract itself, that a third party be a beneficiary. Id. at 830-31. In Guy v. Liederbach, the Pennsylvania Supreme Court created an exception to this rule, holding that persons who are named beneficiaries under a will and who lose their intended legacy due to the failure of an attorney to properly draft the instrument may bring a cause of action in breach of contract against the attorney. 459 A.2d 744 (Pa. 1983). Along with creating this exception, the court adopted Section 302 of the Restatement (Second) of Contracts, and in doing so overruled Spires to the extent that it states the exclusive test for third-party beneficiaries. Id. at 751. Section 302 reads as follows: § 302. Intended And Incidental Beneficiaries (1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance. 3 NO. 05-4094 CIVIL (2) An incidental beneficiary is a beneficiary who is not an intended beneficiary. The Pennsylvania Supreme Court explained this section in Scarpitti v. Weborg, holding that even when it is not the written intent of both parties, a person can be an intended third-party beneficiary to a contract when "the circumstances are so compelling that recognition of the beneficiary's right is appropriate to effectuate the intention of the parties," and "when the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance." 609 A.2d 147, 150-51. After reviewing the contract in this case, it is clear that there was no intention of the parties to create third-party beneficiary status in licensees, invitees, or employees of Jones, Daly, & Coldren. Relevant portions of the contract are as follows: t Section 4.01 (Acceptance of the Premises and Building by Tenant) Taking possession of the Premises by Tenant shall be conclusive evidence that Tenant accepts the Premises as suitable for the purposes for which they are leased... Landlord shall not be liable, except for negligence or willful misconduct of itself, its contactors, agents, employees, licensees, tenants (other than Tenant), invitees, or representatives, to Tenant or any of its agents, employees, licensees, or invitees for any injury or damage to persons or property due to the condition of or any defect in the Premises or the Building or its mechanical systems and equipment which may exist or occur, and Tenant, for itself and its agents, employees, licensees, and invitees, expressly The contract, though referenced in the complaint, was not attached. Instead it was attached as an exhibit to the preliminary objections, A defendant may attach a copy of a written agreement where the plaintiff alleges an agreement based on a writing. Eckell v. Wilson, 597 A.2d 696 (1991); Satchall v. Insurance Placement Facility of PA, 361 A.2d 375 (Pa.Super. 1976) 4 NO. 05-4094 CIVIL assumes all risks of injury or damage to person or property, either proximate or remote, resulting from the condition of the Premises or the Building. Section 8.04 Failure to furnish, or any stoppage of the services provided for in Article 7 above and in this Article 8, resulting from any cause other than Landlord's gross negligence or willful misconduct shall not make Landlord liable in any respect for damages to either person, property or business... Section 14.01 (Ordinary Repairs) Landlord, as an Operating Expense, shall maintain the Premises and any fixtures, machinery or equipment initially installed as a Building Standard Leasehold improvement, or any replacements thereof in good, attractive, safe and first class operating condition... Section 19.01 (Indemnification) Tenant agrees that it will defend, indemnify, save and hold harmless Landlord from and against all claims, demands, actions, damages, loss, cost, liabilities, expenses and judgments suffered by, recovered from, or asserted against Landlord on account of any damage to any property or injury to, or death of, any person arising from the use of the building, the Premises, or the Parking Facilities by Tenant or its employees or invitees, except such as is caused by the negligence or willful misconduct of Landlord, its agents, employees, representatives, or contractors. There is no specific language in the contract creating third-party beneficiary status in employees of Jones, Daly, & Coldren. There is also no language that insinuates an intention of the parties to create third-party beneficiary status in the employees. In fact, the language of the lease seems specifically crafted to avoid such a beneficiary status. NO. 05-4094 CIVIL Costa relies on Evans v. Otis Elevator Company in her brief to assert that a party to a contract can have a contractual obligation to a third party. In the case, Otis Elevator entered into a contract with Sperling Tobacco Company to maintain and regularly inspect its freight elevator. Evans was personally injured due to a malfunction of the elevator. The court, in reaching its ruling that Evans had the capacity to sue, reasoned as follows: Generally a party to a contract does not become liable for a breach thereof to one who is not a party thereto. However, a party to a contract by the very nature of his contractual undertaking may place himself in such a position that the law will impose upon him a duty to perform his contractual undertaking in such manner that third persons- strangers to the contract-will not be injured thereby ...It is not the contract per se which creates the duty; it is the law which imposes the duty because of the nature of the undertaking in the contract. If a person undertakes by contract to make periodic examinations and inspections of equipment, such as elevators, he should reasonably foresee that a normal and natural result of his failure to properly perform such undertaking might result in injury not only to the owner of the equipment but also to third persons, including the owner's employees... The orbit of Otis' duty to third persons is measured by the nature and scope of his contractual undertaking with Sperling and, if, as presently appears, Otis undertook to inspect the elevator at regular intervals, and, if the elevator was in a defective or dangerous condition discoverable by reasonable inspection, Otis would be liable to third persons, regardless of any privity of contract, who might be injured by Otis' failure to properly perform its contractual undertaking of inspection. 168 A.2d 573, 575-76 (Pa. 1961). Otis Elevator is factually distinguishable from the present case. In Otis, the purpose of the contract was solely and specifically for the inspection and NO. 05-4094 CIVIL maintenance of an elevator, whereas in the present case the contract was primarily for the rental of a property, with a number of other duties owed. The nature and scope of the contractual undertaking is therefore different. Also, in Otis Elevator, Evans' claim was not for a breach of contract, but for negligence on the part of Otis Elevator. In the case sub judice, Costa's negligence claim can stand as Pinnacle may have breached a duty owed to Costa through the contractual obligation. However, Costa is not a third-party beneficiary to the contract as set forth in Spires v. Hanover Insurance Co. and its progeny and Section 302 of the Restatement (Second) of Contracts. Therefore, although Costa may have a claim for negligence, as did Evans against Otis Elevator, she does not have a claim for breach of contract, as she is not a third-party beneficiary. ORDER AND NOW, this g` day of August, 2006, the preliminary objection of the defendant in the nature of a motion to strike paragraph 12(g) of the complaint is GRANTED. The preliminary objection in the nature of a demurrer to Count II, breach of contract, is SUSTAINED. Stephen G. Held, Esquire For the Plaintiff Evan Black, Esquire Hugh P. O'Neill, III, Esquire For the Defendant BY THE COURT, Evan Black, Esquire Attorney I.D. 17884 Hugh P. O'Neill, III, Esquire Attorney I.D. 69986 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant Attorney for Defendant Pinnacle Health Hospital TO: Counsel IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendant intends to serve subpoenas upon the medical providers identified. The subpoenas to be served are identical to the ones attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. Respectfully submitted, Date: August 10, 2006 Thomas, Thomas er, LLP Hugh P. O'Neill, Esquire 305 N. Front Street, P.O. Box 999 Harrisburg, PA 17108-0999 717-441-7060 410565-1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the 10th day of August, on all counsel of records as follows: Stephen G. Held, Esquire 1300 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP rbara Onorato, Legal Assistant To Hugh P. O'Neill, III, Esquire 410565-1 MILDRED COSTA, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW PINNACLE HEALTH HOSPITAL, JURY TRIAL DEMANDED Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Orthopedic Institute of Pennsylvania, 3399 Trindle Road, Camp Hill, PA 17011 (Name of Person or Entity) Within twenty (20) days after service of tltis subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, diagnostic studies, writings, correspondence, etc. for treatment rendered on behalf of Mildred Costa, ssn: 459-92-3334, d/o/b: 11 /12/50 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. Ryou fall to produce the documents or things required by this subpoena, within twenty (20) days after Its service, the party serving this subpoena may seek a court order compelling you to comply with R. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Hugh P. O'Neill. III. Esquire ADDRESS 305 N. Front Street. POB 999 Harrisburg. PA 17108 TELEPHONE, (717) 237-7100 SUPREME COURT to No: 69986 ATTORNEY FOR: Defendant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Dr. Karen Campbell, 549 Fair Street, Bloomsburg, PA 17815 (Name of Person or Entity) WINdn twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, diagnostic studies, writings, correspondence, etc. for treatment rendered on behalf of Mildred Costa, ssn: 459-92-3334, d/o/b: 11/12150 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelrurg you to comply with k. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Hugh P. O'Neill. III. Esquire ADDRESS 305 N. Front Street. POB 999 Harrisburg. PA 17108 TELEPHONE, (717) 237-7100 SUPREME COURT ID No: 69986 ATTORNEY FOR: Defendant DATE: Seal of the Court BY THE COURT: Prothonotary/Clerk, Civil Division Deputy MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: First Choice Rehabilitation, 11 Flowers Drive, Mechanicsburg, PA 17050 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the foIbvtng documents or things: Any and all medical records, diagnostic studies, writings, correspondence, etc. for treatment rendered on behalf of Mildred Costa, ssn: 459-92-3334, d/o/b: 11/12/50 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, Within twenty (20) days after his service, the parry serving this subpoena may seek a court order compelling you to campy with k. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Hugh P. O'Neill. III. Esquire ADDRESS 305 N. Front Street. POB 999 Harrisburg. PA 17108 TELEPHONE- (717) 237-7100 SUPREME COURT ID No: 69986 ATTORNEY FOR: Defendant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Jones, Daley, Coldren & Associates, 2025 Technology Parkway, Mechanicsburg, PA 17055 (Name of Personor Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to Produce the following documents or things: Any and all employment records, including but not limited to application for employment, disability slips, accident reports ssn: 459-92-3334, d/o/b: 11/12/50 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 (Address) You may dettver or mail legible copies of the documents or produce things requested by this subpoena, together with the certHicate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, ft party serving this subpoena may seek a court order competlktg you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Hugh P. O'Neill. III. Esquire ADDRESS 305 N. Front Street. POB 999 Harrsbura. PA 17108 TELEPHONE: (717) 237-7100 SUPREME COURT to No: 69966 ATTORNEY FOR: Defendant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy c> n m G^7 .i.;fTt n r Evan Black, Esquire Attorney I.D. 17884 Hugh P. O'Neill, III, Esquire Attorney I.D. 69986 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorney for Defendant Pinnacle Health Hospital MILDRED COSTA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff NO.: 05-4094 V. CIVIL ACTION - LAW PINNACLE HEALTH HOSPITAL, JURY TRIAL DEMANDED Defendant NOTICE TO PLEAD TO: Mildred Costa c/o Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. 4Y Evan lack, squire I.D. No. 17884 Hugh P. O Neill, III, Esquire I.D. No. 69986 Date: 06 - 4, Evan Black, Esquire Attomey I.D. 17884 Hugh P. O'Neill, III, Esquire Attorney I.D. 69986 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant Attorney for Defendant Pinnacle Health Hospital IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, by and through its counsel, Thomas, Thomas & Hafer, LLP, and hereby files this Answer and New Matter to Plaintiff's Complaint and responds as follows: Denied. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form an opinion or belief as to the truth or falsity of the allegations contained therein. All allegations are placed at issue and strict proof thereof is demanded at time of trial. 2. Admitted. 3. Admitted in part, denied in part. It is only admitted that at all times relevant Defendant Pinnacle Health Hospital's owned the premises located at Pinnacle Health Frederickson Outpatient Center, 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania 17050. All other allegations including possession, management and control are specifically denied. Moreover, all allegations are denied as conclusions of law and denied pursuant to Pa. R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at time of trial. 4. Denied. All allegations are denied as conclusions of law and denied pursuant to Pa. R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at time of trial. 5. Denied. All allegations are denied as conclusions of law and denied pursuant to Pa. R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at time of trial. 6. Denied. All allegations are denied pursuant to Pa. R.C.P. 1029(e). All allegations are placed at issue and strict proof is demanded at time of trial. Denied. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form an opinion or belief as to the truth or falsity of the allegations contained therein. All allegations are further generally denied pursuant to Pa. R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at time of trial. 8. Denied. All allegations are denied as conclusions of law and denied pursuant to Pa. R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at time of trial. COUNT I - NEGLIGENCE Mildred Costa v. Pinnacle Health Hospital 9. Answering Defendant incorporates its responses to Paragraphs 1-8 as if set forth herein at length. 10. Admitted in part, denied in part. It is only admitted that at all times relevant Defendant owned the premises known as the Frederickson Outpatient Center at 2025 Technology 2 Parkway, Mechanicsburg, Cumberland County, Pennsylvania 17050. All other allegations including possession, management and/or control are specifically denied. By way of further answer, all allegations are denied as conclusions of law and denied pursuant to Pa. R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at time of trial. 11. Denied. All allegations are denied as conclusions of law and denied pursuant to Pa. R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at time of trial. 12. Denied. All allegations of negligence as described in subparts (a)-(f) are denied as Answering Defendant acted with the requisite standard of care at all times relevant. All allegations are further denied as conclusions of law and denied pursuant to Pa. R.C.P. 1029(e). The Court Order ruling on Defendant's Preliminary Objections is incorporated as if set forth herein at length. All allegations are denied as conclusions of law and denied pursuant to Pa. R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at time of trial. 13.49. Denied. All allegations of negligence are specifically denied as Answering Defendant acted with the requisite standard of care at all times relevant. By way of further response, all allegations are denied as conclusions of law and denied pursuant to Pa. R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at time of trial. WHEREFORE, Answering Defendant demands judgment in its favor and against all other parties, together with costs. 3 COUNT II - BREACH OF CONTRACT Mildred Costa v. Pinnacle Health Hospital 20.-26. Stricken pursuant to Court Order ruling on Defendant's Preliminary Objections. Said Court Order is incorporated as if set forth herein at length. WHEREFORE, Answering Defendant demands judgment in its favor and against all other parties, together with costs. NEW MATTER 27. Defendants incorporate Paragraphs 1-26 of this Answer as if set forth below. 28. Plaintiff's Complaint fails to state a claim upon which relief can be granted. 29. Plaintiffs claims are barred by the applicable statute of limitations 42 Pa. C.S.A. §5524. 30. Defendants at all times material hereto, acted in a careful, reasonable, and prudent manner consistent with the required standard of care. 31. Plaintiff assumed the risk. 32. Plaintiff's claims are barred, limited or reduced by the Pennsylvania Comparative Act, 42 Pa. C.S.A. §7102. 33. If Plaintiff suffered injuries as alleged, such allegations being specifically denied, Plaintiff s injuries were caused by persons, entities, occurrences, instrumentalities or events unrelated to and not under the control of Defendants. 34. The injuries and/or damages alleged to have been sustained by the Plaintiff were not proximately caused by Defendants. 4 35. Any acts or omissions of Defendants alleged to constitute negligence were not the substantial causes or factors of the subject incident and/or did not result in any injuries alleged by Plaintiff. 36. Plaintiff's injuries and losses, if any, were not caused by the conduct or negligence of Defendants, but rather were caused by pre-existing medical conditions and causes beyond the control of Defendants, and therefore Plaintiff may not recover against Defendants. 37. Plaintiff's claims, the existence of which are specifically denied by Defendants, may be reduced and/or limited by any collateral source of compensation and/or benefit in accordance with the Pennsylvania Supreme Court decision in Moorhead v. Crozier-Chester Medical Center. 38. Pa.R.C.P. 238 for delay damages is inapplicable under the fact of the present case and is unconstitutional and in violation of the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania. 39. For purposes of preserving the same, and subject to discovery, all or some of Plaintiffs claims may be barred pursuant to the affirmative defenses of release, offset, or accord and satisfaction. 5 WHEREFORE, Defendants demand judgment in their favor and against Plaintiff, together with costs. Date: G Respectfully submitted, Thomas, Thomas & Hafer By Evan Black, Esquire Attorney I.D. No. 17884 Hugh P. O'Neill, III, Esquire Attorney I.D. No. 69986 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorneys for Defendant Pinnacle Health Hospital 6 VERIFICATION I, Hugh P. O'Neill, III, Esquire, hereby certify that I am the Attorney of record for Defendant Pinnacle Health Hospital in the within matter and I have read the foregoing Answer and New Matter of Defendants to Plaintiffs Complaint and hereby affirm that they are true and correct to the best of my personal knowledge or information and belief. This Verification and statement is made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities; I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa. C.S. 4904. O'Neill, III, Esquire Dated: ! a '5 I, Betty K. Sheaffer, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: Stephen G. Held, Esquire 1300 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP By: 7C/ Betty I hea er Date: 03-IX 446661.1 o ? o " i - co C ) r i r -. J 5 .. i c.a Evan Black, Esquire Attorney I.D. 17884 Hugh P. O'Neill, III, Esquire Attorney I.D. 69986 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant Attorney for Defendant Pinnacle Health Hospital IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Please substitute the attached Verification of Defendant Pinnacle Health Hospital for the Attorney's Verification attached to the Answer and New Matter to Plaintiffs' Complaint filed on August 28, 2006. Date: ( O Respectfully submitted, Thomas, Thomas & Hafer, LLP By v Black, Esquire Attorney I.D. No. 17884 Hugh P. O'Neill, III, Esquire Attorney I.D. No. 69986 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorneys for Defendant Pinnacle Health Hospital VERIFICATION I, Robert T. Gabler, on behalf of Pinnacle Health Hospital, hereby state and aver that I have read the foregoing Answer and New Matter which was drafted by my counsel. The factual statements contained therein are true and correct to the best of my knowledge, information and belief, although the language is that of my counsel, and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unworn falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. Date: /2 A A Robert T. Gabler, on behalf of Pinnacle Health Hospital I, Betty K. Sheaffer, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: Stephen G. Held, Esquire 1300 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP By: Betty . Sheaffer Date: -91/(,Y 449121.1 ? ? 4 f:- rr ???, ? ??f •_?`f_ . ^? T3? 7 _? . ? r_7 ? _,= Y^' ? C7 ?j ,_ "', m J ? y C. i G? tJ4 ::? ?D Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax: (717) 233-3029 E-mail: HELD(a_hhrlaw.com Attorney for Plaintiffs MILDRED COSTA, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. PINNACLE HEALTH HOSPITAL : NO.: 05-4094 CIVIL ACTION - LAW Defendant : PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT AND NOW, comes the Plaintiff, Mildred Costa, in her own right, by and through her attorneys, HANDLER, HENNING & ROSENBERG, LLP, by Stephen G. Held, Esquire, who answers New Matter of Defendant as follows: 27. This is a paragraph of incorporation, to which no responsive pleading is required. 28. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, Plaintiff's Complaint states a claim upon which relief can be granted. 29. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, suit was filed within two years of the date of this accident. 30, The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, Defendant did not act in a careful, reasonable and prudent manner consistent with the required standard of care. 31. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, Plaintiff did not assume the risk. 32. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, Plaintiff was not negligent; therefore, Plaintiff's claims are not barred, limited nor reduced by the Pennsylvania Comparative Negligence Act 42 Pa. C.S.A. §7102. 33. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, all Plaintiff's injuries were caused by Instant Defendant. 34. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, Plaintiff's injuries and damages were proximately caused by Instant Defendants. 35. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, acts or omissions of Defendants were the substantial cause or factors of the subject incident and did result in the injuries alleged by Plaintiff. 36. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, all of Plaintiff's injuries and losses claimed were caused by the negligence of Defendants, not by pre-existing medical conditions or causes. 37. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, Plaintiff's claims may not be reduced nor limited by any collateral source of compensation or benefit. 38. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, Pa. R.C.P. 238 is not unconstitutional. 39. The averment of this paragraph is not in accordance with Pennsylvania practice regarding pleading as set forth in the Pa. R.C.P. As such, any New Matters alleged in Paragraph 39 were not pled correctly. Pursuant to Pa. R.C.P., all New Matters must be pled in this document or waived. WHEREFORE, Plaintiff requests this Honorable Court dismiss Defendant's Answer and New Matter and enter judgment in her favor. Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP Step n G. Held, Esq. I . D. #72663 1300 Linglestown Road Harrisburg, PA 17110 717-238-2000 Attorney for Plaintiff VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 (c) STEPHEN G. HELD, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to unsworn falsification to authorities. Date: 0 V&'- "0 T PHEN LD, ESQUIRE A Stephen G. Held, Esquire Attorney I.D. No. 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Tele: (717) 238-2000 Fax: (717) 233-3029 HELD(c)HHRLAW.COM Attorney for Plaintiff MILDRED COSTA, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant : NO.: 05-4094 : CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this !j +h day of September, 2006, 1 hereby certify that I have served the within document upon Counsel for Defendant by sending a true and correct copy of the same to them via First Class United States mail, postage prepaid, and addressed as follows: First Class U. S. Mail. Evan Black, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P O Box 999 Harrisburg, PA 17108-0999 Hugh P. O'Neill, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 HANDLER, HENNING & ROSENBERG, LLP '4Y1 0j ct-- 1 ) a :Q L Maria Wells, Legal Secretary to Stephen G. Held, Esquire ?__. - "? • .: ? _-? 'i t. _., - ?.,-? -': ? 1 ` -.'!s .' 4 Evan Black, Esquire Attorney I.D. 17884 Hugh P. O'Neill, III, Esquire Attorney I.D. 69986 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (71 "I) 441-7051 Attorney for Defendant Pinnacle Health Hospital MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Counsel Defendant intends to serve subpoenas upon the medical providers identified. The subpoenas to be served are identical to the ones attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. Respectfully submitted, Date: September 27, 2006 Thomas, Thomas & Hafer, LLP Ough P. O'Neill, III Esquire 05 N. Front Street, P.O. Box 999 Harrisburg, PA 17108-0999 717-441-7060 410565-1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the 27th day of September, on all counsel of records as follows: Stephen G. Held, Esquire 1300 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP __z 611121IM&eh- Barbara Onorato, Legal Assistant to Hugh P. O'Neill, III, Esquire 410565-1 MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Farrell Plastic Surgery, Suite 203, Fredricksen Outpatient Ctr, 2025 Technology Parkway, Mechanicsburg PA 1705 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, diagnostic studies, writings, correspondence, etc. for treatment rendered on behalf of Mildred Costa, ssn: 459-92-3334, d/o/b: 11/12/50 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with ft. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Hugh P. O'Neill, III. Esquire ADDRESS 305 N. Front Street, POB 999 Harrisburq, PA 17108 TELEPHONE: (717) 237-7100 SUPREME COURT ID No: 69986 ATTORNEY FOR: Defendant DATE: Seal of the Court BY THE COURT: Prothonotary/Clerk, Civil Division Deputy r MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Dr. Karen Campbell, Mechanicsburg Family Practice, 122 S. Filbert Street, Mechanicsburg PA 17055 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, diagnostic studies, writings, correspondence, etc. for treatment rendered on behalf of Mildred Costa, ssn: 459-92-3334, d/o/b: 11 /12/50 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Hugh P. O'Neill. III, Esquire ADDRESS 305 N. Front Street, POB 999 Harrisburg, PA 17108 TELEPHONE: (717) 237-7100 SUPREME COURT ID No: 69986 ATTORNEY FOR: Defendant DATE: Seal of the Court BY THE COURT: Prothonotary/Clerk, Civil Division Deputy r?_, -cz ,n Evan Black, Esquire Attorney I.D. 17884 Hugh P. O'Neill, III, Esquire Attorney I.D. 69986 Carrie E. Smyth, Esquire Attorney I.D. 202041 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorney for Defendant Pinnacle Health Hospital MILDRED COSTA, Plaintiff : V. PINNACLE HEALTH HOSPITAL, Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED MOTION FOR STATUS CONFERENCE OF DEFENDANT PINNACLE HEALTH HOSPTIAL AND NOW comes Defendant, Pinnacle Health Hospital, by and through its attorneys, Thomas, Thomas & Hafer, LLP, and hereby files this Motion for Status Conference, and avers as follows: 1. Plaintiff initiated this premises liability action against Defendant for certain personal injuries allegedly sustained as a result of a fall, which allegedly occurred at the Fredrickson Center in Mechanicsburg, Cumberland County, PA on November 3, 2003. The suit was initiated by Writ of Summons filed on August 10, 2005. Thereafter, Plaintiff filed a Complaint on or about April 13, 2006. A copy of Plaintiff's Complaint is attached hereto as Exhibit "A". 2. The pleadings are closed. 3. To date, significant discovery has taken place, including the exchange of written discovery, as well as deposition of Mildred Costa taken on August 2, 2006. 4. Defendant files this Motion for a Status Conference for the purpose of agreeing to mutually agreeable case management deadlines to expedite the resolution of this matter or schedule the same for trial. 5. Defendant notes that Judge Kevin A. Hess entered an Order on September 9, 2006, ruling on Defendant's Preliminary Objections. 6. Defendant respectfully requests that this Honorable Court enter an Order in the form proposed and schedule a time for a Case Management Conference to discuss any remaining discovery issues and to set out case management deadlines. WHEREFORE, Defendant respectfully requests that this Honorable Court grant Defendant's Motion for Scheduling Conference and assign this matter to a judge for holding the conference and the imposition of certain case management deadlines. Respectfully submitted, THOMAS, THOMAS & HI ER,; LP l Date: January 26, 2007 By, an ack, squire Hugh P. O'Neill, III, Esquire Carrie E. Smyth, Esquire P.O. Box 999 305 North Front Street Harrisburg, PA 17108-0999 (717) 441-7051 Attorneys for Defendant Pinnacle Health Hospital CERTIFICATE OF SERVICE I, Wendy Rhoades, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: Stephen G. Held, Esquire 1300 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP By: r rte. Wendy Rj&des Date: January 26, 2007 477373.1 F.xni b;-+ MILDRED COSTA, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 05-4094 PINNACLE HEALTH HOSPITAL : iCIVIL ACTION - LAW _ -? Defendant JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, Mildred Costa, by and through her attorneys; HANDLER, HENNING & ROSENBERG, LLP, by Stephen G. Held, Esquire, and brings forth this Complaint against Defendant, Pinnacle Health Hospital, and avers as follows: 1. Plaintiff, Mildred Costa, is an adult individual residing at 45 Village Court, Mechanicsburg, Cumberland County, Pennsylvania, 17050. 2. Defendant, Pinnacle Health Hospital, a not-for-profit corporation, registered and established under the laws of Pennsylvania, with a registered office located at P.O. Box 2353, Harrisburg, Dauphin County, Pennsylvania, 17105. 3. At all times material hereto, Defendant, Pinnacle Health Hospital, was in ownership, possession, management, and/or control of the Premises located at PinnacleHealth Fredrickson Outpatient Center, 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050 (hereinafter "Premises") 4. At all times material hereto, Plaintiff, Mildred Costa, was a contractor and/or invitee upon said Premises. 5. At all times material hereto, Defendant, who had exclusive control of said Premises, allowed the stairwell on said Premises to exist without proper lighting and which should have been properly lit. 6. At all times material hereto, there were no warning signs posted on the Premises warning of the improperly lit stairwell. 7. On or about November 3, 2003, at approximately 5:45 pm, Plaintiff, Mildred Costa, was lawfully on said premises. While traversing upon the stairwell on the Premises, Plaintiff was caused to slip and fall down said stairwell due to insufficient lighting. 8. As a direct and proximate result of the negligence of the Defendant, Pinnacle Health Hospital, the Plaintiff sustained extensive injuries as set forth more specifically below. COUNT I - NEGLIGENCE Mildred Costa v. Pinnacle Health Hospital 9. Paragraphs 1 - 8 are incorporated herein by reference as if fully set forth at length. 10. At all times material hereto, Plaintiff, Mildred Costa, believes and therefore avers that Defendant, Pinnacle Health Hospital, was in possession, management, and/or control of the Premises and was responsible for maintaining the safe condition of the Premises located at PinnacleHealth Fredrickson Outpatient Center, 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050. 11. At all times material hereto Defendant, Pinnacle Health Hospital, assumed the duty to provide a reasonably safe environment for all individuals who were lawfully on said Premises at the site located at PinnacleHealth Fredrickson Outpatient Center, 2025 2 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050 .. 12. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Mildred Costa, were caused directly and proximately by the negligence of Defendant, Pinnacle Health Hospital, by its agents, servants, workmen and/or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In causing or permitting insufficient lighting in the stairway of said Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the Premises; (b) In causing or permitting insufficient lighting in the stairway to remain when Defendant knew or should have known of the likelihood that the insufficient lighting in the stairway could cause injury; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the insufficient lighting in the stairway, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (d) In failing to ensure the lighting in the stairway of said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) In failing to post a warning sign or device in the area to notify of the dangerous condition of the insufficient lighting in the stairway of said Premises; 3 (f) In failing to fix or remedy the insufficient lighting in the stairway of said Premises so as to avoid the situation in which the Plaintiff fell; and (g) In failing to maintain the stairway of the Premises in a reasonably safe condition that would prevent Mildred Costa from slipping and falling due to lack of sufficient lighting. 13. Defendant, Pinnacle Health Hospital, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was insufficient lighting in the stairway where Plaintiff, Mildred Costa, fell. 14. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, sustained serious injuries, including, but not limited to, a left heel fracture and left ankle sprain. 15. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has undergone great physical pain, discomfort, and mental anguish, and she will continue to enure the same for an indefinite period of time in the future, to her great detriment and loss, physically, emotionally and financially. 16. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has been, and will in the future be, hindered from attending to her daily duties to her great detriment, loss, humiliation and embarrassment. 17. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has, and will in the future, suffer a loss of life's pleasures. 18. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has suffered lost wages/income and will in the 4 future continue to suffer a loss of income and/or loss of earning capacity. 19. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has been compelled, in order to affect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention and will be required to expend large sums of money for the same purposes in the future, to her great detriment and loss. WHEREFORE, Plaintiff, Mildred Costa, seeks damages from Defendant, Pinnacle Health Hospital, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT II - BREACH OF CONTRACT Mildred Costa v. Pinnacle Health Hospital 20. Paragraphs 1 through 19 are incorporated herein as if fully set forth at length. 21. The main thoroughfare of the property located at and known as PinnacleHealth Fredrickson Outpatient Center, 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050 contains a stairwell leading to its parking lot. 22. On or about November 3, 2003, Plaintiff was an employee of Jones, Daly & Coldren. 23. Pursuant to a contract, agreement and/or lease between Jones, Daly & Coldren and Defendant, Pinnacle Health Hospital, Defendant was responsible for the maintenance of the lighting fixtures on said Premises and/or was responsible for maintaining the safe condition of the property, including but not limited to all lighting for the outdoor stairwell located at and known as PinnacleHealth Fredrickson Outpatient Center, 5 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, '17050. (Plaintiff does not have copy of the aforementioned agreement however its existence has been evidenced through correspondence.) 24. Pursuant to the aforementioned agreement between Jones, Daly & Coldren and Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, was a third party beneficiary of the contract. 25. Defendant, Pinnacle Health Hospital, failed to properly maintain the stairwell and keep it sufficiently lit. 26. The occurrence of the aforementioned incident and the resulting, aforementioned injuries to Plaintiff, Mildred Costa, were a direct result of the failure of the Defendant, Pinnacle Health Hospital, to properly and/or timely repair the lighting fixtures on the Premises, thereby breaching the terms of the contract/agreement. WHEREFORE, Plaintiff, Mildred Costa, seeks damages from Defendant, Pinnacle Health Hospital, in an amount in excess of the compulsory arbitration limits of Cumberland County. Dated: Respectfully submitted, HAN L R, HE NI & ROSENBERG, LLP Steph n . Uld I. D. # 72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff 6 VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 (c) STEPHEN G. HELD, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to unsworn falsification to authorities. Date:- Ll I I ( STE G. HELD, QUIRE MILDRED COSTA, Plaintiff V. : PINNACLE HEALTH HOSPITAL : Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 11t" day of April, 2006,1 hereby certify that I have served the within document upon Counsel for Defendant by sending a true and correct copy of the same to them via First Class United States mail, postage prepaid, and addressed as follows: First Class U. S. Mail: Evan Black, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P O Box 999 Harrisburg, PA 17108-0999 Gerryanne Cauler, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P O Box 999 Harrisburg, PA 17108-0999 HANDLER, HENNING & ROSENBERG, LLP ---Y1 rap"Ic0- k) Q Maria Wells, Legal Secretary to Stephen G. Held, Esquire ?so200Kl MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2007, upon consideration of the Motion for Status Conference of Defendant Pinnacle Health Hospital, and any response thereto, it is hereby ORDERED and DECREED that said Motion is GRANTED and a Scheduling a Conference is scheduled for the c2 day of 2007 at a.m./p.m. before the Honorable in Courtroom Distribution to: Attorney for Plaintiff. Stephen G. Held, Esquire, Handler, Henning & Rosenberg, LLP, 1300 Linglestown Road, Harrisburg, PA 17110, Telephone: (717) 238-2000 Attorney for Defendant: Evan Black, Esquire, Thomas, Thomas & Hafer, LLP, 305 North Front Street, P. O. Box 999, Harrisburg, PA 17108, Telephone: (717) 441-7051 BY THE COURT: LRIZ MILDRED COSTA, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 05-4094 CIVIL PINNACLE HEALTH HOSPITAL, : Defendant : JURY TRIAL DEMANDED IN RE: STATUS CONFERENCE ORDER AND NOW, this 2 P day of February, 2007, at the request of counsel for the defendant and with the concurrence of counsel for the plaintiff, the status conference in the above matter set for March 29, 2007, is continued to Thursday, April 5, 2007, at 3:00 p.m. in the Chambers of the undersigned. BY THE COURT, ?phen G. Held, Esquire For the Plaintiff ugh P. O'Neill, III, Esquire For the Defendant J :rlm :Z t.ld 8Z 033 NOZ MILDRED COSTA, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. PINNACLE HEALTH HOSPITAL,: CIVIL ACTION - LAW Defendant NO. 05-4094 CIVIL TERM IN RE: STATUS CONFERENCE ORDER OF COURT AND NOW, this 5th day of April, 2007, following status conference with counsel, the following case management order is entered: 1. All outstanding discovery will be completed on or before the close of business June 1st, 2007. 2. All remaining expert reports shall be exchanged on or before the close of business June 1st, 2007. 3. Any and all diapositive motions will be filed on or before the close of business August 1st, 2007. The Court notes that this is a case for compulsory arbitration. By the Court, 1 4,wll? Kevin Hess, J. / tephen G. Held, Esquire / For the Plaintiff ugh P. O'Neill, III, Esquire r' /For the Defendant J : lfh ?` ", ?; • II j,y ! Z 6 a l LOU .t ' Evan Black, Esq. Attorney I.D. No.: 17884 Hugh P. O'Neill, Esq. Attomey I.D. No.: 69986 Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 (717) 441-7051 MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant ATTORNEYS FOR DEFENDANT PINNACLE HEALTH HOSPITAL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 05-4094 CIVIL ACTION - LA JURY TRIAL DEMANDED TO: Prothonotary of Cumberland County Please list this matter for the next Argument Court. PRAECIPE TO LIST CASE FOR ARGUMENT 1. Matter to be argued: Defendant's Motion for Summary Judgment 2. Identify counsel who will argue case: (a) For Plaintiff. Stephen G. Held, Esq. Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 For Defendants: Evan Black, Esq. Hugh P. O'Neill, III, Esq. Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: 3, o?OD? / Dated: /0 7 Attorney for efendants 521111-1 CERTIFICATE OF SERVICE I, Becky Rusbatch, Legal Secretary and an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 6-44 Rwk4h?:-- Becky Rusba ch, Legal Secretary Date: August f , 2007 2 C7 C) n rr! C', MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2007, upon consideration of the Defendants Motion for Summary Judgment and reply thereto, it is hereby ORDERED and DECREED that said Motion is GRANTED with prejudice. BY THE COURT: J. Distribution to: Attorney for Plaintiff: Stephen G. Held, Esquire, Handler, Henning & Rosenberg, LLP, 1300 Linglestown Road, Harrisburg, PA 17110, Telephone: (717) 238-2000 Attorney for Defendant: Evan Black, Esquire, Thomas, Thomas & Hafer, LLP, 305 North Front Street, P. O. Box 999, Harrisburg, PA 17108, Telephone: (717) 441-7051 Evan Black, Esquire Attorney I.D. 17884 Hugh P. O'Neill, III, Esquire Attorney I.D. 69986 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant Attorney for Defendant Pinnacle Health Hospital IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW comes Defendant, Pinnacle Health Hospital, (herinafter "Defendant" or "Moving Defendant") by and through its attorneys, Thomas, Thomas & Hafer, LLP, and hereby files this Motion for Summary Judgment and avers as follows: 1. Plaintiff initiated this premises liability action against Defendant for certain personal injuries allegedly sustained as a result of a fall, occurring at the Fredrickson Center in Mechanicsburg, Cumberland County, PA on November 3, 2003. The suit was initiated by Writ of Summons filed on August 10, 2005. Thereafter, Plaintiff filed a Complaint on or about April 13, 2006. A true and correct copy of Plaintiff's Complaint is attached hereto as Exhibit "A" . 2. Plaintiff alleges that on November 3, 2003, at approximately 5:45 pm, Mildred Costa was a business invitee of the Defendant at the Pinnacle Health Frederickson Outpatient Center, (hereinafter "Fredrickson Center") 2025 Technology Parkway, Mechanicsburg, PA 17050. 3. Plaintiff alleges that due solely to the negligence of the Defendants and its failure to maintain safe lighting on a stairwell at the Frederickson Center she suffered a slip and fall resulting in injuries to her, specifically, a left heel sprain and fracture. 4. Plaintiff had also alleged a Breach of Contract claim in her Complaint, but said claim was dismissed by this Honorable Court upon Preliminary Objection on August 9, 2006 5. Subparagraph 12 (g) of the Negligence Count was also dismissed on Preliminary Objection as it was determined that the allegations of this paragraph were too vague under the Pennsylvania Rules of Civil Procedure. 6. Discovery is closed in this matter and Plaintiff has produced an expert report in this matter from Curtis D. Goltz, D.O. to substantiate her claims of injury related to her claimed slip and fall of November 3, 2003. 7. This case is to be determined by Compulsory Arbitration according to the Cumberland County Rules of Civil Procedure and as noted by the Honorable Kevin A. Hess in his Scheduling Order of April 5, 2007. 8. Moving Defendant now files the instant Motion for Summary Judgment as Plaintiff has failed to produce evidence of record that Defendant had actual knowledge or should have known through the exercise of ordinary care there was insufficient lighting in the stairway where Plaintiff claims to have fallen. 2 9. Rule 1035.1 of the Pennsylvania Rules of Civil Procedure regarding Motions for Summary Judgment states in pertinent part: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law. (2) If after the completion of discovery relevant to the Motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense, which in a jury trial would require the issues to be submitted to a jM. {emphasis added.) Pa.R.C.P. 1035.2. 10. Summary judgment is properly granted when: 1) the material facts are undisputed; or 2) the evidentiary record contains insufficient evidence of facts to make out a prima facie cause of action, and therefore, there is no issue to be submitted to the jury. See Pa. R.C.P. 1035.2. 11. The Rules of Civil Procedure specifically authorize a motion for summary judgment based on a record that is insufficient to sustain a prima facie case. See Pa. R.C.P. 1035.5 and Eaddy v. Hamathy, 694 A.2d 639 (Pa. Super 1997). 12. It is well-settled law in Pennsylvania that in a case of premises liability the burden is upon the plaintiff to provide evidence of record that a potentially liable defendant had actual knowledge, notice or should have known through the exercise of ordinary care and diligence that a hazardous condition existed upon its property. See, Grip v. Litt Brothers, 181 Pa. Super. 444, 124 A.2d 378 (1956) and Cardone v. Sheldon Hotel, 160 Pa. Super. 193, 50 A.2d 700 (1947). 13. In the instant matter Plaintiff must provide evidence of record that Defendant was aware that insufficient lighting existed in the Frederickson stairway or that Defendant should have know of this "hazardous condition". 14. Plaintiff through her own testimony, was unable to establish that a hazardous condition existed and/or Defendant was aware of said condition. 15. In short, Plaintiff claims that the back steps of the Frederickson Center leading to the parking lot "always had lights out making said stairs dangerous". Please see pp. 36-48 Plaintiff's deposition testimony dated August 2, 2006. A true and correct copy of said transcript is attached hereto as Exhibit "B". 16 Moreover, Plaintiff stated that she had not noted if the specific light post which was "out" on the evening of her fall had been out the evening before. See referenced pages of Exhibit "B". 17. Lynda Bruno Gilbert, practice manager for Plaintiff's employer Daley, Jones and Coldren, LLP, testified that she had reported instances of lights being out on the parking lot stairs at the Fredrickson Center, but was not sure if it was before or after Plaintiff's fall. She also had not reported any complaints regarding conditions of said stairway. A true and correct copy of Ms. Gilbert's deposition transcript dated May 10, 2007 is attached hereto as Exhibit "C'. See specifically, pp. 10-18. 18. In short, Plaintiff has failed to provide any evidence that a hazardous condition existed the Frederickson parking lot stairway, that Defendant could or should have known said condition existed. 4 19. Defendant respectfully requests that this Honorable Court enter an Order in the form proposed and grant the instant Motion for Summary Judgment dismissing Plaintiff's Complaint with prejudice. WHEREFORE, Defendant respectfully requests that this Honorable Court grant Defendant's Motion for Summary Judgment with prejudice and enter an Order in the proposed form. / Date: 0 l 1017 Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: Evan B ck, Esquire Attorney I.D. No. 17884 Hugh P. O'Neill, III, Esquire Attorney I.D. No. 69986 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorney for Defendants 5 MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL : Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, Mildred Costa, by and through her attorneys, HANDLER, HENNING & ROSENBERG, LLP, by Stephen G. Held, Esquire, and brings forth this Complaint against Defendant, Pinnacle Health Hospital, and avers as follows: 1. Plaintiff, Mildred Costa, is an adult individual residing at 45 Village Court, Mechanicsburg, Cumberland County, Pennsylvania, 17050. 2. Defendant, Pinnacle Health Hospital, a not-for-profit corporation, registered and established under the laws of Pennsylvania, with a registered office located at P.O. Box 2353, Harrisburg, Dauphin County, Pennsylvania, 17105. 3. At all times material hereto, Defendant, Pinnacle Health Hospital, was in ownership, possession, management, and/or control of the Premises located at PinnacleHealth Fredrickson Outpatient Center, 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050 (hereinafter "Premises") 4. At all times material hereto, Plaintiff, Mildred Costa, was a contractor and/or invitee upon said Premises. 5. At all times material hereto, Defendant, who had exclusive control of said Premises, allowed the stairwell on said Premises to exist without proper lighting and which should have been properly lit. 6. At all times material hereto, there were no warning signs posted on the Premises warning of the improperly lit stairwell. 7. On or about November 3, 2003, at approximately 5:45 pm, Plaintiff, Mildred Costa, was lawfully on said premises. While traversing upon the stairwell on the Premises, Plaintiff was caused to slip and fall down said stairwell due to insufficient lighting. 8. As a direct and proximate result of the negligence of the Defendant, Pinnacle Health Hospital, the Plaintiff sustained extensive injuries as set forth more specifically below. COUNT I - NEGLIGENCE Mildred Costa v. Pinnacle Health Hospital 9. Paragraphs 1 - 8 are incorporated herein by reference as if fully set forth at length. 10. At all times material hereto, Plaintiff, Mildred Costa, believes and therefore avers that Defendant, Pinnacle Health Hospital, was in possession, management, and/or control of the Premises and was responsible for maintaining the safe condition of the Premises located at PinnacleHealth Fredrickson Outpatient Center, 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050. 11. At all times material hereto Defendant, Pinnacle Health Hospital, assumed the duty to provide a reasonably safe environment for all individuals who were lawfully on said Premises at the site located at PinnacleHealth Fredrickson Outpatient Center, 2025 2 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050 . 12. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Mildred Costa, were caused directly and proximately by the negligence of Defendant, Pinnacle Health Hospital, by its agents, servants, workmen and/or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In causing or permitting insufficient lighting in the stairway of said Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the Premises; (b) In causing or permitting insufficient lighting in the stairway to remain when Defendant knew or should have known of the likelihood that the insufficient lighting in the stairway could cause injury; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the insufficient lighting in the stairway, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (d) In failing to ensure the lighting in the stairway of said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) In failing to post a warning sign or device in the area to notify of the dangerous condition of the insufficient lighting in the stairway of said Premises; 3 } (f) In failing to fix or remedy the insufficient lighting in the stairway of said Premises so as to avoid the situation in which the Plaintiff fell; and (g) In failing to maintain the stairway of the Premises in a reasonably safe condition that would prevent Mildred Costa from slipping and falling due to lack of sufficient lighting. 13. Defendant, Pinnacle Health Hospital, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was insufficient lighting in the stairway where Plaintiff, Mildred Costa, fell. 14. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, sustained serious injuries, including, but not limited to, a left heel fracture and left ankle sprain. 15. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has undergone great physical pain, discomfort, and mental anguish, and she will continue to enure the same for an indefinite period of time in the future, to her great detriment and loss, physically, emotionally and financially. 16. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has been, and will in the future be, hindered from attending to her daily duties to her great detriment, loss, humiliation and embarrassment. 17. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has, and will in the future, suffer a loss of life's pleasures. 18. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has suffered lost wages/income and will in the 4 1 future continue to suffer a loss of income and/or loss of earning capacity. 19. As a direct and proximate result of the negligence of Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, has been compelled, in order to affect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention and will be required to expend large sums of money for the same purposes in the future, to her great detriment and loss. WHEREFORE, Plaintiff, Mildred Costa, seeks damages from Defendant, Pinnacle Health Hospital, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT II - BREACH OF CONTRACT Mildred Costa v. Pinnacle Health Hospital 20. Paragraphs 1 through 19 are incorporated herein as if fully set forth at length. 21. The main thoroughfare of the property located at and known as PinnacleHealth Fredrickson Outpatient Center, 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050 contains a stairwell leading to its parking lot. 22. On or about November 3, 2003, Plaintiff was an employee of Jones, Daly & Coldren. 23. Pursuant to a contract, agreement and/or lease between Jones, Daly & Coldren and Defendant, Pinnacle Health Hospital, Defendant was responsible for the maintenance of the lighting fixtures on said Premises and/or was responsible for maintaining the safe condition of the property, including but not limited to all lighting for the outdoor stairwell located at and known as PinnacleHealth Fredrickson Outpatient Center, 5 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania, 17050. (Plaintiff does not have copy of the aforementioned agreement however its existence has been evidenced through correspondence.) 24. Pursuant to the aforementioned agreement between Jones, Daly & Coldren and Defendant, Pinnacle Health Hospital, Plaintiff, Mildred Costa, was a third party beneficiary of the contract. 25. Defendant, Pinnacle Health Hospital, failed to properly maintain the stairwell and keep it sufficiently lit. 26. The occurrence of the aforementioned incident and the resulting, aforementioned injuries to Plaintiff, Mildred Costa, were a direct result of the failure of the Defendant, Pinnacle Health Hospital, to properly and/or timely repair the lighting fixtures on the Premises, thereby breaching the terms of the contract/agreement. WHEREFORE, Plaintiff, Mildred Costa, seeks damages from Defendant, Pinnacle Health Hospital, in an amount in excess of the compulsory arbitration limits of Cumberland Cou nty. Dated: Respectfully submitted, HAN R, HENNI hkn & ROSENBERG, LLP Steph n d I. D. # 72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff 6 VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 (c) STEPHEN G. HELD, ESQUIRE, states that he is the attorney forthe party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to unsworn falsification to authorities. Date: L STE G. HELD, QUIRE MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL : Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 11th day of April, 2006, 1 hereby certify that I have served the within document upon Counsel for Defendant by sending a true and correct copy of the same to them via First Class United States mail, postage prepaid, and addressed as follows: First Class U. S. Mail. Evan Black, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P O Box 999 Harrisburg, PA 17108-0999 Gerryanne Cauler, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P O Box 999 Harrisburg, PA 17108-0999 HANDLER, HENNING & ROSENBERG, LLP --fyY art co- tk) 1-P.L Maria Wells, Legal Secretary to Stephen G. Held, Esquire MILDRED COSTA, PLAINTIFF V 00 IN THE COURT OF COMMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-4094 PINNACLE HEALTH HOSPITAL, DEFENDANT JURY TRIAL DEMANDED DEPOSITION OF: MILDRED COSTA TAKEN BY: DEFENDANT BEFORE: KAREN C. ALBRIGHT, RPR NOTARY PUBLIC DATE: AUGUST 2, 2006, 1:10 P.M. PLACE: HANDLER, HENNING & ROSENBERG 1300 LINGLESTOWN ROAD HARRISBURG, PENNSYLVANIA APPEARANCES: HANDLER, HENNING & ROSENBERG BY: STEPHEN G. HELD, ESQUIRE FOR - PLAINTIFF THOMAS, THOMAS & HAFER, LLP BY: HUGH P. 0"NEILL, III, ESQUIRE FOR - DEFENDANT 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 9 Fax 717.540.0221 0 Lancaster 717.393.5101 Multi-PageTm WLDRED COSTA AUGUST 2, 2006 1 WITNESSES 2 NAME EXAMINATION 3 MILDRED COSTA 4 BY: O'NEILL 3 !,s 6 7 8 9 10 11 112 EXHIBITS I13 14 COSTA DEPOSITION EXHIBIT PRODUCED AND MARKED 15 1. PHOTOGRAPH 66 16 2. PHOTOGRAPH 67 17 3. PHOTOGRAPH 67 18 4,. PHOTOGRAPH 68 19 5. PHOTOGRAPH 70 20 6. STATEMENT 72 21 22 23 24 25 Page 2 Page 4 1 is being made of today's proceedings -- my questions, your 2 answers, anything that Mr. Held may put on the record. All 3 of that is being taken down by the court reporter. For 4 that reason, all of your answers to my questions need to be 5 verbalized, a yes, a no, or an explanation. Is that fair? 6 A That's fair. 7 Q If for some reason you don't hear a question or 8 you don't understand a question, let me know and I'll 9 repeat it or rephrase it until you do understand it. Okay? 10 A Okay. 11 Q If you give me an answer to any question, I'll 12 assume that you heard the question and understood it. 13 Okay? 14 A Okay. 15 'Q You are aware that this transcript may be used at 16 a later date if we proceed to trial? 17 A Yes. 18 Q As we proceed you may not recall some things; 19 that's fine. If, however, as we proceed through the 20 deposition you do recall something that you did not 21 remember at an earlier point, let me know so that we can go 22 back to that area of questioning. Okay? 23 A Okay. 24 Q Likewise, if as we proceed through the deposition 25 you want to change any of your testimony for whatever Page 3 1 STIPULATION 2 It is hereby stipulated by and between counsel 3 for the respective parties that reading, signing, sealing, 4 certification and filing are hereby waived; and that all 5 objections except as to the form of the question are 6 reserved to the time of trial. 7 8 MILDRED COSTA, called as a witness, being duly 9 sworn, testified as follows: 10 EXAMINATION 11 BY MR. O'NEILL: 12 Q Ma'am, good afternoon. My name's Hugh O'Neill. 13 I'm an attorney who's been retained to represent Pinnacle 14 Health with regard to a lawsuit that you filed against it 15 with regard to a fall that apparently took place on 16 November 3rd, 2003. I've asked you to be here today for 17 something called a deposition. Have you ever been deposed 18 before? 19 A No. 20 Q I'm going to give you some instructions so we all 21 have some sort of mutual understanding of what's going to 22 take place over the next few hours. Okay? 23 A Okay. . 24 Q I'd ask that you follow those instructions as we 25 proceed. The first thing to realize is that a transcript Page 5 1 reason, let me know and we can go back to that area of 2 questioning and you can change it to whatever answer you 3 would like. Okay? 4 A Okay. . 5 Q A lot of times in every day conversation there's 6 a tendency to anticipate what the question is and to 7 provide an answer before the question is complete. I ask 8 that you not do that today because the court reporter can 9 only take down one person speaking at a time. Okay? 10 A Okay. 11 Q If for any reason you need to take a break, let 12 me know. I don't think we're going to be terribly long, 13 but this is not designed to be a marathon session. Okay? 14 A Okay. 15 Q Is there any reason why we would not be able to 16 proceed with your deposition this afternoon? 17 A None. 18 Q Have you taken any drugs, alcohol, medication 19 that would impair your ability to recall events and relate 20 them to me truthfully and accurately? 21 A No. 22 Q What is your name, please? 23 A Mildred Costa. 24 Q What is your date of birth, ma'am? 25 A 11-12-50. rage - rage D HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 MILV"I) UUS'1"A AUGUST 2- 2006 Multi-Page ""° Page 6 j 1 Q And your social security number? 2 A 459-92-3334. 3 Q Are you man ied, divorced, separated? 4 A Divorced. 5 Q How long have you been divorced? 6 A Three years. 7 Q Were you married at the time of this event? 8 A No. 9 Q Was the divorce finalized as of that date, 11-3 to of '03? 11 A Yes. 12 Q Do you have any children? 13 A Yes. 14 Q How many? 15 A Two. 16 Q Their names? 17 A Scott Joseph Costa, and Charles. 18 Q How old is Scott? 19 A Scott's 35. 20 Q Charles? 21 A He's 24. 22 Q Where did you reside back in November of '03? 23 A 45 Village Court, Mechanicsburg, PA. 17055 -- 24 050. I'm sorry. 25 Q In November of 2003, did anyone reside with you Page 7 1 at that date? 2 A No. 3 Q From November 2003 until November 2004, did 4 anyone reside with you at that address? 5 A No. 6 Q Could you give me your educational background 7 starti ng with high school, please? 8 A High school, Coppers Cove, Texas. The Barton 9 School for Medical Assistants. 10 Q When did you graduate the Barton School? 11 A 1990. 12 Q Where is that located? 13 A By Scranton, Pennsylvania. 14 Q Any other formal training of any type? 15 A No. 16 Q Are you currently employed? 17 A Yes. 18 Q Where are you employed? 19 A Jones Daly Coldren Associates. 20 Q What is your position there currently? 21 A Medical assistant. 22 Q What are your current job duties and 23 responsibilities at Jones Daly as a medical assistant? 24 A Check in patients, out, entering billing data 25 into the computer, transferring patients records. Page 8 1 Q Transferring patient records? 2 A Yes. 3 Q As opposed to the patient themselves? 4 A Yes. I do some billing for the manager, for the 5 company itself, not the billing part for patients. 6 Q Anything else? 7 A If they need help taking patients back and I'm 8 asked, I do it. And that's about it. 9 Q Is that primarily a sedentary job? 10 A No. 11 Q How much of it is sitting versus standing versus 12 walking? 13 A I sit if I'm lucky maybe five, ten minutes at one 14 time. 15 Q Otherwise, what are you doing, physically? 16 A Retrieving things, checking on -- making sure -- 17 checking on things that have to be checked on for the 18 receipts, make sure that they're correct. When you're 19 doing the transfers you have to stand at the copying 20 machine to copy the records. So I'm up and down all day 21 long. 22 Q When were you first hired by Jones Daly? 23 A August 8th, 2000. 24 Q Currently work full time? 25 A Yes. Page 9 1 Q When you were hired back in August of 2000, were 2 you hired in a full time capacity? 3 A Yes. 4 Q When you were hired, were you given a written job 5 description for medical assistant at Jones Daly? 6 A No. 7 Q Currently is there a written job description for 8 medical assistant at the Jones Daly practice? 9 A Yes, there is. It depends on what job the person 10 is going for. 11 Q What do you mean by that? 12 A Each section has a different job description, 13 because there's several jobs within the practice. 14 Q What different sections are there? 15 A You have your billing section, you have your lab 16 section, you have your reception, you have your check out. 17 Q Where are you currently assigned out of those -- 18 A Check out. 19 Q Where were you back in November of 2003? 20 A Check out. 21 Q Where were you when you were hired? 22 A Check out. 23 Q Is there a written job description for the check 24 out section for medical assistant? 25 A Yes, there is. Page 6 -Page 9 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Multi-Page' MILDRED COSTA AUGUST 2- 2006 Page 10 1 Q Is that something that you can provide to your 2 attorney so he can provide it to me? 3 A Yes. 4 Q Okay, thank you. When you were hired in August 5 of 2000, who was your medicine supervisor? 6 A Carla Gamor. 7 Q Could you spell her last name, please? 8 A G-A-M-O-R. 9 Q Is she still there? 10 A Yes. 11 Q What is Carla's position with the practice? 12 A She's the nurse supervisor. 13 Q Who does Carla report to? 14 A The manager, Linda Bruno. 15 Q Was Carla your immediate supervisor in November 16 of 2003? 17 A Yes. 18 Q Was Linda the office manager back in October and 19 November of 2003? 20 A Yes. 21 Q Do you currently drive? 22 A Yes. 23 Q Do you have a driver's license? 24 A Yes. 25 Q Could I see it, please? Page 11 1 A Thank you. 2 MR. HELD: Miss Costa has provided me with a 3 Pennsylvania driver's license number 23018095 Class C, 4 expires November 13, 2008. Thank you. 5 BY MR. O'NEILL: 6 Q Do you need glasses or contact lenses to drive? 7 A No. 8 Q Do you wear glasses or contact lenses at all? 9 A Yes, to read. 10 Q When you work, are you required to punch a clock, 11 sign a sign in sheet, anything like that? 12 A We are now. We have a time clock. 13 Q How about back in November of 2003? 14 A We kept our own sheets. 15 Q Back in November 2003, would you turn those 16 sheets in to Carla or Linda on a weekly or monthly basis? 17 A It was on a bi-weekly. 18 Q Would that be turned in to Linda or Carla? 19 A Carla. 20 Q What did Carla do with them, if you know? 21 A She would add up all the hours and then give that 22 to the manager. 23 Q Are you paid currently on a salary basis or 24 hourly basis? 25 A Hourly. Page 12 1 Q How much do you make per hour currently? 2 A 12.15 an hour. 3 Q Is that any different from November 2003? 4 A Yes. 5 Q What was it back at the time of the incident? 6 Are you make being more now? 7 A Now, yes, I am. 8 Q I don't know if I asked this before. Have your 9 job duties changed at all from November 2003 until today? 10 A No. 11 Q So what you described for me earlier was 12 basically the same as what you did back in November 2003? 13 A Yes. 14 Q No difference? 15 A No. 16 Q Do you currently need anyone to assist you with 17 your job duties around the office because of this fall? 18 A Not at this time. 19 Q When was the last time that you needed someone to 20 help you around the office with your job duties? 21 A That was back in 2004. In February. 22 Q Since February of 2004, you've been able to 23 perform your job duties required of you as medical 24 assistant at Jones Daly without any assistance? 25 A Yes. Page 13 1 Q Prior to this incident, have you ever brought 2 suit against anyone? 3 A No. 4 Q Prior to this incident have you ever made a 5 workers' compensation claim? 6 MR. HELD: Just so we're clear for the record, 7 workers' compensation, does that include medical only 8 claims as well as medical and wages? 9 MR. O'NEILL: Any type of workers' comp claim. 10 MR. HELD: Workers' compensation claim includes 11 if you got hurt -- you didn't miss any work, but workers' 12 compensation paid your medical bills. 13 THE WITNESS: Yes. 14 BY MR. O'NEILL: 15 Q When was that? 16 A November -- no. They picked up January of 2004. 17 Q I mean, before the incident in November 2003, did 18 you make any type of claim? 19 A No. 20 Q Prior to November 2003, were you ever diagnosed 21 with any chronic diseases or illnesses that would affect 22 your back, legs, feet, ankles? 23 A No. 24 Q In November 2003, who was your family physician? 25 A Karen Campbell. Dr. Karen Campbell. Page 10 -Page 13 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 M1LD"D UUJ 1 A A11Tt1-TT1QT 7 I)nnA Mulu-rage - Page 14 1 Q Is she still your doctor? 2 A Yes. 3 Q When did you start seeing Dr. Campbell? 4 A I'm not understanding the question. 5 Q When did you first start to see Dr. Campbell as 6 your family physician? 7 A Back in 1988. 8 Q What were Linda Bruno's job duties and 9 responsibilities as office manager back in October and 1o November 2003? 11 A She runs the office. 12 Q What do you mean by that? 13 A She manages the whole office. 14 Q Does she have the authority to hire and fire 15 anyone or does that -- 16 A Yes. 17 Q Yes? How about sign checks? 18 A Yes. 19 Q How about negotiate contracts on behalf of the 20 medi cal practice? 21 A No. 22 Q Who would do that? 23 A The doctors. 24 Q Which ones? 25 A I could not answer that. There's nine of them. , Page 15 1 Q When you started with the practice back in August 2 of 2006, where was the practice located? 3 A I didn't start with the practice in 2006. 4 Q I meant 2000. August 8th, 2000. 5 A Would you repeat the question for me now? 6 Q Sure. 7 A Thanks. 8 Q When you started with the practice back in August 9 of 2000, where was it located? 10 A It was located on Third Street in Harrisburg. 11 Q At some point in time did it move? 12 A Yes. 13 Q Over to Frederickson? 14 A Yes. 15 Q When was that? 16 A 2001. 17 Q Currently how many offices does Jones Daly have? 18 A Two. 19 Q Where is the other one? 20 A It's in Camp Hill. 21 Q Do you ever work at that location? 22 A Yes. 23 Q How does that come to be that you work at the 24 Camp Hill office? 25 A I rotate offices. Page 16 1 Q How often do you rotate? 2 A It's on a weekly. I can be there one week one 3 day, the next week two days. 4 Q Do you know in advance which office you're going 5 to be at on any particular day? 6 A Yeah, one week in advance. 7 Q Is there any difference in what you do for the 8 practice whether or not you're at Camp Hill versus 9 Frederickson? 10 A No. 11 Q What did you do to prepare for today's 12 deposition? 13 MR. HELD: I object to the question. That calls 14 for privileged information. You can ask what documents she 15 reviewed. 16 BY MR. O'NEILL: 17 Q Did you meet with your counsel to prepare for 18 today's deposition? 19 A Yes. 20 Q Other than meeting with your counsel, did you do 21 anything to prepare for today's deposition? 22 A I watched a video. 23 Q What video did you watch? 24 A On how to prepare for a deposition. 25 Q What was the name of the video? Page 17 1 A I could not answer that. 2 Q Did you review any documents in preparation for 3 today' s deposition? 4 A No, sir. 5 Q Have you ever reviewed your medical records? 6 A On my own. 7 Q Did you review your answers to interrogatories? 8 Interrogatories are written questions. 9 A No. 10 Q Do you remember providing answers to written 11 questions from my office? 12 A Yes. 13 Q When you work at the Frederickson facility -- let 14 me ch ange that question a little. Back in November of 15 2003, when you would go to work at the Frederickson 16 buildi ng for Jones Daly, were you told where to park? 17 A No. 18 Q So the medical assistants for Jones Daly could 19 park anywhere on the Frederickson complex that they wanted? 20 A At the time, yes. 21 Q Has that changed? 22 A Not to my knowledge. 23 Q How many hours do you currently work per day? 24 A Eight. 25 Q [s that 9 to 5 or something else? Page 14 -Page 17 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220!717-393-5101 Multi-Page TM MILDRED COSTA AUGUST 2, 2006 Page 18 A 8 to 5. 2 Q Was that the same back in October-November of 3 2003? 4 A Yes. 5 Q On the day of the incident, what hours were you 6 working? 7 A 8to5. 8 Q Do you remember what time this accident happened? 9 A About -- I left work at 5:20. 10 Q About what time was the fall? 11 A About five minutes after that. 12 Q Is there any reason why you were leaving the 13 building a little bit later, after 5? 14 A Yes, I was finishing up work. 15 Q When you fill out your sheets -- let me rephrase. 16 When you would fill out these sheets that you would give to 17 Carla back in November of 2003, would you complete them on 18 a daily basis? 19 A Yes. 20 Q What day of the week was this fall? 21 A I believe it was a Tuesday. 22 Q Did you work on Monday? 23 A Yes. 24 Q Did you work the Friday before? 25 A Yes. Page 19 1 Q The Thursday before? 2 A Yes. 3 Q The Wednesday before? 4 A Yes. 5 Q The entire week before? 6 A Yes. 7 Q Back in 2003, did you have a particular location 8 at Frederickson that you liked to park? 9 A Yes, the first parking lot that you came to on 10 the back row you would turn in, make another right, and 11 there' s a back road. 12 Q Would you consider that parking area in the back 13 of the building? 14 A Yes. 15 Q This back road that you're talking about, is this 16 generally where the physicians parking area is? 17 A It's part of it. It's the very back part. 18 Q Did other employees of Jones Daly park in that 19 area? 20 A Yes. 21 Q The week before your fall, do you remember how 22 many days out of the week that you worked at Frederickson? 23 A Five. 24 Q All five? 25 A Yes. Page 20 1 Q How about Monday, did you work at Frederickson 2 that day? 3 A Yes. 4 Q The day before this fall, did you park in your 5 normal location in the back row? 6 A Yes. 7 Q The week before the fall, did you park in that 8 location in the back row? 9 A Yes. 10 Q If you were to park in the back row, the back 11 part of the physician's parking area at Frederickson, how 12 do you get into the building? 13 A There's a back door there. You go up the back 14 steps. 15 Q Now, it's the back door that leads to the main 16 lobby area? 17 A Correct. 18 Q If someone were to park in the physician parking 19 area and they were in a wheel chair, is there any way that 20 that person could get into the building? 21 A Through the side entrance, yes. 22 Q And the side entrance, does that bring you into 23 the level below the lobby? 24 A Yes, ground level. 25 Q Now, where is the side entrance in relation to Page 21 1 the back steps that you use? 2 A Are you talking in about how many feet or -- 3 Q Just generally, however you could describe it. 4 A When you first come into the main parking lot 5 there, it's right there off to your left. 6 Q Okay. The side entrance, is that something where 7 you generally parked your car back in October-November of 8 2003, could you see that side entrance? 9 A Yes. 10 Q And you could also see the back steps? 11 A Correct. 12 Q Back in October-November of 2003, were there any 13 particular hours that that side entrance could or could not 14 be used? 15 A No. 16 Q If you were to use the -- if you were in a wheel 17 chair and you were to use the side entrance and you wanted 18 to get up to the lobby area on the main floor, if you will, 19 is there an elevator? 20 A Yes. 21 Q Had you ever used that side entrance from the 22 time that Jones Daly moved its offices to Frederickson? 23 A Yes. 24 Q Is there anything that would determine when you 25 would use the side entrance versus using the back steps up Page 18 -Page 21 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 M11-0"L UUN 1 A ATTO-TTQT 7 ')nnd; Mulri-Page Page 22 Page 24 1 to the lobby level? 1 A Yes. 2 A No. 2 Q What type of security presence was there? 3 Q Is it easier for you to use the side entrance 3 A We never really saw anybody. I would imagine 4 versus the back steps? 4 they h ave cameras. 5 A No. 5 Q Have you ever seen a security guard around the 6 Q It's just whatever you feel like using on a 6 Frederickson facility? 7 particular day? 7 A Since then, yes. 8 A Right. 8 Q But before then, no? 9 Q Is it any further to walk to the side entrance 9 A No. 10 versus using the back steps? 10 Q On the day of the fall, did you leave work with 11 A No. 11 anyone or did you leave by yourself? 12 Q It's about the same? 12 A By myself. 13 A Yeah. 13 Q Was Carla still there? 14 Q Wherever you park? 14 A No. 15 A Well, there's -- where I park there's really no 15 Q How about Linda? 16 difference. 16 A No. 17 Q How about leaving in the evening, is there any 17 Q Who was left in the office when you left? 18 reason why you would use the back steps versus the side 18 A One doctor and two girls. 19 entrance to get to your car? 19 Q Who was the doctor? 20 A I felt safer than going in the elevator. 20 A At this time I don't remember. 21 Q Why is that? 21 Q Who are the two girls? 22 A I don't particularly like elevators. 22 A I could not answer that, either. 23 Q Because of? 23 Q When you left on November 3rd, 2003, had you 24 A They just scare me, the people who go in them, 24 written down the tithe that you were leaving on your sheet? 25 you never know. 25 A Yes. Page 23 1 Q Is this just elevators in general or the 2 elevators at Frederickson? 3 A Elevators in general I avoid. 4 Q Was there any problem with any type of crime or 5 assaul t at Frederickson since the time that Jones Daly 6 moved there up until the time of your fall in November 7 2003? 8 A Not to my knowledge. 9 Q When you left the office, were you generally the 10 last one to leave or -- 11 A No. 12 Q -- one of the first ones to leave? 13 A No. Our main office has evening hours until 14 8:00. 15 Q And that main office, is that the one at 16 Frederickson? 17 A Yes. 18 Q Until 7 p.m.? 19 A 8. 20 Q And that was the case in November of 2003 as 21 welt? 22 A Yes. 23 Q Back in October and November of 2003, was there 24 securi ty at the Frederickson building that you were aware 25 of? Page 25 1 Q Do you know if Jones Daly still has the time 2 sheets that were turned in by the employees from November 3 2003? 4 A I could not answer that one. 5 Q Were you paid any overtime if you had to stay 6 past 5:00? 7 A Yes. 8 Q So if you left, you know, 20, 30, 40 minutes 9 after your eight hours, you would be paid overtime for 10 that? 11 A Yes. 12 Q So you would want to keep an accurate amount of 13 time that you stayed after 5:00? 14 A Yes. 15 MR. O'NEILL: Could you read that question back? 16 (Question read.) 17 BY MR. OWEILL: 18 Q When you started working at the Frederickson 19 facility in 2001, did you start parking in the kind of back 20 row that you described earlier? 21 A Yes. 22 Q And would you be able to give a percentage for me 23 of the times when you would go into work in the morning 24 from 2001 up number November of 2003, of the times that you 25 would use the back steps versus the side entrance? Page 22 - Page 25 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Multi-Page' MILDRED COSTA AUGUST 2- 2006 Page 26 1 A 75 percent. 2 Q You would use the back steps? 3 A Yes. 4 Q How about leaving in the evening, could you give 5 me a percentage of the side entrance versus back steps? 6 A One hundred percent. 7 Q For the reasons you -- or the reason you 8 described earlier being you didn't like the elevator? 9 A Yes. 10 Q Were there steps that you could take down to the 11 bottom level to use the side entrance if you wanted so you 12 could avoid the elevator? 13 A Yes. 14 Q Were these public access steps in the facility? 15 A Yes. 16 Q As opposed to some dark stairwell? 17 A Yes. 18 Q Is there any particular reason why you did not 19 use the interior steps in the evening to get to the side 20 entrance? 21 A It was just easier for me to go out the side 22 door. 23 Q To go out the side door -- 24 A Well, the back door. 25 Q Easier in terms of? Page 27 1 A Time-wise. 2 Q Is it a longer walk to use the interior steps to 3 use the side door? 4 A No? 5 Q Then what makes it longer to use the interior 6 steps to get to the side door versus using the back door 7 and the back steps? 8 A I don't understand the question. 9 Q You had indicated that it was easier in terms of 10 time for you to use the back door and the back steps as 11 opposed to the interior steps and the side door, right? 12 A Right. 13 Q What makes it easier in terms of time of one 14 versus the other? I guess the better question is, 15 presumably I take your answer to mean it takes you slightly 16 less time to use the back door and the back steps as 17 opposed to the side door and the inside steps, is that 18 correct? 19 A That's correct. 20 Q What's the time difference? 21 A There is no time difference, really. 22 Q Then is there any particular reason why you would 23 use one, i.e., the back steps versus the side door? 24 A Yeah, back steps I was outside. The side door I 25 was still inside the building. Page 28 1 Q How did that factor into your decision making 2 process of using one versus the other? 3 A I like being outside. 4 Q Why? 5 A Fresh air. 6 Q Is there any other reason other than fresh air 7 that you used the back steps versus using the inside steps 8 to get to the side door? 9 A Fresh air and going home. 10 Q But in terms of walking distance, safety and 11 time, they were pretty much the same? 12 A Yes. 13 Q At any point prior to November 3rd of 2003, did 14 you have any problems using the back steps at Frederickson? 15 A Yes. 16 Q Okay. Why don't you first tell me what problem 17 you had. 18 A The problem I had was when the lights went out. 19 When there was a light out, you could not see the stairs. 20 I should say steps. 21 Q When was the first time that you noticed this 22 problem with the light being out that you could not see the 23 stairs or the steps? 24 A First time -- 25 Q First time. Page 29 1 A That I ever -- from the time that I worked there? 2 Q Correct. 3 A I can't give you an exact date. It's when the 4 time changes and it gets dark. 5 MR. O'NEILL: Can you excuse me? Sorry. 6 MR. HELD: Sure. No problem. 7 (Recess taken.) 8 BY MR. O'NEILL: 9 Q Miss Costa, before we took a quick break, we were 10 talking about a light being out on the back steps of 11 Frederickson. And I had asked when was the first time you 12 had noticed the light or lights being out. 13 A Yes. 14 Q And I don't think you necessarily gave me an 15 answer to that question. 16 A I can't give you a specific time or date. At 17 various times lights would be out. 18 Q And then they'd be, for lack of a better word, 19 fixed? 20 A Eventually. 21 Q This was not the -- let ine phrase it differently. 22 You said that you had worked the day before 23 your fall? 24 A Correct. 25 Q Was the particular light that was out at the time Page 26 -Page 29 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 MILUKED UUN'I'A ATTr:TTQT 7 7006 Multi-Page '- Page 30 1 of your fall, was that out the day before? 2 A If I left work the day before, no. 3 Q How about the week before? 4 A Not that specific light, but there were others on 5 that, that were. 6 Q So there were -- if I understand your answer, the 7 week before your fall there were other lights on that 8 flight of steps that were out? 9 A Yes. 10 Q Were they fixed that week, meaning the week 11 before your accident? 12 A Eventually they were, yes. 13 Q Were they fixed during the week before your fall? 14 A The other lights? Yes. 15 Q Now, the day before your fall, were all of the 16 lights working? 17 A To my knowledge, yes. 18 Q Do you recall if all of the lights were working 19 as of the Friday before your fall? 20 A There were some out. It was usually maybe one 21 here and one there. It's not when you go down the stairs 22 they have two lights on each section of steps. You've got 23 so many steps then you've got a break, and you've got some 24 more steps. And they have two lights on each side, and 25 usually maybe one will go out or they'll both go out. Page 31 1 Q Okay. Now, on the occasions before this, where 2 the lights were out, what would you do? 3 A We would go into the office in the morning and 4 report it. 5 Q Okay. But you would still go down the steps? 6 A Yes, very carefully. 7 Q Why would you go down very carefully? 8 A Because you can't see that last step where the 9 light is supposed to be, before you hit the landing. 10 Q Why don't you tell me what happened the day of 11 your fall. Evening of your fall. 12 A I left work, I came out, and I noticed on two of 13 the landings there was a light out on each one. I had my 14 purse on my shoulder, left shoulder. I had a coffee cup in 15 my right hand and I switched it to my left hand so I could 16 hold onto the railing, and I went down the stairs very, 17 very carefully, because I couldn't see -- where the light 18 was out you couldn't see the step, so I knew I had to be 19 careful. And I walked down. I made to it the second 20 landing, got down to the next to the last step. Didn't 21 even see the step. And that's when I fell. 22 Q Right before the second landing? 23 A I was on the second landing coming down to the 24 third landing. 25 Q In terms of sets of steps, I think there's five Page 32 1 sets of steps going down? 2 A Um-hum. 3 Q Yes? 4 A I believe so, yes. 5 Q Which set of steps was it that you fell on, 6 starting from the top? Was it the first, second, third, 7 fourth or fifth? 8 A Second set. 9 Q The second set of steps. What happened when yo 10 fell? 11 A I landed on my heel full force, twisted the whole 12 ankle and foot underneath. 13 Q You landed on what, was it a step or the landing? 14 A The landing. Completely missed the step. 15 Q So you missed the last step? 16 A Correct, 17 Q So you went from the second to the last step to 18 the landing? 19 A Correct. 20 Q You said there were two lights out? 21 A Yes. 22 Q Was the second light out further down? 23 A No. 24 Q Was it the two lights directly opposite each 25 other? Page 33 1 A No. 2 Q Where was the other light that was out? 3 A On the first landing. First set of stairs, I 4 should say. 5 Q Did you notice the two lights were out before you 6 started going down the steps? 7 A I didn't notice the first one, I noticed the 8 second -- going down the second set of stairs. 9 Q What prevented you from seeing that the first 10 light was out? I I A I wasn't paying attention when I first 12 approached. It was at the top of the stairs. 13 Q If you weren't paying attention when you were at 14 the top of the stairs, at what point did you notice that 15 the first light was out? 16 A After I fell and turned around, I noticed it was 17 out. 18 Q When you noticed the second light was out, why 19 didn't you go back inside the building and then go down the 20 inside stairs and go out the side door? 21 A Because I was being very careful going down. 22 Q And you were being careful because? 23 A I knew that light was out. 24 Q But you thought you could safely go down the 25 steps despite the fact the tight was out? Page 30-Page 33 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Multi-Page MILDRED COSTA AUGUST 2, 2006 Page 34 1 A Correct. 2 Q And you were being careful when you were going 3 down the steps because you thought there was a possibility 4 that you could trip and/or fall? 5 A Correct. 6 Q And you were being careful because you knew you 7 could trip and/or fall and you could become injured as a 8 result of tripping or falling, is that correct? 9 A Yes. 10 Q And you still went down the steps as opposed to 11 going back inside and going down through the side entrance? 12 A Climbing down more stairs, yes. 13 Q Did you know of any problems with the interior 14 stairs on the evening of November 3rd, 2003? 15 A No. 16 Q Did you know of any particular problem with the 17 side entrance on the evening of November 3, 2003? 18 A No. 19 Q Was there anything that prevented you from going 20 around and going that route when you realized the light was 21 out? 22 A No. 23 Q Did anyone witness your fall? 24 A No. 25 Q Are you aware of anyone who had problems on the Page 35 1 back steps before you did that night? 2 MR. HELD: Hold on. That's kind of a dangling 3 modifier. Are you asking if she knew -- 4 MR. O'NEILL: I will rephrase it. I'll rephrase 5 it. 6 MR. HELD: Okay. 7 BY MR. O'NEILL: 8 Q Are you aware of anyone having problems with the 9 back steps other than yourself on the evening of November 10 3rd, 2003? 11 A No. 12 Q Be it before or after your fall? 13 A No. 14 Q Okay. What did you do after you fell? 15 A Went home. 16 Q Did you go back inside to the office? 17 A No. 18 Q Why not? 19 A Because I felt I was lucky enough to get to my 20 car . 21 Q There was a doctor in there? 22 A Yes. 23 Q There were two nurses? 24 A Yes. 25 Q Did you have any cuts, scrapes, bruises, Page 36 1 abrasions from your fall? 2 A No. 3 Q Did anyone come to your assistance after your 4 fall? 5 A No. 6 Q Did anyone help you from where you fell to your 7 car? 8 A No. 9 Q Did you have any problems driving home after your 10 fall? 11 A No. 12 Q What type of shoes were you wearing at the time 13 of the fall? 14 A Sneakers. 15 Q What was the weather conditions like on the 16 evening of your fall? 17 A Cold, dark and dry. 18 Q Had it rained at all earlier that day? 19 A No. 20 Q Do you know if it rained later that night? 21 A No. 22 Q You said it was dark? 23 A Yes. 24 Q What do you mean by dark? 25 A It was already dark outside. Page 37 1 Q The sun had set? 2 A Yes. 3 Q Other than it was dark and the sun had set, would 4 you describe it as being dusk? 5 A No. 6 Q It was nighttime? 7 A Correct. 8 Q Do you know what time the sun had set that 9 particular day? 10 A No, sir. 11 Q Do you know what phase the moon was in that 12 particular night? 13 A No, sir. 14 Q If you were to sit on the steps, if you were, 15 with a newspaper on the night of your fall, would you have 16 been able to read the newspaper? 17 A No. 18 Q Was it so dark out that if you held your hand up 19 at an ann's length from your face, could you see your hand? 20 A With or without lighting around? 21 Q Where you fell. If you held your hand in front 22 of your face -- 23 A Yes, you could see your hand. 24 Q But you couldn't read a newspaper if you were 25 standing there? Page 34 -Page 37 MTGHF.S ALBRIGHT FOLTZ NATALF. 717-540-0220/717-393-5101 MILDRED COSTA AUGUST 2, 2006 Multi-Page " Page 38 1 A No. 2 Q Do you have grandchildren? 3 A Yes. 4 Q How old are they? 5 A 11, 10, 6, 2 and one on the way. 6 Q I assume at some point you've read to your 7 grandkids? 8 A Yes. 9 Q They have children's books? 10 A Yes. 11 Q The Cat in the Hat and other things like that? 12 A Yes. 13 Q If you wanted to read one of those books with 14 bigger print, would you be able to read one of those books 15 in the area where you fell on the night of your fall? 16 A No. 17 Q So the lighting conditions were such that it was 18 somewhere between you couldn't read something and you could 19 see in front of your face? 20 A If it was big enough, yes, the object. 21 Q Meaning your hand? 22 A Um-hum. Yes. 23 Q What color were your sneakers? 24 A White. 25 Q When you were walking down the steps before your Page 39 1 fall, could you see your white sneakers? 2 A Yes. 3 Q Are you aware of anyone -- actually, strike that. 4 You told me before that there were occasions 5 where lights were out on these steps? 6 A Yes. 7 Q Did you ever report lights being out on other 8 occasions? 9 A Yes. 10 Q Who would you report it to? 11 A My office. They in turn called maintenance. 12 Q Is there anyone in particular at the office who 13 was charged with the responsibility of contacting 14 maintenance to fix the lights? 15 A No. 16 Q Would Linda do that? 17 A Occasionally. 18 Q Is there anyone else who would contact 19 maintenance other than Linda? 20 A At that time it was anybody that you would tell. 21 Q Could you do it? 22 A Yes. 23 Q Prior to your fall in November 3rd, had you 24 reported problems to maintenance before? 25 A No. Page 40 1 Q Have you done since then? 2 A No. I don't take stairs no more. 3 Q How do you go? 4 A Over there. I go out the front door. 5 Q Why do you do that? 6 A Because I don't feel that those stairs are safe. 7 Q Why not? 8 A Because the lights are out on them all the time. 9 Every time you turn around there's a light out and it 10 doesn't get fixed on a timely basis. 11 Q What route do you take now to get to your -- 12 strike that. 13 Do you still park in the same spot? 14 A No. 15 Q Where do you park? 16 A I park out in the front parking lot of the 17 building. 18 Q Any other reason why you don't take the stairs? 19 A No. 20 Q There was interrogatory No. 12 that I was 21 provided an answer to. I'll show you the interrogatory. 22 A Okay. 23 Q And the answer is that Jones Daly Coldren office 24 has informed maintenance staff on several occasions, 25 specific dates unknown. Is there anyone at Jones Daly Page 41 1 Coldren who would keep track of when any reports would be 2 made to maintenance the unsafe or dangerous conditions? 3 A Not to my knowledge. 4 Q What's the basis for that answer, that the Jones 5 Daly Coldren office had informed maintenance staff on 6 several occasions of the conditions? 7 A The basis of that answer is we talk among each 8 other and discuss certain aspects, and when I came in and 9 told them I had fallen is when I discovered anybody who 10 comes in and has something to tell about to maintenance or 11 anything, we -- it's like a grapevine. There is no set 12 log. 13 Q Who did you first tell that -- tell about your 14 fall? 15 A I hobbled into work that morning, following 16 morning. I couldn't even put my shoe on. I had -- I 17 carried my shoe. And there was a doctor there and -- 18 Q Who was the doctor? 19 A I believe Dr. Weber. And asked -- I asked him -- 20 well, one of the nurses had asked him to look at my foot, 21 and he sent me straight to X-ray. 22 Q And then what happened? 23 A From there I went to OIP. 24 Q Did someone call over to 01P to make an 25 appointment for you? Page dZi - Page 41 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Multi-Page`` I before your fall? 2 A Yes. Page 42 1 A Yes. 2 Q At some point in time did you talk to Linda about 3 your fall? 4 A Yes. 5 Q What did you tell her? 6 A How I fell. The lights were out. And then from 7 t here I went, had the X-rays at oiP. 8 Q When you had this conversation, the grapevine 9 conversation, who was part of that conversation? 10 A A lot of the other girls that work there. 11 Q Do you remember any of them in particular? 12 A Yes, I do. 13 Q Who? 14 A There was Cindy, Jane, Ruby. Those were the main 15 three that were there that early. 16 Q Do they have last names? How about Cindy? 17 A Cindy Hatcher. 18 Q Does she still work at Jones Daly? 19 A Yes. 20 Q How about Jane? 21 A Jane Wallace. 22 Q Is she still there? 23 A Yes. 24 Q How about Ruby? 25 A Rubber Fetterhoffer. Page 43 1 Q Is she still there? 2 A Yes. 3 Q Are they medical assistants, nurses? 4 A All nurses. 5 Q What did they tell you as part of this 6 conversation? 7 A Conversation to what? 8 Q About your fall and the lights outside. 9 A Conversation to the fall? They helped me. 10 Q What I'm asking about is, you know, the basis for 11 the answer to No. 12, that your office had informed the 12 maintenance staff on several occasions, specific dates 13 unknown, of the conditions. 14 A Correct. 15 Q And I'm trying to find out what the basis for 16 your belief that Jones Daly had informed maintenance staff 17 on several occasions of the dangerous conditions that 18 caused your fall. 19 A The basis that I got from it is when I mentioned 20 I fell and there was a light out, others had stated there 21 were lights out at other times also that we have reported 22 to maintenance. 23 Q Other times? 24 A Yes. 25 Q Other than the night of your fall or the night MILDRED COSTA AUGUST 2, 2006 Page 44 3 Q Are you aware of the Jones Daly office making any 4 complaints to maintenance the week before your fall? 5 A Yes. 6 Q What's the basis for that answer? 7 A The manager would call maintenance periodically 8 that week. 9 Q Linda? 10 A Yes. For one thing or another for maintenance. 11 Q For general maintenance issues? 12 A That, and I know she made several calls on the 13 lights being out, also. 14 Q In particular the lights on the back steps? 15 A Yes. Because she took them also. 16 Q However, you did not notice the lights being out 17 the evening before your fall, did you? 18 A Not the top one, no. 19 Q Any of them. 20 A The top one, no. 21 Q Did you notice any of the lights being out the 22 night before your fall? 23 A The night before, no. 24 Q And that's something you would notice? 25 A Yes. Page 45 1 Q Are you aware of anyone from maintenance working 2 on the lights the day before your fall or the week before 3 your fall? 4 A No. 5 Q Have you spoken to anyone at Pinnacle about your 6 fall? 7 A No. 8 Q Have you communicated directly with anyone at 9 Pinnacle about your fall? 10 A No. 11 Q Do you know if anyone at Jones Daly has 12 communicated with Pinnacle about your fall? 13 A No. 14 Q Do you know if Linda has? 15 A No. 16 Q Do you know how your fall was first reported to 17 Pinnacle after it happened? 18 A No. 19 Q Let me show you another interrogatory. It's No. 20 13. It has a couple of subparts. 21 MR. O'NEILL: Steve, is there a verification that 22 goes with these? 23 MR. HELD: Is there one attached? 24 MR. O'NEILL: I didn't see it. 25 MR. HELD: I'm sure there is. Page 42 -Page 45 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Mi1_1JKV_1J UUN 1 A Multi-rage w rrn_rmrr 7 I)nnK Page 46 Page 48 1 MR. OWEILL: That there is? I A Yes. 2 MR. HELD: i would think. Unless they were sent 2 Q I is where were you looking at the time of the 3 without a verification, I don't know. 3 incident. Can we assume that looking in front of me refers 4 MR. OWEILL: Do you have one currently? 4 to I? 5 MR. HELD: I don't know. 5 A Yes. 6 MR. OWEILL: Can you look? 6 Q K is whether you exited the premises through the 7 MR. HELD: I'm not sitting here and looking 7 same door that you entered. I think we established that. 8 through the file right now. 8 A Yes. 9 MR. O'NEILL: Then I assume that there is none, 9 Q That you came in that morning using the side 10 if none was provided. 10 steps? 11 BY MR. O'NEILL: 11 A Yes. 12 Q Ma'am, there's a couple of subparts A through L, 12 MR. HELD: Side steps or the rear steps? 13 and it appears that I only have answers through A through 13 THE WITNESS: The back steps. 14 H. And a number of these answers don't match the 14 MR. OWEILL: The back steps, I'm sorry. 15 questions. For example, I says: Where were you looking at 15 MR. HELD: That's okay. Just so we're clear. 16 the time of the alleged incident, and the answer is yes. 16 MR. O'NEILL: I misspoke. 17 A Okay. 17 BY MR. O'NEILL: 18 Q I wanted to go over some of these with you so 18 Q What time did you arrive that morning? 19 that we can kind of be clear as to what your answers are. 19 A At 7:30. 20 Sub E says whether you noticed alleged defect/dangerous 20 Q Were the lights on at 7:30? 21 condition at any time prior to the alleged fall, and E says 21 A No. 22 yes several times. Now, my understanding from looking at 22 Q Was the outside lighting condition such that the 23 your Complaint and speaking with you this afternoon is that 23 lights were off? 24 the defect/dangerous condition that caused your fall at the 24 A Yes. 25 time is the light being out? 25 Q So none of the lights were on anywhere in the Page 47 Page 49 1 A Correct. 1 morning? 2 Q Is there anything else that caused your fall? 2 A Inside the building, but outside, no. 3 A No. 3 Q Fair enough. And L is whether you observed any 4 Q It's just the light was out? 4 warning signs posted at the entrance-exit to the 5 A Yes. 5 premises. You didn't see any warning signs? 6 Q When were the several times before that you had 6 A No. 7 noticed the defect/dangerous condition before your fall? 7 Q I think that kind of clears that up. 8 A Periodically off and on. 8 Are you aware of anyone falling for any reason 9 Q When other lights were burned out? 9 on those back steps prior to you? 10 A Yes. 10 A No. 11 Q Again, not this particular light? 11 Q Are you aware of anyone making any complaints 12 A No. 12 about the back steps for any reason other than the lights 13 Q F is whether you were carrying any items, and you 13 being out? 14 did give an answer to that? 14 A No. 15 A Yes. 15 Q On the occasions when all of the lights on the 16 Q And when you fell, you were holding onto the 16 back steps were on, did you have any difficulty navigating 17 railing with your right hand? 17 the steps? 18 A Yes. 18 A No. 19 Q The question H is whether you were accompanied by 19 Q Have you had any surgery as a result of this 20 anyone, if so the name and address of said witnesses, how 20 fall? 21 long the witnesses had been on the premises. And the 21 A No. 22 answer in the interrogatory says looking in front of me, 22 Q Did you miss any time from work as a result of 23 which doesn't answer the question. But can we assume based 23 this fall? 24 on your deposition testimony so far that no one witnessed 24 A No. 25 your fall that you aware of as you're sitting here today? 25 Q You were able to go back to work two days after Page 46 -Page 49 HUGHES ALBRIGHT FOLTZ NATALB 717-540-0220/717-393-5101 Multi-Page' MILDRED COSTA AUGUST 2.2006 Page 50 1 your accident? 2 A The same day. 3 Q After you went to oIP did you come back to work? 4 A Yes. 5 Q Were you ever off of work -- actually, let me 6 rephrase. Did you ever receive any workers' compensation 7 benefits for wages? 8 A No. 9 Q Did you need to use any vacation or sick time as 10 a result of this fall? 11 A No. 12 Q Have you lost any wages as a result of this 13 incident? 14 A No. 15 Q The answer to interrogatory 2 says list and 16 describe all expenses and losses that you have incurred as 17 a result of the incident. And the answer is lost wages. 18 Can we agree then that that is inaccurate? 19 A Yes. 20 Q Because you didn't miss any time from work? 21 A No. 22 Q Liens asserted by health care insurance. Do you 23 know what liens are being asserted by any health care 24 providers? Let me ask you a question. Have you seen these 25 before? Page 51 1 A No. 2 Q I'll show you interrogatories of defendant 3 directed to plaintiff. They are pretty much the 4 corresponding questions. Have you seen those questions 5 before? 6 A No. I'm saying no to that right there? 7 Q Meaning the answers? 8 A This right, here I have not seen. 9 MR. HELD: The answers in the typed format, 10 right? 11 THE WITNESS: Right. This either. 12 BY MR. O'NEILL: 13 Q You haven't seen those questions? 14 A No, sir. Either one. 15 Q Did anyone ever read questions to you? 16 A No, sir. 17 Q Are you aware of the -- what the source of the 18 information is for plaintiff's answers to defendant's 19 interrogatories? 20 A I'm not understanding the question, so I couldn't 21 answer. 22 Q Do you know how these questions were answered? 23 A No. 24 Q Other than your attorney, or anyone employed at 25 the Handler Henning law firm, have you given a statement, Page 52 1 written or oral, to anyone about this incident? 2 A My manager asked me to write down the events as 3 they happened the same day I went to have X-rays 4 done. Other than that, no. 5 Q Were you given a copy of that statement? 6 A No. 7 Q And that's a statement that you wrote down? 8 A It was just to describe what had happened. 9 Q When you say your manager, are you referring to 10 Linda or to Carla? 11 A Linda. 12 Q And I understand that your medical treatment has 13 been picked up by workers' compensation, correct? 14 A Yes. 15 Q Have you ever given any testimony with regard to 16 the workers' compensation claim? 17 A Any testimony to who? 18 Q Anyone under oath. Testimony under oath. 19 A No. 20 MR. HELD: Did your workers' compensation matter 21 go to a hearing? 22 THE WITNESS: No. 23 BY MR. O'NEILL: 24 Q Did you speak to anyone from the workers' 25 compensation carrier? Page 53 1 A No. Yes, I did. I'm sorry. 2 Q Did you give a statement in person or over the 3 phone? 4 A It was over the phone. 5 Q Was it recorded? 6 A I don't know. 7 Q Who was the workers' compensation carrier, by the 8 way? 9 A Somebody in I believe it was Reading, 10 Pennsylvania. 11 Q But you don't remember the name of the company? 12 A No. 13 Q I think there is a lien letter some place I've 14 seen. Are you out of pocket any money as a result of this 15 incident? 16 A Yes, I am. I've been buying different types of 17 supports for the ankle to see which one would work the best 18 for me. 19 Q What do you mean by supports? 20 A Ankle supports. 21 Q Is it kind of like a sleeve that you have pull on 22 over your ankle? 23 A Been trying different ones. So I've had the wrap 24 arounds, I've had the sleeves, so far. 25 Q How inuch money have you spent on their? Page 50 -Page 53 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 MILDRED COSTA AUGUST 2, 2006 Multi-Page "' Page 54 1 A The wrap around was about 15 dollars. And the 2 sleeve was I believe 9 dollars. 3 Q Other than spending money for these ankle 4 supports, have you incurred any other cost out of pocket? 5 A No. 6 Q Other than your -- other than the people at work 7 and your attorney, and the workers' compensation carrier 8 and today, have you spoken to anyone about this incident? 9 A No. 10 Q Have you conducted any investigation on your own 11 about the lights being out at the time of your fall? 12 A No. 13 Q Are you aware of any photographs showing the 14 light being out? 15 A No. 16 Q Are you aware of any photographs of the back 17 steps? 18 A No. 19 Q Has the condition of the back steps physically 20 changed at all from the time of your fall up until today? 21 A Not to my knowledge. 22 Q No one has gone out there with a jackhammer and 23 repoured the concrete? 24 A No. 25 Q Did you consume any type of alcohol or drugs Page 56 1 the stairs, the lights, and maintenance is part of 2 Pinnacle. 3 Q You indicated that you did not notice the lights 4 being out the day before, the evening before your fall, 5 correct? 6 A Correct. 7 Q What time did you leave the day before? 8 A Between 5 and 5:30. 9 Q About the same time? 10 A Yeah. 11 Q Lights would have been on? 12 A Yes. 13 Q Were you on any sort of restricted duty at work 14 after the fall? 15 A No. 16 Q Is there anything that you could do before the 17 fall that you can't do today? 18 A Yes. 19 Q What's that? 20 A I can't walk, I can't dance. Any exercise 21 pertaining to using the feet I can't do any more. 22 Q Can you be more specific? 23 A Roller skating, walking. 24 Q When you say you can't walk, what do you mean by 25 you can't walk? Page 55 Page 57 1 within the 12-hour time period prior to your fall? 1 A I used to walk two miles a day. I can't do that 2 A No. 2 now. 3 MR. HELD: By drugs do you mean illegal as well 4 as prescription? 5 MR.O'NEILL: Correct. 6 MR. HELD: Okay. 7 THE WITNESS: No. 8 BY MR. O'NEILL: 9 Q There's an allegation in the Complaint. Do you 10 know what the Complaint is? 1l A No. 12 Q Okay, it's a document that was filed to initiate 13 this lawsuit against Pinnacle. And it claims that Pinnacle 14 knew or should have known that the lighting was in a 15 dangerous condition at the time of your fall. As you're 16 sitting here today, are you aware of any facts or 17 information that Pinnacle should have been aware of the 18 lights being out on the evening of your fall? 19 A Ycs. 20 Q Tell me. 21 A The maintenance belongs to -- is Pinnacle. 22 That's how. 23 Q Can you be more specific? I don't understand 24 your answer. 25 A Maintenance should he aware of the conditions of 3 Q Can you walk a mile? 4 A No. 5 Q What can you walk? 6 A I walk at work, I'm lucky when I come home. 7 Q What prevents you from walking your two miles? 8 A My foot swells up. The ankle, I should say. 9 Q Anything else? 10 A No. 11 Q Just the foot swells up? 12 A Yes. And it throbs. 13 Q Any other physical condition that occurs after 14 you t ry to walk two miles? 15 A Other than swelling and hurting, no. 16 Q Is hurting different than throbbing? 17 A No. 18 Q Can you describe the throbbing? 19 A It's like if you take a pulse and you feel your 20 heartbeat, you get a throbbing sensation. 21 Q And that hurts? 22 A In certain areas of my ankle, yes. 23 Q What areas of your ankle? 24 A The side of the foot. 25 Q Inside or outside? rage D4 - rage HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Multi-Page TM MILDRED COSTA AUGUST 2, 2006 Page 58 Page 60 1 A The outside of the foot. And the inside below 1 Q Approximately the Fall of 2004? 2 the ankle. 2 A Somewhere around there, yes. 3 Q After the fall were you given any sort of 3 Q Did you see any physician for your ankle that you 4 assistive devices to walk? Crutches, canes? 4 can recall in 2005? 5 A Yes, I did. 5 A No. 6 Q What did they give you? 6 Q This year? 7 A I used -- I had a cast on, a boot cast. And I 7 A No. 8 used crutches. 8 Q Do you have any currently scheduled appointments 9 Q Was this a removable boot cast? 9 to go for physical therapy for your angle as we're sitting 10 A Yes. 10 here today? 11 Q So you could take it off if you wanted to get a 11 A No. 12 bath or shower? 12 Q Do we have any currently scheduled appointments 13 A That was the only time. 13 to go see any physician for your ankle as we're sitting 14 Q How long did you need to use the boot cast? 14 here today? 15 A Two months. 15 A No. 16 Q Have you used the boot cast at any other time 16 Q Where is Dr. Campbell's office? 17 after that two-month time period? 17 A Shepherdstown Family Practice in Mechanicsburg. 18 A No. 18 Q Who are the physicians that you saw at 01P? 19 Q Anything other than the boot cast? 19 A Dr. Gault. 20 A I used the crutches. I do have a special -- it's 20 Q Anyone else? 21 a boot -- it's a boot strap that you put onto your foot, 21 A No. 22 and it keeps it in place at night if I need to use 22 Q And you went for physical therapy at First Choice 23 that. And I have used that. 23 Rehabilitation? 24 Q When is the last time you used the crutches? 24 A Yes. 25 A When they took the boot off. 25 Q Did you generally see physical therapist Brian Page 59 1 Q About two months? 2 A Yeah. 3 Q When was the last time you had physical therapy 4 for your angle? 5 A I believe that was two months after I had the 6 boot off. I don't know the exact date now. 7 Q Did you injure any other part of your body in 8 this fall other than your ankle? 9 A No, sir. 10 Q When was the last time that you saw a physician 11 for your angle as it relates to this fall? 12 A I think that's in my medical records that you 13 had. 14 Q Do you not remember? 15 A I don't remember the exact date- It was almost a Page 61 1 Carden? 2 A If it states that, yes. 3 Q Did you receive any treatment from Dr. Campbell 4 for your ankle? 5 A No. 6 Q At any point in time? 7 A No. 8 Q Is it safe to say then that all of the medical 9 treatment that you received for your ankle -- actually, let 10 me phrase it a little bit broader. All of the medical 11 treatment that you received as a result of this fall of 12 November 3rd, 2003, was the morning after the fall when you 13 went into work, OIP, and First Choice Rehabilitation? 14 A Yes. Is n Nnthina Plca? 16 year that I saw him. 16 A No. 17 Q So that would be some time in the Fall of 2004? 17 Q What sort of things did they do for you at 18 A You'd have to look at the medical records to get 18 physical therapy? 19 the specific dates. 19 A I had special exercises to do. 20 Q Well, I have the medical records. I'd like to 20 Q Could you describe them for me? 21 know what your recollection is as to when the last time you 21 A I believe they're in there. 22 saw a doctor for your ankle because of this fall was. I 22 Q I can read them. I'm curious if you can describe 23 don't need to know a specific date. Approximately when was 23 them for me as to what these exercises were? 24 the last time that you saw a doctor for your ankle? 24 A I can. 25 A About a year after. 25 Q Can you do that, please? Page 58 -Page 61 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Ml.LU1CJGU I:VJ 1 A Mulil-rage AIJGUST 2, 2006 Page 62 Page 64 1 A Sure. 1 A I've had it done three times. 2 Q Thank you. 2 Q But the one in 2003, was that before or after 3 A They put me on a balancing board, and I had to do 3 this fall? 4 stretches with my feet, both of them at the same time. 4 A That was before. 5 They put me on an exercise board to -- that you push with 5 Q Do you remember when in 2003? 6 your feet and legs at the same time. A heat massage. I 6 A I don't remember the specific date, no. 7 had to do what they call the A, B, C exercise with your 7 Q Have you had any surgery done on your back since 8 feet. And there was one more where I had to pick up a sock 8 this fall? 9 with my toes, and I had to scoot over on the floor with my 9 A No. 10 foot. 10 Q Was Dr. DeMuth's surgery successful in your mind? 11 Q After you left physical therapy did they give you 11 A Yes. 12 any exercises to do at home? 12 Q The one done in 2003? 13 A I was to continue doing the exercise with the 13 A Yes. 14 toes picking up the sock. I was to continue to do the A, 14 Q Did you need to have any type of physical therapy 15 B, C exercise with the rotation of the whole ankle and 15 after the 2003 surgery? 16 foot. And the balancing of the board, I was to do if I had 16 A No. 17 anything at home to be able to do that with. 17 Q The surgery done in 2003, was that -- was it a 18 Q And you've done those exercises since then? 18 fusion, was it a laminectomy? Do you remember particularly 19 A I do the A, B, C and the pick up of the sock, 19 what type of surgery? 20 because I don't have something to balance on. 20 A Fusion. 21 Q Did you ever receive any type of injections as a 21 Q Do you remember what levels they fused? 22 result of this fall in any parts of your body? 22 A I believe it was 5 this time. 23 A No. 23 Q 4-5? 24 Q The records that I have from O1P, it looks like 24 A 4-5. 25 the last time you saw Dr. Gault was in May of 2004. Does 25 Q 4-5 or L5-S1? Page 63 Page 65 1 that sound about right? I A I don't remember the specific. I would have to 2 A Yes. 2 look at the report. 3 Q Did you ever have any studies performed on your 3 Q But it involved level 5? 4 angle other than an X-ray? 4 A Yes. 5 A No. 5 Q When was the last time that you were able to walk 6 Q Such has cat scan, an MRI, ultrasound, anything 6 for two miles prior to November of 2003? 7 like that? 7 A I would say about a month after I had my back 8 A No. 8 surgery I was still -- I was walking. 9 Q You had back surgery in 2003? 9 Q How often -- how many times a month would you 10 A Yes. 10 walk two miles? 11 Q For what part of your back? 1 I A I would walk at least three to four times a day 12 A The lower part. , 12 so I would say about twenty. 13 Q Lumbar spine? 13 Q You would walk two miles three or four times a 14 A Yes. 14 day? 15 Q Who performed that surgery? 15 A A week, I'm sorry. A week. 16 A Dr. DeMuth. 16 Q Looks like you were discharged from physical 17 Q At OIP? 17 therapy end of April 2004. Does that sound about right? 18 A OIP. 18 A Yes. 19 Q What was the condition -- what type of surgery 19 Q Do you take any medication for your ankle 20 did Dr. DeMuth perform? 20 currently? 21 A I had a herniated disc. 21 A I told you, Advil. 22 Q What sort of problems were you having from the 22 Q Anything else? 23 herniated disc? 23 A No. 24 A My legs went numb. 24 Q When is the last time you took any prescription 25 Q When did Dr. DeMuth perform that surgery? 25 medication for your ankle? rage 02 - rage n HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Multi-Page T"` MILDRED COSTA AUGUST 2, 2006 Page 66 I A I never took any. 2 Q Did you ever take Vicodin for the ankle? 3 A No. 4 Q Any other type of prescription pain reliever? 5 A No. 6 Q Anti-inflammatory for the ankle? 7 A No. 8 Q Is the ankle currently painful to the touch? 9 A Some times. 10 Q What do you mean by that? 11 A It depends. Weather changing, it hurts. It 12 swells . If I -- 13 Q What type of weather makes it swell, hot or cold? 14 A When the weather changes from hot to cold, cold 15 to hot, damp weather. 16 Q Just with changes? 17 A Changes. The barometric pressure is what makes 18 it hurt . If I'm on it too much and it swells up, it aches, 19 but not -- I don't have to be on prescription drugs. 20 Q Ma'am, I'd like to show you a couple photographs 21 I'll show you one. Is that the back of the Frederickson 22 building? 23 A Yes. 24 Q Is that kind of the physician parking area? 25 A Yes. Page 67 1 MR. O'NEILL: Why don't we mark that as Costa 1. 2 (Photograph, produced and marked Costa Exhibit 3 No. 1.) 4 BY MR. O'NEILL: 5 Q And that's the back parking area that we 6 discussed earlier? 7 A That's the back parking lot. 8 Q Is the area where you would park seen in that 9 photograph? 10 A No. 11 MR. O'NEILL: Let me show you another photograph. 12 We'll mark that as Costa 2. 13 (Photograph, produced and marked Costa Exhibit 14 No. 2.) 15 BY MR. O'NEILL: 16 Q Are they the back steps to Frederickson Center in 17 photograph 2? 18 A Yes. 19 Q Can you see the back row there where you would 20 park in that particular photograph? 21 A Almost. 22 Q Where approximately would your car be? 23 A Way over on the side here. 24 Q Toward the right-hand side of the photograph? 25 A Yes. Page 68 1 Q Kind of blocked by the pillar? 2 A Yes. 3 Q And that's a view of the steps looking down? 4 A Yes, it is. 5 Q And that's approximately the view that you would 6 have had on the evening of the accident? 7 A Yes. 8 MR. O'NEILL: I'll show you another photograph 9 marked as No. 3. 10 (Photograph, produced and marked Costa Exhibit 11 No. 3.) 12 BY MR. O'NEILL: 13 Q Ma'am, that's a photograph of the back steps at 14 Frederickson looking up? 15 A Yes. 16 Q Photographs 2 and 3, with the exception of 17 lighting conditions since the photographs were taken during 18 daylight, accurately represent the condition of the steps 19 at the time of the fall? 20 A Yes. 21 (Photograph, produced and marked Costa Exhibit 22 No. 4.) 23 BY MR. O'NEILL: 24 Q I show you 4. Does that show the first flight 25 going down in the top? Page 69 1 A Yes. 2 Q Shows ground lighting, little black circle? 3 A One, yeah. 4 Q One? 5 A One. 6 Q Is that the one that was out at the top? 7 A Yes. 8 (Photograph, produced and marked Costa Exhibit 9 No. 5.) 10 BY MR. O'NEILL: 11 Q Would you agree with me that Photograph No. 5 12 shows the top three flights of steps? 13 A Yes. 14 Q And it's the middle of those three that you had 15 your fall? 16 A Yes, the second one. 17 Q Can you put an X with that black pen on 18 photograph No. 5 where you fell? 19 MR. OWEILL: Do you see that, Steve? 20 MR. HELD: Yes, I saw it. 21 BY MR. O'NEILL: 22 Q And in photograph No. 5 there's another little 23 black circle with the ground lighting? 24 A Um-hum. 25 Q That one was the one that was out? Page 66 - Page 69 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 NllLUKL v UUJ I A Multi-rage AUGUST, 2, 2006 Page 70 Page 72 1 A Yes. 1 MR. O'NEILL: No, it doesn't. 2 Q At the time of your fall? 2 MR. HELD: I think we both will probably try to 3 A Yes. 3 get it, though. 4 Q No. 4, again, that light was out at the time of 4 MR. O'NEILL: Sure. I may have already sent a 5 your fall? 5 subpoena out to them. 6 A Yes. 6 Let me take a look at my notes. That may be 7 Q And they're the -- 7 everything that I have for you. 8 A But I didn't notice No. 4 because you have the 8 BY MR. O'NEILL: 9 lighting from the building. 9 Q Actually, I thought of a question. When was the 10 Q So there's some light from the building that is 10 last time that you've seen the statement that you gave to 1I -- 11 Linda Bruno? 12 A To show this part, yes. 12 A When I gave it to her. 13 MR. HELD: When she said this part she referred 13 Q You haven't seen it since? 14 to photograph No. 4. 14 A No, sir. 15 MR. O'NEILL: Okay. 15 MR. HELD: I might have it. 16 BY MR. O'NEILL: 16 THE WITNESS: Yes. 17 Q With regard to No. 5 -- with regard to the week 17 MR. O'NEILL: Could I see that? 18 before your fall, do you see in any of those photographs 18 MR. HELD: Sure. It's on the tab with the deed. 19 the light or lights that were out that particular week that 19 We sent you a copy of the deed, right? 20 you recall? 20 MR. O'NEILL: Um-hum. 21 A In Exhibit 2, the next to the last one on the 21 MR. HELD: I don't know why that wasn't copied. 22 stairs down here, that had been out. And that's the only 22 MR. O'NEILL: Can I have a copy of that? 23 one from the week before. 23 MR. HELD: Sure. Do you want it right now to ask 24 Q And do you remember that one working at the time 24 her questions about it? 25 of your fall? 25 MR. O'NEILL: Yes, thank you. Page 71 Page 73 1 A Yes. 1 MR. HELD: Sure, no problem. I believe I got 2 (Photograph, produced and marked Costa Exhibit 2 this with it as well, so I'll make a copy of that, too. 3 No. 6.) 3 MR.O'NEILL: Thanks. 4 BY MR. O'NEILL: 4 BY MR. O'NEILL: 5 Q Ma'am, what I'd like to show you in photograph 5 Q Ma'am, you've had an opportunity to review a 6 No. 6 projecting off the side of the building appears to be 6 statement that your attorney provided to me. It's dated 7 a brick column. 7 11-7 of '03? 8 A Um-hum. 8 A Um-hum. 9 Q Is that the side entrance we've been talking 9 Q Yes? 10 about? 10 A Yes. Sorry. 11 A Yes. 11 MR. O'NEILL: We'll mark that as 8. 12 Q Could you circle that, please, in photograph 6? 12 (Statement, one page, produced and marked Costa 13 Is that area covered? 13 Exhibit No. 8.) 14 A There's an awning. 14 BY MR. O'NEILL: 15 MR. O'NEILL: Steve, are you going to have any 15 Q Is that entire page in your handwriting, Ma'am? 16 questions? 16 A Yes, it is. 17 MR. HELD: No. 17 Q That is your signature at the bottom? 18 MR. O'NEILL: You do not have a copy of the 18 A Yes, it is. 19 statement that she gave to Jones Daly? 19 Q The date of 11-7-03, is that the date that you 20 MR. HELD: I do not, no. 20 would have written it out for Miss Bruno? 21 MR. O'NEILL: It was not produced, but it was 21 A Yes, I believe so. 22 asked for. So to the extent there's an ongoing duty to 22 Q Is that something that refreshes your 23 supplement. 23 recollection? 24 MR. HELD: We don't have it, so it doesn't 24 A The one she has may be a day after, I don't 25 obligate me to go and get it. 25 recall after three years. Page 10 - Page 73 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Multi-Page TM MILDRED COSTA AUGUST 2, 2006 Page 74 1 Q Perhaps we can talk to her at a later date, but 2 that's the one we have here. It says you left work at 5:41 3 p.m.? 4 A Um-huin. Yes. 5 Q Yes? It says you went outside of door of 6 Frederickson building and down the steps to the physician's 7 parking lot. It was dark, and as I came down the stairs I 8 noticed two lights were out. 9 What stairs are you referring to in your 10 statement that you came down when you noticed the two 11 lights were out? 12 A What stairs? 13 Q Urn-hum, yes. 14 A The side stairs that I came out, to the side of 15 the -- well, we always say it's the side stairs, but it's 16 the back stairs of the building. 17 Q The ones you fell on? 18 A Yes. 19 Q And then it says it was very hard to see the 20 steps so I grabbed the railing for extra measure of safety? 21 A Before that it states it was very dark. 22 Q I thought I had read that. If I didn't, I 23 apologize. I did not mean to leave that out. 24 A Okay. 25 Q I read that, and correct me if I'm wrong, as Page 75 1 reading you noticed the two lights were out before you 2 started going down the steps? Is that a fair reading and 3 does this refresh your recollection on that point? 4 A Yes. 5 Q So in reading that it refreshes your recollection 6 that you noticed that the two lights were out at the top 7 before you started going down any of the steps? 8 A Yes. 9 Q And it was dark? 10 A Yes. 11 Q And you grabbed the railing for an extra measure 12 of safety? 13 A Yes. 14 Q The safety we talked about earlier? 15 A Yes. 16 Q Because you might fall? 17 A Yes. 18 Q And get hurt? 19 A Yes. 20 Q And it says as I came to the third set of steps I 21 thought I was on the flat surface approaching the next set 22 of stairs only to be surprised as I missed the last step 23 and fell? 24 A Yes. 25 Q It looks like there's an almost there that's Page 76 1 crossed out? 2 A Yes. 3 Q Why is almost -- why did you write almost and 4 then cross it out? 5 A I could not answer that. Don't know. 6 Q It says I held on to the railing, it says there's 7 a C with a line over it -- 8 A That means in medical terminology with. 9 Right-hand. 10 Q Thank you. And grabbed concrete wall with left 11 forearm? 12 A Yes. And if I show you in Exhibit 2, when you're 13 coining down the stairs, this landing here, there's a ledge, 14 concrete wall right there, that's what I flung onto, to 15 stop myself from going any further down. 16 Q I ended up landing hard on my left foot and it 17 buckled under -- hyphen -- end result -- hyphen -- a 18 fractured heel and badly sprained angle? 19 A Correct. 20 Q I read that portion correctly? 21 A Yes. 22 Q And that's your signature? 23 A Yes. 24 Q In reviewing that statement, is there any portion 25 of your testimony that you'd like to change, modify, add on Page 77 1 to, subtract from? 2 A We can modify the time that I had stated. 3 Q Okay. 4 A We can modify the set of stairs, instead of the 5 second set, it's the third. We can modify that instead of 6 just the one light being out, I noticed the two lights 7 being out. That should about do it. That should do it. 8 Q Are you sure you want to change it to the third 9 set of stairs? 10 MR. HELD: I was reading the same thing. Because 11 it looked like -- 12 MR. O'NEILL: I'm asking her. 13 MR. HELD: Read it over. It says you were 14 approaching, or as I carne to the third set of stairs I 15 thought I was on the flat surface approaching the next set 16 of stairs only to be surprised as I missed the last step. 17 THE WITNESS: Okay. Then we won't change 18 that. Sorry. 19 MR. HELD: Don't let us talk you in -- I mean, 20 just -- 21 THE WITNESS: I know. 22 BY MR. O'NEILL: 23 Q Would you agree with me that your recollection of 24 events four days after the event would be better than it is 25 now? Page 74 - Page 77 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 MILDRED UUNJ'A Multi-Page.... ATIGUST 2, 2006 Page 78 1 A Yes. To a great degree. 2 Q And the area where you fell is still the same as 3 what you marked on photograph No. 5? 4 A Yes. 5 MR. O'NEILL: Ma'am, I don't have any further 6 questions. Thank you for your time and patience this 7 afternoon. 8 MR. HELD: I have nothing. 9 (The deposition was concluded at 3:40 p.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 79 1 COUNTY OF DAUPHIN 2 : SS 3 COMMONWEALTH OF PENNSYLVANIA 4 I, Karen C. Albright, a Notary Public, authorized to 5 administer oaths within and for the Commonwealth of 6 Pennsylvania, do hereby certify that the foregoing is the 7 testimony of MILDRED COSTA. 8 I further certify that before the taking of said 9 deposition, the witness was duly sworn; that the questions 10 and answers were taken down stenographically by the said 11 Reporter-Notary Public, and afterwards reduced to 12 typewriting under the direction of the said Reporter. 13 I further certify the said deposition was taken at 14 the time and place specified in the caption sheet hereof. 15 I further certify I am not a relative or employee or 16 attorney or counsel to any of the parties, or a relative or 17 employee of such attorney or counsel, or financially 18 interested directly or indirectly in this action. 19 I further certify that the said deposition 20 constitutes a true record of the testimony given by the 21 said witness. 22 IN WITNESS WHEREOF, I have hereunto set my hand 23 this 18th day of September, 2006. 24 25 Karen C. Albright, RPR Page 78 - Page 79 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 & - body MILDRED COSTA &[31 1:21 1:14 1:18 103 [3] 73:7 6:10 6:22 -0- 0'NEILL [i] 1:22 05-4094111 1:5 050 pi 6:24 -1- 1 [3] 2:15 67:3 10 [i] 38:5 11 [i] 38:5 11-12-50 [1] 11-3 [11 6:9 I1-7[11 73:7 11-7-03 pi 12 [2] 40:20 12-hour [i] 12.15 [1] 13 [2] 11:4 1300 [i] 1:15 15 [1] 54:1 17055 [1] 18th [i] 79:23 1988 [,] 14:7 1990 [i] 7:11 1:10 [11 1:13 67:1 5:25 73:19 43:11 55:1 12:2 45:20 6:23 -2- 2 poi 1:13 38:5 50:15 67:14 67:17 70:21 76:12 20 [1] 25:8 2000 [618:23 10:5 15:4 15:9 2001 [3] 15:16 25:24 2003 [39] 6:25 7:3 10:16 10:19 11:15 12:3 12:12 13:17 13:24 14:10 18:3 18:17 21:8 21:12 23:20 23:23 25:3 25:24 34:14 34:17 61:12 63:9 64:5 64:12 64:17 65:6 2004 [817:3 12:22 13:16 2:16 67:12 68:16 9:1 15:4 25:19 3:16 9:19 11:13 12:9 13:20 17:15 19:7 23:7 24:23 28:13 35:10 64:2 64:15 12:21 59:17 60:1 62:25 2005 [i] 60:4 2006 [411:13 15:3 79:23 2008 [i] 11:4 23018095 [11 24 [i] 6:21 -3- Multi-Page TM 65:17 -9- 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34:7 behalf M 14:19 belief [i] 43:16 belongs [i] 55:21 below [2] 20:23 58:1 benefits [1] 50:7 best p] 53:17 better [31 27:14 29:18 77:24 between [3] 3:2 38:18 56:8 bi-weekly [i] 11:17 big pi 38:20 bigger [1] 38:14 billing [4] 7:24 8:4 8:5 9:15 bills [i] 13:12 birth [11 5:24 bit [21 18:13 61:10 black [31 69:2 69:17 69:23 blocked [1] 68:1 board [3] 62:3 62:5 62:16 body 121 59:7 62:22 Index Page 1 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 books - doesn't MILDRED COSTA Multi-Page "" books [31 38:9 38:13 38:14 boot [91 58:7 58:9 58:14 58:16 58:19 58:21 58:21 58:25 59:6 bottom [z] 26:11 73:17 break [31 5:11 29:9 30:23 Brian [11 60:25 brick [1171:7 bring [11 20:22 broader [11 61:10 brought [11 13:1 bruises [11 35:25 Bruno [31 10:14 72:11 73:20 1runo's 111 14:8 suckled [11 76:17 wilding [161 17:16 18:13 19:13 20:12 20:20 23:24 27:25 33:19 40:17 49:2 66:22 70:9 70:10 71:6 74:6 74:16 turned [1] 47:9 ,eying [11 53:16 -C- C [8] 1:11 11:3 62:7 62:15 62:19 76:7 79:4 79:25 calls [2] 16:13 44:12 cameras [11 24:4 Camp [31 15:20 15:24 16:8 Campbell [5] 13:25 13:25 14:3 14:5 61:3 Campbell's [1 1 60:16 canes [11 58:4 capacity [11 9:2 caption [11 79:14 car [51 21:7 22:19 35:20 36:7 67:22 Carden [11 61:1 care [21 50:22 50:23 careful [51 31:19 33:21 33:22 34:2 34:6 carefully [31 31:6 31:7 31:17 Carla [lot 10:6 10:13 10:15 11:16 11:18 11:19 11:20 18:17 24:13 52:10 Carla's [11 10:11 carried [11 41:17 carrier [31 52:25 53:7 54:7 carrying [11 47:13 case p1 23:20 cast [61 58:7 58:7 COMMMON [1] 58:9 58:14 58:16 1:1 58:19 Commonwealth [21 cat [21 38:11 63:6 79:3 79:5 caused [3] 43:18 communicated [21 46:24 47:2 45:8 45:12 Center [1] 67:16 comp [11 13:9 certain [2] 41:8 Company [21 8:5 57:22 53:11 certification I ll compensation [11] 3:4 13:5 13:7 13:10 certify [51 79:6 13:12 50:6 52:13 79:8 79:13 79:15 52:16 52:20 52:25 79:19 53:7 54:7 chair [2120:19 21:17 Complaint [31 46:23 change [6] 4:25 55:9 55:10 5:2 17:14 76:25 complaints [21 44:4 77:8 77:17 49:11 changed [31 12:9 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56:20 dangerous [31 41:2 43:17 55:15 dangling [11 35:2 dark [11126:16 29:4 36:17 36:22 36:24 36:25 37:3 37:18 74:7 74:21 75:9 data [11 7:24 date [1411:13 4:16 5:24 6:9 7:1 29:3 29:16 59:6 59:15 59:23 64:6 73:19 73:19 74:1 dated [11 73:6 dates [3140:25 43:12 59:19 DAUPHIN [11 79:1 daylight [11 68:18 days [41 16:3 19:22 49:25 77:24 decision [11 28:1 deed [21 72:18 72:19 defect/dangerous [3] 46:20 46:24 47:7 defendant [41 1:8 1:10 1:23 51:2 defendant's [1151:18 degree [11 78:1 DEMANDED [11 1:8 DeMuth [31 63:16 63:20 63:25 DeMuth's [11 64:10 deposed [1] 3:17 deposition [16] 1:9 2:14 3:17 4:20 4:24 5:16 16:12 16:18 16:21 16:24 17:3 47:24 78:9 79:9 79:13 79:19 describe [71 21:3 37:4 50:16 52:8 57:18 61:20 61:22 described [3] 12:11 25:20 26:8 description [4] 9:5 9:7 9:12 9:23 designed [11 5:13 despite [11 33:25 determine [11 21:24 devices [11 58:4 diagnosed [11 13:20 difference [5] 12:14 16:7 22:16 27:20 27:21 different [61 9:12 9:14 12:3 53:16 53:23 57:16 differently [11 29:21 difficulty [11 49:16 directed Ill 51:3 direction [11 79:12 directly [3] 32:24 45:8 79:18 disc [21 63:21 63:23 discharged [11 65:16 discovered [11 41:9 discuss [11 41:8 discussed [11 67:6 diseases [11 13:21 distance [11 28:10 divorce [1] 6:9 divorced [31 6:3 6:4 6:5 doctor [a1 14:1 24:18 24:19 35:21 41:17 41:18 59:22 59:24 doctors [11 14:23 document [1] 55:12 documents [21 16:14 17:2 doesn't [41 40:10 47:23 71:24 72:1 Index Page 2 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Multi-Page dollars - helped hULDRED COSTA dollars [2] 54:1 54:2 done [7140:1 52:4 62:18 64:1 64:7 64:12 64:17 door [191 20:13 20:15 26:22 26:23 26:24 27:3 27:6 27:6 27:10 27:11 27:16 27:17 27:23 27:24 28:8 33:20 40:4 48:7 74:5 down [371 4:3 5:9 8:20 24:24 26:10 30:21 31:5 31:7 31:16 31:19 31:20 31:23 32:1 32:22 33:6 33:8 33:19 33:21 33:24 34:3 34:10 34:11 34:12 38:25 52:2 52:7 68:3 68:25 70:22 74:6 74:7 74:10 75:2 75:7 76:13 76:15 79:10 Dr [121 13:25 14:3 14:5 41:19 60:16 60:19 61:3 62:25 63:16 63:20 63:25 64:10 drive [2110:21 11:6 driver's [21 10:23 11:3 driving [11 36:9 drugs [4] 5:18 54:25 55:3 66:19 dry [1l 36:17 duly [2l 3:8 79:9 during [2] 30:13 68:17 dusk Ill 37:4 duties [61 7:22 12:9 12:17 12:20 12:23 14:8 duty [21 56:13 71:22 -E- E [2] 46:20 46:21 early (1) 42:15 easier [s] 22:3 26:21 26:25 27:9 27:13 educational [1l 7:6 eight [21 17:24 25:9 either [31 24:22 51:11 51:14 elevator [4] 21:19 22:20 26:8 26:12 elevators [4l 22:22 23:1 23:2 23:3 employed [3] 7:16 7:18 51:24 employee [2] 79:15 79:17 employees [21 19:18 25:2 end [2] 65:17 76:17 ended [11 76:16 entered [1] 48:7 entering [11 7:24 entire [21 19:5 73:15 entrance [19] 20:21 20:22 20:25 21:6 21:8 21:13 21:17 21:21 21:25 22:3 22:9 22:19 25:25 26:5 26:11 26:20 34:11 34:17 71:9 entrance-exit Ill 49:4 ESQUIRE [21 1:19 1:22 established [1] 48:7 evening [13] 22:17 23:13 26:4 26:19 31:11 34:14 34:17 35.9 36:16 44:17 55:18 56:4 68:6 event [2] 6:7 77:24 events [31 5:19 52:2 77:24 Eventually [2] 29:20 30:12 exact [3] 29:3 59:6 59:15 EXAMINATION [2] 2:2 3:10 example [1] 46:15 except [1] 3:5 exception [11 68:16 excuse [11 29:5 exercise [sl 56:20 62:5 62:7 62:13 62:15 exercises [41 61:19 61:23 62:12 62:18 Exhibit [1o1 2:14 67:2 67:13 68:10 68:21 69:8 70:21 71:2 73:13 76:12 EXHIBITS [11 2:12 exited [11 48:6 expenses [1] 50:16 expires [1l 11:4 explanation [114:5 extent [1] 71:22 extra [2] 74:20 75:11 -F- F[1] 47:13 face [31 37:19 37:22 38:19 facility [41 17:13 24:6 25:19 26:14 fact [1] 33:25 factor [1l 28:1 facts [1l 55:16 fair [4] 4:5 4:6 49:3 75:2 fall [so] 3:15 12:17 18:10 18:20 19:21 20:4 20:7 23:6 24:10 29:23 30:1 30:7 30:13 30:15 30:19 31:11 31:11 34:4 34:7 34:23 35:12 36:1 36:4 36:10 36:13 36:16 37:15 38:15 39:1 39:23 41:14 42:3 43:8 43:9 43:18 43:25 44:1 44:4 44:17 44:22 45:2 45:3 45:6 45:9 45:12 45:16 46:21 46:24 47:2 47:7 47:25 49:20 49:23 50:10 54:11 54:20 55:1 55:15 55:18 56:4 56:14 56:17 58:3 59:8 59:11 59:17 59:22 60:1 61:11 61:12 62:22 64:3 64:8 68:19 69:15 70:2 70:5 70:18 70:25 75:16 fallen Ill 41:9 falling [2] 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51:9 four [31 65:11 65:13 77:24 fourth [11 32:7 fractured [1] 76:18 Frederickson [22] 15:13 16:9 17:13 17:15 17:19 19:8 19:22 20:1 20:11 21:22 23:2 23:5 23:16 23:24 24:6 25:18 28:14 29:11 66:21 67:16 68:14 74:6 fresh [3128:5 28:6 28:9 Friday [21 18:24 30:19 front [6] 37:21 38:19 40:4 40:16 47:22 48:3 full [31 8:24 9:2 32:11 fused [1l 64:21 fusion [21 64:18 64:20 -G- Gm 1:19 G-A-M-O-R [11 10:8 Gamor [11 10:6 Gault [2] 60:19 62:25 general [3] 23:1 23:3 44:11 generally [sl 19:16 21:3 21:7 23:9 60:25 girls [3] 24:18 24:21 42:10 given [61 9:4 51:25 52:5 52:15 58:3 79:20 glasses [21 11:6 11:8 goes [11 45:22 gone Ill 54:22 good [11 3:12 grabbed [3] 74:20 75:11 76:10 graduate p] 7:10 grandchildren [1] 38:2 grandkids [1] 38:7 grapevine [2] 41:11 42:8 great [11 78:1 ground [31 20:24 69:2 69:23 guard [11 24:5 guess [1l 27:14 -H- H [21 46:14 47:19 HAVER [1] 1:21 hand [91 31:15 31:15 37:18 37:19 37:21 37:23 38:21 47:17 79:22 Handler [3] 1:14 1:18 51:25 handwriting [1 1 73:15 hard [21 74:19 76:16 Harrisburg [21 1:16 15:10 Hat [1] 38:11 Hatcher [11 42:17 health [41 1:6 3:14 50:22 50:23 hear [il 4:7 heard [1] 4:12 hearing [11 52:21 heartbeat [11 57:20 heat [1] 62:6 heel [21 32:11 76:18 held [3811:19 4:2 11:2 13:6 13:10 16:13 29:6 35:2 35:6 37:18 37:21 45:23 45:25 46:2 46:5 46:7 48:12 48:15 51:9 52:20 55:3 55:6 69:20 70:13 71:17 71:20 71:24 72:2 72:15 72:18 72:21 72:23 73:1 76:6 77:10 77:13 77:19 78:8 help [3] 8:7 12:20 36:6 helped 111 43:9 Index Page 3 TT1T('TTTFC AT.RRIG14T FOLTZ NATAT.F. 717-540-0770/717-;;91-5101 Henning - meeting MILDRED COSTA Multi-Page " Henning [31 1:14 1:18 51:25 hereby [31 3:2 3:4 79:6 hereof [11 79:14 hereunto [11 79:22 herniated [21 63:21 63:23 high [21 7:7 7:8 Hill [3] 15:20 15:24 16:8 hire [11 14:14 hired [618:22 9:1 9:2 9:4 9:21 10:4 hit [11 31:9 hobbled [11 41:15 hold [2] 31:16 35:2 holding [11 47:16 home [6] 28:9 35:15 36:9 57:6 62:12 62:17 HOSPITAL [1 1 1:7 hot [31 66:13 66:14 66:15 hour [2] 12:1 12:2 hourly [21 11:24 11:25 hours [71 3:22 11:21 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[31 42:14 42:20 42:21 January [11 13:16 job [121 7:22 8:9 9:4 9:7 9:9 9:12 9:23 12:9 12:17 12:20 12:23 14:8 jobs [11 9:13 Jones [211 7:19 7:23 8:22 9:5 9:8 12:24 15:17 17:16 17:18 19:18 21:22 23:5 25:1 40:23 40:25 41:4 42:18 43:16 44:3 45:11 71:19 Joseph [11 6:17 -K- 13:7 K [11 48:6 13:10 Karen [s] 1:11 50:16 13:25 13:25 79:4 79:25 keep [21 25:12 41:1 27:9 keeps [11 58:22 79:18 kept [11 11:14 kind [7] 25:19 35:2 46:19 49:7 53:21 66:24 68:1 knew [s1 31:18 33:23 34:6 35:3 55:14 knowledge [51 17:22 23:8 30:17 41:3 54:21 known [11 55:14 -L- L [21 46:12 L5-S1 [1] lab Ill 9:15 lack [11 29:18 laminectomy [11 64:18 landed [21 32:13 landing [i i 1 31:20 31:22 31:24 32:13 32:18 33:3 76:16 landings [11 last [2ol 10:7 1 23:10 31:8 32:15 32:17 58:24 59:3 59:21 59:24 65:5 65:24 72:10 75:22 law [2] 1:4 lawsuit [21 55:13 leads [1120:15 least Ill 65:11 leave [6123:10 24:10 24:11 74:23 leaving [41 1 22:17 24:24 ledge [11 left [1s] 18:9 23:9 24:17 24:23 25:8 3 31:12 31:14 3 62:11 74:2 76:16 legs [31 13:22 63:24 length [11 3 lenses [21 1 11:8 less [11 27:16 letter [1153:13 level [5120:23 2 22:1 26:11 6 levels Ill 6 license [2] 1 11:3 lien [11 53:13 liens [21 50:22 5 49:3 64:25 32:11 31:9 31:23 32:14 76:13 31:13 2:19 31:20 42:16 59:10 62:25 70:21 77:16 51:25 3:14 23:12 56:7 8:12 26:4 76:13 21:5 24:17 0:2 1:15 76:10 62:6 7:19 1:6 0:24 5:3 4:21 0:23 0:23 light [271 28:19 28:22 29:10 29:12 29:25 30:4 31:9 31:13 31:17 32:22 33:2 33:10 33:15 33:18 33:23 33:25 34:20 40:9 43:20 46:25 47:4 47:11 54:14 70:4 70:10 70:19 77:6 lighting [81 37:20 38:17 48:22 55:14 68:17 69:2 69:23 70:9 lights [42] 28:18 29:12 29:17 30:7 30:14 30:16 30:18 30:22 30:24 31:2 32:20 32:24 33:5 39:5 39:7 39:14 40:8 42:6 43:8 43:21 44:13 44:14 44:16 44:21 45:2 47:9 48:20 48:23 48:25 49:12 49:15 54:11 55:18 56:1 56:3 56:11 70:19 74:8 74:11 75:1 75:6 77:6 liked [1] 19:8 Likewise [11 4:24 Linda [141 10:14 10:18 11:16 11:18 14:8 24:15 39:16 39:19 42:2 44:9 45:14 52:10 52:11 72:11 line [11 76:7 LINGLESTOWN [11 1:15 list [11 50:15 LLP [11 1:21 lobby [41 20:16 20:23 21:18 22:1 located [41 7:12 15:2 15:9 15:10 location [4] 15:21 19:7 20:5 20:8 log [11 41:12 longer [2] 27:2 27:5 look [s] 41:20 46:6 59:18 65:2 72:6 looked [1] 77:11 looking [8] 46:7 46:15 46:22 47:22 48:2 48:3 68:3 68:14 looks [31 62:24 65:16 75:25 losses [1] 50:16 lost [21 50:12 50:17 lower [11 63:12 lucky [31 8:13 35:19 57:6 Lumbar [11 63:13 _M_ ma'am [91 3:12 5:24 46:12 66:20 68:13 71:5 73:5 73:15 78:5 machine [11 8:20 main [6] 20:15 21:4 21:18 23:13 23:15 42:14 maintenance [191 39:11 39:14 39:19 39:24 40:24 41:2 41:5 41:10 43:12 43:16 43:22 44:4 44:7 44:10 44:11 45:1 55:21 55:25 56:1 makes [4] 27:5 27:13 66:13 66:17 manager [8] 8:4 10:14 10:18 11:22 14:9 44:7 52:2 52:9 manages [11 14:13 marathon [i1 5:13 mark [3] 67:1 67:12 73:11 marked [101 2:14 67:2 67:13 68:9 68:10 68:21 69:8 71:2 73:12 78:3 married [2] 6:3 6:7 massage [11 62:6 match [11 46:14 matter [11 52:20 may [71 4:2 4:15 4:18 62:25 72:4 72:6 73:24 mean [111 9:11 13:17 14:12 27:15 36:24 53:19 55:3 56:24 66:10 74:23 77:19 meaning [3] 30:10 38:21 51:7 means [11 76:8 meant [1] 15:4 measure [21 74:20 75:11 Mechanicsburg [2] 6:23 60:17 medical [211 7:9 7:21 7:23 9:5 9:8 9:24 12:23 13:7 13:8 13:12 14:20 17:5 17:18 43:3 52:12 59:12 59:18 59:20 61:8 61:10 76:8 medication [31 5:18 65:19 65:25 medicine [i 1 10:5 meet [11 16:17 meeting [1] 16:20 Index Page 4 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Multi-Page TM mentioned - point MILDRED COSTA middle Ill might [21 75:16 Mildred [6] 1:9 2:3 5:23 79:7 mile [1] 57:3 miles [61 57:7 57:14 65:10 65:13 mind [1164:10 minutes [3] 18:11 25:8 miss [6] 11:2 29:9 49:22 73:20 1:1 3:8 57:1 65:6 8:13 13:11 50:20 missed [4] 32:14 32:15 75:22 77:16 misspoke [1] 48:16 modifier [11 35:3 modify [4] 76:25 77:2 77:4 77:5 Monday [2] 18:22 20:1 money [31 53:14 53:25 54:3 month [21 65:7 65:9 monthly [1] 11:16 months [3l 58:15 59:1 59:5 moon [1] 37:11 morning [8] 25:23 31:3 41:15 41:16 48:9 48:18 49:1 61:12 move [1] 15:11 moved [2] 21:22 23:6 MRI Ill 63:6 mutual [1] 3:21 -N- name [61 2:2 5:22 10:7 16:25 47:20 53:11 name's [1] 3:12 names [21 6:16 42:16 navigating [1l 49:16 necessarily [11 29:14 need [101 4:4 5:11 8:7 11:6 12:16 50:9 58:14 58:22 59:23 64:14 needed [1l 12:19 negotiate [1l 14:19 never [3] 22:25 24:3 66:1 newspaper [31 37:15 37:16 37:24 next [61 3:22 16:3 31:20 70:21 75:21 77:15 night [11l 35:1 36:20 37:6 37:12 37:15 38:15 43:25 43:25 44:22 44:23 58:22 nine [11 14:25 none [4] 5:17 46:9 46:10 48:25 normal [1l 20:5 Notary [21 1:12 79:4 notes [1l 72:6 nothing [2] 61:15 78:8 notice [81 33:5 33:7 33:14 44:16 44:21 44:24 56:3 70:8 noticed [13] 28:21 29:12 31:12 33:7 33:16 33:18 46:20 47:7 74:8 74:10 75:1 75:6 77:6 November [34] 3:16 6:22 6:25 7:3 7:3 9:19 10:15 10:19 11:4 11:13 11:15 12:3 12:9 12:12 13:16 13:17 13:20 13:24 14:10 17:14 18:17 23:6 23:20 23:23 24:23 25:2 25:24 28:13 34:14 34:17 35:9 39:23 61:12 65:6 now [1 s] 11:12 12:6 12:7 15:5 20:15 20:25 30:15 31:1 40:11 46:8 46:22 57:2 59:6 72:23 77:25 numb [1] 63:24 number [41 6:1 11:3 25:24 46:14 nurse [1] 10:12 nurses [4] 35:23 41:20 43:3 43:4 -O- O'Neill [57] 2:4 3:11 3:12 11:5 13:9 13:14 16:16 25:15 25:17 29:5 29:8 35:4 35:7 45:21 45:24 46:1 46:4 46:6 46:9 46:11 48:14 48:16 48:17 51:12 52:23 55:5 55:8 67:1 67:4 67:11 67:15 68:8 68:12 68:23 69:10 69:19 69:21 70:15 70:16 71:4 71:15 71:18 71:21 72:1 72:4 72:8 72:17 72:20 72:22 72:25 73:3 73:4 73:11 73:14 77:12 77:22 78:5 oath [2] 52:18 52:18 oaths [1l 79:5 object [2] 16:13 38:20 objections [11 3:5 obligate [11 71:25 observed [1] 49:3 Occasionally [1l 39:17 occasions [81 31:1 39:4 39:8 40:24 41:6 43:12 43:17 49:15 occurs [1] 57:13 October [3] 10:18 14:9 23:23 October-November [3] 18:2 21:7 21:12 off [8] 21:5 47:8 48:23 50:5 58:11 58:25 59:6 71:6 Office [22] 10:18 12:17 12:20 14:9 14:11 14:13 15:24 16:4 17:11 23:9 23:13 23:15 24:17 31:3 35:16 39:11 39:12 40:23 41:5 43:11 44:3 60:16 offices [3] 15:17 15:25 21:22 Often [2] 16:1 65:9 OIP [91 41:23 41:24 42:7 50:3 60:18 61:13 62:24 63:17 63:18 old [21 6:18 38:4 one [511 5:9 8:13 15:19 16:2 16:2 16:6 23:10 23:12 23:15 24:18 25:4 26:6 27:13 27:23 28:2 30:20 30:21 30:25 31:13 33:7 38:5 38:13 38:14 41:20 44:10 44:18 44:20 45:23 46:4 47:24 51:14 53:17 54:22 62:8 64:2 64:12 66:21 69:3 69:4 69:5 69:6 69:16 69:25 69:25 70:21 70:23 70:24 73:12 73:24 74:2 77:6 ones [4] 14:24 23:12 53:23 74:17 ongoing [1] 71:22 onto [4] 31:16 47:16 58:21 76:14 opportunity [l] 73:5 opposed [s] 8:3 26:16 27:11 27:17 34:10 opposite [1l 32:24 oral [1l 52:1 Otherwise [1l 8:15 outside 191 27:24 28:3 36:25 43:8 48:22 49:2 57:25 58:1 74:5 overtime [2] 25:5 25:9 Own [31 11:14 17:6 54:10 -P- P [1] 1:22 P.M [2] 1:13 78:9 P.M. [2] 23:18 74:3 page 121 73:12 73:15 paid [4] 11:23 13:12 25:5 25:9 pain [1l 66:4 painful [1] 66:8 park p5117:16 17:19 19:8 19:18 20:4 20:7 20:10 20:18 22:14 22:15 40:13 40:15 40:16 67:8 67:20 parked [1l 21:7 parking [121 19:9 19:12 19:16 20:11 20:18 21:4 25:19 40:16 66:24 67:5 67:7 74:7 part [121 8:5 19:17 19:17 20:11 42:9 43:5 56:1 59:7 63:11 63:12 70:12 70:13 particular [16] 16:5 19:7 21:13 22:7 26:18 27:22 29:25 34:16 37:9 37:12 39:12 42:11 44:14 47:11 67:20 70:19 particularly [2122:22 64:18 parties [21 3:3 79:16 parts [1l 62:22 past [1l 25:6 patience [1l 78:6 patient [21 8:1 8:3 patients [4] 7:24 7:25 8:5 8:7 paying [2] 33:11 33:13 pen [11 69:17 Pennsylvania [7] 1:2 1:16 7:13 11:3 53:10 79:3 79:6 people [2] 22:24 54:6 per [2] 12:1 17:23 percent [2] 26:1 26:6 percentage [21 25:22 26:5 perform [31 12:23 63:20 63:25 performed [21 63:3 63:15 Perhaps [1] 74:1 period [21 55:1 58:17 periodically [2] 44:7 47:8 person [41 5:9 9:9 20:20 53:2 pertaining [1l 56:21 phase [1] 37:11 phone [2] 53:3 53:4 photograph [2512:15 2:16 2:17 2:18 2:19 67:2 67:9 67:11 67:13 67:17 67:20 67:24 68:8 68:10 68:13 68:21 69:8 69:11 69:18 69:22 70:14 71:2 71:5 71:12 78:3 photographs [6] 54:13 54:16 66:20 68:16 68:17 70:18 phrase [2] 29:21 61:10 physical [9] 57:13 59:3 60:9 60:22 60:25 61:18 62:11 64:14 65:16 physically [21 8:15 54:19 physician [7] 13:24 14:6 20:18 59:10 60:3 60:13 66:24 physician's [21 20:11 74:6 physicians [2] 19:16 60:18 pick [2l 62:8 62:19 picked [2] 13:16 52:13 picking [1l 62:14 pillar [1l 68:1 Pinnacle [u] 1:6 3:13 45:5 45:9 45:12 45:17 55:13 55:13 55:17 55:21 56:2 place [6] 1:14 3:15 3:22 53:13 58:22 79:14 plaintiff [31 1:2 1:20 51:3 plaintiff's Ill 51:18 PLEAS [1l 1:1 pocket [2] 53:14 54:4 point [814:21 15:11 [1l 43:19 69:14 72:15 Index Page 5 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 portion - sitting NIILDRED COSTA Multi-Page"" 28:13 33:14 38:6 42:2 61:6 75:3 Portion [2l 76:20 76:24 position [2] 7:20 10:11 possibility [11 34:3 posted [11 49:4 practice [101 9:8 9:13 10:11 14:20 15:1 15:2 15:3 15:8 16:8 60:17 premises [3] 47:21 48:6 49:5 preparation [1l 17:2 prepare [4] 16:11 16:17 16:21 I6:24 prescription [41 55:4 65:24 66:4 66:19 presence [1l 24:2 pressure [1] 66:17 presumably [1l 27:15 pretty [2] 28:11 51:3 prevented [21 33:9 34:19 prevents [11 57:7 primarily [11 8:9 print [1l 38:14 privileged [1] 16:14 problem Ul 23:4 28:16 28:18 28:22 29:6 34:16 73:1 problems [71 28:14 34:13 34:25 35:8 36:9 39:24 63:22 proceed [61 3:25 4:16 4:18 4:19 4:24 5:16 proceedings [1] 4:1 process [11 28:2 produced [9] 2:14 67:2 67:13 68:10 68:21 69:8 71:2 71:21 73:12 projecting [1] 71:6 provide [3] 5:7 10:1 10:2 provided [4] 11:2 40:21 46:10 73:6 providers [11 50:24 providing [1l 17:10 public [41 1:12 26:14 79:4 79:11 pull [1l 53:21 pulse [1] 57:19 punch [1] 11:10 purse [11 31:14 push [11 62:5 Put [61 4:2 41:16 58:21 62:3 62:5 69:17 _Q_ questioning [214:22 5:2 questions [141 4:1 4:4 17:8 17:11 46:15 51:4 51:4 51:13 51:15 51:22 71:16 72:24 78:6 79:9 quick [1l 29:9 -R- railing [51 31:16 47:17 74:20 75:11 76:6 rained [2] 36:18 36:20 read [15] 11:9 25:15 25:16 37:16 37:24 38:6 38:13 38:14 38:18 51:15 61:22 74:22 74:25 76:20 77:13 reading [6] 3:3 53:9 75:1 75:2 75:5 77:10 realize Ill 3:25 realized [1] 34:20 really [31 22:15 24:3 27:21 rear [1l 48:12 reason [141 4:4 4:7 5:1 5:11 5:15 18:12 22:18 26:7 26:18 27:22 28:6 40:18 49:8 49:12 reasons [11 26:7 receipts [11 8:18 receive [3] 50:6 61:3 62:21 received [21 61:9 61:11 reception [11 9:16 Recess [1] 29:7 recollection [51 59:21 73:23 75:3 75:5 77:23 record [31 4:2 13:6 79:20 recorded [11 53:5 records [s] 7:25 8:1 8:20 17:5 59:12 59:18 59:20 62:24 reduced [1] 79:11 referred [11 70:13 referring [2] 52:9 74:9 refers [1l 48:3 refresh [11 75:3 refreshes [21 73:22 75:5 regard [s] 3:14 3:15 52:15 70:17 70:17 Rehabilitation [21 60:23 61:13 relate [1] 5:19 relates [1] 59:11 relation [11 20:25 relative [21 79:15 79:16 reliever [1l 66:4 remember [1s] 4:21 17:10 18:8 19:21 24:20 42:11 53:11 59:14 59:15 64:5 64:6 64:18 64:21 65:1 70:24 removable [1] 58:9 repeat [21 4:9 15:5 rephrase [s] 4:9 18:15 35:4 35:4 50:6 report [s] 10:13 31:4 39:7 39:10 65:2 reported [31 39:24 43:21 45:16 reporter [31 4:3 5:8 79:12 Reporter-Notary pl 79:11 reports [1] 41:1 repoured [11 54:23 represent [21 3:13 68:18 required [2] 11:10 12:23 reserved [11 3:6 reside [31 6:22 6:25 7:4 respective [1] 3:3 responsibilities [2] 7:23 14:9 responsibility [11 39:13 restricted [1l 56:13 result [1o] 34:8 49:19 49:22 50:10 50:12 50:17 53:14 61:11 62:22 76:17 retained [1l 3:13 Retrieving [11 8:16 review [31 17:2 17:7 73:5 reviewed [2] 16:15 17:5 reviewing [1] 76:24 right [181 19:10 21:5 22:8 27:11 27:12 31:15 31:22 46:8 47:17 51:6 51:8 51:10 51:11 63:1 65:17 72:19 72:23 76:14 [21 67:24 road [31 1:15 19:11 19:15 Roller Ill 56:23 ROSENBERG [2] 1:14 1:18 rotate [2] 15:25 16:1 rotation Ill 62:15 route [2134:20 40:11 row [6] 19:10 20:5 20:8 20:10 25:20 67:19 RPR [2] 1:11 79:25 Rubber Ill 42:25 Ruby [2] 42:14 42:24 runs [1l 14:11 _S_ Safe [2] 40:6 61:8 safely [1l 33:24 safer [1122:20 safety [41 28:10 74:20 75:12 75:14 salary [1l 11:23 saw [s] 24:3 59:10 59:16 59:22 59:24 60:18 62:25 69:20 says [12146:15 46:20 46:21 47:22 50:15 74:2 74:5 74:19 75:20 76:6 76:6 77:13 scan [11 63:6 scare [1122:24 scheduled [21 60:8 60:12 school [4] 7:7 7:8 7:9 7:10 scoot [1] 62:9 Scott [216:17 6:18 Scott's [1] 6:19 Scranton [1l 7:13 scrapes [1] 35:25 sealing [1l 3:3 second [131 31:19 31:22 31:23 32:6 32:8 32:9 32:17 32:22 33:8 33:8 33:18 69:16 77:5 section [s] 9:12 9:15 9:16 9:24 30:22 sections [11 9:14 security [41 6:1 23:24 24:2 24:5 sedentary [1l 8:9 see [25] 10:25 14:5 21:8 21:10 28:19 28:22 31:8 31:17 31:18 31:21 37:19 37:23 38:19 39:1 45:24 49:5 53:17 60:3 60:13 60:25 67:19 69:19 70:18 72:17 74:19 seeing [2] 14:3 33:9 sensation [1] 57:20 sent [41 41:21 46:2 72:4 72:19 separated [1l 6:3 September[1] 79:23 session [1l 5:13 set [171 32:5 32:8 32:9 33:3 33:8 37:1 37:3 37:8 41:11 75:20 75:21 77:4 77:5 77:9 77:14 77:15 79:22 sets [21 31:25 32:1 several [s] 9:13 40:24 41:6 43:12 43:17 44:12 46:22 47:6 Sheet [3] 11:11 24:24 79:14 sheets [51 11:14 11:16 18:15 18:16 25:2 Shepherdstown [11 60:17 shoe [21 41:16 41:17 shoes [1] 36:12 shoulder [21 31:14 31:14 show [121 40:21 45:19 51:2 66:20 66:21 67:11 68:8 68:24 68:24 70:12 71:5 76:12 shower [11 58:12 showing [1] 54:13 shows [2] 69:2 69:12 sick [1l 50:9 side [39120:21 20:22 20:25 21:6 21:8 21:13 21:17 21:21 21:25 22:3 22:9 22:18 25:25 26:5 26:11 26:19 26:21 26:23 27:3 27:6 27:11 27:17 27:23 27:24 28:8 30:24 33:20 34:11 34:17 48:9 48:12 57:24 67:23 67:24 71:6 71:9 74:14 74:14 74:15 sign [31 11:11 11:11 14:17 signature [21 73:17 76:22 signing [11 3:3 signs [2] 49:4 49:5 Sit [21 8:13 37:14 sitting [6] 8:11 Index Page 6 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/7]7-393-5101 Multi-Page"m skating - versus AULDRED COSTA 46:7 47:25 55:16 60:9 60:13 skating Ill 56:23 sleeve [2l 53:21 54:2 sleeves [11 53:24 slightly [11 27:15 sneakers [3l 36:14 38:23 39:1 social [1] 6:1 sock [3] 62:8 62:14 62:19 someone [31 12:19 20:18 41:24 somewhere [21 38:18 60:2 sorry [7] 6:24 29:5 48:14 53:1 65:15 73:10 77:18 sort [5] 3:21 56:13 58:3 61:17 63:22 sound [2] 63:1 65:17 source [1] 51:17 speak [11 52:24 speaking [2] 5:9 46:23 special [21 58:20 61:19 specific [1ol 29:16 30:4 40:25 43:12 55:23 56:22 59:19 59:23 64:6 65:1 specified [11 79:14 spell [1l 10:7 spending [1] 54:3 spent [1] 53:25 spine [11 63:13 spoken [2] 45:5 54:8 spot [11 40:13 sprained [i1 76:18 SS [1] 79:2 staff [41 40:24 41:5 43:12 43:16 stairs [29] 28:19 28:23 30:21 31:16 33:3 33:8 33:12 33:14 33:20 34:12 34:14 40:2 40:6 40:18 56:1 70:22 74:7 74:9 74:12 74:14 74:15 74:16 75:22 76:13 77:4 77:9 77:14 77:16 stairwell [11 26:16 stand [1] 8:19 standing [21 8:11 37:25 start [41 14:3 14:5 15:3 25:19 started [6] 15:1 15:8 25:18 33:6 75:2 75:7 starting [21 7:7 32:6 statement [11] 2:20 51:25 52:5 52:7 53:2 71:19 72:10 73:6 73:12 74:10 76:24 states [2] 61:2 74:21 stay [1l 25:5 stayed Ili 25:13 stenographically [11 79:10 step [lo] 31:8 31:18 31:20 31:21 32:13 32:14 32:15 32:17 75:22 77:16 STEPHEN [11 1:19 steps [681 20:14 21:1 21:10 21:25 22:4 22:10 22:18 25:25 26:2 26:5 26:10 26:14 26:19 27:2 27:6 27:7 27:10 27:11 27:16 27:17 27:23 27:24 28:7 28:7 28:14 28:20 28:23 29:10 30:8 30:22 30:23 30:24 31:5 31:25 32:1 32:5 32:9 33:6 33:25 34:3 34:10 35:1 35:9 37:14 38:25 39:5 44:14 48:10 48:12 48:12 48:13 48:14 49:9 49:12 49:16 49:17 54:17 54:19 67:16 68:3 68:13 68:18 69:12 74:6 74:20 75:2 75:7 75:20 Steve [31 45:21 69:19 71:15 Still [13] 10:9 14:1 24:13 25:1 27:25 31:5 34:10 40:13 42:18 42:22 43:1 65:8 78:2 stipulated [11 3:2 STIPULATION Ill 3:1 stop [1] 76:15 straight [1] 41:21 strap [1] 58:21 Street 111 15:10 stretches [1] 62:4 strike [2] 39:3 40:12 studies [l1 63:3 Sub [11 46:20 subparts [2] 45:20 46:12 subpoena [1] 72:5 subtract [11 77:1 successful [11 64:10 such 141 38:17 48:22 63:6 79:17 suit p1 13:2 sun [3] 37:1 37:3 37:8 supervisor [31 10:5 10:12 10:15 supplement [11 71:23 supports [41 53:17 53:19 53:20 54:4 supposed Ill 31:9 surface [21 75:21 77:15 surgery [11] 49:19 63:9 63:15 63:19 63:25 64:7 64:10 64:15 64:17 64:19 65:8 surprised [21 75:22 77:16 swell [11 66:13 swelling [1] 57:15 swells [41 57:8 57:11 66:12 66:18 switched [1] 31:15 sworn [21 3:9 79:9 -T- tab [1] 72:18 takes [1127:15 taking [2] 8:7 79:8 ten [11 8:13 tendency [1] 5:6 terminology [11 76:8 terms 151 26:25 27:9 27:13 28:10 31:25 terribly [11 5:12 testified Ili 3:9 testimony [s1 4:25 47:24 52:15 52:17 52:18 76:25 79:7 79:20 Texas [1] 7:8 thank [7] 10:4 11:1 11:4 62:2 72:25 76:10 78:6 Thanks [2] 15:7 73:3 themselves Ili 8:3 therapist [11 60:25 therapy [7] 59:3 60:9 60:22 61:18 62:11 64:14 65:17 third [7] 15:10 31:24 32:6 75:20 77:5 77:8 77:14 THOMAS [2] 1:21 1:21 thought [6] 33:24 34:3 72:9 74:22 75:21 77:15 three [81 6:6 42:15 64:1 65:11 65:13 69:12 69:14 73:25 throbbing [31 57:16 57:18 57:20 throbs [11 57:12 through 191 4:19 4:24 20:21 34:11 46:8 46:12 46:13 46:13 48:6 Thursday [1] 19:1 Time-wise [11 27:1 timely Ill 40:10 times [131 5:5 25:23 25:24 29:17 43:21 43:23 46:22 47:6 64:1 65:9 65:11 65:13 66:9 today 1101 3:16 5:8 12:9 47:25 54:8 54:20 55:16 56:17 60:10 60:14 today's 151 4:1 16:11 16:18 16:21 17:3 toes [2] 62:9 62:14 too [2] 66:18 73:2 took [61 3:15 29:9 44:15 58:25 65:24 66:1 top [91 32:6 33:12 33:14 44:18 44:20 68:25 69:6 69:12 75:6 touch [11 66:8 Toward [11 67:24 track [1] 41:1 training Ill 7:14 transcript [2] 3:25 4:15 transferring [2] 7:25 8:1 transfers [1] 8:19 treatment [41 52:12 61:3 61:9 61:11 trial [31 1:8 3:6 4:16 trip [21 34:4 34:7 tripping [11 34:8 true [1] 79:20 truthfully [11 5:20 try [2] 57:14 72:2 trying [2] 43:15 53:23 Tuesday [1l 18:21 turn [4] 11:15 19:10 39:11 40:9 turned [3] 11:18 25:2 33:16 twenty [1] 65:12 twisted [11 32:11 two [27] 6:15 15:18 16:3 24:18 24:21 30:22 30:24 31:12 32:20 32:24 33:5 35:23 49:25 57:1 57:7 57:14 58:15 59:1 59:5 65:6 65:10 65:13 74:8 74:10 75:1 75:6 77:6 two-month [11 58:17 type [1317:14 13:9 13:18 23:4 24:2 36:12 54:25 62:21 63:19 64:14 64:19 66:4 66:13 typed [1l 51:9 types [11 53:16 typewriting [1179:12 _U_ ultrasound [1] 63:6 Um-hum [8] 32:2 38:22 69:24 71:8 72:20 73:8 74:4 74:13 under [4] 52:18 52:18 76:17 79:12 underneath [11 32:12 understand [6] 4:8 4:9 27:8 30:6 52:12 55:23 understood [1] 4:12 unknown [21 40:25 43:13 Unless [1] 46:2 unsafe [1l 41:2 Up [211 8:20 11:21 13:16 18:14 20:13 21:18 21:25 23:6 25:24 37:18 49:7 52:13 54:20 57:8 57:11 62:8 62:14 62:19 66:18 68:14 76:16 used [111 4:15 21:14 21:21 28:7 57:1 58:7 58:8 58:16 58:20 58:23 58:24 using [9] 21:25 22:6 22:10 27:6 28:2 28:7 28:14 48:9 56:21 usually [2] 30:20 30:25 -V- V [11 1:4 vacation [1] 50:9 various [11 29:17 verbalized Ill 4:5 verification [21 45:21 46:3 versus [14] 8:11 8:11 16:8 21:25 22:4 22:10 22:18 25:25 26:5 27:6 Index Page 7 MIGHF.S AT.RRI HT F01.T7. NATATY 717-54o-0220/717-191-5101 Vicodin -1JURY MiT_nRFD MSTA Multi-Page"" 27:14 27:23 28:2 28:7 Vicodin [11 66:2 video [31 16:22 16:23 16:25 view [2168:3 68:5 Village [11 6:23 _W_ wages [41 13:8 50:7 50:12 50:17 waived [11 3:4 walk psi 22:9 27:2 56:20 56:24 56:25 57:1 57:3 57:5 57:6 57:14 58:4 65:5 65:10 65:11 65:13 walked [11 31:19 walking [6] 8:12 28:10 38:25 56:23 57:7 65:8 wall [2] 76:10 76:14 Wallace [11 42:21 warning [2l 49:4 49:5 watch [11 16:23 watched [11 16:22 wear[1l 11:8 wearing [1] 36:12 weather [5] 36:15 66:11 66:13 66:14 66:15 Weber [1] 41:19 Wednesday [11 19:3 week [211 16:2 16:3 16:6 18:20 19:5 19:21 19:22 20:7 30:3 30:7 30:10 30:10 30:13 44:4 44:8 45:2 65:15 65:15 70:17 70:19 70:23 weekly [21 11:16 16:2 wheel [2] 20:19 21:16 WHEREOF [1] 79:22 Wherever [11 22:14 white [21 38:24 39:1 whole [3] 14:13 32:11 62:15 within [3] 9:13 55:1 79:5 without [31 12:24 37:20 46:3 witness [13] 3:8 13:13 34:23 48:13 51:11 52:22 55:7 72:16 77:17 77:21 79:9 79:21 79:22 witnessed [11 47:24 witnesses [31 2:1 47:20 47:21 word [1129:18 worked [31 19:22 29:1 29:22 workers' [121 13:5 13:7 13:9 13:10 13:11 50:6 52:13 52:16 52:20 52:24 53:7 54:7 wrap [2] 53:23 54:1 write [2152:2 76:3 written [sl 9:4 9:7 9:23 17:8 17:10 24:24 52:1 73:20 wrong [1] 74:25 wrote [1l 52:7 -X- X [1l 69:17 X-ray [21 41:21 63:4 X-rays [21 42:7 52:3 -Y- year [3l 59:16 59:25 60:6 years [21 6:6 73:25 yourself [21 24:11 35:9 -i- 1[7] 1:1 1:2 1:3 1:4 1:5 1:6 1:7 (JURY [11 1:8 Index Page 8 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 f u { 6K ? i?K' y _ 4k 4X-1 46Z 00, A?ue? ow ? ?1J ??sa.)` a-.yet- ?.B«? 0 LYNDA GILFERT May 10, 2007 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MILDRED COSTA, PLAINTIFF VS. PINNACLE HEALTH HOSPITAL, DEFENDANT CIVIL ACTION - LAW NO. 05-4094 CIVIL TERM DEPOSITION OF: LYNDA BRUNO GILFERT TAKEN BY: PLAINTIFF BEFORE: KAY C. WILLIAMS, RPR, NOTARY PUBLIC DATE: MAY 10, 2007, 2:45 P.M. PLACE: HANDLER, HENNING & ROSENBERG, LLP 1300 LINGLESTOWN ROAD HARRISBURG, PENNSYLVANIA APPEARANCES: HANDLER, HENNING & ROSENBERG, LLP BY: STEPHEN G. HELD, ATTORNEY AT LAW FOR - PLAINTIFF THOMAS, THOMAS & HAFER, LLP BY: HUGH P. O'NEILL, III, ATTORNEY AT LAW FOR - DEFENDANT COSTA VS PINNACLEHEALTH ] Geiger & Loria Reporting Service - 800-222-4577 F LYNDA GILFERT May 10, 2007 COSTA VS PINNACLEHEALTH 2 1 TABLE OF CONTENTS 2 WITNESS 3 FOR PLAINTIFF DIRECT CROSS Lynda Bruno Gilfert 4 By Mr. Held 3 By Mr. O'Neill 15 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 STIPULATION 2 It is hereby stipulated by and between counsel 3 for the respective parties that sealing, certification and 4 filing are waived; and that all objections except as to the 5 form of the question are reserved to the time of trial. 6 7 LYNDA BRUNO GILFERT, called as a witness, 8 being sworn, testified as follows: 9 10 DIRECT EXAMINATION 11 BY MR HELD: 12 Q For the record, please state your full name. 13 A It's Lynda, middle name is Bruno, and it's 14 Gilfert, G-i-14-e-r-t. 15 Q Where do you currently reside? 16 A 5043 Pellingham Circle, Enola, 17025. 17 Q We are here to take your deposition in a 18 matter captioned Mildred Costa versus Pinnacle Health 19 Hospital. This action stems from a fall down incident that 20 happened November 3rd, 2003. 21 Have you ever had your deposition taken 22 before? 23 A No. 24 Q Well, the idea of a deposition is this lady to 25 your left over here is a Court Reporter, and you can see her 4 1 fingers moving. She's taking down everything that is said 2 verbatim in this office. She will be putting together a 3 transcript of these proceedings. 4 Now, first of all, you have the right to 5 review that transcript and to correct any errors, if you so 6 choose. Many witnesses waive that right. You do not have 7 to. You can look it over. She will mail you the 8 transcript. You can fill out what's called an errata sheet, 9 indicate where there are mistakes in the transcript or you 10 can just trust what she does. That's up to you. You can 11 make that decision now -- 12 A 1 would like to review it. It has nothing to 13 do with trusting her. I was married to an Attorney, so I 14 kind of understand the process. 15 Q I'm sorry to hear that. 16 A No. I would rather just review it. 17 Q No problem. Likewise, so we make the Court 18 Reporter's job much easier and she has a neat and clean 19 transcript of these proceedings, there's some guidelines you 20 need to keep in mind when we are doing these depositions. 21 First of all, try and give a verbal answer to 22 every question I ask you, yes, no, whatever, as opposed to 23 head shakes or uh-huhs and huh-uhs are also difficult. Like 24 I said, she's taking down words that are being said. She 25 can't take down moves and things like that. 5 1 A I understand. 2 Q Second of all, if you do not understand a 3 question I ask you, we are not playing word games here or 4 anything like that. If you don't understand a question, 5 just let me know. I will rephrase it. 6 Sometimes my questions come out not the way I 7 intended to and it's not done on purpose, I assure you. If 8 you don't understand something, let me know, okay. 9 A Okay. 10 Q Likewise, if I am asking a question, please 11 wait until I finish with the question before you answer it. 12 Not that I'm going to be offended that you interrupt me or 13 something like that. Just if two of us are talking at the 14 same time, she can't take us both down at the same time. 15 Can you try and wait until I finish the 16 question, even if you know what the answer is going to be 17 before you answer? 18 A Yes. 19 Q You do understand that you are under oath, 20 just as you would be in a court of law, correct? 21 A Yes. 22 Q Now, Ms. Bruno, where do you work? 23 A I work at Jones, Daly, Coldren Associates. 24 It's a pediatric practice. Our main office is in 25 Mechanicsburg. That's where my particular office is 2 (Pages 2 to 5) Geiger & Loria Reporting Service - 800-222-4577 LYNDA GILFERT May 10, 2007 COSTA VS PINNACLEHEALTH 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 located. Q How are you employed at Jones, Daly? A I'm the practice administrator. Q How long have you been a practice administrator? A I knew you were going to ask me that. Since June of 2001. Q This lawsuit stems from an incident that happened on November of 2003. In November 2003, were you employed as the office practice administrator? A Yes. Q You indicated your physical location is at -- is it the Fredricksen Outpatient Center? A We have two offices. I work out of -- yes. I work out of the Mechanicsburg office, which is the larger of the two offices. Is that what you asked me? Q Yes. That Mechanicsburg office is in the Fredricksen Outpatient Center? A Yes. Q Is that how you know that building? A You can say that, yes. That's fine. If you say that, I know what you are talking about. We just call it the Wertzville office. I know what you mean when you say the Fredricksen Outpatient Center. Q In November of 2003, you would have worked at 7 that same Mechanicsburg address? A Yes. I've always worked at this address. It's our main office. Q Did you come to be made aware that Mildred Costa had an incident in November 2003 where she alleges she tripped and fell down stairs at the Fredricksen Outpatient Center? A Yes. Q How did you become made aware of that? A Well, it was four years ago, but my recollection is that Millie told me the next morning. Q Millie is Mildred Costa, correct? A Yes. We call her Millie. Q Now, when she informed you of this fall, was she reporting it to you as a work injury? A I don't remember the series of events. I just know I found out. Yes, I guess. If she fell outside, I think the answer is yes. I wasn't sure at the time. Q I guess my question more is, are you the person that it is to be reported to if there is a work injury? A Yes. Q When Mildred or Millie reported this incident, was a workers' compensation claim opened up? A Eventually, yes. 8 1 Q Were you working the night that Millie claims 2 she hurt herself? 3 A I worked the day that Millie claims she hurt 4 herself. I wasn't working that evening. That working day, 5 yes, I was there. 6 MR O'NEILL: Which is Monday, November 3rd. 7 MR HELD: Okay. 8 A It was? Okay. 9 MR. O NEILL: If that helps you any. 10 A It doesn't help me. This was a long time ago. 11 I was pregnant at the time and now I have a three year old. 12 My memory isn't that great. 13 BY MR HELD: 14 Q I understand. Trust me, I don't expect you to 15 remember anything more than me, which is not putting the bar 16 too high. People remember things differently, though. Some 17 things people remember crystal clear. 18 A Yes, that's true. This was not one of them. 19 Q Do you remember what time Millie said she 20 injured herself? 21 A What I remember is that Millie said she was 22 leaving work. So generally she works -- generally, she 23 works 8 to 5. So it probably was sometime after 5:00 p.m. 24 She was leaving to go home. 25 Q If we assume that November 3rd, 2003, was a 9 1 Monday, would you have been working after five, too? 2 A I don't know. I can't answer that. I don't 3 know if I was there or not after five. Sometimes I leave at 4 five and sometimes I stay later. It just depends how much 5 work I have. 6 Q Fair enough. Did you come to find out how 7 Millie claims she fell, what caused her to fall? 8 A I don't understand the question. 9 Q Did Millie tell you at all why she fell, what 10 happened in the fall? 11 A Yes. 12 Q Do you remember what she told you? 13 A I remember that she tripped or fell on one of 14 the steps and landed on her heel. She said that she had 15 trouble seeing where the next step was because the light was 16 out. 17 Q The best you remember, was this account of the 18 accident told that next morning? 19 A I don't remember. Probably but I can't say 20 for sure. If she didn't tell me, someone else in the office 21 did, like my clinical supervisor who manages the staff for 22 me, she would have told me. 23 I don't remember if Millie was there that 24 morning. Because she was hurt, she may have been at the 25 doctor. Someone told me. Sorry. 3 (Pages 6 to 9) Geiger & Loria Reporting Service - 800-222-4577 LYNDA GILFERT May 10, 2007 COSTA VS PINNACLEHEALTH 10 1 Q That's fine. Do you know where the stairs are 2 that she claims she fell on? 3 A Yes. 4 Q Where are those stairs? 5 A They are in what you would call the back of 6 the building. There are at the opposite side from where the 7 revolving door is. They are in the physicians parking lot. 8 Q Generally speaking, would that be where you 9 parked? 10 A At that time, yes. 11 Q Prior to Millie reporting her fall, did you 12 ever notice any of the lights out on those stairways or that 13 stairway? 14 A I don't remember. I think so, but I don't 15 remember for sure. I do think so. 16 Q As a practice administrator, would one of your 17 duties be to handle dealings with maintenance, reporting 18 conditions that you feel needed attention? 19 A Yes. 2 0 Q You would be the contact person from the 21 practice as opposed to somebody else? 22 A Yes. 23 Q Do you ever remember reporting to anybody, 24 maybe Pinnacle Health or anyone acting on their behalf about 25 any of the lights being out on the stairs? 11 1 A Yes. 2 Q Who would you have reported that to, if you 3 remember? 4 A Carol Helt. 5 Q Carol H-e-1-t, that is? 6 A H-e-1-t. She's the manager for the real 7 estate department at Pinnacle. She has instructed me to 8 contact her when there's a problem at Fredricksen Center. 9 Q Do you know if you ever reported any lights 10 being out on the stairs leading from the Fredricksen Center 11 to the physicians parking lot prior to Millie's fall? 12 A I think maybe I did, but I can't remember if 13 it was before or after. 14 Q Do you happen to remember if Millie's accident 15 is what prompted the call to Carol Helt? 16 A Can you say that a different way? 17 Q Sure. Do you remember whether or not when you 18 found out that Millie claimed she fell because of the lights 19 being out, that was the event that said, hey, we need to 20 call Carol Helt and report those lights being out? 21 MR. O NEILL: Objection to form. 22 A What? 23 MR O'NEILL: Objection to the form. You can 24 answer. It's just for the record. 25 A I'm still not sure what you're asking. l know 12 1 that I contacted her after Millie fell about the light. I'm 2 not sure if I contacted her prior to that. 3 BY MR HELD: 4 Q Do you keep any records of any contacts with 5 Carol Helt? 6 A I e-mail her, so it would have been an e-mail. 7 I don't know if I printed it out. She may have on her end. 8 I don't contact her by the phone. We generally do e-mail. 9 Q Do you know where Carol Helfs physical 10 location is, where she works out of? 11 A I believe it's in Harrisburg. 12 Q She's not in the Fredricksen Outpatient 13 Center? 14 A No. 15 Q Were you involved at all with any workers' 16 compensation aspects dealing with Millie? 17 A I was the one who initiated the claim So 1 18 called our workers' comp company and made them aware that it 19 happened. 20 Q Do you know if you ever had to testify in a 21 workers' compensation proceeding? 22 A I've never had to, no, not that I ever 23 remember. 24 Q Do you remember if you gave a recorded 25 statement to the workers' comp insurance company? 13 1 A I don't remember. I talked to them over the 2 phone. Maybe it was recorded but I don't remember. They 3 never called me for that specific purpose. 4 Q And to let you know, they probably would not 5 have recorded it without your knowledge. 6 A They may have told me but I don't remember. 7 Q Fair enough. That's fair. Do you remember 8 who the workers' compensation carrier was at that time? 9 A Yes. We are insured through Travelers. We 10 still have them, the Travelers. Now it's called St. Paul 11 Travelers. 12 Q Do you remember if Millie missed any time from 13 work because of this work injury? 14 A I think she just missed a little when she had 15 to go to the orthopod. I think maybe it was a half a day. 16 I'm not sure. It wasn't very much, fortunately, for her. 17 Q Do you remember if there was a period of time 18 when Millie worked a light-duty position? 19 A I don't remember. I can't answer that because 20 she had a medical injury prior to that. I can't -- I know 21 she may have one of the times, but I don't remember which 22 time it was. I don't know for sure. 23 Q Fair enough. Did you personally ever notice 24 any of the lights out on the stairs between the physician 25 parking lot and the back entrance to the Fredricksen 4 (Pages 10 to 13) Geiger & Loria Reporting Service - 800-222-4577 LYNDA GILFERT May 10, 2007 COSTA VS PINNACLEHEALTH 14 1 Outpatient Clinic? 2 A I think so. 1 don't park there anymore. I 3 haven't parked there for several years, but I think at the 4 time I did. 5 Q You don't have a firm memory of one way or the 6 other if you ever noticed that, though? 7 A I think I did, but I can't tell you a hundred 8 percent. 9 Q Millie is still an employee for Jones, Daly, 10 right? 11 A Yes. 12 Q Does she still work at the Mechanicsburg 13 office? 14 A No. Within the past maybe six months, she's 15 been working at our Camp Hill office. 16 Q The change in position, that has nothing to do 17 with the accident that happened in 2003, right? 18 A No, absolutely not, nothing. She's doing the 19 same job. It's just a different location. 2 0 Q As a practice administrator, are you Millie's 21 direct supervisor? 22 A No. 23 Q Who would be her direct supervisor? 2 4 A At which office? 2 5 Q Well, at the Mechanicsburg office. 15 1 A That would have been Carla. She is the 2 clinical supervisor. She would have been her direct 3 supervisor. And then chain of command is she would have 4 gone to me if Carla wasn't available. 5 Q Carla is the one who would have done items 6 such as annual reviews and things like that? 7 A Carla helps me with those. We do them 8 together. Carla would be in charge of the schedule. So if 9 Millie needed to be out for a doctor's appointment or 10 whatever, she would need to let Carla know that, because 11 Carla handles the schedule for me. 12 Q To the best of your knowledge, did this injury 13 of November 2003, did that affect Millie's job performance 14 in any way? 15 A No. 16 MR. HELD: I believe that's all the questions 17 I have. This gentleman might have some questions for you. 18 A Okay. 19 MR. HELD: Thank you. 20 21 CROSS-EXAMINATION 22 BY MR. O NEILL: 23 Q Ms. Bruno, good afternoon. How are you? 24 A Okay. 25 Q I do have a few questions, very few. Did 16 1 Millie ever tell you specifically which light or lights were 2 out at the time of her fall? 3 A She may have told me, but she didn't take me 4 out there and point to it. So it probably went in one ear 5 and out the other. 6 I couldn't tell you. I don't think I know the 7 answer to that. Probably but I don't remember which one it 8 was. 9 Q As you are sitting here today, you are not a 10 hundred percent sure, one, whether or not she, in fact, told 11 you which light or lights were out at the time of her fall; 12 is that fair? 13 A Yes. 14 Q It is also fair to say that even if she did, 15 as you are sitting here today, you don't remember? 16 A Which one it was? 17 Q Correct. 18 A That's right, correct. 19 Q From some of your earlier answers, its my 20 understanding your recollection of events for November 2003 21 has faded over time? 22 A Yes. 23 Q You were pregnant at the time? 24 A Yes. 25 Q That's what you said. 17 1 A That does things to the mind. 2 Q Mr. Held asked you a couple questions as to 3 whether or not you had noticed lights being out on those 4 back steps from the physicians parking lot. Do you remember 5 that? 6 A Yes. 7 Q As you are sitting here today, are you able to 8 say with any certainty as to when it was you noticed the 9 lights being out on those steps? 10 A I know there were lights -- was a light out on 11 the steps, but I can't tell you if it was before or after 12 Millie fell, because I can't remember. 13 Q Then a similar question. Let me start with 14 this. One of your job duties as the practice manager for 15 Jones, Daly is to communicate with Ms. Helt regarding the 16 facilities? 17 A Yes. 18 Q Such as reporting lights being out, whether 19 they be interior or exterior? 20 A Yes. 21 Q Do you remember when it was prior to Millie's 22 fall on November 3, 2003, that you would have last called 23 Carol Helt about any maintenance issue whatsoever? 24 A Can you say that again, please? 25 Q Sure. Do you recall when it was that you 5 (Pages 14 to 17) Geiger & Loria Reporting Service - 800-222-4577 LYNDA GILFERT May 10, 2007 COSTA VS PINNACLEHEALTH 18 1 contacted Carol prior to November 3, 2003, regarding any 2 maintenance issue whatsoever? 3 A Can I remember? 4 Q Do you remember? 5 A No. 6 Q That would include lights? 7 A Yes. 8 MR O'NEILL: Nothing further. 9 MR. HELD: Nothing further. 10 (Deposition was concluded at 3:10 p.m.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 1 STATE OF PENNSYLVANIA ss 2 COUNTY OF DAUPHIN 3 4 I, Kay C. Williams, a Reporter Notary-Public, 5 authorized to administer oaths within and for the 6 Commonwealth of Pennsylvania and take depositions in the 7 trial of causes, do hereby certify that the foregoing is the 8 testimony of 9 LYNDA BRUNO GILFERT 10 I further certify that before the taking of 11 said deposition, the witness was duly swom; that the 12 questions and answers were taken down stenographically by 13 the said reporter, Kay C. Williams, Reporter Notary-Public, 14 approved and agreed to, and afterwards reduced to 15 typewriting under the direction of the said reporter. 16 I further certify that the proceedings and 17 evidence contained fully and accurately in the notes by me 18 on the within deposition, and that this copy is a correct 19 transcript of the same. 20 In testimony whereof, I have hereunto 21 subscribed my hand this day of 2007. 22 23 Kay C. Williams, RPR Notary Public 24 My commission expires: August 5, 2008 25 6 (Pages 18 to 19) Geiger & Loria Reporting Service - 800-222-4577 LYNDA GILFERT May 10, 2007 Page 1 COSTA VS PINNACLEHEALTH A able 17:7 about 6:22 10:24 12:117:23 absolutely 14:18 accident 9:18 11:14 14:17 account 9:17 accurately 19:17 acting 10:24 action 1:4 3:19 address 7:1,2 administer 19:5 administrator 6:3,5,10 10:16 14:20 affect 15:13 after 8:23 9:1,3 11:13 12:1 17:11 afternoon 15:23 afterwards 19:14 again 17:24 ago 7:10 8:10 agreed 19:14 alleges 7:5 always 7:2 annual 15:6 answer 4.:21 5:11,16,17 7:18 9:2 11:24 13:19 16:7 answers 16:19 19:12 anybody 10:23 anymore 14:2 anyone 10:24 anything 5:4 8:15 APPEARANC... 1:19 appointment 15:9 approved 19:14 asked 6:16 17:2 asking 5:10 11:25 aspects 12:16 Associates 5:23 assume 8:25 assure 5:7 attention 10:18 Attorney 1:20 1:22 4:13 August 19:24 authorized 19:5 available 15:4 aware 7:4,9 12:18 B back 10:5 13:25 17:4 bar 8:15 become 7:9 before 1:13 3:22 5:11,17 11:13 17:11 19:10 behalf 10:24 being 3:8 4:24 10:25 11:10,19 11:20 17:3,9 17:18 believe 12:11 15:16 best 9:17 15:12 between 3:2 13:24 both 5:14 Bruno 1:11 2:3 3:7,13 5:22 15:23 19:9 building 6:20 10:6 C 1:13 19:4,13 19:23 call 6:22 7:13 10:5 11:15,20 called 3:7 4:8 12:18 13:3,10 17:22 Camp 14:15 captioned 3:18 Carla 15:1,4,5,7 15:8,10,11 Carol 11:4,5,15 11:20 12:5,9 17:23 18:1 carrier 13:8 caused 9:7 causes 19:7 Center 6:13,18 6:24 7:7 11:8 11:10 12:13 certainty 17:8 certification 3:3 certify 19:7,10 19:16 chain 15:3 change 14:16 charge 15:8 choose 4:6 Circle 3:16 CIVIL 1:4,6 claim 7:24 12:17 claimed 11:18 claims 8:1,3 9:7 10:2 clean 4:18 clear 8:17 Clinic 14:1 clinical 9:21 15:2 Coldren 5:23 come 5:6 7:4 9:6 command 15:3 commission 19:24 COMMON 1:1 Commonwealth 19:6 communicate 17:15 comp 12:18,25 company 12:18 12:25 compensation 7:24 12:16,21 13:8 concluded 18:10 conditions 10:18 contact 10:20 11:8 12:8 contacted 12:1,2 18:1 contacts 12:4 contained 19:17 CONTENTS 2:1 copy 19:18 correct 4:5 5:20 7:12 16:17,18 19:18 Costa 1:4 3:18 7:5,12 counsel 3:2 COUNTY 1:1 19:2 couple 17:2 court 1:13:25 4:17 5:20 CROSS 2:3 CROSS-EXA... 15:21 crystal 8:17 CUM13ERLA... 1:1 currently 3:15 Daly 5:23 6:2 14:9 17:15 DATE 1:14 DAUPHIN 19:2 day 8:3,4 13:15 19:21 dealing 12:16 dealings 10:17 decision 4:11 DEFENDANT 1:7,23 department 11:7 depends 9:4 deposition 1:11 3:17,21,24 18:10 19:11,18 depositions 4:20 19:6 different 11:16 14:19 differently 8:16 difficult 4:23 direct 2:3 3: 10 14:21,23 15:2 direction 19:15 doctor 9:25 doctor's 15:9 doing 4:20 14:18 done 5:7 15:5 door 10:7 down 3:19 4:1 4:24,25 5:14 7:6 19:12 duly 19:11 duties 10:17 17:14 ear 16:4 earlier 16:19 easier 4:18 employed 6:2,10 employee 14:9 end 12:7 Enola 3:16 enough 9:6 13:7 13:23 entrance 13:25 Geiger & Loria Reporting Service - 800-222-4577 LYNDA GILFERT May 10, 2007 Page 2 COSTA VS PINNACLEHEALTH errata 4:8 errors 4:5 estate 11:7 even 5:16 16:14 evening 8:4 event 11:19 events 7:16 16:20 Eventually 7:25 ever 3:21 10:12 10:23 11:9 12:20,22 13:23 14:6 16:1 every 4:22 everything 4:1 evidence 19:17 EXAMINATI... 3:10 except3:4 expect 8:14 expires 19:24 exterior 17:19 e-mail 12:6,6,8 facilities 17:16 fact 16:10 faded 16:21 fair 9:6 13:7,7 13:23 16:12,14 fall 3:19 7:14 9:7 9:10 10:11 11:11 16:2,11 17:22 feel 10:18 fell 7:6,17 9:7,9 9:13 10:2 11:18 12:1 17:12 few 15:25,25 filing 3:4 fill 4:8 find 9:6 fine 6:21 10:1 fingers 4:1 finish 5:11,15 firm 14:5 first 4:4,21 five 9:1,3,4 follows 3:8 foregoing 19:7 form 3:5 11:21 11:23 fortunately 13:16 found 7:17 11:18 four 7:10 Fredricksen 6:13,18,24 7:6 11:8,10 12:12 13:25 from 3:19 6:8 10:6,20 11:10 13:12 16:19 17:4 full 3:12 fully 19:17 further 18:8,9 19:10,16 G 1:20 games 5:3 gave 12:24 generally 8:22 8:22 10:8 12:8 gentleman 15:17 Gilfert 1:11 2:3 3:7,14 19:9 give 4:21 go 8:24 13:15 going 5:12,16 6:6 gone 15:4 good 15:23 great 8:12 guess 7:17,19 guidelines 4:19 G-i-1-f-e-r-t 3:14 H HAFER 1:22 half 13:15 hand 19:21 handle 10:17 HANDLER 1:15 1:19 handles 15:11 happen 11:14 happened 3:20 6:9 9:10 12:19 14:17 Harrisburg 1:16 12:11 head 4:23 Health 1:6 3:18 10:24 hear 4:15 heel 9:14 Held 1:20 2:4 3:11 8:7,13 12:3 15:16,19 17:2 18:9 help 8:10 helps 8:9 15:7 Helt 11:4,15,20 12:5 17:15,23 Helt's 12:9 HENNING 1:15 1:19 her 3:25 4:13 7:13 9:7,14 10:11 11:8 12:1,2,6,7,8 13:16 14:23 15:2 16:2,11 hereunto 19:20 herself 8:2,4,20 hey 11:19 high 8:16 Hill 14:15 home 8:24 Hospital 1:6 3:19 HUGH 1:22 huh-uhs 4:23 hundred 14:7 16:10 hurt 8:2,3 9:24 H-e-1-t 11:5,6 idea 3:24 111 1:22 incident 3:19 6:8 7:5,23 include 18:6 indicate 4:9 indicated 6:12 informed 7:14 initiated 12:17 injured 8:20 injury 7:15,21 13:13,20 15:12 instructed 11:7 insurance 12:25 insured 13:9 intended 5:7 interior 17:19 interrupt 5:12 involved 12:15 issue 17:23 18:2 items 15:5 job 4:18 14:19 15:13 17:14 Jones 5:23 6:2 14:9 17:15 June 6:7 just 4:10,16 5:5 5:13,20 6:22 7:16 9:4 11:24 13:14 14:19 Kay 1:13 19:4 19:13,23 keep 4:20 12:4 kind 4:14 knew 6:6 know 5:5,8,16 6:20,22,23 7:17 9:2,3 10:1 11:9,25 12:7,9 12:20 13:4,20 13:22 15:10 16:6 17:10 knowledge 13:5 15:12 lady 3:24 landed 9:14 larger 6:15 last 17:22 later 9:4 law 1:4,20,22 5:20 lawsuit 6:8 leading 11:10 leave 9:3 leaving 8:22,24 left 3:25 let 5:5,8 13:4 15:10 17:13 light 9:15 12:1 16:1,11 17:10 lights 10:12,25 11:9,18,20 13:24 16:1,11 17:3,9,10,18 18:6 light-duty 13:18 like 4:12,23,25 5:4,13 9:21 15:6 Likewise 4:17 5:10 LINGLESTO... Geiger & Loria Reporting Service - 800-222-4577 LYNDA GILFERT May 10, 2007 Page 3 COSTA VS PINNACLEHEALTH 1:16 little 13:14 LLP 1:15,19,22 located 6:1 location 6:12 12:10 14:19 long 6:4 8:10 look 4:7 lot 10:7 11:11 13:25 17:4 Lynda 1:11 2:3 3:7,13 19:9 M made 7:4,9 12:18 mail 4:7 main 5:24 7:3 maintenance 10:17 17:23 18:2 make 4:11,17 manager 11:6 17:14 manages 9:21 Many 4:6 married 4:13 matter 3:18 may 1:14 9:24 12:7 13:6,21 16:3 maybe 10:24 11:12 13:2,15 14:14 mean 6:23 Mechanicsburg 5:25 6:15,17 7:1 14:12,25 medical 13:20 memory 8:12 14:5 middle 3:13 might 15:17 Mildred 1:4 3:18 7:4,12,23 Millie 7:11,12,13 7:23 8:1,3,19 8:219:7,9,23 10:11 11:18 12:1,16 13:12 13:18 14:9 15:9 16:1 17:12 Millie's 11:11,14 14:20 15:13 17:21 mind 4:20 17:1 missed 13:12,14 mistakes 4:9 Monday 8:6 9:1 months 14:14 more 7:19 8:15 morning 7:11 9:18,24 moves 4:25 moving 4:1 much 4:18 9:4 13:16 N name 3:12,13 neat 4:18 need 4:20 11:19 15:10 needed 10:18 15:9 never 12:22 13:3 next 7:119:15 9:18 night 8:1 Notary 1:13 19:23 Notary-Public 19:4,13 notes 19:17 nothing 4:12 14:16,18 18:8 18:9 notice 10:12 13:23 noticed 14:6 17:3,8 November 3:20 6:9,9,25 7:5 8:6,25 15:13 16:20 17:22 18:1 O oath 5:19 oaths 19:5 Objection 11:21 11:23 objections 3:4 offended 5:12 office 4:2 5:24 5:25 6:10,15 6:17,23 7:3 9:20 14:13,15 14:24,25 offices 6:14,16 okay 5:8,9 8:7,8 15:18,24 old 8:11 one 8:18 9:13 10:16 12:17 13:21 14:5 15:5 16:4,7,10 16:16 17:14 opened 7:24 opposed 4:22 10:21 opposite 10:6 orthopod 13:15 other 14:6 16:5 out 4:8 5:6 6:14 6:15 7:17 9:6 9:16 10:12,25 11:10,18,19,20 12:7,10 13:24 15:9 16:2,4,5 16:11 17:3,9 17:10,18 Outpatient 6:13 6:18,24 7:6 12:12 14:1 outside 7:17 over 3:25 4:7 13:1 16:21 O'Neill 1:22 2:4 8:6,9 11:21,23 15:22 18:8 P P 1:22 park 14:2 parked 10:9 14:3 parking 10:7 11:11 13:25 17:4 particular 5:25 parties 3:3 past 14:14 Paul 13:10 pediatric 5:24 Pellingham 3:16 Pennsylvania 1:1,16 19:1,6 people 8:16,17 percent 14:8 16:10 performance 15:13 period 13:17 person 7:20 10:20 personally 13:23 phone 12:8 13:2 physical 6:12 12:9 physician 13:24 physicians 10:7 11:11 17:4 Pinnacle 1:6 3:18 10:24 11:7 PLACE 1:15 PLAINTIFF 1:4 1:12,212:3 playing 5:3 PLEAS 1:1 please 3:12 5:10 17:24 point 16:4 position 13:18 14:16 practice 5:24 6:3 6:4,10 10:16 10:21 14:20 17:14 pregnant 8:11 16:23 printed 12:7 prior 10:11 11:11 12:2 13:20 17:21 18:1 probably 8:23 9:19 13:4 16:4 16:7 problem 4:17 11:8 proceeding 12:21 proceedings 4:3 4:19 19:16 process 4:14 prompted 11:15 Public 1:13 19:23 purpose 5:7 13:3 putting 4:2 8:15 p.m 1:14 8:23 18:10 question 3:5 4:22 5:3,4,10 5:11,16 7:19 Geiger & Loria Reporting Service - 800-222-4577 LYNDA GILFERT May 10, 2007 Page 4 COSTA VS PINNACLEHEALTH 9:817:13 questions 5:6 15:16,17,25 17:219:12 R rather 4:16 real 11:6 recall 17:25 recollection 7:11 16:20 record 3:12 11:24 recorded 12:24 13:2,5 records 12:4 reduced 19:14 regarding 17:15 18:1 remember 7:16 8:15,16,17,19 8:219:12,13 9:17,19,23 10:14,15,23 11:3,12,14,17 12:23,24 13:1 13:2,6,7,12,17 13:19,21 16:7 16:15 17:4,12 17:21 18:3,4 rephrase 5:5 report 11:20 reported 7:20,23 11:2,9 reporter 3:25 19:4,13,13,15 Reporter's 4:18 reporting 7:15 10:11,17,23 17:18 reserved 3:5 reside 3:15 respective 3:3 review 4:5,12,16 reviews 15:6 revolving 10:7 right 4:4,6 14:10 14:17 16:18 ROAD 1:16 ROSENBERG 1:15,19 RPR 1:13 19:23 same 5:14,14 7:1 14:19 19:19 schedule 15:8,11 sealing 3:3 Second 5:2 see 3:25 seeing 9:15 series 7:16 several 14:3 shakes 4:23 sheet 4:8 side 10:6 similar 17:13 Since 6:6 sitting 16:9,15 17:7 six 14:14 some 4:19 8:16 15:17 16:19 somebody 10:21 someone 9:20,25 something 5:8 5:13 sometime 8:23 sometimes 5:6 9:3,4 sorry 4:15 9:25 speaking 10:8 specific 13:3 specifically 16:1 ss 19:1 St 13:10 staff 9:21 stairs 7:6 10:1,4 10:25 11:10 13:24 stairway 10:13 stairways 10:12 start 17:13 state 3:12 19:1 statement 12:25 stay 9:4 stems 3:19 6:8 stenographica... 19:12 step 9:15 STEPHEN 1:20 steps 9:14 17:4,9 17:11 still 11:25 13:10 14:9,12 stipulated 3:2 STIPULATION 3:1 subscribed 19:21 supervisor 9:21 14:21,23 15:2 15:3 sure 7:18 9:20 10:15 11:17,25 12:2 13:16,22 16:10 17:25 sworn 3:8 19:11 TABLE 2:1 take 3:17 4:25 5:14 16:3 19:6 taken 1:12 3:21 19:12 taking 4:1,24 19:10 talked 13:1 talking 5:13 6:22 tell 9:9,20 14:7 16:1,6 17:11 TERM 1:6 testified 3:8 testify 12:20 testimony 19:8 19:20 Thank 15:19 their 10:24 things 4:25 8:16 8:17 15:6 17:1 think 7:18 10:14 10:15 11:12 13:14,15 14:2 14:3,7 16:6 THOMAS 1:22 1:22 though 8:16 14:6 three 8:11 through 13:9 time 3:5 5:14,14 7:18 8:10,11 8:19 10:10 13:8,12,17,22 14:4 16:2,11 16:21,23 times 13:21 today 16:9,15 17:7 together 4:2 15:8 told 7:119:12,18 9:22,25 13:6 16:3,10 transcript 4:3,5 4:8,9,19 19:19 Travelers 13:9 13:10,11 trial 3:5 19:7 tripped 7:6 9:13 trouble 9:15 true 8:18 trust 4:10 8:14 trusting 4:13 try 4:21 5:15 two 5:13 6:14,16 typewriting 19:15 uh-huhs 4:23 under 5:19 19:15 understand 4:14 5:1,2,4,8,19 8:14 9:8 understanding 16:20 until 5:11,15 V verbal 4:21 verbatim 4:2 versus 3:18 very 13:16 15:25 VS 1:5 W wait 5:11,15 waive 4:6 waived 3:4 wasn't 7:18 8:4 13:16 15:4 way 5:6 11:16 14:5 15:14 Well 3:24 7:10 14:25 went 16:4 were 6:6,9 8:1 12:15 16:1,11 16:23 17:10 19:12 Wertzville 6:23 whatsoever 17:23 18:2 whereof 19:20 Williams 1:13 19:4,13,23 witness 2:2 3:7 19:11 Geiger & Loria Reporting Service - 800-222-4577 .' LYNDA GILFERT May 10, 2007 COSTA VS PINNACLEHEALTH Page 5 witnesses 4:6 word 5:3 words 4:24 work 5:22,23 6:14,15 7:15 7:20 8:22 9:5 13:13,13 14:12 worked 6:25 7:2 8:3 13:18 workers 7:24 12:15,18,21,25 13:8 working 8:1,4,4 9:1 14:15 works 8:22,23 12:10 Y year 8:11 years 7:10 14:3 0 05-40941:5 1 101:14 13001:16 15 2:4 17025 3:16 2 2:451:14 20016:7 2003 3:20 6:9,9 6:25 7:5 8:25 14:17 15:13 16:20 17:22 18:1 20071:14 19:21 200819:24 3 2:4 17:22 18:1 3rd 3:20 8:6,25 3:1018:10 5 8:23 19:24 5:00 8:23 5043 3:16 8 8:23 Geiger & Loria Reporting Service - 800-222-4577 CERTIFICATE OF SERVICE I, Becky Rusbatch, Legal Secretary and an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 6A4 Becky Rusbat ' egal Secretary Date: August 1 , 2007 ? n? e:.? ? ?`?', ?? - _ ry i _ , c»7 C.i +? +.?..! +".q r. ?f ? Cry -1 " .{ +?,. a, a Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiffs Fax: (717) 233-3029 E-mail: HELDO-hhdaw.com MILDRED COSTA, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 05-4094 PINNACLE HEALTH HOSPITAL, Civil Action -Law Defendant PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW, comes the Plaintiff, Mildred Costa, by and through her Attorneys, HANDLER, HENNING & ROSENBERG, LLP, by Stephen G. Held, Esquire, and files her Response in opposition to Defendants Motion for Summary Judgment, and in support of this Response represents: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. } 6. Denied. Contrary to Defendant's assertion, discovery is not closed in this matter. Plaintiffs Second Set of Request for Production of Documents are outstanding. On May 23, 2007, Plaintiff served defense counsel with Plaintiffs Second Set of Interrogatories asking for copies of any and all records of Carol Heft relating to calls for service or work by any tenants of the Frederickson Outpatient Center (hereinafter, Frederickson Center) for the month before and after November 3, 2003. To date, Plaintiff has not received the requested documents. True and correct copies of Plaintiffs Second Set of Request for Production of Documents and the Certificate of Service are attached hereto as Exhibit "A." Pa.P.C.P. No. 1035.2 governs Motions for Summary Judgment and provides in pertinent part: ... (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P. No. 1035.2 (emphasis added). As further set forth below, the documents Plaintiff seeks are relevant to providing evidence of actual and/or constructive notice, facts essential to Plaintiffs cause of action. Clearly, Defendant's Motion is premature as he has failed to comply with Plaintiffs relevant discovery request. 7. Admitted. 8. Denied. Plaintiff has presented evidence raising questions of fact as to both actual and constructive notice. The testimony of Lynda Bruno Gilfert presents questions -2- w of fact as to actual notice. Ms. Gilfert testified that she notified the manager of Defendant's real estate department, Carol Helt, of lights being out on the stairs after Ms. Costa fell, but that she did not remember if she contacted her prior to the fall, but she thought maybe she did. (Gilfert Dep. p.10:23-11:13, attached to Def. Mot. for Summary Judgment as Ex. "C".) Significantly, Defendant has failed to provide responses to Plaintiffs Second Set of Request for Production of Documents seeking Carol Helt's records relating to service requests. Whether Carol Helt was notified of the malfunctioning lights on the back stairway is clearly material to determining whether Defendant had notice of the dangerous condition. Until Defendant provides the requested documents, a Motion for Summary Judgment is premature as all relevant discovery is not complete. Furthermore, Defendants failure to provide this material information presents questions of fact as to his motive for failing to provide this information. Evidence in the record also raises issues as to constructive notice. The stairway in question is one that leads to the physicians parking lot, and although it is described as the "back" stairway, photographs in the record illustrate that the stairway is a substantial structure, and its use as a means of ingress and egress to the facility should have been contemplated by the Defendant. (See Costa Dep. Ex. 1 - Ex. 6, attached to Def. Mot. for Summary Judgment as Exhibit "B.") Moreover, these same photographs also display a lack of ambient lighting in the immediate area of the stairway, thus increasing the importance of maintaining the lights on the walls of the stairway for the safety of tenants and their employees. Despite the lack of ambient lighting, the record shows that there was no regular inspection of the stairway lights. Mr. Harvey, the Defendant's facilities coordinator, testified that he never noticed lights out on the stairway. (See Harvey Dep. p. 25:11-14, May 10, 2007, attached hereto as Exhibit "B.") -3- D However, the record shows that the reason he did not notice lights being out is because he did not check the outside lights during his inspections, (Harvey Dep, p. 25:15-17), and the latest he worked was 3:30 p.m. and noone else did his job. (Harvey Dep. p. 8:14-25.) Instead of regular inspections, the Defendant relied on employees to report malfunctioning lights though a system described as a "grapevine" and "chain." Se Harvey Dep. p.11:12- 16; Costa Dep. p. 41:4-12.) Furthermore, Plaintiff testified that her employer has notified Defendant on several occasions of lights being out on the back stairway. (Costa Dep. p. 40:20-41:12.) Clearly questions of fact exist as to whether more reasonable inspection procedures would have provided the Defendant with notice of the unlit stairs, and thus, Defendant should have known that the lights were out. 9. Denied. The averment in Paragraph 9 contains a conclusions of law to which no response is required. By way of further answer, it should be noted that all discovery relevant to the Motion is not complete. As noted in Paragraph 6 above, to date, Plaintiff still has not received documents from Defendant which could provide definitive evidence as to notice, and therefore is clearly relevant. 10. Denied. The averment in Paragraph 10 contains a conclusions of law to which no response is required. 11. Denied. The averment in Paragraph 11 contains a conclusions of law to which no response is required. 12. Denied. The averment in Paragraph 12 contains a conclusions of law to which no response is required. By way of further answer, a number of additional relevant legal principles also govern premises liability actions. Under Pennsylvania law, what constitutes constructive notice varies under the conditions of each case. Factors courts -4- consider include the number of persons using the premises, the frequency of such use, the nature of the defect, its location on the premises, its probable cause, and the opportunity which defendant, as a reasonable prudent person, had to remedy the dangerous condition. Significant to the instant matter, It is not always necessary for plaintiff to produce positive testimony as to how long the defect existed. The direct proof of defendant's knowledge is not essential to the imposition of liability where the condition was a likely and foreseeable result of the manner in which the premises were being used. Stais v. Sears Roebuck & Co., 174 Pa. Super. 498,102 A.2d 204 (1954). Pennsylvania courts have imposed liability where the defect should have been anticipated and could have been discovered upon reasonable inspection. Id. at 504,102 A.2d at 206. Furthermore, the Supreme Court has opined that questions of constructive notice and whether a landowner should have known of the defect upon reasonable inspection is a question of fact reserved for the jury, and may be decided by the court only when reasonable minds could not differ. Commonwealth v. Patton, 546 Pa. 562, 568, 686 A.2d 1302,1305 (1997). In the instant matter, Defendant certainly should have anticipated burned out or malfunctioning exterior stairwell lights and could have easily discovered such a hazardous condition upon a reasonable inspection. 13. Denied. Plaintiff must merely demonstrate that the record raises questions of fact as to whether Defendant was aware or should have been aware of the hazardous condition to prevail on Defendant's Motion for Summary Judgment. Pertinent to the instant matter, a party may move for summary judgment 'Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery..." Pa.R.C.P. No. 1035.2 (emphasis added). -5- r Clearly, issues as to actual notice could be established by additional discovery, specifically the very discovery which was served on Defendant's in May 2007 and remains outstanding. (See PI. Resp. to Paragraph No. 6.) Furthermore, Plaintiff has raised issues of fact as to constructive notice, or whether the Defendant should have known of the malfunctioning lights. (See PI. Resp. to Paragraph No. 8.) 14. Denied. Plaintiff clearly established a hazardous condition existed. Plaintiff testified to two lights being out on the back stairway on the evening that she fell, (Costa Dep. p. 31:12-13; 74:25-75:4). Ms. Costa also testified that lights being out on the back stairwell was an ongoing problem: Q. Have you done since then? A. No. I don't take stairs no more. Q. How do you go? A. Over there. I go out the front door. Q Why do you do that? A. Because I don't feel that those stairs are safe. Q. Why not? A. Because the lights are out on them all the time. Every time you turn around there's a light out and it doesn't get fixed on a timely basis. (Costa Dep. p. 40:1-10; see also Id. at 29:11-20). Furthermore, photographs depict the lack of ambient lighting in the area of the stairway from which it can be reasonably inferred that loss of one or more of the ground-level stairway lights created a dangerous condition. (See Costa Dep. Ex. 1-6.) The testimony of Defendant's facilities coordinator, Lonny Harvey, confirmed that lights were out on the back stairway and that an electrician had to -6- t be called to fix them. (Harvey Dep. p. 22:21-23:10.) Plaintiff has also established that questions of fact exist as to whether Defendant was aware of the dangerous condition. Ms. Gilfert testified that she notified the manager of Defendant's real estate department, Carol Heft, of lights being out on the stairs after Ms. Costa fell, but she did not remember if she contacted her prior to the fall, but thinks maybe she did. (Gilfert Dep. p. 10:23-11:13.) Significantly, Defendant has failed to provide responses to Plaintiff's Second Set of Request for Production of Documents seeking Carol Helt's records relating to service requests. Gaining additional facts as to when Carol Heft was notified of the malfunctioning lights on the back stairway is clearly material to determining whether Defendant had notice of the dangerous condition. Furthermore, Defendants failure to provide this material information presents questions of fact as to his motive for failing to provide this information. 15. Denied. It should be noted, that Defendant misquotes Plaintiffs testimony and Plaintiff's testimony must be read in its entirety. When asked why she feels the back stairs are unsafe, Plaintiff responded, "Because the lights are out on them all the time. Every time you turn around there's a light out and it doesn't get fixed on a timely basis." (Costa Dep. p. 40:6-10 (emphasis added).) 16. Denied. Again, Defendant has not thoroughly reviewed the Plaintiffs testimony before drafting his Motion for Summary Judgment. Plaintiff did not testify to a light "post" being out on the evening of her fall, or the evening prior to her fall. As noted in Paragraphs 8 and 14 above, there is a lack of ambient lighting, including light posts, in the immediate vicinity of the back stairway. A careful review of the record by Defendant will provide that the malfunctioning lights were the ones attached to the sidewalls of the -7- e stairway. (See Costa Dep. Ex. 1-6.) 17. Admitted in part and Denied in part. It is admitted Ms. Gilfert testified that she does not remember if she reported lights being out before or after Plaintiffs fall. However, Ms. Gilfert's deposition transcript must be read in its entirety. When Ms. Gilfert was asked if she ever reported any lights being out on the stairs leading to the physicians parking lot prior to Ms. Costa's fall, she replied, "I think maybe I did, but I can't remember if it was before or after." (Gilfert Dep. p. 11:9-13.) Again, Plaintiffs outstanding Request for Production of Documents seeking service requests may establish when the malfunctioning lights were reported. However, without these documents, questions of fact remain as to when Defendant was notified of the malfunctioning lights. 18. Denied. Plaintiff has provided evidence that raises questions to fact as to both the dangerous condition of the back stairs leading to the physicians parking lot and actual and constructive notice. (See PI. Resp. to Paragraph Nos. 8 and 14.) 19. Denied. Defendant's Motion for Summary Judgment should be denied. First, the record provides the requisite evidence needed for Plaintiff to prevail in a summary judgment action. As explained in detail above, questions of fact surrounding both actual and constructive notice remain to be determined by the fact finder. Furthermore, Defendant's Motion is premature as there is an outstanding discovery request that could provide relevant information as to notice. Respectfully submitted, H Wn&eld, NNING & ROSENBERG, LLP SEsquire Attorney for Plaintiff -8- CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties of counsel or record by depositing a copy of the same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid on August 28, 2007, addressed to the following: Hugh P. O'Neill, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Evan Black, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P O Box 999 Harrisburg, PA 17108-0999 Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP Date August 28, 2007 By. SteR en G. Held, Esquire I.D. No.: 72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff EXHIBIT A Stephen Held, Esquire Attorney I.D. 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110. (717) 238-2000 MILDRED COSTA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff V. PINNACLE HEALTH HOSPITAL, NO.: 05-4094 CNIL ACTION - LAW JURY TRIAL DEMANDED Defendant PLAINTIFF'S SECOND SET OF REQUEST FOR PRODUCTION OF DOCUMENTS PROUPOUNDED UPON THE DEFENDANT 1. Produce copies of any and all records of Carol Heft relating to calls for service or work by Any tenants of the Frederickson Outpatient Center for the month before and after 11/3/2003 that were not all ready provided Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP StepKed G. Held, Esquire Attorney I.D. #72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Date: Y(`?y ATTORNEY FOR PLAINTIFF k MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION -LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 231 day of May, 2007, I hereby certify that I have, on this date, served the within document upon defendant's counsel and all counsel of record by sending a true and correct copy of the same to them via first class United States mail, postage prepaid, and addressed as follows: By First Class U.S. Mail: Mr. Hugh P. O'Neill Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Dated: May 23, 2007 HANDLER, HEN14ING & ROSENBERG, LLP EXHIBIT B LONNY HARVEY COSTA VS May 10, 2007 PINNACLEHEALTH LONNY HARVEY May 10, 2007 COSTA VS PINNACLEHEALTH 2 4 1 TABLE OF CONTENTS 1 We are here to take your deposition. Have you 2 WITNESS 2 ever had a deposition taken before? 3 FORPLADF17F DIRECT CROSS 3 A No. Lonny Lee Harvey 4 Q Well, basically the idea of a deposition is 4 By Mr. Held 3 By Mr. O'Neill - 5 I'm asking you sane questions about things you may know 5 6 surrounding the trip and fall, probably more things about 6 7 your procedures and what you do at the Fredrick-gen. 7 8 Outpatient Center. 8 HARVEY F.XTIIBIT NO. PRODUCED 9 This woman to your right here is a Court AND MARKED 10 Reporter, and she is taking down to make a transcript of 9 11 everything that is said in this room. If you see, her hands 10 1 - Work order dated 11/5/03 12 12 are moving, her fingers are moving, She's typing down 11 12 2 - Work ceder dated 10/29/03 14 3 - Work order dated 10/13/03 17 13 exactly what rm saying right now to you. 13 4 -Work ceder dated 10/30/03 17 14 1 will be asking you questions about these 14 5 - Work order dated 11/5/03 19 15 topics. You will be giving me answers to the best that you 15 16 can remember. To make her job easier, we have some 16 17 guidelines we have to beep in mind. 17 18 She's going to knit together a transcript, so 18 19 19 we want a neat and clean transcript of these proceedings. 2 0 20 First t of all, try and give a verbal response to every are of 21 21 my questions. If we were just taDdng on a street corner, 22 22 you ought shake you head, go uh-huh or huharh or something 23 23 like that 24 24 Try and give a yes or no or some sat of 25 25 verbal response t:o any question I give you, okay. 3 5 1 STIPULATION 1 A Okay. 2 It is hereby stipulated by and between counsel. 2 Q The reason we do that is just because she 3 for the respective parties drat sealing, certification and 3 can't take what's being done, she can only take down what's 4 filing are waived; and that all objections except as to the 4 being said. 5 form of the question are reserved to the time of trial. 5 A Okay. 6 6 Q Likewise, if you don't understand one of my 7 7 questions, let me know, okay. I can prase ieP questions. 8 LONNY LEE HARVEY, called as a witness, being 8 Sometimes any questions don't cane out the best way. It's 9 sworn, testified as follows: 9 not done on I assure purpose, you. If you don't understand 10 10 a question, let me know, okay. 11 DIRECT EXAMINATION 11 A Okay. 12 BY MR HELD: 12 Q Try not to talk when I'm talking and I will 13 Q For the record, please state your full name. 13 try and do the same to you, just because she can't take two 14 A Lonny L. Harvey. Lonny Lee Harvey. 14 people talking at the same time, okay. 15 MR. O'NEILL: Usual slips? 15 A Okay. 16 MK HELD: Well, do you want to talk about the 16 Q If you do not know the answer to a question, 17 signing and sealing? 17 that's a perfectly legitimate response. Don't feel you are 18 MR. O'NEILL: I'm representing him, so he is 18 obligated to give an answer to any certain question. 19 going to read and sign but otherwise... 19 Many of the questions I ask may have to do 20 MR. HELD: That's fine with me. 20 with brings that went or maybe October or November 2003. If 21 BY MR HELD: 21 you don't remember it, it's been four yens, that's fine. 22 Q Good aftemoon, Mr. Harvey. Just so you know, 22 Let me know, okay. That's perfectly acceptable. 23 my name is Stephen Held. I represent Mildred Costa in a 23 I do not think An going to be keeping you 24 claim against Pinnacle Health Hospital for a trip and fall 24 here this long. But if you do need to take a break for any 25 incident that happened on November 3rd, 2003. 25 reason, if you need to talk to your Attorney over here, if 2 (Pages 2 to 5) Geiger & Loria Reporting Service - 800-222-4577 LONNY HARVEY May 10, 2007 COSTA VS PINNACLEHEALTH 6 1 you need to take a break, get a drink, use the restroom, 2 want to stietdn your legs, whatever, just let me know. 3 I'm not trying to make this an interrogation, 4 and fin not trying to make you uncomfortable. If you need 5 to take a break for any reason, you just let me know. We 6 can go off the record, you can do what you got to do and 7 come back on the record and continue on. 8 A Okay. 9 Q I don't think rm going to keep you hoe more 10 than a half an hour, anyway, okay. 11 A Okay. 12 Q Where do you reside, Mr. Harvey! 13 A My house? 14 Q Yes. 15 A Linglestown. Do you want the full address? 16 Q Yes. What's your address? 17 A 803 Luther Street, Harrisburg, PA, 17112. 18 Q How long have you lived at that address? 19 A Six years in June. 20 Q Who are you currently employed by? 21 A Pinnacle Health Systems. 22 Q What is your current job title? 23 A Facilities coordinator. 24 Q How long have you been a facilities 25 coordin ator? 8 1 Fredrickson Outpatient Center? 2 A Yes. 3 Q What's that schedule? 4 A Well, Monday, Tuesday, and Friday, rm. 7 to 5 3:30. Wednesdays, rm. 630 to 3 and Thursdays, I'm 6 to 6 2:30. 7 Q A Monday, Tuesday, and Friday, that's 8 7:00 am to 330 p.m? 9 A Cornct. 10 Q Wednesdays 6:30 am to 3 o'clock p.m.? 11 A Correct. 12 Q Thursday is 6:00 am to 2:30 p.m? 13 A Correct, 14 Q Would you have been working that schedule m 15 November 2003, do you think? 16 A Maybe not 17 Q Do you remember there was a period of time 18 when you worked a different schedule? 19 A When I first started, it was more of a 7 to 20 330. 21 Q Would that have been five days a week? 22 A Yes, Monday to Friday. 23 Q So its fair to say you don't necessarily know 24 if that was your schedule in November 2003, it could have 25 been but it wasn't necessarily? 7 1 A Five years. 1 2 Q To the best of your knowledge, in November 2 3 2003, would you have been a facilities coordinator? 3 4 A It was real close to right around there when 4 5 they changed the job description. 5 6 Q What were you before a facilities coordinator? 6 7 A General maintenance. 7 8 Q How long have you worked for Pinnacle? 8 9 A It will be 19 years in August 9 10 Q This litigation and this lawsuit surrounds a 10 11 fall that happened at the Fredricksen Outpatient center. 11 12 Are you familiar with where that is? 12 13 A Yes. 13 14 Q Is that where you usually work? 14 15 A Yes. 15 16 Q Are you usually on-site at that property or do 16 17 you float to other properties? 17 18 A Only at that building. 18 19 Q I just refer to that building as the 19 20 Fredrickse Outpatient Center. Is that how you know it? 20 21 A That's it 21 22 Q How long have you worked at the Fredrickse 22 23 Outpatient Center? 23 24 A Since it opened, which was 2000. 24 25 Q Do you have a usual schedule you work at the 25 9 A I don't know. Q Who was your direct supervisor? A Harold UnderkoHler (phonetic). At the time that we are talking about in 2003, I reported to Ice Morrison Q Is Joe Morrison still with Pinnacle? A Just retired after 40 years. Q Bless him A Yes. Q Harold Underkoffler (phonetic), is he Joe Morrison!s replacanent, basically? A No. Q Would Joe Morrison have worked at the Fnedricksen Outpatient Clinic? A No. Joe was a director. He oversaw. He's not a worker. Q How about Harold Underkoffler (phonetic)? A He's a supervisor. Q In November of 2003, how many other employees of Pinnacle did the same job you did? A None. Q Just you. Is that still the same way today? A Yes. Q So basically you are a one-man operation? A Yes. 3 (Pages 6 to 9) Geiger & Loria Reporting Service - 800-222-4577 LONNY HARVEY May 10, 2007 COSTA VS PINNACLEHEALTH 10 1 Q How do job assignments come in? 2 MR ONEILL: Objection to the form. 3 A Work orders. 4 BY MR HELD: 5 Q Work orders, is that how you are given certain 6 tasks to do - 7 . A Yes. 8 Q - is through a work order? 9 A Somebody has to create one. Somebody has to 10 call in a problem 11 Q When somebody calls in a problem, do they 12 usually call you? 13 A No. 14 Q Do you know who they usually call? 15 A They should call Carol Helt, but only certain 16 people call her. Not anybody can just pick up the phone and 17 call her. 18 Q Does Carol Helt generate a work order for you? 19 A No. 20 Q What happens there? 21 A She relays it to tech services at Harrisburg 22 Hospital. Then Harrisburg Hospital = des a work order and 23 sends it to my printer. 24 Q Do you know if there are any records of calls 25 to Carol Heft kept? 12 1 jobs. I'm just guessing. 2 MR ONEILL: Don't guess. 3 A Okay. 4 (Work order dated 11/5/03 marked Harvey 5 Exhibit Number 1.) 6 BY MR HELD: 7 Q I'm going to show you something that I will 8 mark as Deposition Exhibit 1. Do you see this document? 9 A Yes. 10 Q What is this document that you are looking at? 11 A Its a work order. This is a work order that 12 I fill out This is not a work order that is sent through 13 the system like we just talked. 14 Q How would this paruc ular work order have been 15 generated? 16 A I filled it out I created it 17 Q Was this work order muted by some form of 18 inspection or something lflm that, a problem you noticed? 19 A its not a problem When I do a machine 20 check, you go in and you check the building, machine room, 21 so forth, so on. 22 Q This, I guess, is a work order that was - 23 it's dated November 3rd, 2003? 24 A Yes. 25 Q Above there, on the top there, it says 11 13 1 A I don't know if I know what you mean. 1 caller's phone number. 2 Q Do you know, for instance, one of the tenants 2 A Yes. 3 has a complaint about something that needs to be done, they 3 Q Do you see that? 4 call Carol Helt Do you know if Carol Helt keeps any 4 A, Yes. 5 records of those calls? 5 Q Do you know who that caller is? 6 A I don't know. That's facilities. I don't 6 A That's my number. 7 deal with them. 7 Q According to this exhibit, was this a job that 8 Q Fair enough. Then that person calling Carol B you did or was this something you, I guess, assigned to 9 Helt would start in the process something that would resuft 9 somebody else, for lack of a bettor term? 10 in a work order probably to you, right? 10 A I did it 11 A For the most part, me, yes. 11 Q According to this document, what exactly did 12 Q Do you know how long it would take from a call 12 you do? 13 to come to Carol Helt until you got the work order? 13 A Changed lights that I found on machine check. 14 A That varies. Sometimes they don't even get 14 Says here I oiled a door to a ladies restroom that wasn't 15 through. People call a second, third time, you know, its a 15 closing. 16 chain. 16 Q It says repaired by your name there? 17 Q Do you know how fast the fastest it could be? 17 A Yes. 18 A The fastest? 18 Q That's you. Employee number. That's your 19 Q Yes. 19 employee number? 20 A I guess an hour. 20 A Yes. 21 MR O'NEIL.L: Is that a guess? 21 Q To the best of your knowledge, this particular 22 A Its a guess. 22 work order was done by you based on an inspection you 23 BY MR HELD: 23 performed? 24 Q Have you through your experience - 24 A Yes. 25 A I don't know. rve never done any of them 25 Q How frequently would you inspect the property, 4 (Pages 10 to 13) Geiger 8c Loria Reporting Service - 800-222-4577 LONNY HARVEY May 10, 2007 COSTA VS PINNACLEHEALTH 14 1 the Fredricksen Outpatient Clinic? 2 MR OVER L: Objection to the form. You can 3 answer. 4 A What was that? 5 MR ONEILL: Just an objection to the form of 6 the question. You can answer it 7 A I do machine checks Monday, Wednesday and 8 Friday. 9 BY MR HELD: 10 Q Whats amachine check? 11 A I go through all my machine rooms, penthouse 12 and I check air handlers, all our equipment. There's a lot 13 to list from medical equipment, so forth, so on. 14 I go and I do visuals and mark it down, lots 15 of pressures, lots of how things are running, belts, things 16 like that, because nobody else is going to look at it. 17 (Work order dated 10/29/03 marked Harvey 18 Exhibit Number 2.) 19 BY MIL HELD: 20 Q I am going to show you a document that I will 21 mark as Harvey 2. Do you recognize what this document is? 22 A Yes. 23 Q What is Harvey Exhibit 2? 24 A This is a standard work order. 25 Q From this document here, can you tell where 15 1 this work order came from? 2 A No. 3 Q According to this work order, it has a problem 4 description. You see where I'm at, up in the top third of 5 the page? 6 A Yes. 7 Q It says, among other things, lights out going 8 down cement stairs to parking lot Do you see that? 9 A Yeah. 10 Q Above that, it says problem, light bulb 11 replacement? 12 A Yes. 13 Q Above that, it says caller, 14 Michellelfacilities. Do you know who Michelle is? 15 A I don't know her personally but its 16 facilities. 17 Q Is facilities somebody from Harrisburg? 18 A Facilities is a separate - how can I explain 19 this? I work for tech services. Facilities is another 20 department of Harrisburg Hospital. Facilities is what runs 21 the tenants. 22 Q According to this work order, was work 23 performed as a result of the work order? 24 A Yes. 25 Q What work was done? 16 1 A Lights were changed as needed. 2 Q Can you tell from this document what lights 3 were changed? 4 A No. 5 Q Up here at the top, it says technical 6 services, telephone repair order, has a date and a time. Do 7 you see that? 8 A Yes. 9 Q Do you know what that date and time is a 10 reflection of? 11 A That's probably when they sent it to me. 12 Q About two-thirds down the way, it has start 13 date and time. It says October 30th. Is that when you 14 actually performed the work that you describe here? 15 A Yes. 16 Q It took you about a half hour to do this? 17 A Yes. 18 Q Above the top there, where it says problem 19 description, it says corp 200/(X'./7'540. Do you know what 20 that means? 21 A Cost center is the CC. 7540 is the building. 22 Q Would that reflect Fredricksen Outpatient 23 Center? 24 A. Yes. 25 Q That's known as building 7540? 171 1 A Yes. 2 (Work order dated 10/13/03 marked Harvey 3 Exhibit Number 3.) 4 BY M1L HELD: 5 Q I'm going to show you what I will mark as 6 Harvey Exhibit 3. What is Harvey Exhibit 3? 7 A Standard work order. 8 Q Is this one that again was called in to you? 9 A It looks trice it was, yes. Tire tenants were 10 - and it was more than one tenant was complaining about the 11 interior hallway lights, not enough light going down the 12 hallways. 13 Q Basically, by this form flu was something 14 that was beyond your scope to do? 15 MR. O'NEILL: Objection to the form. You can 16 answer. 17 A Yeah I couldn't do this. 18 BY MR HELD: 19 Q Judging from this form, you are indicating 20 this is interior? 21 A Its the hallway, yes, inside. 22 Q You base that from in the bottom description, 23 no light in hall in front of employee entrance? 24 A Yes. 25 (Work order dated 10/30/03 marked Harvey 5 (Pages 14 to 17) Geiger 8c Loria Reporting Service - 800-222-4577 LONNY HARVEY May 10, 2007 COSTA VS PINNNACLEHEALTH 18 1 Exhibit Number 4.) 2 BY NM HELD: 3 Q I'm going to show you what I will mark as 4 Harvey Number 4. Now, judging from looking at this 5 document, is this a form you filled out? 6 A Yes. 7 Q You met with lighting guys, according to this? 8 A Yes. 9 Q Do you know what this document is referencing, 10 what event? 11 A Yes. 12 Q What's that? 13 A We had sales reps show up trying to sell us 14 tight bulbs. 15 Q According to this, we went over lighting 16 issues. Do you know what is meant by that? 17 A We just talked. 18 Q Do you know if this conversation you had as 19 reflected in Harvey 4 had anything to do with the situation 20 that was in Harvey 37 21 A No. 22 Q You don't know or it did not have anything to 23 do with it? 24 A It did not have anything to do with that. 25 Q The lighting guy, Phillips rep, Ids 19 1 somebody who sells light bulbs, not someone who does - is a 2 comtractoi? 3 A No repair work. 4 (Work order dated 11/5/03 marked Harvey 5 Exhibit Number 5.) 6 BY MR. HELD: 7 Q Pm going In show you what I will mark as 8 Harvey 5. What is shown in Harvey Exhibit 5? 9 A It's a self-made work order. 10 Q This was not done by you? 1l A Correct, not by me. 12 Q Do you know who a Randy Briggs is? 13 A Yes, I do. 14 Q Who is Randy Briggs? 15 A An electrician. 16 Q According to this work order, what did Randy 17 Briggs do? 18 A Checked for power and it has power checked the 19 ballast and the ballast was bad. Checked for new ballast 20 and found one and replaced one ballast Then checked for a 21 light inside to see what we can take ballast from, from 22 there, put one light in outside. 23 Q Do you know what a ballast is? 24 A Yes. 25 Q Whats a ballast? 20 1 A, It turns your light on and off. 2 Q This was work that was done on outside lights? 3 A Outside lights. 4 Q Can you tell by this work order what outside 5 lights are being referred to? 6 A No. 7 Q Several of these - or actually all these 8 exhibits have a date handwritten across at the top. Ulm, 9 for instance, on Harvey Number 5, it has the 11/172003 up 10 there. Do you see what rm talking about? 11 A Yes. 12 Q Do you know what that date is? 13 A No, I don't 14 Q That's not something that you would have put 15 on any of these forms, right? 16 A No. 17 Q Did you ever come to find out that Mildred 18 Costa, who was one of the employees who worked for Jones, 19 Daly, Coldren, that she claimed she fell down a flight of 20 stairs that were outside between the Fredrickson Centex and 21 the physician perking lot? 22 MR O'NFILL. Prior to suit being filed. 23 BY MR BEW: 24 Q Did you come to find out about that? 25 MR O'NEILL : Well - 21 1 BY MR. HELD- 2 Q At any time. 3 MR. O'NEIL L: - no. Ube found out through 4 me, you know, that's privileged communication. So why don't 5 we limit it to other than speaking with me in the context of 6 this litigation, can you answer his question? 7 MR. HELD: Let me ask the question another way 8 to make it cleaner. 9 BY MR HELD: 10 Q Except for talking with your Attorney, did you 11 come to find out that an employee of Jones, Daly, Coldren 12 was claiming she fell downstairs between the outpatient 13 center and the physicians parking lot? 14 A I heard from the Jones, Daly that someone had 15 fell. I didn't know who she was. I still don't 16 Q Do you know how you found that out? Was that 17 a call to you or did you discuss that with somebody? 18 A I was talking with Linda, the manager. 19 Q Linda Bruno that would have been? 20 A Yeah. 21 Q Do you remember when that conversation took 22 place? 23 A Date or time? 24 Q Anything. Do you remember from the context of 25 the conversation if it was shortly after the fall, was it 6 (Pages 18 to 21) Geiger & Loria Reporting Service - 800-222-4577 LONNY HARVEY May 10, 2007 COSTA VS PINNACLEHEALTH 22 1 years down the road, anything you remember? 2 A It was shortly. 3 Q Do you remember from that conversation what 4 Linda Bruno said had happened? 5 A She really didn't say much, just somebody had 6 fell. 7 Q Do you know or did you know from that 8 conversation that the employee was chiming there was a 9 lighting issue on the stairs outside? 10 A She said lights were out 11 Q Did you take any action as a result of that 12 conversation? 13 A Yes. 14 Q What did you do? 15 A I immediatelyfound out where. She said back 16 stairwell. Then I investigated and went out and checked all 17 the lights out 18 Q By back stairwell, you mean the outside cement 19 stairs going from the center to the physician parking lot? 20 A Correct 21 Q Do you know if any of the lights were out? 22 A Yes. 23 Q Were there lights out? 24 A Yes. 25 Q Did you repair those lights? 23 1 A I didn't I couldn't I called for an 2 electrician. 3 Q The repair to those lights was something more 4 than changing a light bulb? 5 A Correct 6 Q Do you know who the electrician was that would 7 have been called? 8 A Randy. 9 Q Randy Briggs? 10 A Yes. 11 Q Did you ever notice lights out on the back 12 stairwell before you were told by Linda Bruno that an 13 employee fell? 14 A No. 15 Q When doing your routine inspections, would you 16 check lights? 17 A Not outside. 18 Q You wouldn't check outside, okay. Do you know 19 if anyone ever complained about the lighting in the back 20 stairwell prior to your conversation with Linda Bruno? 21 A Not to my knowledge. 22 Q Do you know if you ever got a work order 23 regarding a complaint about the lighting in the back 24 stairwell prior to that conversation with Linda Bruno? 25 MR. ONE ILL: Objection to the form I'm not 24 1 quite sure what you mean. First is, the back stairwell is 2 the steps ping down to the packing lot 3 MR. HELD: Right 4 MR. omaL: I mesa it's out in the open. 5 Its not a stairwell. Otherwise just a general objection to 6 the form of the question. 7 MR. HELD: Okay. 8 BY MR.HEIR: 9 Q When I refer to the term back stairwell, you 10 and I are on the same page, right, that's the stainwell, 11 leading outside stairwell frown the Fredricksen center to the 12 physician parking lot, right? 13 A Correct. 14 Q That's how you know it, as the back stairwell, 15 right? 16 A The back stairway would probably be better. 17 Q Stairway, okay My question was more along 18 the lines after you had the conversation with Linda Brute, 19 did you get any work orders that may have been a result of a 20 conplaint which was before your conversation with Linda 21 Bruno but took some time to worts its way through the system? 22 Do you undastand the question? 23 MIL O'NEIU : Objection to the farm. 24 A Not really. 25 BY MR. HELD: 25 1 Q If you don't understand the question, I will 2 get it so you understand it Do you save your work orders? 3 A No. When I'm done, they get turned in. 4 Q Who do you turn those in to? 5 A Harold, my supervisor, prcics them up. 6 Q It's fair to say that at least five of these 7 were saved, right, five of these work orders were saved? 8 I'm showing them to you, right? 9 A Sure. 10 Q Do you know on average how many of these work 11 orders you would do in a day? 12 A Eight to ten. 13 Q Would there be days when there were Iess than 14 eight? 15 A Yes. 16 Q And I guess there would probably be days when 17 there were more than ten, right? 18 A Yes. 19 Q Did you ever notice any lights off in the back 20 stairway prior to any conversations you had with Linda 21 Bruno? 22 A No. 23 Q Harvey Exhibit Number 5, that reflects some 24 work done by Randy Briggs, correct? 25 A Yes. 7 (Pages 22 to 25) Geiger & Loria Reporting Service - 800-222-4577 LONNY HARVEY May 10, 2007 COSTA VS PINNACLEHEALTH 26 1 Q Do you ]mow if a work order would have been 2 filled out by somebody to give to Randy Briggs to do what he 3 did as reflected in this document? 4 A There was none. 5 Q At the top of the work order that is Harvey 6 Exhibit 5, it says caller, Harold. That would have been 7 your supervisor, Harold? 8 A Yes. 9 Q Best of your memory, would you have told 10 Harold about the conversation you had with Linda Bruno? 11 A Yes. 12 Q Then Harold would have called - 13 A An electrician. 14 Q - Randy Briggs, an electrician. I didn't ask 15 you this question before. What's your educational history? 16 A 12th grade. 17 Q What high school did you go to? 18 A Cedar Cliff. 19 Q What year did you graduate? 20 A '82. 21 Q Did you have any education after 12th grade? 22 A I had training in the military. 23 Q What service were you in? 24 A Navy. 25 Q How long were you in the Navy for? 27 1 A Four years. 2 Q What did you do in the Navy? 3 A I was a hull tech. I worked in a sheet mewl 4 shop. 5 MR. O'NEILL: Was that hall or - 6 A H-u-1-1. Its hull. 7 BY MR. HELD: 8 Q Was that on a base or was that on a ship? 9 A Ship. 10 Q What ship were you on? 11 A USSLW Steer. 12 Q What type of ship was that? 13 A Subtender. 14 Q You had an honorable discharge from the 15 military? 16 A Yes. 17 MR HELD: I believe thafs all the questions 18 1 have. He may have some questions for you. I don't know. 19 MR. OWEILL: Or I may not I do not 20 (Deposition was concluded at 4:00 p.m.) 21 22 23 24 25 1 STATE OF PENNSYLVANIA : as 28 2 COUNTY OF DAUPHIN 3 4 I, Kay C. Williams, a Reporter Notary-Public, 5 authorized to administer oaths within and for the 6 Commonwealth of Pennsylvania and take depositions in the 7 trial of causes, do hereby certify that the foregoing is the 8 testimony of 9 LONNY LEE HARVEY 10 I further certify that before the taking of 11 said deposition, the witness was duly sworn; that the 12 questions and answers were taken down sternoVV*cally by 13 the said reporter, Kay C. Williams, Reporter Notary-Public, 14 approved and agreed to, and aflarwards reduced to 15 typewriting under the direction of the said reporter. 16 1 further certify that the proceedings and 17 evidence contained fully and accurately in the notes by me 18 on the within deposition, and that this copy is a coned 19 transcript of the same 20 In t> drnony whereof, I have hereunto 21 subscribed my hand this day of , 2007. 22 23 Kay C. Williams, RPR Notary Public 24 My oommission expires: August 5, 2008 25 8 (Pages 26 to 28) Geiger 8r Loria Reporting Service - 800-222-4577 LONNY HARVEY May 10, 2007 Page 1 COSTA VS PINNACLEHEALTH A about 3:16 4:5,6 4:14 9:4,17 11:3 16:12,16 17:10 20:10,24 23:19,23 26:10 Above 12:25 15:10,13 16:18 acceptable 5:22 according 13:7 13:1115:3,22 18:7,15 19:16 accurately 28:17 across 20:8 action 1:4 22:11 actually 16:14 20:7 address 6:15,16 6:18 administer 28:5 after 9:7 21:25 24:18 26:21 afternoon 3:22 afterwards 28:14 again 17:8 against 3:24 agreed 28:14 air 14:12 along 24:17 among 15:7 another 15:19 21:7 answer 5:16,18 14:3,617:16 21:6 answers 4:15 28:12 anybody 10:16 anyone 23:19 anything 18:19 18:22,24 21:24 22:1 anyway 6:10 APPEARANC... 1:19 approved 28:14 around 7:4 asking 4:5,14 assigned 13:8 assignments 10:1 assure 5:9 Attorney 1:20 1:22 5:25 21:10 August 7:9 28:24 authorized 28:5 average 25:10 a.m 8:8,10,12 B back 6:7 22:15 22:18 23:11,19 23:23 24:1,9 24:14,16 25:19 bad 19:19 ballast 19:19,19 19:19,20,21,23 19:25 base 17:22 27:8 based 13:22 basically 4:4 9:11,24 17:13 before 1:13 4:2 7:6 23:12 24:20 26:15 28:10 being 3:8 5:3,4 20:5,22 believe 27:17 belts 14:15 best 4:15 5:8 7:2 13:2126:9 better 13:9 24:16 between 3:2 20:20 21:12 beyond 17:14 Bless 9:8 bottom 17:22 break 5:24 6:1,5 Briggs 19:12,14 19:17 23:9 25:24 26:2,14 Bruno 21:19 22:4 23:12,20 23:24 24:18,21 25:2126:10 building 7:18,19 12:2016:21,25 bulb 15:10 23:4 bulbs 18:14 19:1 C C 1:13 28:4,13 28:23 call 10:10,12,14 10:15,16,17 11:4,12,15 21:17 called 3:8 17:8 23:1,7 26:12 caller 13:5 15:13 26:6 caller's 13:1 calling 11:8 calls 10:11,24 11:5 came 15:1 Carol 10:15,18 10:25 11:4,4,8 11:13 causes 28:7 CC 16:21 Cedar 26:18 cement 15:8 22:18 center 4:8 7:11 7:20,23 8:1 16:21,23 20:20 21:13 22:19 24:11 certain 5:18 10:5,15 certification 3:3 certify 28:7,10 28:16 chain 11:16 changed 7:5 13:1316:1,3 changing 23:4 check 12:20,20 13:13 14:10,12 23:16,18 checked 19:18 19:18,19,20 22:16 checks 14:7 CIVIL 1:4,6 claim 3:24 claimed 20:19 claiming 21:12 22:8 clean 4:19 cleaner 21:8 CUH26:18 Clinic 9:14 14:1 close 7:4 closing 13:15 Coldren 20:19 21:11 come 5:8 6:7 10:111:13 20:17,24 21:11 commission 28:24 COMMON 1:1 Commonwealth 28:6 communication 21:4 complained 23:19 complaining 17:10 complaint 11:3 23:23 24:20 concluded 27:20 contained 28:17 CONTENTS 2:1 context 21:5,24 continue 6:7 contractor 19:2 conversation 18:18 21:21,25 22:3,8,12 23:20,2424:18 24:20 26:10 conversations 25:20 coordinator 6:23,25 7:3,6 copy 28:18 corner 4:21 corp 16:19 correct 8:9,11 8:13 19:11 22:20 23:5 24:13 25:24 28:18 Cost 16:21 Costa 1:4 3:23 20:18 counsel 3:2 COUNTY 1:1 28:2 Court 1:14:9 create 10:9 created 12:16,17 creates 10:22 CROSS 2:3 CUMBERLA... 1:1 current 6:22 currently 6:20 D Geiger & Loria Reporting Service - 800-222-4577 LONNY HARVEY May 10, 2007 COSTA VS PINNACLEHEALTH Page 2 Daly 20:19 21:11,14 date 1:14 16:6,9 16:13 20:8,12 21:23 dated 2:10,11,12 2:13,14 12:4 12:23 14:17 17:2,25 19:4 DAUPHIN 28:2 day 25:1128:21 days 8:2125:13 25:16 deal 11:7 DEFENDANT 1:7,23 department 15:20 deposition 1:11 4:1,2,412:8 27:20 28:11,18 depositions 28:6 describe 16:14 description 7:5 15:4 16:19 17:22 different 8:18 direct 2:3 3:11 9:2 direction 28:15 director 9:15 discharge 27:14 discuss 21:17 document 12:8 12:10 13:11 14:20,21,25 16:2 18:5,9 26:3 doing 23:15 done 5:3,9 11:3 11:25 13:22 15:25 19:10 20:2 25:3,24 door 13:14 down 4:10,12 5:3 14:14 15:8 16:12 17:11 20:19 22:1 24:2 28:12 downstairs 21:12 drink 6:1 duly 28:11 E easier 4:16 education 26:21 educational 26:15 eight 25:12,14 electrician 19:15 23:2,6 26:13 26:14 employed 6:20 employee 13:18 13:1917:23 21:1122:8 23:13 employees 9:19 20:18 enough 11:8 17:11 entrance 17:23 equipment 14:12,13 even 11:14 event 18:10 ever 4:2 20:17 23:11,19,22 25:19 every 4:20 everything 4:11 evidence 28:17 exactly 4:13 13:11 EXAMINATI... 3:11 except 3:4 21:10 exhibit 2:8 12:5 12:8 13:7 14:18,23 17:3 17:6,6 18:1 19:5,8 25:23 26:6 exhibits 20:8 experience 11:24 expires 28:24 explain 15:18 facilities 6:23,24 7:3,6 11:.6 15:163,17,18,19 15:20 fair 8:23 11:8 25:6 fall 3:24 4:6 7:11 21:25 familiar 7:12 fast 11:17 fastest 11:17,18 feel 5:17 fell 20:19 21:12 21:15 22:6 23:13 filed 20:22 filing 3:4 fill 12:12 Filled 12:16 18:5 26:2 fund 20:17,24 21:11 fine 3:20 5:21 fingers 4:12 first 4:20 8:19 24:1 five 7:18:21 25:6,7 flight 20:19 float 7:17 follows 3:9 foregoing 28:7 form 3:5 10:2 12:1714:2,5 17:13,15,19 18:5 23:25 24:6,23 forms 20:15 forth 12:21 14:13 found 13:13 19:20 21:3,16 22:15 four 5:2127:1 Fredricksen 4:7 7:11,20,22 8:1 9:14 14:1 16:22 20:20 24:11 frequently 13:25 Friday 8:4,7,22 14:8 from 11:12 14:13,25 ,15:1 15:1716:2 17:19,22 18:4 19:21,2121:14 21:24 22:3,7 22:19 24:11 27:14 front 17:23 fu113:13 6:15 fully 28:17 further 28:10,16 G G 1:20 general 7:7 24:5 generate 10:18 generated 12:15 give 4:20,24,25 5:18 26:2 given 10:5 giving 4:15 go 4:22 6:6 12:20 14:11,14 26:17 going 3:19 4:18 5:23 6:9 12:7 14:16,20 15:7 17:5,11 18:3 19:7 22:19 24:2 Good 3:22 grade 26:16,21 graduate 26:19 guess 11:20,21 11:22 12:2,22 13:8 25:16 guessing 12:1 guidelines 4:17 guy 18:25 guys 18:7 H HAFER 1:22 half 6:1016:16 hall 17:23 27:5 hallway 17:11 17:21 hallways 17:12 hand 28:21 HANDLER 1:15 1:19 handlers 14:12 hands 4:11 handwritten 20:8 happened 3:25 7:1122:4 happens 10:20 Harold 9:3,10 9:17 25:5 26:6 26:7,10,12 Harrisburg 1:16 6:17 10:21,22 15:17,20 Harvey 1:11 2:3 2:8 3:8,14,14 Geiger & Loria Reporting Service - 800-222-4577 LONNY HARVEY May 10, 2007 COSTA VS PINNACLEHEALTH Page 3 3:22 6:12 12:4 14:17,21,23 17:2,6,6,25 18:4,19,20 19:4,8,8 20:9 25:23 26:5 28:9 head 4:22 Health 1:6 3:24 6:21 heard 21:14 Held 1:20 2:4 3:12,16,20,21 3:23 10:4 11:23 12:6 14:9,19 17:4 11:18 18:2 19:6 20:23 21:1,7,9 24:3,7 24:8,25 27:7 27:17 Helt 10:15,18,25 11:4,4,9,13 HENNING 1:15 1:19 her 4:11,12,16 10:16,17 15:15 hereunto 28:20 high 26:17 hum 3:18 9:8 history 26:15 honorable 27:14 Hospital 1:6 3:24 10:22,22 15:20 hour 6:10 11:20 16:16 house 6:13 HUGH 1:22 huh-uh 4:22 hull 27:3,6 H-u-1-I 27:6 idea 4:4 M 1:22 immediately 22:15 incident 3:25 indicating 17:19 inside 17:21 19:21 inspect 13:25 inspection 12:18 13:22 inspections 23:15 instance 11:2 20:9 interior 17:11 17:20 interrogation 6:3 investigated 22:16 issue 22:9 issues 18:16 J job 4:16 6:22 7:5 9:20 10:113:7 jobs 12:1 Joe 9:4,6,10,13 9:15 Jones 20:18 21:11,14 judging 17:19 18:4 June 6:19 just 3:22 4:21 5:2,13 6:2,5 7:19 9:7,22 10:16 12:1,13 14:5 18:17 22:5 24:5 K Kay 1:13 28:4 28:13,23 keep 4:17 6:9 keeping 5:23 keeps 11:4 kept 10:25 know 3:22 4:5 5:7,10,16,22 6:2,5 7:20 8:23 9:1 10:14,24 11:1,1,2,4,6,12 11:15,17,25 13:5 15:14,15 16:9,19 18:9 18:16,18,22 19:12,23 20:12 21:4,15,16 22:7,7,2123:6 23:18,22 24:14 25:10 26:1 27:18 knowledge 7:2 13:2123:21 known 16:25 L L 3:14 lack 13:9 ladies 13:14 LAW 1:4,20,22 lawsuit 7:10 leading 24:11 least 25:6 Lee 1:11 2:3 3:8 3:14 28:9 legitimate 5:17 legs 6:2 less 25:13 let 5:7,10,22 6:2 6:5 21:7 light 15:10 17:11 17:23 18:14 19:1,21,22 20:123:4 lighting 18:7,15 18:25 22:9 23:19,23 lights 13:13 15:7 16:1,217:11 20:2,3,5 22:10 22:17,21,23,25 23:3,11,16 25:19 like 4:23 12:13 12:18 14:16 17:9 20:8 Likewise 5:6 limit 21:5 Linda 21:18,19 22:4 23:12,20 23:24 24:18,20 25:20 26:10 Hues 24:18 Linglestown 1:16 6:15 list 14:13 litigation 7:10 21:6 lived 6:18 LLP 1:15,19,22 long 5:24 6:18 6:24 7:8,22 11:12 26:25 Lonny 1:11 2:3 3:8,14,14 28:9 look 14:16 looking 12:10 18:4 looks 17:9 lot 14:12 15:8 20:2121:13 22:19 24:2,12 lots 14:14,15 Luther 6:17 M machine 12:19 12:20 13:13 14:7,10,11 maintenance 7:7 make 4:10,16 6:3,4 21:8 manager 21:18 many 5:19 9:19 25:10 mark 12:8 14:14 14:21 17:5- 18:3 19:7 marked 2:8 12:4 14:17 17:2,25 19:4 may 1:14 4:5 5:19 24:19 27:18,19 maybe 5:20 8:16 mean 11:122:18 24:1,4 means 16:20 meant 18:16 medical 14:13 memory 26:9 met 18:7 metal 27:.3 Michelle 15:14 Michelle/facili... 15:14 might 4:22 Mildred 1:4 3:23 20:17 military 26:22 27:15 mind 4:17 Monday 8:4,7 8:22 14:7 more 4:6 6:9 8:19 17:10 23:3 24:17 25:17 Morrison 9:5,6 9:13 Morrison's 9:11 most 11:11 moving 4:12,12 much 22:5 Geiger !ii Loria Reporting Service - 800-222-4577 LONNY HARVEY May 10, 2007 Page 4 COSTA VS PINNACLEHEALTH N name 3:13,23 13:16 Navy 26:24,25 27:2 neat 4:19 necessarily 8:23 8:25 need 5:24,25 6:1 6:4 needed 16:1 needs 11:3 never 11:25 new 19:19 nobody 14:16 none 9:2126:4 Notary 1:13 28:23 Notary-Public 28:4,13 notes 28:17 notice 23:11 25:19 noticed 12:18 November 3:25 5:20 7:2 8:15 8:24 9:19 12:23 number 12:5 13:1,6,18,19 14:18 17:3 18:1,4 19:5 20:9 25:23 O oaths 28:5 objection 10:2 14:2,5 17:15 23:25 24:5,23 objections 3:4 obligated 5:18 October 5:20 16:13 off 6:6 20:1 25:19 oiled 13:14 okay 4:25 5:1,5 5:7,10,11,14 5:15,22 6:8,10 6:11 12:3 23:1924:7,17 one 4:20 5:6 10:9 11:2 17:8 17:10 19:20,20 19:22 20:18 one-man 9:24 only 5:3 7:18 10:15 on-site 7:16 open 24:4 opened 7:24 operation 9:24 order 2:10,11,12 2:13,14 10:8 10:18,22 11:10 11:13 12:4,11 12:11,12,14,17 12:22 13:22 14:17,24 15:1 15:3,22,23 16:6 17:2,7,25 19:4,9,16 20:4 23:22 26:1,5 orders 10:3,5 24:19 25:2,7 25:11 other 7:17 9:19 15:7 21:5 otherwise 3:19 24:5 out 5:8 12:12,16 15:7 18:5 20:17,24 21:3 21:11,16 22:10 22:15,16,17,21 22:23 23:11 24:4 26:2 outpatient 4:8 7:11,20,23 8:1 9:14 14:1 16:22 21:12 outside 19:22 20:2,3,4,20 22:9,18 23:17 23:18 24:11 over 5:25 18:15 oversaw 9:15 o'clock 8:10 O'Neill 1:22 2:4 3:15,18 10:2 11:2112:2 14:2,517:15 20:22,25 21:3 23:25 24:4,23 27:5,19 P P 1:22 PA 6:17 page 15:5 24:10 parking 15:8 20:2121:13 22:19 24:2,12 part 11:11 particular 12:14 13:21 parties 3:3 Pennsylvania 1:1,16 28:1,6 penthouse 14:11 people 5:14 10:16 11:15 perfectly 5:17 5:22 performed 13:23 15:23 16:14 period 8:17 person 11:8 personally 15:15 Phillips 18:25 phone 10:16 13:1 phonetic 9:3,10 9:17 physician 20:21 22:19 24:12 physicians 21:13 pick 10:16 picks 25:5 Pinnacle 1:6 3:24 6:21 7:8 9:6,20 place 1:15 21:22 PLAINTIFF 1:4 1:12,212:3 PLEAS 1:1 please 3:13 power 19:18,18 pressures 14:15 printer 10:23 prior 20:22 23:20,24 25:20 privileged 21:4 probably 4:6 11:10 16:11 24:16 25:16 problem 10:10 10:11 12:18,19 15:3,1016:18 procedures 4:7 proceedings 4:19 28:16 process 11:9 PRODUCED 2:8 properties 7:17 property 7:16 13:25 Public 1:13 28:23 purpose 5:9 put 4:18 19:22 20:14 p.m 1:148:8,10 8:12 27:20 ?Q question 3:5 4:25 5:10,16 5:18 14:6 21:6 21:7 24:6,17 24:22 25:1 26:15 questions 4:5,14 4:215:7,7,8,19 27:17,18 28:12 quite 24:1 R Randy 19:12,14 19:16 23:8,9 25:24 26:2,14 read 3:19 real 7:4 really 22:5 24:24 reason 5:2,25 6:5 recognize 14:21 record 3:13 6:6 6:7 records 10:24 11:5 reduced 28:14 refer 7:19 24:9 referencing 18:9 referred 20:5 reflect 16:22 reflected 18:19 26:3 reflection 16:10 reflects 25:23 regarding 23:23 relays 10:21 remember 4:16 5:218:17 21:21,24 22:1 22:3 rep 18:25 repair 16:6 19:3 22:25 23:3 Geiger & Loria Reporting Service - 800-222-4577 LONNY HARVEY May 10, 2007 Page 5 COSTA VS PINNACLEHEALTH repaired 13:16 rephrase 5:7 replaced 19:20 replacement 9:1115:11 reported 9:4 reporter 4:10 28:4,13,13,15 represent 3:23 representing 3:18. . reps 18:13 reserved 3:5 reside 6:12 respective 3:3 response 4:20,25 5:17 restroom 6:1 13:14 result 11:9 15:23 22:1124:19 retired 9:7 right 4:9,13 7:4 11:10 20:15 24:3,10,12,15 25:7,8,17 road 1:16 22:1 room 4:11 12:20 rooms 14:11 ROSENBERG 1:15,19 routine 23:15 RPR 1:13 28:23 running 14:15 runs 15:20 S sales 18:13 same 5:13,14 9:20,22 24:10 28:19 save 25:2 saved 25:7,7 saying 4:13 says 12:25 13:14 13:16 15:7,10 15:13 16:5,13 16:18,19 26:6 schedule 7:25 8:3,14,18,24 school 26:17 scope 17:14 sealing 3:3,17 second 11:15 see-4:11 12:8 13:3 15:4,8 16:7 19:21 20:10 self-made 19:9 sell 18:13 sells 19:1 sends 10:23 sent 12:12 16:11 separate 15:18 service 26:23 services 10:21 15:19 16:6 Several 20:7 shake 4:22 sheet 27:3 ship 27:8,9,10 27:12 shop 27:4 shortly 21:25 22:2 show 12:7 14:20 17:5 18:3,13 19:7 showing 25:8 shown 19:8 sign 3:19 signing 3:17 Since 7:24 situation 18:19 Six 6:19 some 4:5,16,24 12:17 24:21 25:23 27:18 somebody 10:9 10:9,11 13:9 15:17 19:1 21:17 22:5 26:2 someone 19:1 21:14 something 4:22 11:3,912:7,18 13:8 17:13 20:14 23:3 Sometimes 5:8 11:14 sort 4:24 speaking 21:5 ss 28:1 stairs 15:8 20:20 22:9,19 stairway 24:16 24:17 25:20 stairwell 22:16 22:18 23:12,20 23:24 24:1,5,9 24:10,11,14 standard 14:24 17:7 start 11:916:12 started 8:19 state 3:13 28:1 Steer 27:11 stenographica... 28:12 Stephen 1:20 3:23 steps 24:2 still 9:6,22 21:15 steps 3:15 stipulated 3:2 STIPULATION 3:1 street 4:216:17 stretch 6:2 subscribed 28:21 Subtender 27:13 suit 20:22 supervisor 9:2 9:18 25:5 26:7 sure 24:125:9 surrounding 4:6 surrounds 7:10 sworn 3:9 28:11 system 12:13 24:21 Systems 6:21 T TABLE 2:1 take 4:15:3,3,13 5:24 6:1,5 11:12 19:21 22:1128:6 taken 1:12 4:2 28:12 taking 4:10 28:10 talk 3:16 5:12,25 talked 12:13 18:17 talking 4:21 5:12,14 9:4 20:10 21:10,18 tasks 10:6 tech 10:21 15:19 27:3 technical 16:5 telephone 16:6 tell 14:25 16:2 20:4 ten 25:12,17 tenant 17:10 tenants 11:2 15:21 17:9 term 1:6 13:9 24:9 testified 3:9 testimony 28:8 28:20 things 4:5,6 5:20 14:15,15 15:7 think 5:23 6:9 8:15 third 11:15 15:4 THOMAS 1:22 1:22 through 10:8 11:15,2412:12 14:1121:3 24:21 Thursday 8:12 Thursdays 8:5 time 3:5 5:14 8:17 9:3 11:15 16:6,9,13 21:2 21:23 24:21 title 6:22 today 9:22 together 4:18 told 23:12 26:9 top 12:25 15:4 16:5,18 20:8 26:5 topics 4:15 training 26:22 transcript 4:10 4:18,19 28:19 trial 3:5 28:7 trip 3:24 4:6 try 4:20,24 5:12 5:13 trying 6:3,4 18:13 Tuesday 8:4,7 turn 25:4 turned 25:3 turns 20:1 two 5:13 two-thirds 16:12 type 27:12 typewriting 28:15 typing 4:12 Geiger & Loria Reporting Service - 800-222-4577 LONNY HARVEY May 10, 2007 Page 6 COSTA VS PINNACLEHEALTH U uh-huh 4:22 uncomfortable 6:4 under 28:15 Underkoffier 9:3,10,17 understand 5:6 5:9 24:22 25:1 25:2 until 11:13 use 6:1 USSLW 27:11 usual 3:15 7:25 usually 7:14,16 10:12,14 25:7,7,13,17 26:23,25 27:10 28:12 whereof 28:20 Williams 1:13 28:4,13,23 witness 2:2 3:8 28:11 woman 4:9 work2:10,11,12 2:13,14 7:14 7:25 10:3,5,8 10:18,2211:10 11:13 12:4,11 12:11,12,14,17 12:22 13:22 14:17,24 15:1 15:3,19,22,22 15:23,25 16:14 17:2,7,25 19:3 19:4,9216 20:2 20:4 23:22 24:19,2125:2 25:7,10,24 26:1,5 worked 7:8,22 8:18 9:13 20:18 27:3 worker 9:16 working 8:14 wouldn't 23:18 101:14 10/13/032:12 17:2 10/29/032:11 14:17 10/30/032:13 17:25 11/17/200320:9 11/5/032:10,14 12:4 19:4 122:10 12th 26:16,21 13001:16 142:11 172:12,13 171126:17 192:14 7:9 52:14 19:5,8,8 20:9 25:23 26:6 28:24 V varies 11:14 verbal 4:20,25 visuals 14:14 VS 1:5 I waived 3:4 want 3:16 4:19 6:2,15 wasn't 8:25 13:14 way 5:8 9:22 16:12 21:7 24:21 Wednesday 14:7 Wednesdays 8:5 8:10 week 8:21 Well 3:16 4:4 8:4 20:25 went 5:20 18:15 22:16 were 4:217:6 16:1,3 17:9 20:20 22:10,21 22:23 23:12 Yeah 15:9 17:17 21:20 year 26:19 years 5:216:19 7:1,9 9:7 22:1 27:1 0 05-40941:5 12:10 12:5,8 2 22:11 14:18,21 14:23 2.30 8:6,12 200/CC/7540 16:19 20007:24 2003 3:25 5:20 7:3 8:15,24 9:4 9:19 12:23 20071:14 28:21 200828:24 3 3 2:4,12 8:5,10 17:3,6,6 18:20 3rd 3:25 12:23 3:151:14 3:30 8:5,8,20 30th 16:13 4 4 2:13 18:1,4,19 4:00 27:20 40 9:7 5 6 6 8:5 6:00 8:12 6:30 8:5,10 78:4,19 7:00 8:8 754016:21,25 8 803 6:17 8226:20 Geiger & Loria Reporting Service - 800-222-4577 ..._.lr" ?rater`rIces E elephone Repair Order PINNACL.EHEALTH Work Order Number: 1 (I -7 Ll' ?{,? 1 ' ,? rrv?' / ow-_Y Caller's Phoas Number. k Floor: CADIRoorn F:viidiiq. Froblem: I- t.. t h rabom Description. Priorw. _ Assi?rad Empl )yea: Completed by Technical Services Employee Repair Cede; Mme" nhsok) Abuse No Problem Found Routine Please Enter Technk of Services Bar Code Number : Fepalred By: Employee Number: Department Repaired Cost Center: -7 1,-(I Product: Contract: Model: .00V)b 11 Total OT Hours: CIC PO #: OEM: 4/01 Start-Daft and Time: 3. -stop*" and Time: GV 3 Total Hours: Strt. Ow: OTSMour. Total Cost - bor. $ j NMt ! Symptom, Opt Ex, C. a. ar Dew Part it. crrYo unit Cost: S? -Total cost parts.-$'O' =art Deso: Part *; CM! unit Cost S? Total Cvct Partsa?_______ Fart Oise: Partd: MY: unit Cost: S?_Totai Cost Parts:S_?_______ ., =art Dose- Part V a!_ unit Cost: S? Total Cost Parts:S? Part DO= Part IN: M! unit Cost: $2L -Total Cost Parts:S ?_____._,,, i W) Slwemm Cmtm#w Fields i. Total (Parts and Labor)For This invoice: $? 7ZC-Z•:6 (4198) :Teqhnical Services -'' Wor?..,. Jrder Number: 99084557 Telephone Repair Order s Date: 10/29/03 Time: 2:03 PM Caller: MICHELLE/ FACILITIES Caller's Phone Number: 5335 Building: Fredricksen Surgical Center Floor: 1 ST FLR Room bescription: See job description Problem: Light Bulb Replacement CAD/Room #: DESC Problem Description: CORP 200 C/C 7540 - LIGHTS OUT GOING DOWN CEMENT STAIRS TO PARKING LOT. Shop:Fredricksen Priority: ASAP (1 hour) Assigned Employee: 4471 Lonny Harvey Supervisor: Joe Morrison Completed By Technical Services Employee Repair Code: (Please check) Abuse No Problem Found Routine Please Enter Technical Services Bar Code Number: Repaired By: ZOY1/ Employee Number: Department Repaired Cost'Center: 7A-q G Contract: Total OT Hours:_ Start-Date and Time: Solution: Product: Model: OEM: Stop-Date and Time:'?V. Total Hours:Z. 1 C Sa fYMV YMM}}f}}!}fff}IIMYf!}t VY/M}fMf V?fNYMrffflMRMlYYYN?YY}#ffYHHYYYYYlV Vf V VR}?tMh/#}YM}H1MiF+M+?isfffeff?M}HrMMfMUIMY?4fiMifY}MYlYMHfYMr!!Y!!}}4R}*H4}fYY?}Mft?f!}i0Y!}1 Part Description: Part Description: Part #: QTY: Unit Cost: $ X Total Cost Parts: $ Part #: QTY: Unit Cost: $ X Total Cost Parts: $ Part Description: Part #: Part Description: Part #: QTY: Unit Cost: $ X Total Cost Parts: $ QTY: Unit Cost: $ X Total Cost Parts: $ Technical Services Work Order Number: 99083690 Telephone Repair Order Date: 10/13/03 Time: 2:26 PM Caller: carol helt Caller's Phone Number: 5335 Building: Fredricksen-Medical Office Bldg Floor: 1ST FL Room Description: See job description Problem: Fluorescent Light Replaced CAD/Room #: DESC Problem Description: corp200 c/c7541 Jones daily suite -no lite in hall in front of employee ent*, the one across from dr armesto's office* Shop: Fredricksen Priority: ASAP (1 hour) Assigned Employee: 4471 Lonny Harvey Supervisor: Joe Morrison Completed By Technical Services Employee Repair Code: (Please check) Abuse No Problem Found Routine Please Enter Technical Services Bar Code Number: Repaired By: Employee Number: `T y7 J Department Repaired Cost Center: Product: G/ 5b& Contract: Model: Total OT Hours: OEM: Start-Date and Time: a'-,.- Stop-Date and Time: Total Hours: IrrhwV Solution: l S \Aq -7, e, Part Description: Part #: CITY: Unit Cost: $ X Total Cost Parts: $ Part Description: Part #: QTY: Unit Cost: $ X Total Cost Parts: $ Part Description: Part Description: Part #: QTY: Unit Cost: $ X Total Cost Parts: $ Part #: QTY: Unit Cost: $ X Total Cost Parts: $ l r?S Technical Se Telephone Repair Order Dab: ci 0i OJ Time: Caper's Phor ng- Room # bacriptlon: 9UY °r^Wom Description: 31,w: Assigned Employee: PI N NACLEHEALTH Work Order Number: 1 C1 a Number. Floor. CAD/Room #: Priority: Completed by Technical Services Employee Repair Code: (Please check) Abuse No Problem Found A Routine Please Enter Technical Services Bar Code Number : aired By: Employee Number: .._? Department Repaired Cost Center: Product: Contract: Model: `V/ Total OT Hours: CIC PO # OEM: Start-Date and Time: 1"s J0 . G ?--Stop-Date and Time: Total Hours: / Std. $/Hour: ''OT$Moar. Total Cost - Lab : $ Solution: Part Desc: Part #: Unit Cost: $? Total Cost Parts:$ ='r -t Desc: Pant #: 0TY: Unit Cost: S ? ___,__Total Cost Parts:$ ? S? Dart Desc: Part #: M: Unit Cost: S2?_Totai Cost Parts: Part Desc: Part M. QTY Unit Cost: $? Total Cost Parts:S? prrt Desc: Part QTY: Unit Cost: S?_Total Cost Parts:S? _^ (?? Storeroom Controller Felds Total (Parts and Labor)For This invoice: $? __ _?C )--6 (4/98) J ? ry? { 4 h, ..4 "Tothni•cal, services] Telephone Repair Order Date: //- 5,'`'7 4? PINNACLEHEALTH Work Order Number: Time: Caller % ?0 _ Caller's Phone Number: i` Building: h?,??1?, c k S r •? Floor: n eA,ale CAD/Ro Room # Description: Problem: Problem Description: Shop: Assigned Employee: Priority: Completed by Technical Services Employee Repair Code: (Please check) Abuse No Problem Found Routine Please Enter Technical Services Bar Code Number : Repaired By: S4 NijV1 Employee Number: ao,12f-4 Department Repaired Cost Center: "12 X00 CL? `{UProduct: l.?.?r,o%' C• Mfr Contract: Model: Total OT Hours: -?/ CIC PO #: OEM: Start-Date and Time: .A- s' Stop-Date and Time: 1-5- Total Hours: Std. $/Hour: OT$/Hour: Total Cost - Labor: $ a h & 9, 6 01 1h 1, k% 1, Symptom: &.i_ Cdr , -. 4 f3 n Solution: Part Desc: Part #: QTY: Unit Cost: $ / Total Cost Parts:$./ Part Desc: Part #: QTY: Unit Cost: S? Total Cost Parts:$? Part Desc: Part #: . QTY: Unit Cost: $? Total Cost Parts:$? Part Desc: Part#: (QTY: Unit Cost: S? _ Total Cost Parts-.$ ? Part Desc: Part #: QTY: Unit Cost: $? Total Cost Parts:5? (?) storeroom Controller Fields Total (Parts and Labor)For This Invoice: $? hJ - S T777 3 Mildred Costa IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. Pinnacle Health Hospital NO. 2005-4094 CIVIL TERM ORDER OF COURT AND NOW, October 4, 2007, by agreement of counsel, the above-captioned matter is continued from the October 3, 2007 Argument Court list. Counsel is directed to relist the case when ready. By the Edgar B. Bayley, J. Stephen G. Held, Esquire For the Plaintiff Hugh P. O'Neill, III, Esquire For the Defendant Court Administrator Iv, kam (l Uj a-- ?s ?? ?:°= -- `" . ?_.. c a - ?., ? - _ ?a ;. - - - ?. - ?? - ?L _i-_ l i i_ ?--- y , . f i"?3 Evan Black, Esquire Attorney I.D. 17884 Hugh P. O'Neill, 111, Esquire Attorney I.D. 69986 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorney for Defendant Pinnacle Health Hospital MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant, Pinnacle Health Hospital certifies that: 1. A Notice of Intent to Serve A Subpoena with a copy of the subpoena attached thereto was mailed to each party on or about September 26, 2007. 2. A copy of the Notice of Intent, including a copy of the proposed subpoena, is attached to this Certificate. 3. Stephen Held, Attorney for the Plaintiff herein, has indicated that he has no objection to the proposed subpoena and is willing to waive the remainder of the 20-day notice. 4. The subpoena which will be served is identical to the subpoena attache to the Notice of Intent to Serve a Subpoena. Respectfully submitted, Date: October 5, 2007 Thomas, Thomoa'tIK Hafer, LLP Hugh P. O'Neill. III, Esquire Evan Black, Esquire Attorney I.D. 17884 Hugh P. O'Neill, III, Esquire Attorney I.D. 69986 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorney for Defendant Pinnacle Health Hospital MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Counsel Defendant intends to serve a subpoena upon Travelers /The Charter Oak Fire Insurance Co. for their workers' compensation file regarding Mildred Costa. The subpoena to be served is identical to the one attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. Respectfully submitted, Thomas, Thompir& Hafer, LLP Date: September 26, 2007 Hugb4l'C'Neill, III Esquire 305 N. Front Street, P.O. Box 999 Harrisburg, PA 17108-0999 717-255-7629 MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Travelers/The Charter Oak Fire Insurance Co., P. O. Box 12647, Reading, PA 19612-2647 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: A_ complete copy of the workers' compensation claims file, without limitation, regarding MILDRED COSTA, File Number: 145-CB-ALN6696-H, including but not limited to application for benefits, physician's statements, wage verifications policy declarations page(s) showing coverages summaries of payments made lien information medical records and reports bills photographs, Peer Review reports, IME reports, court transcripts, _written or transcribed statements correspondences and all other documents and things relating to Mildred Costa, SSN. 459-92-3334 d/o/b: 11/12/50. Employer is Jones Daly Coldren Associates, 2025 Technology Parkway, Mechanicsburg, PA 17055. DOL: 11/03/03 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Hugh P. O'Neill, III, Esquire ADDRESS 305 N. Front Street, P.O.Box 999 Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7100 SUPREME COURT ID No: 69986 ATTORNEY FOR: Defendant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the,, _ ay of September, on all counsel of records as follows: Stephen G. Held, Esquire 1300 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP Cathy J.?Xuo, Paralegal to Hugh P. O'Neill, III, Esquire 454185.2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositin the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the day of October, 2007, on all counsel of record as follows: Stephen G. Held, Esquire 1300 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP f? K by ar egal 7 536355.1 C7 ' ?v ? !C ?? .,?J n `?r ; ? ??' ? ti C? ? ?? ? _ ?~ C.,? .? Evan Black, Esq. Attorney I.D. No.: 17884 Hugh P. O'Neill, Esq. Attorney I.D. No.: 69986 Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 (717) 441-7051 MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant TO: Prothonotary of Cumberland County IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 05-4094 CIVIL ACTION - LA JURY TRIAL DEMANDED Please list this matter for the next Argument Court. PRAECIPE TO LIST CASE FOR ARGUMENT 1. Matter to be argued: Defendant's Motion for Summary Judgment 2. Identify counsel who will argue case: (a) For Plaintiff. Stephen G. Held, Esq. Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 For Defendants: Evan Black, Esq. Hugh P. O'Neill, III, Esq. Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Attorney f r e endants Dated: October 31, 2007 ATTORNEYS FOR DEFENDANT PINNACLE HEALTH HOSPITAL CERTIFICATE OF SERVICE I, Becky Rusbatch, Legal Secretary and an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Becky Ru atch, Legal Secretary Date: October 31, 2007 2 C C _, ? _?rrr f . , _ [ ? ? ? Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax: (717) 233-3029 E-mail: HELDCcD_hhrlaw.com Attorney for Plaintiff MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 05-4094 : Civil Action -Law PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW, comes the Plaintiff, Mildred Costa, by and through her Attorneys, HANDLER, HENNING & ROSENBERG, LLP, by Stephen G. Held, Esquire, and files her Response in opposition to Defendants Motion for Summary Judgment, and in support of this Response represents: 1. STATEMENT OF FACTS AND PROCEDURAL HISTORY On November3, 2003, Plaintiff suffered personal injurieswhen she fell while leaving work at Jones Daly Coldren Associates, located in the Pinnacle Health Frederickson Outpatient Center (Frederickson Center) at 2025 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania. Plaintiff was leaving the building by her normal route, down an outside stairway which leads to the physician parking area. (Costa Dep. pp. 19:15-20, 25:22-26:9, attached to Def.'s Mot. for Summary Judgment as Ex. B.) Upon reaching the stairs, Plaintiff noticed that one of the lights that illuminate the stairs were not working, and therefore, she proceeded with caution down the stairs. At the time she started her descent, the Plaintiff was not aware that a second light was also not working. Although she proceeded with caution, the dimly lit stairway caused Ms. Costa to miss a step and come down on a landing, fracturing her heel. (Costa Dep. pp. 31:12-33:17) The building where Plaintiff fell is owned by Defendant, Pinnacle Health Hospital (Pinnacle). Proceedings in this matter were commenced byway of a Writ of Summons filed on August 10, 2005. Plaintiff filed her Complaint on or about April 13, 2006. Thereafter, Defendant filed a Motion for Summary Judgment. Plaintiff offers the instant Brief in Opposition of Defendant's Motion for Summary Judgment. II. QUESTIONS PRESENTED A. WHETHER DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED WHERE QUESTIONS OF FACT EXIST AS TO WHETHER DEFENDANT HAD ACTUAL AND/OR CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION CAUSED BY MALFUNCTIONING LIGHTS. (Proposed Answer in the Affirmative) B. WHETHER DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED WHERE IT CANNOT BE DETERMINED AS A MATTER OF LAW THAT DEFENDANT, PINNACLE HEALTH, DID NOT OWE A DUTY TO PLAINTIFF, MILDRED COSTA. (Proposed Answer in the Affirmative) -2- III. ARGUMENT SUMMARY JUDGMENT STANDARD AND PREMISES LIABILITY Summary judgment is granted: [w]hen the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact. The moving party has the burden of proving the non-existence of any genuine issue of fact. The non- moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. The trial court must resolve all doubts against the moving party and examine the record in the light most favorable to the non-moving party. Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Davis v. Resources For Human Development. Inc. 770 A.2d 353 (Pa.Super. 2001) (quoting Hoffman v. Pellak, 764 A.2d 64, 65-66 (Pa.Super. 2000)(citations omitted)). Even where there is no dispute concerning the facts, a motion for summary judgment should not be granted where those facts support conflicting inferences. Washington v. Baxter, 719 A.2d 733 (Pa. 1989). All doubts as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment. Cooper v. Delaware Valley Medical Center, 654 A.2d 547 (Pa. 1995). Only where it appears with certainty that, upon facts averred, the law will not permit recovery can a complaint be dismissed and summary judgment entered for a defendant. Aetna Electroplating Co.. Inc. v. Jenkins, 484 A.2d 134 (Pa.Super. 1984). In applying the above standard to premises liability actions, it should be noted that It is incumbent on the owner of a premises, on which persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated -3- uses thereof and the purposes for which the invitation was extended. Strout v. American Stores Co., 122 A.2d 797 (Pa. 1956). Furthermore, a premises owner owes to a business visitor the affirmative duty of giving warning of any failure to maintain the premises in a safe condition. Kulka v. Nemirovsky, 170 A. 261, 262 (Pa. 1934). A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover it or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Myers v. Penn Traffic Coml2anx, 606 A.2d 926 (Pa.Super. 1992); Restatement (Second) of Torts § 343. In light of these standards, the question that this Court must address is whether genuine issues of material fact exist as to whether Defendant, Pinnacle, had actual and/or constructive notice of a dangerous condition on its premises which resulted in harm to the Plaintiff. PLAINTIFF HAS ESTABLISHED THE EXISTENCE OF A DANGEROUS CONDITION Plaintiff clearly established a hazardous condition existed. Plaintiff testified to two lights being out on the back stairway on the evening that she fell, (Costa Dep. p. 31:12-13; 74:25-75:4). Ms. Costa also testified that lights being out on the back stairwell was an ongoing problem: Q. Have you done since then? A. No. I don't take stairs no more. Q. How do you go? A. Over there. I go out the front door. -4- Q Why do you do that? A. Because I don't feel that those stairs are safe. Q. Why not? A. Because the lights are out on them all the time. Every time you turn around there's a light out and it doesn't get fixed on a timely basis. (Costa Dep. p. 40:1-10; see also Id. at 29:11-20). Furthermore, photographs depict the lack of ambient lighting in the area of the stairway from which it can be reasonably inferred that loss of one or more of the ground-level stairway lights created a dangerous condition. (See Costa Dep. Ex. 1-6.) The testimony of Defendant's facilities coordinator, Lonny Harvey, confirmed that lights were out on the back stairway and that an electrician had to be called to repair them. (Harvey Dep. p. 22:21-23:10.) A. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED WHERE QUESTIONS OF FACT EXIST AS TO WHETHER DEFENDANT HAD ACTUAL AND/OR CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION CAUSED BY MALFUNCTIONING LIGHTS. The testimony of Lynda Bruno Gilfert presents questions of fact as to actual notice. Ms. Gilfert testified that she notified the manager of Defendant's real estate department, Carol Helt, of lights being out on the stairs where Ms. Costa fell, but that she did not remember if she contacted her prior to the fall, but she thought maybe she did. (Gilfert Dep. p. 10:23-11:13, attached to Def. Mot. for Summary Judgment as Ex. C.) When it is unclear whether the premises owner was notified before or after the incident, questions of fact remain for the jury to determine. See Mather v. Pennsylvania State Universitx, 64 D.&C.4th 381, 387 (Centre Cty. 2003) (stating that although it was possible to reach the conclusion that defendant was notified of water on the floor after the plaintiff fell, this would -5- necessitate that the Court determine the facts , and the Court was not permitted to do so). The record also provides evidence of constructive notice. Under Pennsylvania law, what constitutes constructive notice varies under the conditions of each case. Factors courts consider include the number of persons using the premises, the frequency of such use, the nature of the defect, its location on the premises, its probable cause, and the opportunity which defendant, as a reasonable prudent person, had to remedy the dangerous condition. Significant to the instant matter, it is not always necessary for a plaintiff to produce positive testimony as to how long the defect existed. The direct proof of defendant's knowledge is not essential to the imposition of liability where the condition was a likely and foreseeable result of the manner in which the premises were being used. Stais v. Sears Roebuck & Co., 174 Pa. Super. 498, 102 A.2d 204 (1954). Pennsylvania courts have imposed liability where the defect should have been anticipated and could have been discovered upon reasonable inspection. Id. at 504,102 A.2d at 206. Moreover, the Supreme Court has opined that questions of constructive notice and whether a landowner should have known of the defect upon reasonable inspection is a question of fact reserved for the jury, and may be decided by the court only when reasonable minds could not differ. Commonwealth v. Patton, 546 Pa. 562, 568, 686 A.2d 1302,1305 (1997). Applying the factors from Stais v. Sears Roebuck & Co. to the instant matter, clearly reasonable minds could differ as to whether Defendant had constructive notice. The Defendant should have anticipated burned out or malfunctioning exterior stairwell lights and could have discovered such a hazardous condition upon a reasonable inspection. The stairway in question is one that leads to an employee parking area, and although it is described as the "back" stairway, photographs in the record illustrate that the stairway is -6- a substantial structure, and its use as a means of ingress and egress to the facility should have been contemplated by the Defendant. (See Costa Dep. Ex. 1 - Ex. 6, attached to Def. Mot. for Summary Judgment as Exhibit" B.") Moreover, these same photographs also display a lack of ambient lighting in the immediate area of the stairway, thus increasing the importance of maintaining the lights on the walls of the stairway for the safety of tenants and their employees. Despite the lack of ambient lighting, the record shows that there was no regular inspection of the stairway lights. Mr. Harvey, the Defendant's facilities coordinator, testified that he never noticed lights out on the stairway. (See Harvey Dep. p. 25:11-14, attached to Pl.'s Resp. to Def.'s Mot. for Summary Judgment as Ex. B.) However, the record shows that the reason he did not notice lights being out is because he did not check the outside lights during his inspections, (Harvey Dep. p. 25:15-17), and the latest he worked was 3:30 p.m. and no one else did his job. (Harvey Dep. p. 8:14-25.) Instead of a proactive policy of inspections, the Defendant relied upon employees to report malfunctioning lights though a system described as a "grapevine" and "chain." (See Harvey Dep. p. 11:12-16; Costa Dep. p. 41:4-12.) Furthermore, Plaintiff testified that her employer had notified Defendant on several occasions of lights being out on the back stairway. (Costa Dep. p. 40:20-41:12.) Clearly questions of fact exist as to whether more reasonable inspection procedures would have provided the Defendant with notice of the unlit stairs, and thus, Defendant should have known that the lights were out. -7- B. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED WHERE IT CANNOT BE DETERMINED AS A MATTER OF LAW THAT DEFENDANT, PINNACLE HEALTH, DID NOT OWE A DUTY TO PLAINTIFF, MILDRED COSTA. Defendant asks this Honorable Court to find as a matter of law that defendant owed no duty to the Ms. Costa because she voluntarily proceeded down the inadequately lighted stairs. (Def. Br. p. 12). Defendant relies on a line of cases that bar Plaintiffs from recovery where they have been injured when proceeding in the face of a known danger. However, a review of the legal principles and cases applicable to this matter do not justify such a finding. It has been held that "darkness" cases depend largely on individual facts. McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 450 A.2d 991 (1982) (citing Dively v. Penn-Pittsburgh Corgi, 332 Pa. 65, 2 A.2d 831 (1938)). Although a plaintiff can be barred from recovery if she follows an unfamiliar course in the dark or steps into darkened and unfamiliar space, relying upon her sense of touch instead of obtaining and using adequate lighting facilities, whether one is barred completely is controlled by the degree of darkness and the justification for the injured person's presence in the place of danger. Scurco v. Kart, 377 Pa. 435, 105 A.2d 170 (1954) (emphasis added); McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 450 A.2d 991 (1982); Costello v. Wyss. Inc., 200 Pa. super. 568, 190 A.2d 170 (1963). A person who is not a trespasser and who has some fairly compelling reason for walking in a place which, though dark, is not utterly devoid of light will not be declared contributorily negligent as a matter of law. Costello at 573,190 A.2d at 173; Devine v. Hollander, 192 Pa. Super. 642, 648,161 A.2d 911, 914-15 (1960) (emphasis added). In Scurco v. Kart, the Supreme Court addressed a case with facts similar to the -8- instant matter. The plaintiff, Jaconda Scurco, while on her way to work, fell and was injured on a dimly lighted stairwell in her apartment building. The defendant argued that plaintiff was barred from recovery under the theory of contributory negligence.' Scurco lived in a third floor apartment and normally exited by walking down a flight of stairs to the second floor, then three steps to a lower level of the hallway, and finally down another flight of stairs to one of the building's exits. On the morning in question, she found that the light at the foot of the stairway from the third to the second floor was out, as was another light at the top of the stairs from the second to the first floor. Although other lights were burning, one outside her apartment, and one at the far end of the second floor hallway, the inadequacy of the lighting as a whole caused her to overstep the landing and fall down the three stairs. Scurco at 437-38, 105 A.2d 171. In its analysis, the Court first noted that the controlling principles in this familiar scenario where stated in many prior cases and are as follows: There are those [cases] in which a person wanders around in a place absolutely dark and where, though not a trespasser, there is no reasonable necessity for his presence. In such cases recovery is denied. There are other cases where there is some fairly compelling reason for walking in a place which, though dark, is not utterly devoid of light. Under such circumstances, contributory negligence will not be declared as a matter of law. It may be stated therefore, that the controlling factors in determining the question of contrib neg in accident cases of this nature are the degree of darkness and justification for such person's presence in place of danger. Scurco v. Kart at 436-37, 105 A.2d at 170 (citing Dively v. Penn-Pittsburgh Corp., 332 Pa. 65, 69, 70 A.2d 831, 833 and numerous other cases expressing the stated legal In 1978, contributory negligence was supplanted by the comparative negligence statute, 42 Pa.C.S.A. § 7102(a), which does not completely bar recovery if a plaintiff is contributorily negligent so long as the plaintiff's negligence is not greater than that of the defendant. -9- principles). The plaintiff testified that the light where she fell was dim, the place was not entirely dark and that shadows were cast upon the stairway obstructing the light. Id. at 438, 105 A.2d 171. The Court applied the above stated principles and found that Scurco had a compelling reason for walking through the hallway since she was on her way to work, and although the place where she fell was dark, it was not utterly devoid of light. Therefore, the Court concluded that the question of Scurco's negligence in proceeding along the hallway was for the jury and could not be determined against her as a matter of law. Id., 105 A.2d 171. Clearly, pursuant to this controlling and oft-cited case, the question of whether Ms. Costa was negligent in proceeding down the dimly lit stairway is a question for the jury. Without doubt, Ms. Costa had a compelling reason to be on the stairs as an employee leaving work at the end of her shift. Similar to the plaintiff in Scurco, Ms. Costa, upon her exit from work, found two unlighted bulbs on the path she always used to exit the building. (Costa Dep. pp. 25:22-26:9, 31:12-33:17. ) Also, like Ms. Scurco's situation, the area where Ms. Costa fell was not devoid of light. Ms. Costa provided the following relevant testimony: Q. If you were to sit on the steps, if you were, with a newspaper on the night of your fall, would you have been able to read the newspaper? A. No. Q. Was it so dark out that if you held your hand up at an arm's length from your face, could you see your hand? A. With or without lighting around? Q. Where you fell. If you had your hand in front of your face- A. Yes, you could see your hand. -10- Q. If you wanted to read one of those books with bigger print, would you be able to read on those books in the area where you fell on the night of your fall? A. No. Q. So the lighting conditions were such that it was somewhere between you couldn't read something and you could see in front of your face? A. If it was big enough, yes, the object. Q. Meaning your hand? A. Um-hum. Yes. Q. What color were your sneakers? A. White. Q. When you were walking down the steps before your fall, could you see your white sneakers? A. Yes. (Costa Dep. pp. 37:14-39:2.) Therefore, the area where Ms. Costa fell was not devoid of light, however, the overall inadequacy of the lighting as a whole caused her to miss a step in the area of a landing. Clearly, the circumstances of the present case are similar enough to that of the Plaintiff in Scurco to allow the case to proceed to the fact-finder. Also relevant to the instant matter is Hall v. Glick, 177 Pa. Super. 546,110 A.2d 836 (1955). In this case, a potential tenant fell down a dimly lit stairway after being shown an apartment that was available for rent. Plaintiff testified that she held on to the banister as she descended, but she missed a step and twisted her leg. The Court relied on Scurco and other cases and held that the plaintiff was not contributorily negligent as a matter of law because she had a compelling reason for being in the stairway as a business invitee -11- leaving the premises after looking at an apartment and the testimony left no doubt that there was some light in the stairway. Id. at 549, 110 A.2d 836, 837. Significantly, the Court found the plaintiff used due care by holding onto the banister and "thus [was] not in the position of a person rushing headlong into a dark place, without properly looking or feeling her way." In the instant case, Ms. Costa's testimony also displays that she was not rushing headlong into a dark place, the area was not devoid of light and she used due care by holding onto the banister and proceeding with caution: Q. Why don't you tell me what happened the day of your fall. A. I left work, I came out, and I noticed on two of the landings there was a light out on each one. I had my purse on my shoulder, left shoulder. I had a coffee cup in my right hand and I switched it to my left hand so I could hold onto the railing, and I went down the stairs very, very carefully, because I couldn't see -where the light was out you couldn't see the step, so I knew had to be careful. And I walked down. I made it to the second landing, got down to the next to the last step. Didn't even see the step. And that's when I fell. Q. When you noticed the second light was out, why didn't you go back inside the building and then go down the inside stairs and go out the side door? A. Because I was being very careful going down. Q. And you were being careful because? A. I knew that light was out. Q. but you thought you could safely go down the steps despite the fact that the light was out? A. Correct. Q. And you grabbed the railing for an extra measure of safety? A. Yes. -12- (Costa Dep. pp. 31:10-21, 33:18-34:1, 75:11-13; See also Costa Dep. pp. 37:14- 39:2 (testifying that area was not totally dark.) Clearly, Scurco and Hall are more relevant to the instant matter than the cases relied on by the Defendant. The Plaintiffs' actions in the cases relied on by the Defendant include proceeding down a stairway in total darkness, intentionally ignoring a three-foot barricade with red warning lights, and voluntarily participating in setting off a fireworks cannon loaded with gun powder. See Conboy v. Osage Tribe No. 113, 288 Pa. 193, 135 A.729 (1927); Barth v. Klinck, 360 Pa. 616, 62 A.2d 841 (1949); Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993). Furthermore, Defendant's use of Mogren v. Gadonas is surprising because Mo ren provides that the Supreme Court allowed the case to proceed to the jury even where the plaintiff stepped into a totally dark room. In writing for the dissent, Justice Patterson, distinguishes the Mogren plaintiff's situation from cases that had previously been permitted to proceed to the jury. Notably, Justice Patterson points out, "[t]his is not a case where a plaintiff moves about in semidarkness or uses her senses and is injured as a result of misjudgment or having been deceived by her sense of sight. Mogren at 515, 58 A.2d at 153. The instant situation is just such a case. Ms. Costa was a woman leaving work by her normal route who had the misfortune of misjudging her ability to maneuver down an insufficiently lighted stairway. -13- IV. CONCLUSION Defendant has failed to meet its burden of proving the non-existence of any genuine issue of fact. Given that all doubts as to the existence of a genuine issue of material fact must be resolved against the party moving for summaryjudgment, there are several factual issues present including Defendant's duty to the Plaintiffs and whether Defendant knew or should have known in the exercise of reasonable diligence that a hazardous condition existed. Because Defendant has failed to meet its burden of proving the non-existence of any genuine issue of fact, Defendant's motion for summary judgment should be denied. Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP - % VJ Ste a Id, Esquire I.D. #72663 Attorney for Plaintiff -14- CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties of counsel of record by depositing a copy of the same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid on November 16, 2007, addressed to the following: Evan Black, Esquire Hugh P. O'Neill, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P O Box 999 Harrisburg, PA 17108-0999 Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP Date: November 16. 2007 By - ita j St h b V'TIW, Esquire I . D. No.: 72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff o U3 ?." 7 7 CFN -G ! 1'1 MILDRED COSTA, PLAINTIFF V. PINNACLE HEALTH HOSPITAL, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 05-4094 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND HESS. J. ORDER OF COURT AND NOW, this Q day of December, 2007, the motion of defendant for summary judgment, IS DENIED. ydtephen G. Held, Esquire For Plaintiff v5van Black, Esquire Hugh P. O'Neill, Esquire For Defendant :sal 1 Edgar B. Bayley, J. ` y. r = r c?ia tr < `? Evan Black, Esquire Attorney I.D. 17884 Hugh P. O'Neill, III, Esquire Attorney I.D. 69986 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 MILDRED COSTA, Attorney for Defendant Pinnacle Health Hospital IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff V. PINNACLE HEALTH HOSPITAL, Defendant NO.: 05-4094 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Counsel for Defendant Pinnacle Health Hospital in the above action respectfully represents that: 1. The above-captioned action is at issue and was ordered to proceed to arbitration prior to trial by Judge Hess. 2. The claim of the Plaintiff in the action is less than $30,000. 3. Defendant is not aware of any members of the Cumberland County Bar who are interested in the case as counsel or who are otherwise disqualified to sit as arbitrators. WHEREFORE, Petitioner respectfully requests that this Honorable Court appoint three (3) arbitrators to whom the matter shall be submitted. Respectfully submitted, THOMAS, THO AS -nXFEP, LLP Dated: May 2, 2008 By: van ack, Esquire I.D. #17884 Hugh P. O'Neill, 111, Esquire I.D. # 69986 P.O. Box 999 305 N. Front Street Harrisburg, PA 17108-0999 (717) 237-7100 Attorneys for Defendant Pinnacle Health Hospital 2 CERTIFICATE OF SERVICE I, Wendy Rhoades, an employee for the law firm Thomas, Thomas & Hafer, LLP, hereby state that a true and correct copy of the attached document(s) was served upon all counsel of record by first class United States Mail, postage prepaid, addressed as follows, on the date set forth below: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Attorneys for Plaintiff THOM?S, THOMAS & HAF?ER, LLP Wendy oades Dated: May 2, 2008 3 .., ti-? '_> ,? ?._ ? ? .-, ?' ? _ .- d ?? ? ? ? 4 o • -. MILDRED COSTA, COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. PINNACLE HEALTH HOSPITAL, DEFENDANT 05-4094 CIVIL TERM ORDER OF COURT AND NOW, this `? day of August, 2008, the appointment of Michael M. Badowski, Esquire, to the Board of Arbitrators in the above-captioned case, IS VACATED. Bradley L. Griffie, Esquire, is appointed in his place. ? William S. Daniels, Esquire Chairman ,""Bradley L. Griffie, Esquire Court Administrator :sal CoPt ez --n a t LL 8/2t/o8 Edgar B. Bayley, J. l r ?1... C- i l C\i LLJ t t l C-d J MILDRED COSTA, COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. PINNACLE HEALTH HOSPITAL, DEFENDANT 05-4094 CIVIL TERM ORDER OF COURT AND NOW, this V,?, day of October, 2008, the appointment of a Board of Arbitrators in the above-captioned case, IS VACATED. William S. Daniels, Esquire, Chairman, shall be paid the sum of $50.00. By the Co Edgar B. Bayley William S. Daniels, Esquire Chairman - nY.uz( 0%F10 P `- Court Administrator -c4P7 I"- f'1- :sal t co C CV M MILDRED COSTA, Plaintiff V. PINNACLE HEALTH HOSPITAL : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-4094 Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA: Please mark the above captioned matter settled and discontinued. HANDLER HENNING & ROSENBERG Date: P(j By tephen G. Held I.D. #72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff CERTIFICATE OF SERVICE On 12/2/08, 1 hereby certify that a true and correct copy of Praecipe to Discontinue was served upon the following by depositing same in the United States Mail, in Harrisburg, Pennsylvania: Hugh P. O'Neill, Esquire Thomas, Thomas, & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 HANDLER, HENNING & ROSENBERG, LLP Dated: 12/2/08 Step Fabffir"Heffl, Esquire I.D. #72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Claimant ' ?". i %,;? ??-' i _.i ,'r°? t