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HomeMy WebLinkAbout05-5203N t1'2, V ` Vk P-- ?-?a .rw ?r CV) JOANN RINEHART AND HARRY RINEHART, her husband, Plaintiffs V. STONEHEDGE CENTER, LLC and WESLEY A. TATE t/d/b/a LLOYD'S SEPTIC SERVICE, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA NO.: 05-5203 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA: Please re-issue the Writ of Summons in the above referenced matter. Date: i w HANDLER, HENNING & ROSENBERG, LLP By Steph G. Held, Esq. I.D. #72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiffs ?- ?t `-" __? r? - -ri r?; P???.i;_-, -? -„C ._.'' i-. ;,.? n„ :? SHERIFF'S RETURN - REGULAR CASE NO: 2005-05203 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND RINEHART JOANN ET AL VS STONEHEDGE CENTER LLC ET AL MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon TATE WESLEY A T/D/B/A LLOYD'S SEPTIC SERVICE the DEFENDANT at 1811:00 HOURS, on the 11th day of October 2005 at 95 ZION ROAD ISLE, PA 17013 by handing to WESLEY A a true and attested copy of T OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs Docketing 6.00 Service 4.80 Affidavit .00 Surcharge 10.00 .00 20.80 Sworn and Subscribed to before me this " day of l Jan(, A.D. Pr nota So Answers: R. Thomas Kline 01/12/2006 HANDLER HENNING ROSENBERG By: Deputy Sheriff SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-05203 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND RINEHART JOANN ET AL VS STONEHEDGE CENTER LLC ET AL 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: STONEHEDGE CENTER LLC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of PHILADELPHIA serve the within WRIT OF SUMMONS County, Pennsylvania, to On January 12th , 2006 , this office was in receipt of the attached return from PHILADELPHIA Sheriff's Costs: So answers: Docketing 18.00 Out of County 18.00 Surcharge 10.00 R. Thomas Kline Dep Philadelphia 116.00 Sheriff of Cumberland County Postage .74 01/12/2006 HANDLER HENNING ROSENBERG Sworn and subscribed to before me this day of aot A.D. v P notar In The Court of Cori mon.Pleas of Cumberland County, Pennsylvania JoAnn Rinehart et al vs. Stonehedge Center LLC NOW, December 1, 2005 No. 05-5203 civil I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Philadelphia County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service r Now, C l <? 20, at o'clock M. served the within upon / r??? at / J ) by handing to 4/1 a copy of the original and made known to the contents thereof. So answers, Sheriff of County, PA COSTS Sworn and subscribed before SERVICE $ me this _ day of , 20 MILEAGE AFFIDAVIT Stephen G. Held, Esquire I.D. #72663 HANDLER, HENNING & ROSENBERG, LLP 1200 Linglestown Road Harrisburg, PA 17110 Telephone: (717)23802000 Fax: (717) 233-3029 E-mail: HELD@hhriaw.com JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Stonehedge Center, LLC, and Wesley A. Tate t/d/b/a Lloyd's Septic Service, Defendants JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Kimco Realty Corporation, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5203 CIVIL ACTION - LAW IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5355 CIVIL ACTION - LAW PLAINTIFFS' MOTION FOR CONSOLIDATION Pursuant to Pennsylvania Rule of Civil Procedure No. 213 (a), Plaintiffs, JoAnn Rinehart and Harry Rinehart, her husband, by and through their attorneys, HANDLER, HENNING & ROSENBERG, LLP, by Stephen G. Held, Esquire, move this Honorable Court to enter an Order permitting consolidation of the above-captioned pending actions for purposes of trial and in support aver as follows: 1. Plaintiffs, JoAnn and Harry Rinehart, commenced an action, pursuant to a Writ of Summons dated October 4, 2005, against Defendants, Stonehedge Center, LLC and Wesley A. Tate t/d/b/a Lloyd's Septic Service, to recover for injuries resulting from a premise liability incident on or about December 29, 2003. 2. Plaintiffs next commenced an action against Defendant Kimco Realty Corporation, pursuant to a Writ of Summons dated October 13, 2005. 3. There is presently pending in the Court of Common Pleas of Cumberland County, an action by Plaintiffs against Defendants, Stonehedge Center, LLC and Wesley A. Tate t/d/b/a/ Lloyd's Septic Service (No. 05-5203), and a separate action by Plaintiffs against Defendant Kimco Realty Corporation (No. 05-5355). 4. Both causes of action arise from the same incident, namely a premises liability incident that occurred on December 29, 2003 at Stonehedge Square Shopping Center located at 950 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania. Defendant, Stonehedge Center, LLC owns the property where the injury occurred, and Defendant Wesley A. Tate t/d/b/a Lloyd's Septic Service was the company responsible for snow and ice removal at said property at the time of the incident. Subsequent to filing the Writ of Summons against Defendants, Stonehedge Center, LLC and Wesley A. Tate t/d/b/a Lloyd's Septic Service, Plaintiffs gained information and the belief that Defendant, Kimco Realty Corporation was the property management entity responsible for management of Stonehedge Square Shopping Center, and thus the entity responsible for contracting with Wesley A. Tate t/d/b/a Lloyd's Septic Service for ice and snow removal at Stonehedge Square Shopping Center. 5. Absent consolidation, the possibility exists for inconsistent verdicts. 6. The consolidation of these two actions will not prejudice the substantial rights of any of the parties. It will be in the best interest of the parties and the Court to consolidate and resolve both causes of action at one trial, since the two causes of action are premised on the same incident, seek the same damages and relief and are premised on the same theory of liability 7. Copies of this motion have been served on all counsel and parties in both cases. WHEREFORE, Plaintiffs, JoAnn Rinehart and Harry Rinehart, her husband, request that this Honorable Court order consolidation of these cases for trial. Respectfully submitted, pe,e, ?o/O6 HANDLER, HENNING & ROSENBERG, LLP By: Stephen G. Held, Esquire Attorney I.D. # 72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiffs 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 HELDahhrlaw.com Attorney for Plaintiff JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Stonehedge Center, LLC, and Wesley A. Tate t/d/b/a Lloyd's Septic Service, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5203 CIVIL ACTION - LAW JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Kimco Realty Corporation, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5355 CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this 20`h day of September, 2006,1 hereby certify that I have served the within document upon counsel for Defendants and/or Defendants without counsel, 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. Timothy J. McMahon, Esq. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Tate Wesley t/d/b/a Lloyd's Septic Service 95 Zion Road Carlisle, PA 17013 Stonehedge Center, LLC c/o CT Corporation 1515 Market Street Philadelphia, PA 19102 Stonehedge Center, LLC 170 W. Ridgely Road, Suite 300 Lutherville, MD 21093 HANDLER, HENNING & ROSENBERG, LLP Yl an-k-0. W-.k ju,,A Maria Wells, Legal Secretary to Stephen G. Held, Esquire om ° t ' czr- i m ..s f a JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Stonehedge Center, LLC, and Wesley A. Tate t/d/b/a Lloyd's Septic Service, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5203 / CIVIL ACTION - LAW JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Kimco Realty Corporation, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5355 CIVIL ACTION - LAW RULE TO SHOW CAUSE And now, on O Ck o"W' 3 , 2006 a rule is granted upon Stonehedge Center, LLC, Wesley A. Tate t/d/b/a Lloyd's Septic Service and Kimco Realty Corporation to show cause why the action of JoAnn Rinehart and Harry Rinehart, against Stonehedge Center, LLC and Wesley A. Tate t/d/b/a Lloyd's Septic Service (No. 05-5203), and their action against Kimco Realty Corporation (No. 05-5355), should not be consolidated. Rule returnable 0cA ODcr '1? , 2006. All proceedings to stay meanwhile. A?0 BY THE COURT: 'f kJA ? J. 6 C ,Ql IJIG r- 10 9092 V 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 HELDO-Mrlaw.com Attorney for Plaintiff JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. . Stonehedge Center, LLC, and Wesley A. Tate t/d/b/a Lloyd's Septic Service, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5203 CIVIL ACTION - LAW JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. . Kimco Realty Corporation, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5355 CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this 10th day of October, 2006, 1 hereby certify that I have served the within document upon counsel for Defendants and/or Defendants without counsel, 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. Timothy J. McMahon, Esq. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Tate Wesley t/d/b/a Lloyd's Septic Service 95 Zion Road Carlisle, PA 17013 Stonehedge Center, LLC c/o CT Corporation 1515 Market Street Philadelphia, PA 19102 HANDLER, HENNING & ROSENBERG, LLP Maria Wells, Legal Secretary to Stephen G. Held, Esquire L E. l1'? G ca C 1 ,. cv i JOHNSON, DUFFLE, STEWART & WEIDNER By ' John'R: Ninosky, Esgdire I.D. #: 78000 301 Market Street Lemoyne, PA 17043-0109 DATE: e-mail: jjs a@jdsw.com 285999 v Attorneys for Defendant Wesley A. Tate t/d/a/a Lloyd's Septic Service Johnson, Duffle, Stewart & Weidner By: John R. Ninosky, Esquire I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Stonehedge Center, LLC, and Wesley A. Tate t/d/b/a Lloyd's Septic Service, Defendants TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2005-5203 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED PRAECIPE PLEASE enter the appearance of the undersigned on behalf of the Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service in the above-captioned matter. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on P, d Stephen G. Held, Esquire Handier, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Attorneys for Plaintiffs Stonehedge Center, LLC 170 West Ridgely Road Suite 300 Lutherville, MD 21093 JOHNSON, DUFFIE, STEWART & WEIDNER By Zg?? Jon R. inosky, Esquire I . D. #: 78000 301 Market Street Lemoyne, PA 17043-0109 e-mail: jrn@jdsw.com Attorneys for Defendant Wesley A. Tate t/d/b/a Lloyd's Septic Service 286000 G? ill ti " 1 21 G) Johnson, Duffle, Stewart & Weidner By: John R. Ninosky, Esquire I.D. No. 78000 301 Market Street P. O. BOX 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service JoAnn Rinehart and Harry Rinehart, herhusband, Plaintiffs V. Stonehedge Center, LLC, and Wesley A. Tate t/d/b/a Lloyd's Septic Service, Defendants TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-5203 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE PLEASE issue a Rule upon the Plaintiffs to file a Complaint within twenty (20) days or suffer judgment of non pros. JOHNSON, DUFFIE, STEWART & WEIDNER B John R. Ninosky, Esquire I. D. #: 78000 301 Market Street Lemoyne, PA 17043-0109 DATE: /(///a/o e-mail: jrn@jdsw.com RULE TO: Stephen G. Held, Esquire, 1300 Linglestown Road, P.O. Box 80337, Harrisburg, PA 17106, Attorneys for Plaintiff: And now, this?L ay of you are hereby notified to file a Complaint within twenty (20) days of service in the abov -captioned matter or a default judgment will be entered against you. Curtong, Protho to CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Attorneys for Plaintiffs Stonehedge Center, LLC 170 West Ridgely Road Suite 300 Lutherville, MD 21093 JOHNSON, DUFFIE, STEWART & WEIDNER By John R. Ninosky, Esq ire I.D. #: 78000 301 Market Street Lemoyne, PA 17043-0109 e-mail: jrn@jdsw.com Attorneys for Defendant Wesley A. Tate t/d/b/a Lloyd's Septic Service 286000 4 -_ CQ c?J JoAnn Rinehart and Harry IN THE COURT OF COMMON PLEAS Rinehart, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. Stonehedge Center, LLC, and Wesley A. Tate t/d/b/a Lloyd's Septic Service, Defendants NO. 05-5203 Z CIVIL ACTION - LAW JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Kimco Realty Corporation, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5355 CIVIL ACTION - LAW PETITIONER'S MOTION TO MAKE RULE ABSOLUTE AND NOW, come the petitioners, JoAnn and Harry Rinehart, by and through their attorneys, Handler, Henning & Rosenberg, by Stephen G. Held, Esquire, and respectfully move this Honorable Court to make absolute the Rule to Show cause which was issued in the above captioned matter on October 3, 2006 in support thereof state the following: 1. On October 4, 2005, Plaintiffs filed a Writ of Summons, docket no. 05-5203, against Defendants, Stonehedge Center, LLC and Wesley A. Tate t/d/b/a Lloyd's Septic Service to recover for injuries resulting from a premises liability incident that occurred on or about December 29, 2003 at Stonehedge Square Shopping Center located at 950 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania. 2. On October 13, 2005, Plaintiffs filed a second Writ of Summons, docket no. 05-5355, against Defendant, Kimco Realty Corporation for the same incident and injuries that occurred on December 29, 2003. 3. On or about September 21, 2006, Plaintiffs filed a Motion to Consolidate the above captioned cases into one action in the interest of judicial efficiency because they both arise out of the same accident. 4. On or about October 3, 2006, a Rule to Show Cause was issued by the Court of Common Pleas of Cumberland County upon Defendants Stonehedge Center, LLC, Wesley A. Tate t/d/b/a Lloyd's Septic Service and Kimco Realty Corporation to show cause why the above-captioned actions should not be consolidated into one action. The Rule was returnable October 24, 2006. Attached hereto, made a part hereof and marked as "Exhibit A," is the Rule issued by the Court and Plaintiffs' Certificate of Service. 5. To date, Defendants have failed to respond to Rule to Show Cause and have failed to provide any reason why Plaintiffs' Motion to Consolidate should not be granted. 6. Plaintiff hereby requests this Honorable Court make the Order dated October 3, 2006 Absolute, and permit the Plaintiffs to consolidate the actions into one action. WHEREFORE, Plaintiffs, JoAnn and Harry Rinehart, respectfully request that this Honorable Court issue a Rule Absolute to permit the Plaintiffs to consolidate the action against Defendants Stonehedge Center, LLC, Wesley A. Tate t/d/b/a Lloyd's Septic Service and Kimco Realty Corporation into one proceeding. Date jc?/ 0 0 HANDLE , HE IN & ROSENBERG By Step Field, Esquire I.D. No. 72663 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17106 (717) 238-2000 Attorneys for Plaintiffs 2 2 6 JoAnn Rinehart and Harry IN THE COURT OF COMMON PLE:,4S- Rinehart, her husband, CUMBERLAND COUNTY, PENNSYtVANLA = Plaintiffs NO. 05-5203 Stonehedge Center, LLC, and Wesley A. Tate t/d/b/a CIVIL ACTION - LAW Lloyd's Septic Service, Defendants JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Kimco Realty Corporation, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05.5355 CIVIL ACTION - LAW RULE TO SHOW CAUSE And now, on (?)A. -3 , 2006 a rule is granted upon Stonehedge Center, LLC, Wesley A. Tate t/d/b/a Lloyd's Septic Service and Kimco Realty Corporation to show cause why the action of JoAnn Rinehart and Harry Rinehart, against Stonehedge Center, LLC and Wesley A. Tate t/d/b/a Lloyd's Septic Service (No. 05-5203), and their action against Kimco Realty Corporation (No. 05-5355), should not be consolidated. Rule returnable , 2006. All proceedings to stay meanwhile. TRUE CfNPv Fn*-* M PrroRD In Testimor}, my hand an he -se-a-1 of- Pa. TIV? ........ (-d ?a' BY THE COURT: • 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 hhrlaw.com JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Stonehedge Center, LLC, and Wesley A. Tate t/d/b/a Lloyd's Septic Service, Defendants 0 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5203 CIVIL ACTION - LAW JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. . Kimco Realty Corporation, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5355 CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this 10th day of October, 2006, 1 hereby certify that I have served the within document upon counsel for Defendants and/or Defendants without counsel, 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: Timothy J. McMahon, Esq. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road Suite B Harrisburg, PA 17112 0 Tate Wesley t/d/b/a Lloyd's Septic Service 95 Zion Road Carlisle, PA 17013 Stonehedge Center, LLC c/o CT Corporation 1515 Market Street Philadelphia, PA 19102 HANDLER, HENNING & ROSENBERG, LLP Maria Wells, Legal Secretary to Stephen G. Held, Esquire JoAnn Rinehart and Harry IN THE COURT OF COMMON PLEAS Rinehart, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. Stonehedge Center, LLC, and Wesley A. Tate t/d/b/a Lloyd's Septic Service, Defendants NO. 05-5203 CIVIL ACTION - LAW JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Kimco Realty Corporation, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5355 CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this 8`h day of December, 2006, 1 hereby certify that I have served the within document upon Counsel for Defend ant/Defendants, 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. John R. Ninosky, Esq. Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Timothy J. McMahon, Esq. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road Suite B Harrisburg, PA 17112 KimCo Realty Corporation c/o CT Corporation 1515 Market Street Philadelphia, PA 19102 Stonehedge Center, LLC c/o CT Corporation 1515 Market Street Philadelphia, PA 19102 HANDLER, HENNING & ROSENBERG, LLP `-TY1 WA-CL- WJL? Maria Wells, Legal Secretary to Stephen G. Held, Esquire ?.a ,w-.? ?.:: ?-, ct vn, ?.. {=-ti _ r _ _..- j '. 7 y '. '._ ?y T ... ,-'i ''?'t ?J • .i? ,. . _y ?? r r JoAnn Rinehart and Harry IN THE COURT OF COMMON PLEAS Rinehart, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 05-5203 C7' LLC, Stonehedge Center cz" 73 , and Wesley A. Tate t/d/b/a CIVIL ACTION - LAW >: -- -- _ Lloyd's Septic Service, N) ,y cM Defendants - - JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Kimco Realty Corporation, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5355 f CIVIL ACTION - LAW PETITIONER'S MOTION TO MAKE RULE ABSOLUTE AND NOW, come the petitioners, JoAnn and Harry Rinehart, by and through their attorneys, Handler, Henning & Rosenberg, by Stephen G. Held, Esquire, and respectfully move this Honorable Court to make absolute the Rule to Show cause which was issued in the above captioned matter on October 3, 2006 in support thereof state the following: 1. On October 4, 2005, Plaintiffs filed a Writ of Summons, docket no. 05-5203, against Defendants, Stonehedge Center, LLC and Wesley A. Tate t/d/b/a Lloyd's Septic Service to recover for injuries resulting from a premises liability incident that occurred on or about December 29, 2003 at Stonehedge Square Shopping Center located at 950 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania. 2. On October 13, 2005, Plaintiffs filed a second Writ of Summons, docket no. 05-5355, against Defendant, Kimco Realty Corporation for the same incident and injuries that occurred on December 29, 2003. 3. On or about September 21, 2006, Plaintiffs filed a Motion to Consolidate the above captioned cases into one action in the interest of judicial efficiency because they both arise out of the same accident. 4. On or about October 3, 2006, a Rule to Show Cause was issued by the Court of Common Pleas of Cumberland County upon Defendants Stonehedge Center, LLC, Wesley A. Tate t/d/b/a Lloyd's Septic Service and Kimco Realty Corporation to show cause why the above-captioned actions should not be consolidated into one action. The Rule was returnable October 24, 2006. Attached hereto, made a part hereof and marked as "Exhibit A," is the Rule issued by the Court and Plaintiffs' Certificate of Service. 5. To date, Defendants have failed to respond to Rule to Show Cause and have failed to provide any reason why Plaintiffs' Motion to Consolidate should not be granted. 6. Plaintiff hereby requests this Honorable Court make the Order dated October 3, 2006 Absolute, and permit the Plaintiffs to consolidate the actions into one action. r? WHEREFORE, Plaintiffs, JoAnn and Harry Rinehart, respectfully request that this Honorable Court issue a Rule Absolute to permit the Plaintiffs to consolidate the action against Defendants Stonehedge Center, LLC, Wesley A. Tate t/d/b/a Lloyd's Septic Service and Kimco Realty Corporation into one proceeding. Date HANDL%,HENNIN & ROSENBERG By A V-, Step ?i GI Held, Esquire I.D. No. 72663 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17106 (717) 238-2000 Attorneys for Plaintiffs fY/J. JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Stonehedge Center, LLC, and Wesley A. Tate t/d/b/a Lloyd's Septic Service, Defendants JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Kimco Realty Corporation, Defendant J'?r IN THE COURT OF COMMON PLE; CUMBERLAND COUNTY, PENNSI NO. 05-5203 CIVIL ACTION - LAW IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA . NO. 05-5355 ? CIVIL ACTION -LAW RULE TO SHOW CAUSE And now, on _,2006 a rule is granted upon Stonehedge Center, LLC, Wesley A. Tate t/d/b/a Lloyd's Septic Service and Kimco Realty Corporation to show cause why the action of JoAnn Rinehart and Harry Rinehart, against Stonehedge Center, LLC and Wesley A. Tate t/d/b/a Lloyd's Septic Service (No. 05-5203), and their action against Kimco Realty Corporation (No. 05-5355), should not be consolidated. Rule returnable , 2006. All proceedings to stay meanwhile. T R U E Cn!V' Pr `*'A rvr,rPRD In Testimony' my hand an he sal oi' .. Pa. T .... da. l othonotarv / 3Ep 2 2 2006 J. BY THE COURT: 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 HELDa,hhrlaw.com JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Stonehedge Center, LLC, and Wesley A. Tate t/d/b/a Lloyd's Septic Service, Defendants I'll Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5203 CIVIL ACTION - LAW JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Kimco Realty Corporation, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5355 CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this 10th day of October, 2006, l hereby certify that I have served the within document upon counsel for Defendants and/or Defendants without counsel, 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: Timothy J. McMahon, Esq. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Tate Wesley t/d/b/a Lloyd's Septic Service 95 Zion Road Carlisle, PA 17013 Stonehedge Center, LLC c/o CT Corporation 1515 Market Street . Philadelphia, PA 19102 HANDLER, HENNING & ROSENBERG, LLP Maria Wells, Legal Secretary to Stephen G. Held, Esquire 1. JoAnn Rinehart and Harry IN THE COURT OF COMMON PLEAS Rinehart, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 05-5203 Stonehedge Center, LLC, and Wesley A. Tate t/d/b/a CIVIL ACTION - LAW Lloyd's Septic Service, Defendants JoAnn Rinehart and Harry IN THE COURT OF COMMON PLEAS Rinehart, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 05-5355 Kimco Realty Corporation, Defendant CIVIL ACTION - LAW ORDER AND NOW, on this day of , 2006 and upon consideration of Plaintiffs' Motion to make the Order dated October 3, 2006. Absolute, it is hereby ORDERED that Plaintiff's Motion is GRANTED, and the above-captioned proceedings will hereby be consolidated into one action containing all the Defendants named therein. BY THE COURT: J. JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Stonehedge Center, LLC, and Wesley A. Tate t/d/b/a Lloyd's Septic Service, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5203 CIVIL ACTION - LAW JoAnn Rinehart and Harry IN THE COURT OF COMMON PLEAS Rinehart, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 05-5355 Kimco Realty Corporation, Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this 8th day of December, 2006, 1 hereby certify that I have served the within document upon Counsel for Defendant/Defendants, 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: John R. Ninosky, Esq. Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Timothy J. McMahon, Esq. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road Suite B Harrisburg, PA 17112 r KimCo Realty Corporation c/o CT Corporation 1515 Market Street Philadelphia, PA 19102 Stonehedge Center, LLC c/o CT Corporation 1515 Market Street Philadelphia, PA 19102 HANDLER, HENNING & ROSENBERG, LLP Maria Wells, Legal Secretary to Stephen G. Held, Esquire JOANN RINEHART AND IN THE COURT OF COMMON PLEAS OF HARRY RINEHART, her husband :CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS NO. 05-5203 CIVIL V. STONEHEDGE CENTER, LLC, AND WESLEY A. TATE T/D/B/A LLOYD'S SEPTIC SERVICE DEFENDANTS CIVIL ACTION - LAW JOANN RINEHART AND IN THE COURT OF COMMON PLEAS OF HARRY RINEHART, her husband CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. NO. 05-5355 CIVIL KIMCO REALTY CORPORATION DEFENDANT CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 18th day of December, 2006, upon consideration of Plaintiffs' Motion to Make the Order dated October 3, 2006, Absolute, IT IS HEREBY ORDERED AND DIRECTED that the Plaintiffs' Motion is GRANTED. The above-captioned proceedings will be consolidated into one action containing all the Defendants named therein. By the Court, - ItA\ t U X??\ ? // M. L. Ebert, Jr., J. 913 :1 a,H s1 310 HE -:jlH i.. KJ JOANN RINEHART AND HARRY RINEHART, her husband PLAINTIFFS V. STONEHEDGE CENTER, LLC, AND WESLEY A. TATE T/D/B/A LLOYD'S SEPTIC : SERVICE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 05-5203 CIVIL VI/ DEFENDANTS : CIVIL ACTION - LAW JOANN RINEHART AND IN THE COURT OF COMMON PLEAS OF HARRY RINEHART, her husband CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. : NO. 05-5355 CIVIL KIMCO REALTY CORPORATION DEFENDANT CIVIL ACTION - LAW AMENDED ORDER OF COURT AND NOW, this 19th day of December, 2006, the order dated December 18, 2006 allowing for consolidation of the above captioned cases is amended to include that all proceedings shall be consolidated into one action at 05-5203 Civil. By the Court, M. L. Ebert, Jr., J. 40 ?S t s 1 _? . zo nn J 4r? w Johnson, Duffle, Stewart & Weidner By: John R. Ninosky, Esquire I.D. No. 78000 Attorneys for Defendant 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 JOANN RINEHART AND HARRY IN THE COURT OF COMMON PLEAS OF RINEHART, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 05-5203 CIVIL STONEHEDGE CENTER, LLC, and CIVIL ACTION - LAW WESLEY A. TATE T/D/B/A LLOYD'S SEPTIC SERVICE, and KIMCO REALTY CORPORATION, Defendants JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: PLEASE enter the appearance of the undersigned on behalf of the Defendants, Kimco Realty Corporation, and Stonehedge Center, LLC, in the above-captioned matter. JOHNSON, DUFFIE, STEWART & WEIDNER By: / V J n R. Ninosky, Esquire Attorney I.D. No. 78000 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Email: jrn@jdsw.com Attorneys for Defendants Date: ///x/07 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on /,/ /p Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Attorneys for Plaintiffs JOHNSON, DUFFIE, STEWART & WEIDNER By ohn R. Ninosky, Esq ? e I.D. #: 78000 301 Market Street Lemoyne, PA 17043-0109 e-mail: jrn@jdsw.com Attorneys for Defendants 289882 C') ?v v '7.1 J .? CS Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 (717) 233-3029 Fax E-mail: HELD(&-hhrlaw.com Attorney for Plaintiff JOANN RINEHART AND IN THE COURT OF COMMON PLEAS HARRY RINEHART, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs , V. NO.: 05-5203 CIVIL STONEHEDGE CENTER, LLC, WESLEY A. TATE t/d/b/a LLOYD'S SEPTIC SERVICE, and KIMCO REALTY CORPORATION, Defendants CIVIL ACTION - LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 JOANN RINEHART AND IN THE COURT OF COMMON PLEAS HARRY RINEHART, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs , V. NO.: 05-5203 CIVIL STONEHEDGE CENTER, LLC, WESLEY A. TATE t/d/b/a LLOYD'S SEPTIC SERVICE, and KIMCO REALTY CORPORATION, Defendants CIVIL ACTION - LAW AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accibn dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accibn como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYAA LA SIGUIENTE OFICINA. ESTAOFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOME AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: 717-238-2000 Fax: 717-233-3029 E-mail: HELD(c0hrlaw.com Attorney for Plaintiffs JOANN RINEHART AND HARRY RINEHART, her husband, Plaintiffs V. STONEHEDGE CENTER, LLC, WESLEY A. TATE t/d/b/a LLOYD'S SEPTIC SERVICE, and KIMCO REALTY CORPORATION, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 05-5203 CIVIL CIVIL ACTION - LAW COMPLAINT AND NOW, come the Plaintiffs, JoAnn and Harry Rinehart, by and through their attorneys, HANDLER, HENNING & ROSENBERG, LLP, by Stephen G. Held, Esquire, and bring forth this Complaint against Defendants, Stonehedge Center, LLC, Wesley A. Tate t/d/b/a Lloyd's Septic Service and Kimco Realty Corporation and aver as follows: 1. Plaintiff, JoAnn Rinehart, is an adult individual currently residing at 3 Timber Lane, Mount Holly Springs, Cumberland County, Pennsylvania. 2. Plaintiff, Harry Rinehart, is an adult individual currently residing at 3 Timber Lane, Mount Holly Springs, Cumberland County, Pennsylvania. 3. Defendant, Stonehedge Center, LLC, is a limited liability company registered and established under the laws of Maryland with its principal office located at 170 West Ridgely Road, Suite 300, Lutherville, Maryland, and doing business in Pennsylvania. 4. Defendant, Kimco Realty Corporation, is corporation registered and established under the laws of Maryland with its principal office located at 3333 New Hyde Park Road, New Hyde Park, New York and doing business in Pennsylvania. 5. Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, is a sole proprietorship with offices located at 439 West North Street, Carlisle, Pennsylvania. 6. At all times material hereto, Defendant, Stonehedge Center, LLC, was the owner and had exclusive control of the property located at 950 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania. (hereinafter "Premises") and was presumably responsible for the removal of snow and ice from the Premises. 7. It is believed and therefore averred that Defendant, Kimco Realty Corporation, was the property manager and had exclusive control of the property located at 950 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania and was presumably responsible for the removal of snow and ice from the Premises. 8. It is believed and therefore averred that Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, was hired and engaged by Defendant Kimco Realty Corporation or Stonehedge Center, LLC to remove snow and ice from the Premises. 9. At all times material hereto, Plaintiff, JoAnn Rinehart, was lawfully on said Premises as a employee of a tenant, M & T Bank. 2 10. At all times material hereto, Defendants, who had exclusive control of said Premises, had allowed ice to accumulate and remain on the parking lot of Stonehedge Shopping Center. 11. At all times material hereto, there were no warning signs posted on the Premises warning of the snow and ice that remained on the parking lot of Stonehedge Shopping Center. 12. On or about December 29, 2003, Plaintiff, JoAnn Rinehart, arrived for work at M&T Bank and parked her car in the said parking lot controlled by Defendants. When Plaintiff stepped from her car, Plaintiffs foot slipped on an accumulation of ice that was allowed to remain on the parking lot of Stonehedge Shopping Center causing her to slip and fall harshly upon the ground and causing personal injuries to the Plaintiff, as more particularly set forth herein. 13. As a direct and proximate result of the negligence of the Defendants, Stonehedge Center, LLC, Wesley A. Tate t/d/b/a Lloyd's Septic Service and Kimco Realty Corporation, the Plaintiffs sustained extensive injuries as set forth more specifically below. COUNT I - NEGLIGENCE JoAnn Rinehart v. Stonehedge Center. LLC 14. Paragraphs 1 through 13 are incorporated herein as if fully set forth. 15. At all times material to hereto, Plaintiff, JoAnn Rinehart, believes and therefore avers, that Defendant, Stonehedge Center, LLC, was in ownership, possession, management and control of the Premises and was responsible for maintaining the safe condition of the property known as 950 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania. 3 16. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, JoAnn Rinehart, were caused directly and proximately by the negligence (actions or inactions) of Defendant, Stonehedge Center, LLC, and/or by its agents, servants, workmen or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In allowing the parking lot at the Premises to become covered with snow and/or ice thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the Premises; (b) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the snow and/or ice, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (c) In failing to ensure the parking lot at said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (d) In failing to remove snow piles and allowing them to melt and subsequently freeze so as to create a hazard by allowing ice to form on the parking lot; (e) In failing to post a warning sign or device in the area to notify of the dangerous icy or slippery condition on the parking lot of said Premises; 4 (f) In failing to remove the snow and/or ice from the parking lot of said Premises so as to avoid the situation in which the Plaintiff slipped and fell; (g) In failing to place or adequately place salt, cinders or any other non- skid material upon the snow and ice covered parking lot; and (h) In failing to maintain the parking lot in a reasonably safe condition that would prevent an employee of a tenant from slipping and falling. 17. Defendant, Stonehedge Center, LLC, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was snow and ice accumulated on the parking lot in the area where Plaintiff, JoAnn Rinehart, fell. 18. As a direct and proximate result of the negligence of Defendant, Stonehedge Center, LLC, Plaintiff, JoAnn Rinehart, sustained serious injuries including, but not limited to, sever injuries to her left knee which required surgery and resulted in permanent scarring. 19. As a direct and proximate result of the negligence of Defendant, Stonehedge Center, LLC, Plaintiff, JoAnn Rinehart, has undergone great physical pain, discomfort and mental anguish and he will continue to endure the same for an indefinite period of time in the future, to her great detriment and loss, physically, emotionally and financially. 20. As a direct and proximate result of the negligence of Defendant, Stonehedge Center, LLC, Plaintiff, JoAnn Rinehart, has been, and will in the future be, hindered from attending to her daily duties and activities to her great detriment, loss, humiliation and embarrassment. 5 21. As a direct and proximate result of the negligence of Defendant, Stonehedge Center, LLC, Plaintiff, JoAnn Rinehart, has and will in the future, suffer a loss of life's pleasures. 22. As a direct and proximate result of the negligence of Defendant, Stonehedge Center, LLC, Plaintiff, JoAnn Rinehart, has been compelled, in order to effect 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. 23. As a direct and proximate result of the negligence of Defendant, Stonehedge Center, LLC, Plaintiff, JoAnn Rinehart, has suffered lost wages/income and will in the future continue to suffer a loss of income and/or loss of earning capacity. 24. Plaintiff, JoAnn Rinehart, believes, and therefore avers, that her injuries are permanent in nature. WHEREFORE, Plaintiff, JoAnn Rinehart, seeks damages from Defendant, Stonehedge Center, LLC, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs and demands a trial by jury. II - NEGLIGENCE JoAnn Rinehart v. Kimco Realty Corporation 25. Paragraphs 1 through 24 are incorporated herein as if fully set forth. 26. At all times material to hereto, Plaintiff, JoAnn Rinehart, believe and therefore aver, that Defendant, Kimco Realty Corporation, was in possession, management and 6 control of the Premises and was responsible for maintaining the safe condition of the property known as, 950 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania. 27. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, JoAnn Rinehart, were caused directly and proximately by the negligence (actions or inactions) of Defendant, Kimco Realty Corporation, and/or by its agents, servants, workmen or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In allowing the parking lot at the Premises to become covered with snow and/or ice thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the Premises; (b) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the snow and/or ice, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (c) In failing to ensure the parking lot at said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (d) In failing to remove snow piles and allowing them to melt and subsequently freeze so as to create a hazard by allowing ice to form on the parking lot; 7 (e) In failing to post a warning sign or device in the area to notify of the dangerous icy or slippery condition on the parking lot of said Premises; (f) In failing to remove the snow and/or ice from the parking lot of said Premises so as to avoid the situation in which the Plaintiff slipped and fell; (g) In failing to place or adequately place salt, cinders or any other non- skid material upon the snow and ice covered parking lot; and (h) In failing to maintain the parking lot in a reasonably safe condition that would prevent an employee of a tenant from slipping and falling. 28. Defendant, Kimco Realty Corporation, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was snow and ice accumulated on the parking lot in the area where Plaintiff, JoAnn Rinehart, fell. 29. As a direct and proximate result of the negligence of Defendant, Kimco Realty Corporation, Plaintiff, JoAnn Rinehart, sustained serious injuries including, severe injuries to her left knee which required surgery and resulted in permanent scarring. 30. As a direct and proximate result of the negligence of Defendant, Kimco Realty Corporation, Plaintiff. JoAnn Rinehart, has undergone great physical pain, discomfort and mental anguish and he will continue to endure the same for an indefinite period of time in the future, to her great detriment and loss, physically, emotionally and financially. 8 31. As a direct and proximate result of the negligence of Defendant, Kimco Realty Corporation, Plaintiff, JoAnn Rinehart, has been, and will in the future be, hindered from attending to her daily duties and activities to her great detriment, loss, humiliation and embarrassment. 32. As a direct and proximate result of the negligence of Defendant, Kimco Realty Corporation, Plaintiff, JoAnn Rinehart, has and will in the future, suffer a loss of life's pleasures. 33. As a direct and proximate result of the negligence of Defendant, Kimco Realty Corporation, Plaintiff, JoAnn Rinehart, has been compelled, in order to effect 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. 34. As a direct and proximate result of the negligence of Defendant, Kimco Realty Corporation, JoAnn Rinehart, has suffered lost wages/income and will in the future continue to suffer a loss of income and/or loss of earning capacity. 35. Plaintiff, JoAnn Rinehart, believes, and therefore avers, that her injuries are permanent in nature. WHEREFORE, Plaintiff, JoAnn Rinehart, seeks damages from Defendant, Kimco Realty Corporation, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs and demands a trial by jury. COUNT III - NEGLIGENCE JoAnn Rinehart v. Wesley A. Tate t/d/b/a Lloyd's Septic Service 9 36. Paragraphs 1 through 36 are incorporated herein as if fully set forth. 37. At all times material to hereto, Plaintiff, JoAnn Rinehart, believes and therefore avers, that Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, was in control of the Premises and was responsible for snow and ice removal from the property known as 950 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania and was therefore responsible for maintaining the safe condition of the property. 38. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, JoAnn Rinehart, were caused directly and proximately by the negligence (actions or inactions) of Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, and/or by its agents, servants, workmen or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In allowing the parking lot at the Premises to become covered with snow and/or ice thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the Premises; (b) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the snow and/or ice, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (c) In failing to ensure the parking lot at said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; 10 (d) in failing to remove snow piles and allowing them to melt and subsequently freeze so as to create a hazard by allowing ice to form on the parking lot; (e) In failing to post a warning sign or device in the area to notify of the dangerous icy or slippery condition on the parking lot of said Premises; (f) In failing to remove the snow and/or ice from the parking lot of said Premises so as to avoid the situation in which the Plaintiff slipped and fell; (g) In failing to place or adequately place salt, cinders or any other non- skid material upon the snow and ice covered parking lot; and (h) In failing to maintain the parking lot in a reasonably safe condition that would prevent an employee of a tenant from slipping and falling. 39. Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was snow and ice accumulated on the parking lot in the area where Plaintiff, JoAnn Rinehart, fell. 40. As a direct and proximate result of the negligence of Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, Plaintiff, JoAnn Rinehart, sustained serious injuries including, but not limited to, severe injuries to her left knee which required surgery and resulted in permanent scarring. 41. As a direct and proximate result of the negligence of Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, Plaintiff, JoAnn Rinehart, has undergone great physical 11 pain, discomfort and mental anguish and he will continue to endure the same for an indefinite period of time in the future, to her great detriment and loss, physically, emotionally and financially. 42. As a direct and proximate result of the negligence of Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, Plaintiff, JoAnn Rinehart, has been, and will in the future be, hindered from attending to her daily duties and activities to her great detriment, loss, humiliation and embarrassment. 43. As a direct and proximate result of the negligence of Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, Plaintiff, JoAnn Rinehart, has and will in the future, suffer a loss of life's pleasures. 44. As a direct and proximate result of the negligence of Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, Plaintiff, JoAnn Rinehart, has been compelled, in order to effect 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. 45. As a direct and proximate result of the negligence of Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, Plaintiff, JoAnn Rinehart, has suffered lost wages/income and will in the future continue to suffer a loss of income and/or loss of earning capacity. 46. Plaintiff, JoAnn Rinehart, believes, and therefore avers, that her injuries are permanent in nature. 12 WHEREFORE, Plaintiff, JoAnn Rinehart, seeks damages from Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs and demands a trial by jury. COUNT IV - LOSS OF CONSORTIUM Harry Rinehart v. Stonehedae Center, LLC 47. Paragraphs 1 through 46 are incorporated herein as if fully set forth. 48. At all times material hereto, Plaintiffs, Harry Rinehart and JoAnn Rinehart, were lawfully married as husband and wife. 49. As a direct and proximate result of the negligence of the Defendant, Stonehedge Center, LLC, the Plaintiff, Harry Rinehart, has suffered a loss of consortium, society, and comfort from his wife, JoAnn Rinehart, and he will continue to suffer a similar loss in the future. 50. As a direct and proximate result of the negligence of the Defendant, Stonehedge Center, LLC, the Plaintiff, Harry Rinehart, has been compelled, in order to effect a cure for his wife's injuries, to spend money for medicine and medical attention and will be required to spend money for the same purposes in the future, to his great detriment and loss. WHEREFORE, Plaintiff, Harry Rinehart, seeks damages from Defendant, Stonehedge Center, LLC, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs and demands a trial by jury. COUNT V - LOSS OF CONSORTIUM 13 Harry Rinehart v. Kimco Realty Corporation 51. Paragraphs 1 through 50 are incorporated herein as if fully set forth. 52. At all times material hereto, Plaintiffs, Harry Rinehart and JoAnn Rinehart, were lawfully married as husband and wife. 53. As a direct and proximate result of the negligence of the Defendant, Kimco Realty Corporation, the Plaintiff, Harry Rinehart, has suffered a loss of consortium, society, and comfort from his wife, JoAnn Rinehart, and she will continue to suffer a similar loss in the future. 54. As a direct and proximate result of the negligence of the Defendant, Kimco Realty Corporation, the Plaintiff, Harry Rinehart, has been compelled, in order to effect a cure for his wife's injuries, to spend money for medicine and medical attention and will be required to spend money for the same purposes in the future, to his great detriment and loss. WHEREFORE, Plaintiff, Harry Rinehart, seeks damages from Defendant, Kimco Realty Corporation, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs and demands a trial by jury. COUNT VI - LOSS OF CONSORTIUM Harryy Rinehart v Wesley A Tate t/d/b/a Lloyd's Septic Service 55. Paragraphs 1 through 54 are incorporated herein as if fully set forth. 56. At all times material hereto, Plaintiffs, Harry Rinehart and JoAnn Rinehart, were lawfully married as husband and wife. 57. As a direct and proximate result of the negligence of the Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, the Plaintiff, Harry Rinehart, has suffered a loss of 14 consortium, society, and comfort from his wife, JoAnn Rinehart, and she will continue to suffer a similar loss in the future. 58. As a direct and proximate result of the negligence of the Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, the Plaintiff, Harry Rinehart, has been compelled, in order to effect a cure for his wife's injuries, to spend money for medicine and medical attention and will be required to spend money for the same purposes in the future, to his great detriment and loss. WHEREFORE, Plaintiff, Harry Rinehart, seeks damages from Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs and demands a trial by jury. Respectfully submitted, HAND , H NING & ROSENBERG, LLP Date: t a 16) By: Ste . He , Esquire Attorney I.D. # 72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiffs 15 VERIFICATION 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: Ann Rinehart VERIFICATION 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: ?GCG G Harry P a art Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax: (717) 233-3029 E-mail: HELDO-hhrlaw.com Attorney for Plaintiff JOANN RINEHART AND IN THE COURT OF COMMON PLEAS HARRY RINEHART, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO.: 05-5203 CIVIL STONEHEDGE CENTER, LLC, WESLEY A. TATE tldib/a LLOYD'S SEPTIC SERVICE, and KIMCO REALTY CORPORATION, Defendants CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this 20'h day of February, 2007, 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. John R. Ninosky, Esq. Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043 HANDLER, HENNING & ROSENBERG, LLP `-'IYA CV G_ 1. S-Us-A- Maria Wells, Legal Secretary to Stephen G. Held, Esquire s C? ? ?? .-? -n ?= -±'1 YS?'?ft ?' i . ? ` ... J??? yJ a ? ;} ? „fw ?"°l W - " "S? - - 0..A } t? A r r -? -? Johnson, Duffle, Stewart & Weidner By: John R. Ninosky, Esquire I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Defendants JoAnn Rinehart and Harry Rinehart, IN THE COURT OF COMMON PLEAS OF her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2005-5203 CIVIL TERM Stonehedge Center, LLC, and Wesley CIVIL ACTION - LAW A. Tate t/d/b/a Lloyd's Septic Service, Defendants JURY TRIAL DEMANDED NEW MATTER NOTICE TO: Stephen Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Attorneys for Plaintiffs You are hereby notified to plead to the enclosed New Matter within twenty (20) days from the date of service. DATE: qlx/0 7 JOHNSON, DUFFIE, STEWART & WEIDNER By kALtJ414 John R. Ninosky, Esquire Attorney I.D. No. 78000 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants Johnson, Duffle, Stewart & Weidner By: John R. Ninosky, Esquire I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 JoAnn Rinehart and Harry Rinehart, her husband, Plaintiffs V. Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2005-5203 CIVIL TERM Stonehedge Center, LLC, and Wesley CIVIL ACTION - LAW A. Tate t/d/b/a Lloyd's Septic Service, Defendants JURY TRIAL DEMANDED DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW, come the Defendants by and through their counsel, Johnson, Duffie, Stewart & Weidner, who file this Answer with New Matter to Plaintiffs' Complaint by respectfully stating the following: 1. Denied. After reasonable investigation, the Defendants are without sufficient information to form a belief as to the truth of the averments of this paragraph and the same are therefore denied and strict proof is demanded at the time of trial. 2. Denied. After reasonable investigation, the Defendants are without sufficient information to form a belief as to the truth of the averments of this paragraph and the same are therefore denied and strict proof is demanded at the time of trial. 3. Admitted in part, denied in part. It is admitted that Defendant Stonehedge Center, LLC, is a Limited Liability Company registered and established under the laws of Maryland. The remainder of this allegation is denied. By way of further Answer, Stonehedge Center, LLC, does have a place of business located at 170 West Ridgely Road, Suite 300, Lutherville, Maryland. 4. Admitted. 5. Denied. Wesley A. Tate t/d/b/a Lloyd's Septic Service is no longer in business. 6. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 7. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 8. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 9. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 10. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 11. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 12. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 13. Denied. The averments contained in this paragraph are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. COUNT I - NEGLIGENCE JoAnn Rinehart v. Stonehedue Center, LLC 14. The Defendants incorporate herein by reference their answers to Paragraphs 1 through 13 above as though fully set forth herein at length. 15. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 16. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 17. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 18. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 19. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 20. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 21. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 22. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 23. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 24. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). WHEREFORE, Defendant respectfully requests that Plaintiffs' Complaint be dismissed with prejudice and that judgment be entered in their favor. COUNT II - NEGLIGENCE JoAnn Rinehart v. Kimco Realty Corporation 25. The Defendants incorporate herein by reference their answers to Paragraphs 1 through 24 above as though fully set forth herein at length. 26. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 27. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 28. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 29. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 30. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 31. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 32. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 33. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 34. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 35. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). WHEREFORE, Defendant respectfully requests that Plaintiffs' Complaint be dismissed with prejudice and that judgment be entered in their favor. COUNT III - NEGLIGENCE JoAnn Rinehart v. Wesley A. Tate Vd/b/a Lloyd's Septic Service 36. The Defendants incorporate herein by reference their answers to Paragraphs 1 through 35 above as though fully set forth herein at length. 37. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 38. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 39. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 40. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 41. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 42. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 43. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 44. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 45. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 46. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). WHEREFORE, Defendant respectfully requests that Plaintiffs' Complaint be dismissed with prejudice and that judgment be entered in their favor. COUNT IV - LOSS OF CONSORTIUM Harry Rinehart v. Stonehedae Center, LLC 47. The Defendants incorporate herein by reference their answers to Paragraphs 1 through 46 above as though fully set forth herein at length. 48. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 49. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 50. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). WHEREFORE, Defendant respectfully requests that Plaintiffs' Complaint be dismissed with prejudice and that judgment be entered in their favor. COUNT V - LOSS OF CONSORTIUM Harry Rinehart v. Kimco Realty Corporation 51. The Defendants incorporate herein by reference their answers to Paragraphs 1 through 50 above as though fully set forth herein at length. 52. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 53. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 54. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). WHEREFORE, Defendant respectfully requests that Plaintiffs' Complaint be dismissed with prejudice and that judgment be entered in their favor. COUNT VI - LOSS OF CONSORTIUM Harry Rinehart v. Wesley A. Tate t/d/b/a Lloyd's Septic Service 55. The Defendants incorporate herein by reference their answers to Paragraphs 1 through 54 above as though fully set forth herein at length. 56. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 57. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 58. Denied. The averments of this paragraph are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). WHEREFORE, Defendant respectfully requests that Plaintiffs' Complaint be dismissed with prejudice and that judgment be entered in their favor. NEW MATTER 59. That Plaintiffs' Complaint fails to state a claim upon which relief may be granted. 60. That the Plaintiffs' claims and/or alleged losses are barred or limited by the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. §7102, et seq., or the Doctrine of Contributory Negligence. 61. That Plaintiff, JoAnn Rinehart, failed to us reasonable care for her own safety under the circumstances then and there existing. 62. That Plaintiff, JoAnn Rinehart's, failure to exercise reasonable care for her own safety was a substantial factor in the happening of the alleged incident. 63. That if a dangerous condition that existed at the time of the alleged incident, which is denied, then Defendants did not have actual constructive notice of the alleged dangerous condition prior to the alleged fall. 64. That Plaintiffs' injuries and alleged damages, if any, were not caused by acts, omissions, or breaches of duty by the Defendants. 65. That Plaintiff, JoAnn Rinehart, knowingly and voluntarily assumed the risk of her injuries under the circumstances then and there existing. 65. That Plaintiffs' alleged cause of action is barred by the Hills and Ridges Doctrine. 66. That if there was any negligence on the part of the Defendants, which is expressly denied, then any such negligence was not a proximate cause of any injuries or damages sustained by the Plaintiffs. WHEREFORE, Defendants respectfully requests that Plaintiffs' Complaint be dismissed with prejudice and that judgment be entered in their favor. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By o n R. Ninosky, Esqu' Attorney I.D. No. 78000 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants VERIFICATION I, Glenn Brettschneider, Esquire, an authorized representative of Kimco Realty Corporation, have read the foregoing Answer and hereby affirm that it is 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. §4804. DATE: 294187 VERIFICATION I, Wesley A. Tate have read the foregoing Answer and hereby affirm that it is 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. §4804. DATE: 294187 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on 6 Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Attorneys for Plaintiffs JOHNSON, DUFFIE, STEWART & WEIDNER hn R. Ninosky, Esquire Attorney I.D. No. 78000 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants rz C h 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 E-mail: HELDt-hhrlaw.com Attorney for Plaintiffs JOANN RINEHART and : IN THE COURT OF COMMON PLEAS HARRY RINEHART, her husband, : CUMBERLAND COUNTY PENNSYLVANIA Plaintiffs V. : NO.: 05-5203 CIVIL STONEHEDGE CENTER, LLC, WESLEY A. TATE t/d/b/a LLOYD'S SEPTIC SERVICE, and KIMCO REALTY CORPORATION, Defendants : CIVIL ACTION - LAW PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT AND NOW, comes the Plaintiffs, JoAnn Rinehart and Harry Rinehart, in their own right, by and through their attorneys, HANDLER, HENNING & ROSENBERG, LLP, by Stephen G. Held, Esquire, who answers New Matter of Defendant as follows: 59. 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 4 is hereby denied By way of amplification, Plaintiffs' Complaint states a claim upon which relief maybe granted. J, 60. 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 and losses are not barred nor limited by Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. §7102, et M., or the Doctrine of Contributory Negligence. 61. 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, JoAnn Rinehart, was using reasonable care for her own safety under the circumstances then and there existing. 62. 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, JoAnn Rinehart exercised reasonable care for her own safety. 63. The averment of this paragraph is a conclusion of law to which no I responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, Defendants did have actual and/or constructive notice of the alleged dangerous condition. Or in the alternative, the dangerous condition was created by Defendants or their agents acting on there behalf and therefore notice is not required. 64. 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' injuries and damages were caused by acts, omissions, or breaches of duty by the Defendants. 65. 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, JoAnn Rinehart did not knowingly and voluntarily assume the risk of her injuries. 65. 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' case of action is not barred by the r. Hills and Ridges Doctrine. 66. 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, Defendants' negligence was a proximate cause of all injuries and/or damages sustained by Plaintiffs. WHEREFORE, Plaintiffs respectfully request this Honorable Court dismiss Defendants Answer and New Matter and enter judgment in their favor. Respectfully submitted, Date: HANDL , HENNING & ROSENBERG, LLP By.. St h n G. Held, Esquire I.D. # 72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorneys 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: - t? S H . HELD, ESQUIRE 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 E-mail: HELD(&-hhrlaw.com Attorney for Plaintiffs JOANN RINEHART and : IN THE COURT OF COMMON PLEAS HARRY RINEHART, her husband, : CUMBERLAND COUNTY PENNSYLVANIA Plaintiffs V. : NO.: 05-5203 CIVIL STONEHEDGE CENTER, LLC, WESLEY A. TATE t/d/b/a LLOYD'S SEPTIC SERVICE, and KIMCO REALTY CORPQRATION, Defendants : CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this 1 I+6 day of _Ro,ri 1 , 2007, 1 hereby certify that I have served the,within document upon counsel of record, by sending a true and correct copy of the same to them via United States Mail, postage prepaid, and addressed as follows: First Class U. S. Mail. John R. Ninosky, Esq. Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043 HANDLER, HENNING & ROSENBERG, LLP Maria Wells, Legal Secretary to Stephen G. Held, Esquire N r_.. ? > _j..' - ._„a ,-?- ti? r ; ? -n _. ?? ' . . --- _,? ? ? _., :; < r? '?, ? _ `Til = ? A .. C:? Johnson, Duffle, Stewart & Weidner By: John R. Ninosky, Esquire I.D. No. 78000 301 Market Street P.O. Box 109 Lemoyne, Pennsylvania 17043-0109 717-761-4540 jrn@jdsw.com JOANN RINEHART and HARRY RINEHART Plaintiffs V. Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5203 CIVIL TERM CIVIL ACTION - LAW STONEHEDGE CENTER, LLC, WESLEY A. TATE t/d/b/a LLOYD'S SEPTIC SERVICE, and KIMCO REALTY CORPORATION, : Defendants 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, Defendants hereby certify that: (1) A Notice Of Intent To Serve A Subpoena, with copies of the subpoenas attached thereto, was mailed, via Certified Mail, or delivered to each party at least twenty (20) days prior to the date on which the subpoenas were sought to be served; (2) A copy of the Notice Of Intent, including the proposed subpoenas, is attached to this Certificate; (3) There is no objection to the subpoenas and the twenty day rule has been waived, therefore there is no delay in serving the subpoenas; (4) A copy of correspondence from Plaintiffs' attorneys, confirming that there are no objections to the subpoenas and the twenty (20) day notice has been waived, is attached to this Certificate; and (5) The subpoenas to be served are identical to the subpoenas attached to the Notice Of Intent. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: • R. Ninosky, Esquire Attorney I.D. No. 78000 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants Date: S/a?v8 0 ondlar, anning& osanbarg,«P ATTORNEYS AT LAW May 19, 2008 John R. Ninosky, Esq. Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043 RE: JoAnn Rinehart v. Stonehedge Center, LLC 05-5203 Dear John: Stephen G. Held Held@hhrlaw.com I have received your Notice of Intent to Serve Subpoena to Produce Documents and Things for discovery for Plaintiff's employment records and to M&T Bank for documents relating to snow removal. I do not have any objection to the subpoenas and I waive the 20- day period. Please provide me with copies of all documents obtained through subpoena. Very truly yours, HVERR, ING & ROSENBERG, LLP StSGH/cros cc: JoAnn Rinehart RECEIVED MAY 2 0 2008 JOHNSON DUFFIE Handier, Henning & Rosenberg, LLP 1300 Linglestown Road, Harrisburg, PA 17110 Phone: 717-238-2000 * Fax 717-233-3029 * Toll Free 1-800-422-2224 www.hhrlaw.com Carlisle Office 717-241-2244 * Lancaster Office 717-431-4000 * York Office 717-845-7800 * Hanover Office 717-630-8200 Johnson, Duffle, Stewart & Weidner By: John R. Ninosky, Esquire I.D. No. 78000 301 Market Street P.O. Box 109 Lemoyne, Pennsylvania 17043-0109 717-761-4540 jrn@jdsw.com Attorneys for Defendant JOANN RINEHART and HARRY RINEHART Plaintiffs V. STONEHEDGE CENTER, LLC, WESLEY A. TATE t/d/b/a LLOYD'S SEPTIC SERVICE, and KIMCO REALTY CORPORATION, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5203 CIVIL TERM CIVIL ACTION - LAW NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 To: Stephen G. Held, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road Harrisburg, PA 17110 PLEASE TAKE NOTICE that Defendants intend to serve two subpoenas identical to the ones that are 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, JOHNSON, DUFFIE, STEWART & WEIDNER BY:-1-24-9' "A John R. Ninosky, Esquire v Attorney I.D. No. 78000 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants Date: 51ol o F COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JOANN RINEHART and HARRY RINEHART, IN THE COURT OF COMMON PLEAS OF her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. NO. 05-5203 CIVIL TERM STONEHEDGE CENTER, LLC, WESLEY A. CIVIL ACTION - LAW TATE t/d/b/a LLOYD'S SEPTIC SERVICE, and KIMCO REALTY CORPORATION SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: M&TBank (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 records pertaining to clearing the snow and ice from the parking lot and sidewalks surroun( inn tha M fL T R?nL, I....f-A -6 4-k- _L_J__ at Johnson Duffle Stewart & Weidner, 301 Market Street P.O. Box 109, Lemoyne, PA 17043. 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: John R. Ninoskv Esquire ADDRESS: 301 Market Street Lemoyne. PA 17043 TELEPHONE: 717-761-4540 SUPREME COURT ID #: 78000 BY THE COURT: Pro onotarv/CJ , Ci Division DATE: Sal of the Court Deputy (Eff. 7/97) COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JOANN RINEHART and HARRY RINEHART, IN THE COURT OF COMMON PLEAS OF her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 05-5203 CIVIL TERM vs. STONEHEDGE CENTER, LLC, WESLEY A. CIVIL ACTION - LAW TATE t/d/b/a LLOYD'S SEPTIC SERVICE, and KIMCO REALTY CORPORATION SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: M & T Bank (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: Entire personnel file of JoAnn Rinehart (D B: 2119/60• SS #: 200-44- 5458) including, but not limited to applications evaluations iob descriptions disciplinary actions wages worker's compensation claims and attendance records at Johnson Duffle Stewart & Weidner. 301 Market Street P.O. Box 109, Lemoyne, PA 17043. 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: John R. Ninosky Esouire ADDRESS: 301 Market Street Lemoyne. PA 17043 TELEPHONE: 717-761-4540 SUPREME COURT ID #: 78000 BY THE COURT: PCiv Division DATE: Li ;?( a 3 , ?p Seal of the Court Deputy (Eff. 7/97) CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Lemoyne, Pennsylvania, on the ( I x h day of mail 2008: Stephen G. Held, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road Harrisburg, PA 17110 JOHNSON, DUFFIE, STEWART & WEIDNER By: JoM R. Ninosky, Esquire v Attorney I.D. No. 78000 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Lemoyne, Pennsylvania, on the day of _ /??a.T.__ , 2008: Stephen G. Held, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road Harrisburg, PA 17110 JOHNSON, DUFFIE, STEWART & WEIDNER By: JoIVn R. Ninosky, Esquire Attorney I.D. No. 78000 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant ? [ r,? ? ? ?, i.:? '?1 "T=' r+ ^{ _.?.. ' _ i?l?_ "' ? ._ "'.' C..J z? t- : c ', 'i _ ., ' tc, rS ^*9 _ w.? ?J? ...gh s PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the f llowing case: Rr for JURY trial at the next term of civil court. ? for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) (check one) ivil Action - Law ?bpmn"-Pl,nehw ? Appeal from arbitration (other) (Plaintiff) VS. The trial list will be called on and L ? Trials commence on (Defendant) Pretrials will be held on vs. (Briefs are due S days before pretrials No. U 5 tJ?o T. Indicate the attorney who will try case for the party who files this praecipe: Indicate trial counsel for other parties if known: ?h>1 ?- l???r?n5 k?? This case is ready for trial. Date:rDL( 1-7 t -1 Signed: Print Name: Attorney for: ::P?Ql n - I ?t r Stephen G. Held I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax : (717) 233-3029 E-mail: Held@HHRLaw.com JOANN RINEHART, Plaintiff V. STONEGHEDGE CENTER, LLC., Defendant Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5203 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE On 2/17/09, 1 hereby certify that a true and correct copy of a Praecipe for Listing of Case for Trial was served upon the following by depositing same in the United States Mail, in Harrisburg, Pennsylvania: Mr. John R. Ninosky, Esq. Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Respectfully submitted: HANDLER, HENNING & ROSENBERG, LLP. By: Steph . Held s 00 c+y w , c 00 D JOANN RINEHART, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW STONEHEDGE CENTER, LLC, Defendant 05-5203 CIVIL TERM IN RE: CASE STRICKEN FROM LIST ORDER OF COURT AND NOW, this 17th day of March, 2009, upon consideration of the call of the civil trial list, and no party having called the above-captioned case for trial, the case is stricken from the trial list. By the Court, /--ephen G. Held, Esquire 00 Linglestown Road Harrisburg, PA 17110 For Plaintiff /ohn R. Ninosky, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043 For Defendant Court Administrator :mae JoANN RINEHART and, IN THE COURT OF COMMON PLEAS OF HARRY RINEHART, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2005-5203 CIVIL TERM STONEHEADGE CENTER, LLC, WESLEY A. TATE, t/d/b/a LLOYD'S SEPTIC CIVIL ACTION - LAW SERVICE, and KIMCO REALTY CORPORATION, Defendants RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: John R. Ninoksy, counsel for the Defendants in the above action respectfully represent that: 1. The above-captioned action is at issue. 2. The claim of the Plaintiffs in the action is under $50,000. There is no counterclaim. The following attorneys are interested in the case as counsel, or are otherwise disqualified to sit as arbitrators: Stephen G. Held, Esquire (Plaintiffs) and John R. Ninoksy, Esquire (Defendants) WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Date: March 31, 2009 Respectfully submitted, JOH ON, DUFFIE, STEWART & WEIDNER Jo R. Ninosky, Esquire Attorney for Defendants ORDER OF COURT AND NOW, this day of foregoing petition, Esq. and - action as prayed for. Esq., and 2009, in consideration of the Esq. are appointed arbitrators in the above captioned By the Court, 361992 EDGAR B. BAYLEY, P.J. ,?'FICE ffo Zug APP -I Ph 2: 51 awpLq 4+o? CaU m MNXVA* tac oo P.D A rrY C& Otq ?0 ? aa3os? JOANN RINEHART, ET AL., COURT OF COMMON PLEAS OF PLAINTIFFS CUMBERLAND COUNTY, PENNSYLVANIA V. STONEHEDGE CENTER LLC. ET AL., DEFENDANTS 05-5203 CIVIL TERM ORDER OF COURT AND NOW, this ?;O_day of July, 2009, the appointment of Jeffrey N. Yoffe, Esquire, to the Board of Arbitrators in the above-captioned case, IS VACATED. Philip C. Briganti, Esquire, is appointed in his place. ./Taylor P. Andrews, Esquire Chairman Philip C. Briganti, Esquire By the Court-,-, Edgar B. Bayley, J. /Jeffrey N. Yoffe, Esquire Court Administrator -- :sal LL Jiy FILE, OF 'P'tr_ = :-,n , ..' "; I T ARY s s ?004 J "L ;30 s i 2. 2 o" _:?-p f'1" n h ki1 l e 4Q r Q.,,d 14c,rir R -Je444" Plaintiff 5-fo K ?? ea?e ?-(e f Lc G,ni ki:weo ot/ly ? Defendant In The Court of Common Pleas of Cumberland County, Pennsylvania N6 ;bo S- S 3 Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Co wealth and that we will discharge the duties of our office with fi 'ty. e Signa Signature i Aur A.., Jrews ra,V/6 r P Name (Chairman) Name Name 41•,o? .-ae)4Sd PAvc L. G?42 i? . ?w e4 «o4' All - l el.? Law Firm / Law Firm Law Firm 7e fib, P~ 3bb arab6cST -711 &, Address Address Address ar.,. , (?2gf(f 5 e / ev naec Ax -S PA i?o?o /a, k P /-2o/3 City, Zip City, Zip City, Zip ? l U 3l ?' Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) We Jr-, K -I +t?f a e+,e.4 d a, we's (J e4 f a d s S, n.J ?Cc. Ws f Q?r. . JOA Date of Hearing: ?- 2 8-Dg Date of Award: 4. S ?O ar P ?? 042u 71er C.CL,- f, If 8W11Y#rP r+ y 1 •i4?4<r rr• rr ( 4o; . Arbitrator. dissenW. Nsert name If applicable.) Notice of Entry of Award (Chairman) W Now, the -YL#?ay of -Q%P z4- , 2 ) , at 9q' .M., the above award was entered upon the docket and notice they of given by m 1 to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: $ 3SD.O? By: -.71 1 g1I W. 19: AN IMI VMA.4? Prothonotary Deputy PSI OF SEA' -?? ?? '?: ?9 NO aim 41 IA4 169 a 0? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Joann Rinehart and PENNSYLVANIA Larry Rinehart Plaintiff Vs File No. Stonehedge Center, LLC, Wesley A. Tate t/d/b/a Lloyds. Septic Service, Defendant Limited Realty Corp. 2 0 0 5 -i&4" Civil Term NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS TO THE PROTHONOTARY: Notice is given that Plaintiffs board of arbitrators entered in this case on appeals from the award of the September 4, 2009 A jury trial is demanded (Check the line if a jury trial is demanded. Otherwise jury trial is waived.) I hereby certify that (1) the compensation of the arbitrators has been paid, or (2) application has been made for permission to proceed" forma paupers. (Strike out the inapplicable clause.) Appel t or Attorney of Appellant Note: The demand for jury trial on appeal from compulsory arbitration is governed by Rule 1007.1(b). (b) No affidavit or verification is required. Adopted March 15, 1981, effective May 15, 1981. i i OF TNF' P, r,A; TAP i. Y 2009 SEA' 15 FM 12; 2 Q cui?,wc a'7y ??S V- V r ?,?fu `ifN 35D 00 C& /yP(, SD , ]3oG60 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: N for JURY trial at the next term of civil court. ? for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) JoANN RINEHART and HARRY RINEHART, her husband, (Plaintiffs) VS. STONEHEDGE CENTER, LLC, and WESLEY A. TATE t/d/b/a LLOYD'S SEPTIC SERVICE (Defendants) (check one) X Civil Action -Law ? Appeal from arbitration (other) The trial list will be called on 10/20/09 Trials commence on 11/16/09 Pretrials will be held on 10/28/09 (Briefs are due S days before pretrials) No. 05-5203 , Civil Term Indicate the attorney who will try case for the party who files this praecipe: John R. Ninoskv, Esquire, Counsel for Defendants Indicate trial counsel for other parties if known: Stephen G. Held, Esquire, Counsel for Plaintiffs This case is ready for trial. Signe . 41 Print Name: John R. Ninoskv Date: September 18, 2009 Attorney for: Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Praecipe for Listing Case for Trial has been duly served upon the following, by depositing the same in the United States Mail, first class postage prepaid, in Lemoyne, Pennsylvania, on September 18, 2009: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Attorneys for Plaintiffs JOHNSON, DUFFIE, STEWART & WEIDNER By _ k ? A Joh R. Ninosky F D - OF THE ' - 'TlY ^ > 2009 SEF 21 Fi 12% 37 CU ,<= "Ty 6?) 10/f t JOANN RINEHART and HARRY RINEHART, her husband, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v STONEHEDGE CENTER, LLC, WESLEY A. TATE t/d/b/a LLOYD'S SEPTIC SERVICE and KIMCO REALTY CORPORATION, Defendants 05-5203 CIVIL TERM IN RE: PRETRIAL CONFERENCE A pretrial conference was held in the above-captioned case in the chambers of Judge Oler on Wednesday, October 28, 2009. Present on behalf of the Plaintiffs was Stephen G. Held, Esquire. Present on behalf of Defendants was John R. Ninosky, Esquire. This is a slip and fall case arising out of a fall by Plaintiff, Joann Rinehart, in icy conditions in a parking lot owned by c7 q Defendant Stonehedge, and managed by Defendnt %.= ? n Kimco, in an area where Defendant Tate allegedly piled 'P"'now.-C Defenses incl ude a lack of negligence and contributory = . negligence. Plaintiff Harry Rinehart is suing for lossrblf j)M conso ti ca r um. c,a This will be a jury trial in which Plaintiffs and Defendants will each have four peremptory challenges, pursuant to an agreement of counsel, for a total of eight. The estimated duration of trial is two days. To the extent that any deposition testimony is to be shown or read to the jury and contains objections being pursued by counsel, counsel are directed to furnish to the Court at least five days prior to commencement of trial a copy of the affected deposition transcript, with the areas of objection being t pursued highlighted, and with brief memoranda in support of their respective positions. Defendants' counsel has indicated that he will be filing a motion in limine challenging the admissibility of testimony of Ms. Rinehart's treating surgeon, Ernest Rubbo, M.D., as it relates to causation. It is the position of Defendants' counsel that the requisite degree of medical certainty as to causation does not appear in his testimony. The undersigned Judge should not be assigned this case for trial because Plaintiffs' counsel is his nephew. With respect to settlement negotiations, it does not appear that this case will be settled without trial. Stephen G. Held, Esquire 1300 Linglestown Road Harrisburg, PA 17110 For Plaintiffs John R. Ninosky, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043 For Defendants urt Administrator : mae By the Court, JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky, Esquire I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 JOANN RINEHART and HARRY RINEHART, her husband, Plaintiffs V. STONEHEDGE CENTER, LLC, and WESLEY A. TATE t/d/b/a LLOYD'S SEPTIC SERVICE, Defendants NO. 2005-5203 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' MOTION IN LIMINE AND NOW, come the Defendants, by and through their counsel, Johnson, Duffie, Stewart & Weidner, P.C., who file this Motion in Limine by respectfully stating the following: 1. This matter arises from a slip and fall which occurred in a portion of the parking lot at the Stonehedge Center in Carlisle on December 29, 2003. 2. The case is to be tried during the November 16, 2009 trial term. 3. After the fall, Mrs. Rinehart ultimately came under the care of Ernest R. Rubbo, M.D., an orthopedic surgeon with the Orthopedic Institute of Pennsylvania. A copy of Dr. Rubbo's trial deposition is attached hereto as Exhibit A. 4. Dr. Rubbo performed an arthroscopic procedure upon Mrs. Rinehart's left knee on April 14, 2004. (Exhibit A, p. 17, lines 21-24). Attorneys for Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1 5. Dr. Rubbo was asked what injury he attributes to Mrs. Rinehart's fall. He stated the following, "Well, the lateral meniscus is conceivable with a fall and a twisting injury and the medial collateral ligament, you know, injury is the same where you sort of put more stress on the outside of the knee, you sometimes stretch that ligament which will just take time for that to heal." (Exhibit A, p. 19, line 23 through p. 20, line 3) (emphasis added). 6. Where medical testimony is necessary to establish a causal connection, the medical witness must testify, not that the injury or condition might have or possibly came from the assigned cause, but that in his professional opinion the result in question did come from the assigned cause. Medical evidence which is less than positive or which is based upon possibilities may not constitute legally competent evidence for the purpose of establishing the causal relationship. Merchant v. W.C.A.B., 758 A.2d 762 (Pa. Commw. 2000). See, also, Winschel v. Jain, 925 A.2d 782 (Pa. Super. 2007) (Pathologist's opinion that the decedent's aberrant circumflex artery "might have" led to a fatal acute cardiac arrhythmia was inadmissible as highly speculative and without the requisite degree of medical certainty). 7. It is submitted that Dr. Rubbo's testimony is not to the requisite level of certainty needed to be admissible at trial. 8. Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and the trial court's decision will not be reversed absent a clear abuse of discretion. Com. v. Bobin, 916 A.2d. 1164 (Pa. Super. 2007). 2 9. It is respectfully submitted that this Honorable Court is well within its discretion to preclude Plaintiffs from introducing the testimony of Dr. Rubbo at trial. WHEREFORE, Defendants respectfully request that this Honorable Court grant their Motion in Limine and that an Order be issued precluding Dr. Rubbo's testimony being shown to the jury. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By -_ 4 X kll_,I,?X hn R. Ninosky, Esquire Attorney I.D. #: 78000 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 e-mail: jrn@jdsw.com Attorneys for Defendant Wesley A. Tate t/d/a/a Lloyd's Septic Service Date: November 4, 2009 380777 3 ERNEST RUBBO March 24, 2009 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JOANN RINEHART and HARRY RINEHART, PLAINTIFFS NO. 05-5203 VS STONEHEDGE CENTER, LLC, WESLEY A. TATE t/d/b/a LLOYD'S SEPTIC SERVICE, and KIMCO REALTY CORPORATION, DEFENDANTS VIDEO DEPOSITION OF: ERNEST R. RUBBO, M.D. TAKEN BY: PLAINTIFFS BEFORE: DAWN YOUNG DIETRICH, REPORTER NOTARY PUBLIC ROBERT L. IRVIN, LEGAL VIDEO SPECIALIST DATE: MARCH 24, 2009, 1:01 PM PLACE: ORTHOPEDIC INSTITUTE OF PENNSYLVANIA 450 POWERS AVENUE HARRISBURG, PENNSYLVANIA GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 RINEHART VS STONEHEDGE Geiger & Loria Reporting Service - 800-222-4577 ERNEST RUBBO March 24, 2009 RINEHART VS STONEHEDGE 2 4 1 APPEARANCES: 1 ERNEST R. RUBBO, M.D. called as a 2 HANDLER, HENNING & ROSENBERG, LLP 2 witness, being sworn, testified as follows: BY: STEPHEN G. HELD, ESQUIRE 3 3 1300 LINGLESTOWN ROAD HARRISBURG, PA 17110 4 DIRECT EXAMINATION 4 717-238-2000 5 5 FOR - PLAINTIFFS 6 BY MR. HELD: 6 JOHNSON DUFFIE BY: JOHN R. NINOSKY, ESQUIRE 7 Q Good afternoon, Doctor. My name again is 7 301 MARKET STREET 8 Stephen Held and I'm here regarding your patient and my LEMOYNE, PA 17043 9 client, Joann Rinehart. For the record, could you 8 717-761-4540 10 please state your full name. JRN@YDSW.COM 11 A Ernest R. Rubbo. 9 FOR - DEFENDANT 12 Q And how are you employed, Mr. Rubbo, or 10 13 Dr. Rubbo? 11 14 A I'm a partner with the Orthopedic 12 13 15 Institute of Pennsylvania. 14 16 Q Okay. And you are a medical doctor, 15 17 correct? 16 18 A Orthopedic surgeon, yes. 17 18 19 Q Okay. And for the benefit of the jury, 19 20 what is your educational history? 20 21 A Well, I graduated with a Bachelor of 21 22 Science degree at the University of Pittsburgh. I was 22 23 23 admitted to the Temple University School of Medicine 24 24 after I graduated from Pitt and graduated in 1982. 1 25 25 was subsequently accepted to the Geisinger Medical 3 5 1 TABLE OF CONTENTS 1 Center orthopedic training program and I did my 2 WITNESS 2 training at Geisinger and finished in 1987. While 1 3 FOR PLAINTIFFS DIRECT 3 was there I did my pediatric orthopedic rotation at Al 4 Ernest R- Rubbo, 4 M.D. 4 DuPont in V61mington, Delaware, and that's about the 5 5 extent of my - you know, my orthopedic training. And 6 6 then I was Board-certified by the American Board of 7 7 Orthopedic Surgeons in 1989 and was recently EXHIBITS 8 recertified by the American Board of Orthopedic e 9 Surgeons in 2008 and my certification expires I believe 9 PRODUCED 1 0 in 2019 DEPOSITION EXHIBIT NO. AND MARKED . l0 11 Q Okay. Now, you mentioned a couple things l - OIP records 22 12 there I want to clarify. First of all, you indicated 11 13 you're an orthopedic surgeon. What is orthopedics? 12 14 A Well, orthopedics is the treatment of the 13 15 musculoskeletal system, so it involves your bones, your 14 15 16 joints, the skeleton which, you know, that keeps us 16 17 upright. 17 18 Q Okay. And then you were also mentioning 18 19 your Board certification. What is Board certification, 19 20 what is the significance of that? 20 2 1 21 A Well, Board certification is that you go 22 22 through an examination process by an organization that 23 23 certifies that you've been trained into the standard of 24 24 care for the community for orthopedic surgery. 25 25 Q Okay. And the injuries we're discussing 2 (Pages 2 to 5) Geiger & Loria Reporting Service - 800-222-4577 ERNEST RUBBO March 24, 2009 RINEHART VS STONEHEDGE 6 1 in this case have to do with a knee. How many years 1 2 have you dealt with orthopedics? 2 3 A Well, if I started in 1982, so this is 3 4 2009 - so you do the math, it's about 27 years. 4 5 Q And out of those 27 years, are knee 5 6 injuries something that you are very familiar with? 6 7 A Yes. 7 8 Q And as far as knee surgeries, how many 8 9 knee surgeries do you do a year? 9 10 A A year? A lot. You want a number? 10 11 Q A ballpark is fine. I mean, what I might 11 12 think is a lot is - 12 13 A rd say at least - let's see, if I do - 13 14 rd say I probably do about five -- 400 cases in 14 15 regards to the knee. 15 16 Q Okay. So it's safe to say you have a lot 16 17 of experience with the knee? 17 18 A Yeah, yeah. Oh, my gosh, yes. 18 19 Q Do you focus on the lower extremities 19 20 more? 20 21 A No. I'm a general orthopedic surgeon, but 21 22 I do -- rd say the majority of my sports medicine 22 23 practice aspect is regarding the knee and the shoulder, 23 24 but probably more knee than shoulder. 24 25 Q Okay. And are you a member or on staff at 25 7 1 any of the local hospitals around town here? 1 2 A Among staff at all three hospitals; Holy 2 3 Spirit Hospital, Harrisburg Hospital, and I do - my 3 4 practice involves my surgeries over at Community 4 5 General Osteopathic Hospital. 5 6 MR. HELD: Okay. All right. That's all 6 7 the questions I have on qualification. Do you have any 7 8 cross? 8 9 MR. NINOSKY: No questions. 9 10 MR. HELD: Okay. At this time I tender 10 11 the doctor as an expert in orthopedic surgery. 11 12 MR. NINOSKY: No objection. 12 13 MR. HELD: Okay. 13 14 BY MR- HELD: 14 15 Q And once again, Doctor, we're here 15 16 regarding Joann Rinehart. When did you first see Joann 16 17 Rinehart? 17 18 A I saw Joann on March 19, 2004. 18 19 Q Okay. And before we get started, what are 19 20 you looking at right in front of you? 20 21 A Looking at my office notes. 21 22 Q Okay. And those are notes that you made 22 23 at the time of treatment? 23 24 A Those are notes that I - those are my 24 25 dictated notes that I see after I see a patient. 25 8 Q Okay. So they are made by yourself around the time of the treatment, correct? A Yes. Q Okay. It's nothing I gave you or anything like that? A No. This is all my own words and thoughts -- Q Okay. A -- documented on paper. Q Sure. Okay. Now, you saw Ms. Rinehart again March 19th, 2004? A Yes. Q What was the reason for your consultation? A Left knee pain. Q All right. Did you obtain a history from Ms. Rinehart? A Yes, I did. Q And what was the history? A She was a 44-year-old female who fell on some black ice in the parking lot at work sustaining an injury to her left knee. She complained of quite a bit of pain with recurrent swelling associated with activities. She has not returned to work since this iniurv occurred. She denied ever havine anv nroblem 9 with pain in her knee prior to this time. She was seen by her family doctor, Dr. Daniels, who treated her with ice and elevation. Subsequent MRI was done which showed findings consistent with an acute tear of her anterior cruciate ligament and her medial collateral ligament. She states that the mechanism of her injury was a valgus stress to her left knee, she had quite a bit of pain, discomfort and swelling to her left knee, and that she was also employed as a teller at a local bank in Carlisle. The MRI showed abnormal signal in her medial collateral ligament complex consistent with an MCL injury. There was some degenerative changes noted to the lateral meniscus and some irregular attenuation appearance to her medial meniscus. Q Okay. Now, I have a model here of a knee and it happens to even be a left knee. Can you explain to the jury what the complaints are and what you're talking about? A Well, I mean, her complaints are of left knee pain and I'm just reporting the results of the MRI that the radiologist is interpreting, okay? If you look at the knee, this is the kneecap or the patella and you've got your ligaments on 3 (Pages 6 to 9) Geiger & Loria Reporting Service - 800-222-4577 ERNEST RUBBO March 24, 2009 RINEHART VS STONEHEDGE 10 1 the side. On the outside - the outside ligament's 1 2 called the lateral collateral ligament and the inside 2 3 ligament is called the medial collateral ligament, or 3 4 the MCL and the LCL. We like to talk in abbreviations. 4 5 Inside the knee you have two ligaments 5 6 that are important for like an athlete for when they 6 7 change directions and pivot, they need that stability. 7 8 The first ligament, the most common ligament you hear 8 9 injury, is the ACL or the anterior cruciate ligament 9 10 which is the ligament right here in the front, and the 10 11 posterior cruciate ligament is the one in the back. 11 12 Now, they criss-cross and that's why they call them 12 13 cruciate, so that' s a little bit of an anatomy lesson 13 14 in regards to ligaments. 14 15 Now, the meniscus is the cushion inside 15 16 your knee joint and you have two of them, one on the 16 17 medial side or the inside of the knee and one on the 17 18 lateral side or the outside of the knee, and they act 18 19 as a way dispersing weight in forces equally in your 19 20 knee joint. As we get older they're more prone to 20 21 getting tom because they change your soft - the 21 22 characteristics biochemically as we age. So when we 22 23 talk about a meniscus tear or a medial meniscus tear, 23 24 we're talking about this tissue being torn 24 25 (indicating). 25 11 1 And the MRI report's basically showing 1 2 some degenerative changes to the lateral meniscus which 2 3 is the, you know, cartilage or the - I'm sorry, the 3 4 meniscus on the outside portion of her knee as well as 4 5 a possible anterior cruciate ligament tear which is 5 6 this ligament here, and an injury to her medial 6 7 collateral ligament which is this ligament here 7 8 (indicating). 8 9 Q Okay. And was that based upon the history 9 10 given to you or did you actually review the MRI? 10 11 A I reviewed the MRI report as well as the 11 12 MRI. 12 13 Q Okay. All right. Then what physical 13 14 complaints was she explaining to you when she was 14 15 there? 15 16 A Her exam showed she had a pleasant, awake, 16 17 alert and oriented female, no acute distress. Her left 17 18 knee showed some tenderness over the medial joint line 18 19 region. She had a plus one Lachman test, and that 19 20 means that - what we do is we take the knee and we'll 20 21 bend it about 20 degrees and then we'll take our lower 21 22 leg and try to push it forward to see whether there's 22 23 any type of translation. If there is, then that 23 24 sometimes is consistent with an ACL injury. 24 25 And we grade it as plus one to plus three. 25 12 Plus one is from zero to five millimeters of translation, plus two is five to ten millimeters and plus three is over ten millimeters. Q Okay. So plus one is less severe as a plus three? A Well - Q Or less movement I guess. A Well, there's less movement. But, I mean, you know, a torn ACL or attenuated ACL, you know, there's some argument - I mean, you know, if the ligament doesn't work, then you've got a problem no matter what. If its plus one or plus three - plus three just means its more grossly unstable on your examination. Q Okay. A There was some effusion, which means some swelling to her knee, and she could only flex it to approximately 95 degrees. She lacked the last five degrees of full extension, which means she couldn't fully straighten her knee all the way out. She had a good end point with valgus stress to her left knee. What does that mean? Well, a vaigus stress is when you take your knee and you sort of bend it or you sort of put stress -- you take your foot and you take it outward so you're vuttine stress on the 13 medial collateral ligament So you're taking the knee and you're sort of - you're taking the leg and putting a valgus maneuver, which is doing this way, and you're trying to see if you've got a good end point to your MCL. If its really soft and it really gaps open, then you know you've got an insufficiency or an injury that' s caused a significant tear to the medial collateral ligament She had a good end point with valgus stress. McMurray's testing did cause some discomfort with this maneuver. The McMurray's test is a test that we do in the office to see whether they have a meniscal tear. And what that involves is bending the knee and internally and externally rotating the knee as we flex and extend. And what we're doing is we're putting more stress on the femoral condyles against the meniscus, and oftentimes if there's a tear you'll feel a clunk or sometimes you'll even feel some pain with that maneuver, but more oftentimes a true McMurray's test is you'll feel an actual clunk in her knee and thats usually significant for a tom meniscus. Q Okay. A So I did a McMurray's testing which caused some discomfort and I also was - there was no pain 4 (Pages 10 to 13) Geiger & Loria Reporting Service - 800-222-4577 ERNEST RUBBO March 24, 2009 RINEHART VS STONEHEDGE 14 1 with patellar ballottement, meaning trying to push on 1 2 her patella or trying to move it, you know, to find out 2 3 if there's any type of instability. She walked with an 3 4 antalgic gait, which means she walked with a limp, and 4 5 her skin was warm and dry with no rashes. 5 6 Q Okay. And at that appointment were you 6 7 aware that she had seen other medical providers prior 7 8 to your involvement? 8 9 A Yes. She stated that she saw Dr. Healy in 9 10 Carlisle and that she was here more for a second 10 11 opinion - 11 12 Q Okay. 12 13 A - to see me. 13 14 Q Okay. Then you reviewed the MRI. Was 14 15 there anything significant about the MRI results? 15 16 A The MR] just showed increased signal noted 16 17 in her anterior cruciate ligament region as well as 17 18 some signal changes noted to her MCL and her medial 18 19 meniscus. 19 20 Q Okay. And did you render a diagnosis at 20 21 that first appointment? 21 22 A At that time I thought she may have 22 23 sustained an anterior cruciate ligament tear as well as 23 24 a tear of her medial collateral ligament as well as a 24 25 possible left medial meniscal tear. 25 15 1 Q Okay. And according to the history, your 1 2 physical exam, review of the diagnostic films, what if 2 3 any of those conditions do you attribute to her work 3 4 injury or the fall at work that occurred in December of 4 5 2003? 5 6 A Well, I mean, we did an arthroscopy of her 6 7 knee which gave them a little more information than the 7 8 MR] and that's -- I mean, her ACL looked good at the 8 9 time of her arthroscopy, so this -- probably the most 9 10 definitive way of finding out what's going on with the 10 11 knee is to go in there and look at it and probe it and 11 12 examine it. 12 13 Q Okay. Well, at that first appointment, 13 14 what course of action did you -- 14 15 A Well, at that time I -- you know, we 15 16 talked about surgery and involving arthroscopy where we 16 17 go into the knee joint and we look inside the knee 17 18 joint. Now, the discussion I had with her and her 18 19 husband was, you know, the natural history of an ACL 19 20 tear, what do you do about it. 20 21 I mean, there's -- I tell people there's 21 22 three groups of people that you've got to figure out 22 23 where you fit in if you tear your ACL. The first group 23 24 of people are -- they're not really that athletically 24 25 inclined, they sort of slip, fall and tear their ACL. 25 16 Don't really put much strain on their ACL through their lifetime, they're not really athletic, and those people you may just treat with physical therapy and see how they do. And most oftentimes they do well without any problems, they could go through life without an ACL. Then you've got your second group of people which are your - we call them your weekend warriors. They like to try to go out there on a weekend and play basketball or tennis and soccer, and some of those people you try to rehab them and put them in a functional knee brace, like a knee brace for them to wear during their activities. Some will do fine with that brace with their activities and some won't like the brace and will still have problems with instability and then you reconstruct those. Or they may say, look, I'm not going to play soccer or, you know, basketball or any - you know, movements that involve quick lateral movements and they just play golf or, you know, just decide to give up their sport altogether and go into group one. And then you've got your third group of people which is your high school, your college athlete where the person still wants to maintain that level of function of playing sports. Those are the ones that you reconstruct 17 So I gave them that talk about, you know, if we get in there and we see you have an ACL tear, do you want me to fix it there, what do you want to do? Because sometimes they say, look, let's just go ahead and fix it while you're there or say see if its tom. If it is, then I'll just worry about it later, I'll get a reconstruction done later, so that they know what - you know, what do you want me to do while I'm there. Because I've got to plan my amount of time because an ACL reconstruction takes at least an hour and a half to two-hour procedure versus an arthroscopy which takes anywhere from a half-hour to an hour to do. Q Okay- A Okay. So I went through that scenario with them of whether doing reconstruction or just doing therapy and they were in agreement with let's proceed with this - lets go with the arthroscopy and go in there, take a look and see whafs going on. Q Okay. A And so that's what was done. Q Okay. And when did she have the artbroscopy? A The arthroscopy was done on April 14th, 2004. Q And what did that reveal? 5 (Pages 14 to 17) Geiger & Loria Reporting Service - 800-222-4577 ERNEST RUBBO March 24, 2009 RINEHART VS STONEHEDGE 18 1 A At that time it showed a lateral meniscus 1 2 tear as well as some softening of the cartilage called 2 3 chondromalacia underneath your kneecap which goes along 3 4 with a little bit of patellofemoral arthritis as well 4 5 as what we call a medial plica syndrome. And what's 5 6 that mean? 6 7 Well, a media plica is a shelf of tissue 7 8 that sits between the kneecap and the femur and we all 8 9 have it when we're born, but everybody's is a little 9 10 bit different in the way of shape and size. Its a 10 11 very elastic band. Now, sometimes if you bang it or 11 12 you injure it it can get a little bit tighter and 12 13 scarred down and it can be sometimes a pain generator 13 14 in the knee because it gets rubbed against the femoral 14 15 condyle which is the inside - you know, the bone or 15 16 the femur. 16 17 So if you sometimes see that and you see 17 18 some erosion or some irritation to that area, then you 18 19 go in and you debride it and trim it back 19 20 Q Okay. And what did you do as far as -- in 20 21 the arthroscopic surgery, what did you do with her? 21 22 A Well, what I did was went inside her knee 22 23 with her asleep and saw there was some erosion 23 24 underneath her kneecap, so we did a little shaving to 24 25 sort of smooth that over. And I can't cure arthritis 1 25 19 1 tell people, but I can sort of, you know, make it 1 2 smooth and remove some of the frayed tissue as well 2 3 as - when we were in there her anterior cruciate 3 4 ligament looked pristine, it looked fine. You know, I 4 5 was probing it and pulling on it. It was nice and 5 6 taught and tight. The medial meniscus was also normal 6 7 in appearance. 7 8 The lateral meniscus showed a small little 8 9 frayed area in the back portion which I sort of 9 10 smoothed over, but it didn't show a real big tear, so 10 11 most of her problem I thought was really more related 11 12 to some wear going on underneath her kneecap. 12 13 Q Okay. 13 14 A Okay? But the anterior cruciate ligament 14 15 looked fine. When I had her asleep, examined her knee, 15 16 there wasn't any evidence of real, you know, gross 16 17 instability and probing it and pulling on it there was 17 18 no evidence of laxity to the ACL. 18 19 Q Okay. All right. Now, back to the 19 20 question I asked before, what if any of that do you 20 21 attribute to the fall that happened in December of 21 22 2003? 22 23 A Well, the lateral meniscus is conceivable 23 24 with a fall and a twisting injury and the medial 24 25 collateral ligament, you know, injury is the same where 25 20 you sort of put more stress on the outside of the knee, you sometimes stretch that ligament which will just take time for that to heal. The weakness to the muscle above the knee will happen as a result of an injury, plus an operation would also cause it to get weaker too, so that's why you send them to physical therapy to address those issues. Q Okay. And the arthritis naturally was not caused by -- A No. She may have aggravated it a little bit by the fall and the twisting aspect, but no. I mean, that was - that was just a little bit of a -- little wear that we saw. Q Okay. And then after the arthroscopic surgery you followed up with Ms. Rinehart? A Yes. Q Mrs. Rinehart. And generally how did her follow-up treatment go? A Well, she complained of pain. I mean, I saw her at her one-week follow-up visit and I took her sutures out and she - you know, we started her on what we call phase two exercise, which is really more of a strengthening exercise program where they're working on their quadriceps and their range of motion and I let 21 them do that for the next three or four weeks and see how they do. Maybe 70, 80 percent of people basically do very well with that and don't need to go to physical therapy. But when I saw her again at her four-week follow-up visit, she was still having some problems with swelling as well as pain and her leg was giving out when she walks, which tells me that her quadriceps is still, you know, functionally weaker. So then at that time I set her up with a physical therapist to work on her over the next four weeks and I told her that she could do a sedentary type of job if one was present. Q Okay. You mentioned a sedentary-type job. When you saw her on March 19th of 2004, was she working at that time? A No. Q Okay. And some other doctor had her off work as far as you know? A I believe so. I mean, I have it in my note that she was off of work and so that was the first time I saw her. Q Okay. And after that appointment did you do anything regarding work restrictions or availability for work or anything? 6 (Pages 18 to 21) Geiger & Loria Reporting Service - 800-222-4577 ERNEST RUBBO March 24, 2009 RINEHART VS STONEHEDGE 22 1 A I told her I thought she could do a 1 2 sit-down type of job, but I knew that she was a bank 2 3 teller -- you know, she was standing an awful lot, it's 3 4 going to hurt her knee maybe a little bit, so if she 4 5 could do the job with her sitting I thought that would 5 6 be better, or if she could get up and move around a 6 7 little bit that might be good for some stiffness, 7 8 but -- 8 9 Q Okay. I'm going to show you what I'll 9 10 mark as Deposition Exhibit 1. 10 11 (OIP records marked as Deposition Exhibit 11 12 Number 1.) 12 13 BY MR. HELD: 13 14 Q And if you'd just take a moment to look at 14 15 what I have there. 15 16 A Uh-huh. 16 17 Q These appear to be your office forms of 17 18 off-work slips? 18 19 A Yes. This is a work comp. slip and this 19 20 is the initial examination consult report. 20 21 Q Okay. And the March 19, 2004 appointment 21 22 you took her off work -- 22 23 A Yes. 23 24 Q -- completely? 24 25 A Yes. 25 23 1 Q Okay. Then on April 23rd, 2004 you 1 2 returned her limited duty? 2 3 A Limited duty, sedentary work only. 3 4 Q Okay. And then as we flip all the way to 4 5 the back, it appears in August I believe -- 5 6 A August 20th. 6 7 Q August 20th you returned her back to work 7 8 full duty, no restrictions? 8 9 A Correct. 9 10 Q Okay. And when you wrote those 10 11 restrictions you were familiar with the type of job 11 12 Mrs. Rinehart had? 12 13 A Yes. 13 14 Q Okay. Then what other sorts of treatment 14 15. did Mrs. Rinehart have after the surgery that - you 15 16 know, physical therapy, such as that. What type of 16 17 other treatment did she have? 17 18 A Besides physical therapy? 18 19 Q No. She had physical therapy after the 19 20 surgery,. right? My question's not coming out how 1 20 21 want it to. 21 22 A Yeah. 22 23 Q Okay. 23 24 A If you're asking me did she have physical 24 25 therapy, the answer is yes. 25 24 Q Yes, okay. A If that's what you're asking me, the answer is yes. And also I tried her on some antiinflammatory medicines, too, such as Aleve, told her to take that. I think I also gave her some samples of Celebrex as an antiinflammatory medicine. I also discussed with her something called Synvisc which is like an injection of a -- like a viscous supplementation which is like -- it sort of restores the normal joint fluid in people who have some early arthritis, but we didn't do any of that treatment. Q Okay. And when did you last see Mrs. Rinehart? A Last time I saw Mrs. Rinehart was on March 4th, 2005. Q All right. And how was she doing at that appointment? A She was doing well. She still had some patellofemoral pain as well as - but she noticed when she went back to therapy and they did some electrical stimulation that made her -- that helped an awful lot. But the last time I saw her, as I said, the patient was doing well, was pleased with her result and I'd see her back if she had any further problems and she can go back to her regular job with no restrictions. 25 Q Okay. And you haven't seen her since then, correct? A No, I haven't. Q And what does the future hold for somebody such as Mrs. Rinehart that had these conditions? A I think it looks good. I think that -- I don't think she'll have any type of long-term sequelae as a result of the injury. I mean, she strained her medial collateral ligament which will heal on its own and the meniscus tear wasn't that big of a tear and we just sort of smoothed that over, so I don't think it's going to be any problem. She has a little bit of patellofemoral arthritis which I think, you know, we all get at some point and, you know, she may have sort of aggravated that a little bit, but that's not going to accelerate it or anything like that for a fall. Q Okay. So prognosis looks pretty good for her? A Yes. I'd say it looks very good. Q Okay. All right. Finally, Doctor, have all of your opinions been rendered to a reasonable degree of medical certainty? A Yes, they have. MR. HELD: Okay. This gentleman might have some questions for you. 7 (Pages 22 to 25) Geiger & Loria Reporting Service - 800-222-4577 ERNEST RUBBO RINEHART VS March 24, 2009 STONEHEDGE 26 1 MR. NINOSKY: No questions. 2 MR. HELD: Okay. Thank you, Doctor. 3 THE VIDEO OPERATOR: This concludes the 4 deposition of Ernest Rubbo, M.D. The time is 1:25. 5 (The deposition was concluded at 1:25 6 p.m.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 1 STATE OF PENNSYLVANIA § 2 COUNTY OF DAUPHIN 3 I, Dawn Young Dietrich, a Reporter 4 Notary-Public, authorized to administer oaths within 5 and for the Commonwealth of Pennsylvania and take 6 depositions in the trial of causes, do hereby certify 7 that the foregoing is the testimony of ERNEST R RUBBO, 8 M.D. 9 I further certify that before the taking 10 of said deposition, the witness was duly sworn; that 11 the questions and answers were taken down 12 stenographically by the said reporter Dawn Young 13 Dietrich, a Reporter Notary-Public, approved and agreed 14 to, and afterwards reduced to a transcript by said 15 reporter. 16 1 fir Cher certify that the proceedings and 17 evidence are contained fully and accurately in the 18 notes by me and that this copy is a correct transcript 19 of the same. 20 In testimony whereof, I have hereunto, 21 subscribed my hand this 2nd day of April 2009. 22 23 Dawn Young Dietrich 24 2 5 My commission expires: 8 (Pages 26 to 27) Geiger & Loria Reporting Service - 800-222-4577 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendants' Motion in Limine has been duly served upon the following, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on November 4, 2009: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Attorneys for Plaintiffs JOHNSON, DUFFIE, STEWART & WEIDNER // 11 ?11a4ln e?? ?(z ~-4 fx - By Jo R. Nino-sky, Esquire FILE - . ,"TyF?Y 2009 NOV --4 Pii t:: 09 F:\WP Directories\LJD\Answers\Rinehart MIL Response.wpd Stephen G. Held, Esquire I.D. NO. 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiff Fax: (717) 233-3029 E-mail: HELD(a)hhrlaw.com JOANN RINEHART and : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HARRY RINEHART, her husband, Plaintiffs V. : NO. 2005-5203 CIVIL TERM STONEHEDGE CENTER, LLC, and WESLEY A. TATE t/d/b/a LLOYD'S : CIVIL ACTION - LAW SEPTIC SERVICE, and KIMCO REALITY CORPORATION, : JURY TRIAL DEMANDED Defendants PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION IN LIMINE TO PRECLUDE DR RUBBO'S TESTIMONY AND NOW COMES Plaintiffs, JoAnn Rinehart and Harry Rinehart, her husband, by and through their attorneys, Handler, Henning & Rosenberg, LLP by Stephen G. Held, Esquire and respond to the Defendants' Motion in Limine as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. Dr. Rubbo's deposition testimony must be read in its entirety. Later in his deposition, Dr. Rubbo was asked to comment on the future of someone with Mrs. Rinehart's conditions: Q. And what does the future hold for somebody such as Mrs. Rinehart that had these conditions? A. "I think that - I don't think she'll have any type of long-term sequelae as a result of the injury. I mean she strained her medial collateral ligament which will heal on its own and the meniscus tear wasn't that big of a tear and we just sort of smoothed that over, so I don't think it's going to be a problem. She has a little bit of patellofemoral arthritis which I think, you know, we all get at some point and, you know, she may have sort of aggravated that a little bit, but that's not going to accelerate it or anything like that for a fall." (See Rubbo Dep. 25: 14-25, Mar. 24, 2009, attached hereto as Exhibit "A.") In his testimony Dr. Rubbo describes treatment of the strained medial collateral ligament (MCL) and the torn meniscus which were part of the injury. Dr. Rubbo also opines that the arthritis may have been aggravated a little, but that a fall would not accelerate it. Clearly, Dr. Rubbo was discussing Mrs. Rineharts conditions in relation to her injury - "a fall." 6. Denied. The averments in Paragraph 6 of Defendants' Motion In Limine contain conclusions of law to which no response is required. By way of further answer, the legal standard governing an expert's testimony as to causation has long been established. "When a party must prove causation through expert testimony the expert 2 must testify with `reasonable certainty'that in his professional opinion, the result in question did come from the cause alleged." Kravinsky v. Glover, 263 Pa. Super. 8, 21, 396 A.2d 1349, 1355-56 (1979) (citing McCrosson v. Philadelphia Rapid Transit Co., 283 Pa. 492, 496, 129 A. 568, 569 (1925). However, an expert does not need to testify with absolute certainty or rule out all possible causes of a condition. Id. at 21, 396 A.2d at 1356 (citing Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A.2d 231 (1968)) (emphasis added). Expert testimony is admissible when taken in its entirety, it expresses reasonable certainty that the accident was a substantial factor in bringing about the injury. Id. at 21- 22, 396 A.2d at 1356 (citing Hussey v. May Dept. Stores. Inc., 238 Pa. Super. 431, 437, 357 A.2d 635, 638 (1976)). Furthermore, an expert's testimony is not destroyed by the fact that in one part of his testimony he used weaker language than that of the legal standard, so long as at some point he states his opinion with sufficient definiteness. Id. at 22, 396 A.2d at 1356 n. 11. Finally, the expert need not express his opinion in precisely the same language courts have used to enunciate the legal standard. Id. at 22, 396 A.2d at 1356. 7. Denied. Dr. Rubbo's testimony was to the requisite degree of certainty needed to establish that Mrs. Rineharts injuries were caused by the fall at issue. The fact that Dr. Rubbo used the word "conceivable" in answering Attorney Held's question concerning causation does not render his testimony inadmissible. Dr. Rubbo's testimony, considered in its entirety, clearly shows he offered an opinion as to causation with reasonable certainty as to her medial collateral ligament strain and the meniscus tear. Q. Okay. All right. Now, back to the question I asked before, what if any of that do you attribute to the fall that happened in December 2003. 3 A. Well, the lateral meniscus is conceivable with a fall and a twisting injury and the medial collateral ligament, you know, injury is the same where you sort of put more stress on the outside of the knee, you sometimes stretch that ligament which will just take time for that to heal. The weakness to the muscle above the knee will happen as a result of an injury, plus an operation would also cause it to get weaker too, so that's why you send them to physical therapy to address those issues. Q. Okay. And the arthritis was not caused by - A. No. She may have aggravated it a little bit by the fall and the twisting aspect, but no. I mean, that was - that was just a little bit of a little wear that we saw. (Rubbo Dep. 19:19 - 20:14.) Although Dr. Rubbo used the word conceivable, the totality of his testimony establishes the December 2003 fall was the cause of Mrs. Rineharts medial collateral injury and the meniscus tear. Dr. Rubbo describes the mechanism of the injury and goes on to distinguish the arthritis from her injury. Clearly, Dr. Rubbo is talking about the injury at issue in the instant litigation. Pertinent to the instant matter, the Superior Court opined in Hussey v. May Dept. Stores. Inc., "in appraising the degree of certainty it may be necessary to scrutinize the language employed by the expert in articulating his opinion. An opinion of an expert based upon an adequate factual foundation is neither speculative or conjectural, but a legitimate inference and as such has evidentiary value in determining disputed questions of fact." Hussey v. May Dept. Stores. Inc., 238 Pa. Super. 431, 436, 357 A.2d 635, 637 (1976). "It is the intrinsic quality of the conclusion that matters, and not the label or characterization. Words mean what they manifest. Their meaning may vary." Id., 35 A.2d at 637 (citations omitted). Taking Dr. Rubbo's testimony in its entirety, it is clear Dr. Rubbo was making the point that the meniscus tear and MCL strain were consistent with a fall. As the legal standards mandate, the poor choice of one 4 word among the entire testimony does not destroy the testimony. Defendant has taken Dr. Rubbo's use of the word "conceivable" out of context to create an issue of causation where one does not exist. Furthermore, near the end of Dr. Russo's testimony, he opines as to Ms. Rinehart's prognosis he clearly recognizes Mrs. Rinehart suffered an injury in addition to having arthritic changes in the knee: Q. And what does the future hold for somebody such as Mrs. Rinehart that had these conditions? A. "I think that - I don't think she'll have any type of long-term sequelae as a result of the injury. I mean she strained her medial collatera' ligament which will heal on its own and the meniscus tear wasn't that big of a tear and we just sort of smoothed that over, so I don't think it's going to be a problem. She has a little bit of patellofemoral arthritis which I think, you know, we all get at some point and, you know, she may have sort of aggravated that a little bit, but that's not going to accelerate it or anything like that for a fall. (Rubbo Dep. 25:4-16.) Dr. Rubbo also confirmed that his opinions were stated with reasonable certainty: Q. ... Finally, Doctor, have all of your opinions been rendered to a reasonable degree of medical certainty? A. Yes, they have. (Rubbo Dep. 25:20-23.) Taking Dr. Rubbo's testimony in its entirety, Dr. Rubbo has es esablished causation by recognizing the MCL strain and meniscus tear as injuries from a fall. 8. Denied. The averments in Paragraph 8 of Defendants' Motion In Limine contain conclusions of law to which no response is required. 9. Denied. The averments in Paragraph 8 of Defendants' Motion In Limine 5 contain conclusions of law to which no response is required. Wherefore, Plaintiffs, JoAnn Rinehart and Harry Rinehart, her husbanitequest this Honorable Court DENY the Defendants Motion in Limine. Date: q HANDLER, HENNING & ROSENBERG, LLP By: St he G. el sq. I.D. No. 72 63 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for the Plaintiffs 6 ERNEST RUBBO RINEHART VS March 24, 2009 STONEHEDGE ERNEST RUBBO March 24, 2009 RINEHART VS STONEHEDGE 2 4 1 2 APPEARANCES: 1 ERNEST R RUBBO, M.D. called as a HANDLER, HENNING & ROSENBERG; LLP BY: STEPHEN G. HELD, ESQUIRE 2 witness, being sworn, testified as follows: 3 1300 LINGLESTOWN ROAD 3 HARRISBURG, PA 17110 4 DIRECT EXAMINATION 4 717-238-2000 5 5 6 FOR - PLAINTIFFS JOHNSON DUFFLE 6 BY MR HELD: BY: JOHN R NINOSKY, ESQUIRE 7 Q afternoon, Doctor. My name again is 7 301 MARKET STREET 8 Stephen Held and I'm here regarding your patient and my LEMOYNE, PA 17043 9 client, Joann Rinehart. For the record could you 8 717-761-4540 JRN@IDSW.COM 10 , please state your full name. g 11 A Ernest R Rubbo. FOR - DEFENDANT 12 Q And how are you employed, Mr. Rubbo, or 10 13 Dr. Rubbo? 12 14 A I'm a partner with the Orthopedic 13 15 Institute of Pennsylvania. 14 16 Q Okay. And you are a medical doctor, 15 17 corrcet9 17 18 A Orthopedic surgeon, yes. 18 19 Q Okay. And for the benefit of the jury, 19 20 what is your educational history? 20 21 A Well, I graduated with a Bachelor of 2 2 22 Science degree at the University of Pittsburgh. I was 2 3 23 admitted to the Temple University School of Medicine 24 24 after I graduated from Pitt and graduated in 1982. I 25 25 was subsequently accepted to the Geisinger Medical 3 5 1 TABLE OF CONTENTS 1 Center orthopedic training program and I did my 2 3 WITNESS FOR PLAINTIFFS DIRECT 2 training at Geisinger and finished in 1987. While I 4 Ernest R. Rubbo, 4 3 was there I did pediatric orthopedic my rotation at Al M.D. 4 DuPont in Wilmington, Delaware, and that's about the 5 5 extent of my - you know, my orthopedic training. And 6 6 then I was Board-certified by the American Board of 7 7 Orthopedic Surgeons in 1989 and was recently 8 EXHIBITS 8 recertified by the American Board of Orthopedic 9 PRODUCED 9 Surgeons in 2008 and my certification expires I believe DEPOSITION EXHIBIT NO. AND MARKED 10 in 2019. 10 11 Q Okay. Now, you mentioned a couple things 1 - OIP records 22 12 there I want to clarify. First of all, you indicated 1 12 1 13 you're an orthopedic surgeon. What is orthopedics? 13 14 A Well, orthopedics is the treatment of the 1 q 15 musculoskeletal system, so it involves your bones, your 15 16 joints, the skeleton which, you know, that keeps us 16 17 upright. 17 18 Q Okay. And then you were also mentioning 18 19 19 your Board certification. What is Board certification, 20 20 what is the significance of that? 21 21 A Well, Board certification is that you go 22 22 through an examination process by an organization that 23 23 certifies that you've been trained into the standard of 24 24 care for the community for orthopedic surgery. 25 25 Q Okay. And the injuries we're discussing 2 (Pages 2 to 5) Geiger & Loria Reporting Service - 800-222-4577 ERNEST RUBBO March 24, 2009 RINEHART VS STONEHEDGE 6 1 in this case have to do with a knee. How many years 1 2 have you dealt with orthopedics? 2 3 A Well, if I started in 1982, so this is 3 4 2009 - so you do the math, its about 27 years. 4 5 Q And out of those 27 years, are knee 5 6 injuries something that you are very familiar with? 6 7 A Yes. 7 8 Q And as far as knee surgeries, how many 8 9 knee surgeries do you do a year? 9 10 A A year? A lot. You want a numbef? 10 11 Q A ballpark is fine. I mean, what I might 11 12 think is a lot is -- 12 13 A rd say at least - let's see, if I do - 13 14 rd say I probably do about five - 400 cases in 14 15 regards to the knee. 15 16 Q Okay. So its safe to say you have a lot 16 17 of experience with the knee? 17 18 A Yeah, yeah. Oh, my gosh, yes. 18 19 Q Do you focus on the lower extremities 19 20 more? 20 21 A No. rm a general orthopedic surgeon, but 21 22 I do - rd say the majority of my sports medicine 22 23 practice aspect is regarding the knee and the shoulder, 23 24 but probably more knee than shoulder. 24 25 Q Okay. And are you a member or on staff at 25 7 1 any of the local hospitals around town here? 1 2 A Among staff at all three hospitals; Holy 2 3 Spirit Hospital, Harrisburg Hospital, and I do - my 3 4 practice involves my surgeries over at Community 4 5 General Osteopathic Hospital. 5 6 MR. HELD: Okay. All right. That's all 6 7 the questions I have on qualification. Do you have any 7 8 cross? 8 9 MR. NINOSKY: No questions. 9 10 MR. HELD: Okay. At this time I tender 10 11 the doctor as an expert in orthopedic surgery. 11 12 MR. NINOSKY: No objection. 12 13 MR. HELD: Okay. 13 14 BY MR. HELD: 14 15 Q And once again, Doctor, were here 15 16 regarding Joann Rinehart. When did you first see Joann 16 17 Rinehart? 17 18 A I saw Joann on March 19, 2004. 18 19 Q Okay. And before we get started, what are 19 20 you looking at right in front of you? 20 21 A Looking at my office notes. 21 22 Q Okay. And those are notes that you made 22 23 at the time of treatment? 23 24 A Those are notes that I -- those are my 24 25 dictated notes that I see after I see a patient. 25 8 Q Okay. So they are made by yourself around the time of the treatment, correct? A Yes. Q Okay. It's nothing I gave you or anything like that? A No. This is all my own words and thoughts - Q Okay. A - documented on paper. Q Sure. Okay. Now, you saw Ms. Rinehart again March 19th, 2004? A Yes. Q What was the reason for your consultation? A Left knee pain. Q All right. Did you obtain a history from Ms. Rinehart? A Yes, I did. Q And what was the history? A She was a 44-year-old female who fell on some black ice in the parking lot at work sustaining an injury to her left knee. She complained of quite a bit of pain with recurrent swelling associated with activities. She has not returned to work since this injury occurred. She denied ever having anv problem 9 with pain in her knee prior to this time. She was seen by her family doctor, Dr. Daniels, who treated her with ice and elevation. Subsequent MRI was done which showed findings consistent with an acute tear of her anterior cruciate ligament and her medial collateral ligament. She states that the mechanism of her injury was a valgus stress to her left knee, she had quite a bit of pain, discomfort and swelling to her left knee, and that she was also employed as a teller at a local bank in Carlisle. The MRI showed abnormal signal in her medial collateral ligament complex consistent with an MCL injury. There was some degenerative changes noted to the lateral meniscus and some irregular attenuation appearance to her medial meniscus. Q Okay. Now, I have a model here of a knee and it happens to even be a left knee. Can you explain to the jury what the complaints are and what you're talking about? A Well, I mean, her complaints are of left knee pain and I'm just reporting the results of the MRI that the radiologist is interpreting, okay? If you look at the knee, this is the kneecap or the patella and you've got your ligaments on 3 (Pages 6 to 9) Geiger & Loria Reporting Service - 800-222-4577 ERNEST RUBBO March 24, 2009 RINEHART VS STONEHEDGE 10 1 the side. On the outside - the outside ligaments 1 2 called the lateral collateral ligament and the inside 2 3 ligament is called the medial collateral ligament, or 3 4 the MCL and the LCL. We like to talk in abbreviations. 4 5 Inside the knee you have two ligaments 5 6 that are important for like an athlete for when they 6 7 change directions and pivot, they need that stability. 7 8 The first ligament, the most common ligament you hear 8 9 injury, is the ACL or the anterior cruciate ligament 9 10 which is the ligament right here in the front, and the 10 11 posterior cruciate ligament is the one in the back 11 12 Now, they criss-cross and thats why they call them 12 13 cruciate, so thats a little bit of an anatomy lesson 13 14 in regards to ligaments. 14 15 Now, the meniscus is the cushion inside 15 16 your knee joint and you have two of them, one on the 16 17 medial side or the inside of the knee and one on the 17 18 lateral side or the outside of the knee, and they act 18 19 as a way dispersing weight in forces equally in your 19 20 knee joint. As we get older they're more prone to 20 21 getting torn because they change your soft - the 21 22 characteristics biochemically as we age. So when we 22 23 talk about a meniscus tsar or a medial meniscus tear, 23 24 were talking about this tissue being tom 24 25 (indicating). 25 11 1 And the MRI report's basically showing 1 2 some degenerative changes to the lateral meniscus which 2 3 is the, you know, cartilage or the - I'm song, the 3 4 meniscus on the outside portion of her knee as well as 4 5 a possible anterior cruciate ligament tear which is 5 6 this ligament here, and an injury to her medial 6 7 collateral ligament which is this ligament here 7 8 (indicating). 8 9 Q Okay. And was that based upon the history 9 10 given to you or did you actually review the MRI? 10 11 A I reviewed the MRI report as well as the 11 12 MRI_ 12 13 Q Okay. All right. Then what physical 13 14 complaints was she explaining to you when she was 14 15 there? 15 16 A Her exam showed she had a pleasant, awake, 16 17 alert and oriented female, no acute distress. Her left 17 18 knee showed some tenderness over the medial joint line 18 19 region. She had a plus one Lachman test, and that 19 20 means that - what we do is we take the knee and we'll 20 21 bend it about 20 degrees and then we'll take our lower 21 22 leg and try to push it forward to see whether there's 22 23 any type of translation. If there is, then that 23 24 sometimes is consistent with an ACL injury. 24 25 And we grade it as plus one to plus three. 25 12 Plus one is from zero to five millimeters of translation, plus two is five to ten millimeters and plus three is over ten millimeters. Q Okay. So plus one is less severe as a plus three? A Well - Q Or less movement I guess. A Well, there's less movement. But, I mean, you know, a torn ACL or attenuated ACL, you know, there's some argument - I mean, you know, if the ligament doesn't work, then you've got a problem no matter what. If its plus one or plus three - plus three just means its more grossly unstable on your examination. Q Okay. A There was some effusion, which means some swelling to her knee, and she could only flex it to approximately 95 degrees. She lacked the last five degrees of full extension, which means she couldn't fully straighten her knee all the way out. She had a good end point with valgus stress to her left knee. What does that mean? Well, a valgus stress is when you take your knee and you sort of bend it or you sort of put stress - you take your foot and you take it outward so you're putting stress on the 13 medial collateral ligament. So you're taking the knee and you're sort of - you're taking the leg and putting a valgus maneuver, which is doing this way, and you're trying to see if you've got a good end point to your MCL. If its really soft and it really gaps open, then you know you've got an insufficiency or an injury that's caused a significant tear to the medial collateral ligament. She had a good end point with valgus stress. McMurray's testing did cause some discomfort with this maneuver. The McMurray's test is a test that we do in the office to see whether they have a meniscal tear. And what that involves is bending the knee and internally and externally rotating the knee as we flex and extend. And what we're doing is we're putting more stress on the femoral condyles against the meniscus, and oftentimes if there's a tear you'll feel a clunk or sometimes you'll even feel some pain with that maneuver, but more oftentimes a true McMurray's test is you'll feel an actual clunk in her knee and that's usually significant for a tom meniscus. Q Okay. A So I did a McMurray's testing which caused some discomfort and I also was -- there was no pain 4 (Pages 10 to 13) Geiger & Loria Reporting Service - 800-222-4577 ERNEST RUBBO March 24, 2009 RINEHART VS STONEHEDGE 14 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 with patellar ballottement, meaning trying to push on her patella or trying to move it, you know, to find out if there's any type of instability. She walked with an antalgic gait, which means she walked with a limp, and her skin was warm and dry with no rashes. Q Okay. And at that appointment were you aware that she had seen other medical providers prior to your involvement? A Yes. She stated that she saw Dr. Healy in Carlisle and that she was here more for a second opinion - Q Okay A - to see me. Q Okay. Then you reviewed the MRI. Was there anything significant about the MRI results? A The MRI just showed increased signal noted in her anterior cruciate ligament region as well as some signal changes noted to her MCL and her medial meniscus. Q Okay. And did you render a diagnosis at that first appointment? A At that time I thought she may have sustained an anterior cruciate ligament tear as well as a tear of her medial collateral ligament as well as a possible left medial meniscal tear. 16 1 Don't really put much strain on their ACL through their 2 lifetime, they're not really athletic, and those people 3 you may just treat with physical therapy and see how 4 they do. And most oftentimes they do well without any 5 problems, they could go through life without an ACL. 6 Then you've got your second group of 7 people which are your - we call them your weekend 8 warriors. They like to try to go out there on a 9 weekend and play basketball or tennis and soccer, and 10 some of those people you try to rehab them and put them 11 in a fimctional knee brace, like a knee brace for them 12 to wear during their activities. Some will do fine 13 with that brace with their activities and some won't 14 like the brace and will still have problems with 15 instability and then you reconstruct those. Or they 16 may say, look, I'm not going to play soccer or, you 17 know, basketball or any - you know, movements that 18 involve quick lateral movements and they just play golf 19 or, you know, just decide to give up their sport 20 altogether and go into group one. 21 And then you've got your third group of 22 people which is your high school, your college athlete 23 where the person still wants to maintain that level of 24 function of playing sports. Those are the ones that 25 you reconstruct. 15 1 Q Okay. And according to the history, your 1 2 physical exam, review of the diagnostic films, what if 2 3 any of those conditions do you attribute to her work 3 4 injury or the fall at work that occurred in December of 4 5 2003? 5 6 A Well, I mean, we did an arthroscopy of her 6 7 knee which gave them a little more information than the 7 8 MRI and that's -- I mean, her ACL looked good at the 8 9 time of her arthroscopy, so this -- probably the most 9 10 definitive way of finding out what's going on with the 10 11 knee is to go in there and look at it and probe it and 11 12 examine it. 12 13 Q Okay. Well, at that first appointment, 13 14 what course of action did you -- 14 15 A Well, at that time I -- you know, we 15 16 talked about surgery and involving arthroscopy where we 16 17 go into the knee joint and we look inside the knee 17 18 joint. Now, the discussion I had with her and her 18 19 husband was, you know, the natural history of an ACL 19 20 tear, what do you do about it. 20 21 I mean, there's - I tell people there's 21 22 three groups of people that you've got to figure out 22 23 where you fit in if you tear your ACL. The first group 23 24 of people are -- they're not really that athletically 24 25 inclined, they sort of slip, fall and tear their ACL. 25 17 So I gave them that talk about, you know, if we get in there and we see you have an ACL tear, do you want me to fix it there, what do you want to do? Because sometimes they say, look, let's just go ahead and fix it while you're there or say see if its tom. If it is, then I'll just worry about it later, I'll get a reconstruction done later, so that they know what - you know, what do you want me to do while I'm there. Because I've got to plan my amount of time because an ACL reconstruction takes at least an hour and a half to two-hour procedure versus an arthroscopy which takes anywhere from a half-hour to an hour to do. Q Okay- A Okay. So I went through that scenario with them of whether doing reconstruction or just doing therapy and they were in agreement with let's proceed with this - let's go with the arthroscopy and go in there, take a look and see whats going on. Q Okay. A And so that's what was done. Q Okay. And when did she have the arthroscopy? A The arthroscopy was done on April 14th, 2004. Q And what did that reveal? 5 (Pages 14 to 17) Geiger & Loria Reporting Service - 800-222-4577 ERNEST RUBBO RINEHART VS March 24, 2009 STONEHEDGE 18 20 1 A At that time it showed a lateral meniscus 1 you sort of put more stress on the outside of the knee 2 tear as well as some softening of the cartilage called 2 , you sometimes stretch that ligament which will just 3 chondromalacia underneath your kneecap which goes along 3 take time for that to heal. 4 with a little bit of patellofemoral arthritis as well 4 The weakness to the muscle above the knee 5 as what we call a medial plica syndrome. And what's 5 will happen as a result of an injury, plus an operation 6 that mean? 6 would also cause it to get weaker too, so that's why 7 Well, a media plica is a shelf of tissue 7 you send them to physical therapy to address those 8 that sits between the kneecap and the femur and we all 8 issues. 9 have it when we're born, but everybody's is a little 9 Q Okay. And the arthritis naturally was not 10 bit different in the way of shape and size. Ifs a 10 caused by - 11 very elastic band. Now, sometimes if you bang it or 11 A No. She may have aggravated it a little 12 you injure it it can get a little bit tighter and 12 bit by the fall and the twisting aspect, but no. I 13 scarred down and it can be sometimes a pain generator 13 mean, that was - that was just a little bit of a -- 14 in the knee because it gets rubbed against the femoral 14 little wear that we saw. 15 condyle which is the inside - you know, the bone or 15 Q Okay. And then after the arthroscopic 16 the femur. 16 surgery you followed up with Ms. Rinehart? 17 So if you sometimes see that and you see 17 A Yes. 18 some erosion or some irritation to that area, than you 18 Q Mrs. Rinehart. And generally how did her 19 go in and you debride it and trim it back 19 follow-up treatment go? 20 Q Okay. And what did you do as far as - in 20 A Well, she complained of pain. I mean, I 21 the arthroscopic surgery, what did you do with her? 21 saw her at her one-week follow-up visit and I took her 22 A Well, what I did was went inside her knee 22 sutures out and she - you know, we started her on what 23 with her asleep and saw there was some erosion 23 we call phase two exercise, which is really more of a 24 underneath her kneecap, so we did a little shaving to 24 strengthening exercise program where they're working on 25 sort of smooth that over. And I can't cure arthritis I 25 their quadriceps and their range of motion and I let 19 21 1 tell people, but I can sort of, you know, make it 1 them do that for the next three or four weeks and see 2 smooth and remove some of the frayed tissue as well 2 how they do. Maybe 70, 80 percent of people basically 3 as - when we were in there her anterior cruciate 3 do very well with that and don't creed to go to physical 4 ligament looked pristine, it looked fine. You know, l 4 therapy. 5 was probing it and pulling on it. It was nice and 5 But when I saw her again at her four-week 6 taught and tight. The medial meniscus was also normal 6 follow-up visit, she was still having some problems 7 in appearance. 7 with swelling as well as pain and her leg was giving 8 The lateral meniscus showed a small little 8 out when she walks, which tells me that her quadriceps 9 frayed area in the back portion which I sort of 9 is still, you know, functionally weaker. So then at 10 smoothed over, but it didn't show a real big tear, so 10 that time I set her up with a physical therapist to 11 most of her problem I thought was really more related 11 work on her over the next four weeks and I told her 12 to some wear going on underneath her kneecap. 12 that she could do a sedentary type of job if one was 13 Q Okay. 13 present. 14 A Okay? But the anterior cruciate ligament 14 Q Okay. You mentioned a sedentary-type job. 15 looked fine. When I had her asleep, examined her knee, 15 When you saw her on March 19th of 2004, was she working 16 there wasn't any evidence of real, you know, gross 16 at that time? 17 instability and probing it and pulling on it there was 17 A No. 18 no evidence of laxity to the ACL. 18 Q Okay_ And some other doctor had her off 19 Q Okay. All right. Now, back to the 19 work as far as you know? 20 question I asked before, what if any of that do you 2 0 A I believe so. I mean, I have it in my 21 attribute to the fall that happened in December of 21 note that she was off of work and so that was the first 22 2003? 22 time I saw her. 23 A Well, the lateral meniscus is conceivable 23 Q Okay. And after that appointment did you 24 with a fall and a twisting injury and the medial 24 do anything regarding work restrictions or availability 25 collateral ligament, you know, injury is the same where 25 for work or anything? 6 (Pages 18 to 21) Geiger & Loria Reporting Se rvice - 800-222-4577 ERNEST RUBBO March 24, 2009 RINEHART VS STONEHEDGE 22 1 A I told her I thought she could do a 1 2 sit-down type of job, but I knew that she was a bank 2 3 teller - you know, she was standing an awful lot, its 3 4 going to hurt her knee maybe a little bit, so if she 4 5 could do the job with her sitting I thought that would 5 6 be better, or if she could get up and move around a 6 7 little bit that might be good for some stifthess, 7 8 but -- 8 9 Q Okay. I'm going to show you what I'll 9 10 mark as Deposition Exhibit 1. 10 11 (OIP records marked as Deposition Exhibit 11 12 Number 1.) 12 13 BY MR. HELD: 13 14 Q And if you'd just take a moment to look at 14 15 what I have there. 15 16 A Uh-huh. 16 17 Q These appear to be your office forms of 17 18 off-work slips? 18 19 A Yes. This is a work comp. slip and this 19 20 is the initial examination consult report. 20 21 Q Okay. And the March 19, 2004 appointment 21 22 you took her off work - 22 23 A Yes. 23 24 Q - completely? 24 25 A Yes. 25 23 1 Q Okay. Then on April 23rd, 2004 you 1 2 returned her limited duty? 2 3 A Limited duty, sedentary work only. 3 4 Q Okay. And then as we flip all the way to 4 5 the back, it appears in August I believe - 5 6 A August 20th. 6 7 Q August 20th you returned her back to work 7 8 full duty, no restrictions? 8 9 A Correct. 9 10 Q Okay. And when you wrote those 10 11 restrictions you were familiar with the type of job 11 12 Mrs. Rinehart had? 12 13 A Yes. 13 14 Q Okay. Then what other sorts of treatment 14 15 did Mrs. Rinehart have after the surgery that - you 15 16 know, physical therapy, such as that. What type of 16 17 other treatment did she have? 17 18 A Besides physical therapy? 18 19 Q No. She had physical therapy after the 19 20 surgery, right? My question's not coming out how I 20 21 want it to. 21 22 A Yeah. 22 23 Q Okay. 23 24 A If you're asking me did she have physical 24 25 therapy, the answer is yes. 25 24 Q Yes, okay. A If that's what you're asking me, the answer is yes. And also I tried her on some antiinflammatory medicines, too, such as Aleve, told her to take that. I think I also gave her some samples of Celebrex as an antiinflammatory medicine. I also discussed with her something called Synvisc which is like an injection of a - like a viscous supplementation which is like - it sort of restores the normal joint fluid in people who have some early arthritis, but we didn't do any of that treatment. Q Okay. And when did you last see Mrs. Rinehart? A Last time I saw Mrs. Rinehart was on March 4th, 2005. Q All right. And how was she doing at that appointment? A She was doing well. She still had some patellofemoral pain as well as - but she noticed when she went back to therapy and they did some electrical stimulation that made her -- that helped an awful lot. But the last time I saw her, as I said, the patient was doing well, was pleased with her result and I'd see her back if she had any further problems and she can go back to her regular job with no restrictions. 25 Q Okay. And you haven't seen her since then, correct? A No, I haven't. Q And what does the future hold for somebody such as Mrs. Rinehart that had these conditions? A I think it looks good. I think that -- I don't think she'll have any type of long-term sequelae as a result of the injury. I mean, she strained her medial collateral ligament which will heal on its own and the meniscus tear wasn't that big of a tear and we just sort of smoothed that over, so I don't think it's going to be any problem. She has a little bit of patellofemoral arthritis which I think, you know, we all get at some point and, you know, she may have sort of aggravated that a little bit, but that's not going to accelerate it or anything like that for a fall. Q Okay. So prognosis looks pretty good for her? A Yes. I'd say it looks very good. Q Okay. All right. Finally, Doctor, have all of your opinions been rendered to a reasonable degree of medical certainty? A Yes, they have. MR. HELD: Okay. This gentleman might have some questions for you. 7 (Pages 22 to 25) Geiger & Loria Reporting Service - 800-222-4577 Stephen G. Held, Esquire I.D. NO. 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiff Fax: (717) 233-3029 E-mail: HELDahhrlaw.com JOANN RINEHART and HARRY RINEHART, her husband, Plaintiffs V. STONEHEDGE CENTER, LLC, and WESLEY A. TATE t/d/b/a LLOYD'S SEPTIC SERVICE, and KIMCO REALITY CORPORATION, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-5203 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE On this 10`h day of November, 2009„ 1 hereby certify that a true and correct copy of Plaintiffs' Response to Defendants' Motion in Limine to Preclude Dr. Rubbo's Testimony was served upon the following by depositing same in the United States Mail, in Harrisburg, Pennsylvania: Mr. John R. Ninosky, Esq. Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Respectfully submitted: HANDLER, HENNING & ROSENBERG, LLP. By: Stephen . Held 2099 NOV 10 P 1: 4 f Ca <`r JOANN RINEHART AND IN THE COURT OF COMMON PLEAS OF HARRY RINEHART her Husband, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. STONEHEDGE CENTER. LLC AND WESLEY A. TATE T/D/B/A/ LLOYD'S SEPTIC SERVICE, DEFENDANTS NO. 05-5203 CIVIL ORDER OF COURT AND NOW this 10th day of November, 2009, it appearing that this case has now been assigned to Judge Ebert for jury trial starting the week of November 16, 2009, IT IS HEREBY ORDERED AND DIRECTED that Counsel shall file with the Court by the close of business on Friday, November 13, 2009, the following: 1. A list of the numbered standard jury instructions the party is requesting. If a party is proposing a unique jury instruction or requesting significant modification of a standard instruction, it shall provide the full text of the proposed instruction to the Court. 2. The parties will provide a proposed verdict slip to the Court for review. By the Court, Stephen Held, Esquire For Plaintiff John Ninosky, Esquire For Defendants bas a4e Vwjt1 'vA M. L. Ebert, Jr., J. 2 uI, IiiJ-V 1 0 F1;i l; 18 ! '• JOANN RINEHART AND IN THE COURT OF COMMON PLEAS OF HARRY RINEHART her Husband, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. STONEHEDGE CENTER. LLC AND WESLEY A. TATE T/D/B/A/ LLOYD'S SEPTIC SERVICE, : DEFENDANTS NO. 05-5203 CIVIL ORDER OF COURT AND NOW this 12th day of November, 2009, upon consideration of the Defendant's Motion in Limine and the Plaintiff's Response thereto, IT IS HEREBY ORDERED AND DIRECTED that Defendant's is DENIED. The testimony of Dr. Ernest R. Rubbo, M.D., will be permitted at trial subject to standard cross examination. By the Court, M. L. Ebert, Jr., J. Stephen Held, Esquire For Plaintiffs John Ninosky, Esquire For Defendants bas 11??31Oq 3' 1 2: 2 JOANN RINEHART : IN THE COURT OF COMMON PLEAS OF HARRY RINEHART, her husband, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. STONEHEDGE CENTER, LLC, AND WESLEY A. TATE T/D/B/A LLOYD'S SEPTIC SERVICE, and KIMCO REALTY CORPORATION, DEFENDANTS NO. 05-5203 CIVIL JURY VERDICT FORM 1. Do you find that the Defendants were negligent? Yes No If you answer Question No. 1 "No," the Plaintiff cannot recover and you should return to the Courtroom. If you answer Question No. 1 "Yes," continue to Question No. 2. 2. Was the Defendants negligence a factual cause of any harm to the Plaintiffs? Yes No If you answer Question No. 2 "No," the Plaintiff cannot recover and you should return to the Courtroom. If you answer Question No. 2 "Yes," continue to Question No. 3. 3. Was the Plaintiff contributorily negligent? Yes No If you answer Question No. 3 "Yes," proceed to Question No. 4. If you answer Question No. 3 "No," proceed to Question No. 6. 4. Was the Plaintiff's contributory negligence a factual cause in bringing about her harm? Yes No If you answer Question No. 4 "Yes," proceed to Question No. 5. If you answer Question No. 4 "No," proceed to Question No. 6. 5. Taking the combined negligence that was a substantial factual cause in bringing about Plaintiff's harm as 100 percent, what percentage of that causal negligence was attributable to Plaintiff and what percentage was attributable to Defendants? Percentage of causal negligence attributable to Plaintiff Percentage of causal negligence attributable to Defendants Total 100 % If you have found the Plaintiff's causal negligence to be greater than 50%, then the Plaintiffs cannot recover and you should not answer Question No. 6, but should return to the courtroom. If you have found Plaintiff's causal negligence to be equal to or less than 50%, then you should proceed to Question No. 6. 6. State the amount of damages you award to Plaintiffs, if any as a result of Defendant's negligence, without any regard to and without reduction by the percentage of causal negligence, if any, that you have attributed to the Plaintiff JoAnn Rinehart. Insert a figure for each category set forth below. If, for a particular category, you do not believe that the plaintiff sustained damages, put the figure "0" in the space: (a) Medical Expenses $ (b) Past Lost Earnings $ (c) Past and Future Noneconomic Loss (Pain and suffering, loss of enjoyment of life, embarrassment and humiliation) $ (d) Loss of Consortium $ Total Compensatory Damages $ Foreperson /i - / 7 - )7 Date JOANN & HARRY RHINEHART - V S ---- STONEHEDGE CENTER, LLC AND WES I c 4, -rc te. T/DB/A LLOYD'S SEPTIC SERVICE JUR In the Court of Commons Pleas of Cumberland County, PA., Docket No. 2005-5203 Judge: EBERT Attorney: S f e p h? n Cr_ 14e (off Attorney: J c? h N 1 n a Date: - 0 q ORS No. Juror # NAMES OF JURORS CALLED CAUSE P D 1 IMNINNNMNNNN NOV16-325 WERTZ, MARK L 2 INNNMNNNNN NOV16-86 DIXON, ERINNE M 3 INhNNNNNNN NOV16-50 HELLER, CRAIG A a 4 IINMIMNMNNNNII NOV16-100 TALALAI, TERRI L 5 IINNNNINNNN NOV16-15 BEINHAUR, STEPHANIE M 6 IMNNNMNMNNNN NOV16-34 HORNING, DAVID A 7 INMNNNNNNN NOV16-14 RUNK, PAUL C 8 IMNNNNNMNNN NOV16-105 MCKENNA, ALBERT S 9 IIIIIINNNNNOUR NOV16-52 HA, THOMAS N 10 INIIMNNMIfINNIIMN NOV16-7 WEBER, EUGENE J 11 IIIIINNNNNNII NOV16-12 BOUNDS, MARGARET E 12 INMIMNMMNNININNY NOV16-54 ANDERSON, MILES D 13 IIIIMNNINNMNIIII NOV16-277 FLAGLER, RICHARD B 14 INININNINNIIMN NOV16-306 FELSBURG, DAVID W 15 IIIIINNINMNMNNN 16 IIIIMNNMNNIINIMN NOV16-274 NOV16-137 OLARTE, MARIA C `, ?ksr....t) HELM, SUSAN N vtJ?a?. 17 IIIINNINNMNNIII NOV16-321 KNARR, CAROL A 18 IINMNNMNNINIMMN NOV16-188 QUIGLEY, MATTHEW H 19 IINNIN?INNNII NOV16-32 HEARN, GARRI A 20 IINNNMNNNNN NOV16-38 RAN, DANIELLE E 21 IMIIIINMNMNMNNNIl NOV16-341 MCCORMACK, JENNIFER K 22 IIIIIIINIIIIIMINNNIII NOV16-120 OBRIEN, SUZANNE C l f , + " JOANN & HARRY RHINEHART -VS STONEHEDGE CENTER, LLC AND WES T/D/B/A LLOYD'S SEPTIC SERVICE In the Court of Commons Pleas of Cumberland County, PA., Docket No. 2005-5203 Judge: EBERT Attorney: Attorney: Date: JUR ORS No. Juror # NAMES OF JURORS CALLED CAUSE P D 23 I00000010 NOV16-65 CUMMINGS, SEAN C 24 INIINNNNNNNNN NOV16-252 KREITZER, ALAN G IMNNINNINNNNN NOV16-271 VASSAR, AARON C 26 ININNNNNNNN NOV16-244 STARLIPER, WILLIAM C 27 INNINNNNNNNNl NOV16-283 LITTLE, SANDRA L 28 IINNNNNNNNNN NOV16-279 MCALISTER, CHRISTINA M 29 INIINNNINIINNNIU NOV16-266 RESSLER, GLENN E x 30 IINNINUMNINNNIN NOV16-18 KAUFFMAN, CHRISTIE L 31 INININNNNIIINN NOV16-284 UMBRELL, CAROL A 32 INNNINNENNNN NOV1&331 MICKLO, DEBRA A 33 INIfINNNNNNN NOV16-289 PLESSINGER, MATTHEW A 34 INNIIINNNANNNN NOV16-51 SIMPSON, RANDY L 35 INNNNNNNNNNN NOV16-83 COVER, CHARLES H 36 37 38 39 40 41 42 43 44 JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky, Esquire I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorneys for Defendant, Wesley A. Tate t/d/b/a Lloyd's Septic Service JOANN RINEHART and HARRY RINEHART, her husband, Plaintiffs V. STONEHEDGE CENTER, LLC, and WESLEY A. TATE t/d/b/a LLOYD'S SEPTIC SERVICE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-5203 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO ENTER JUDGMENT AFTER VERDICT TO THE PROTHONOTARY: Kindly enter judgment in favor of the Defendants and against the Plaintiffs based on the verdict of the jury as no timely post-trial motions have been filed. JOHNSON, DUFFIE, STEWART & WEIDNER Date: December 3, 2009 By: W,9914? John R. Nino-sky Attorney for Defendant JUDGMENT Judgment entered pursuant to jury verdict in favor of Defendants and against Plaintiffs. Dated: 4 2 dv 9 By: Prothonotary CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Praecipe to Enter Judgment has been duly served upon the following, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on December 3, 2009: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Attorneys for Plaintiffs JOHNSON, DUFFIE, STEWART & WEIDNER By John R. Ninosky 23 , ? . ctl - gi /It. c l)