Loading...
HomeMy WebLinkAbout06-1173SHOLLENBERGER & JAN UZZI, LLP 2225 Millennium Way Enola, PA 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attornevs for Plaintiff DIANE McMILLIN, Plaintiff V. SHIRLEY PORTER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.6L - //73 CluL -Tan Defendant I CIVIL ACTION - LAW JURY TRIAL DEMANDED 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 REDUCE FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 1-800-990-9108 1 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, Pennsylvania 17025 717-728-3200 (tell 717-728-3400 (fax) SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attornevs for Plaintiff DIANE McMILLIN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. SHIRLEY PORTER, Defendant NO. CIVIL ACTION - LAW JURY TRIAL DEMANDED LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomaro medidas y puede entrar una orden contra usted sin previo aviso o notoficacaion y por cualquier queja o alivio que es pedido en la peticion do demanda. usted puede perder dinero o sus propiededas o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME FOR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 1-800-990-9108 2 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, Pennsylvania 17025 717-728-3200 (tell 717-728-3400 (fax) SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attornevs for Plaintiff DIANE McMILLIN, Plaintiff V. SHIRLEY PORTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. b(o - //U CIVIL ACTION - LAW JURY TRIAL DEMANDED AND NOW, comes the Plaintiff, Diane McMillin, by and through her attorneys, SHOLLENBERGER & JANUZZI, LLP, and respectfully represents the following: FACTS APPLICABLE TO ALL COUNTS 1. Plaintiff, Diane McMillin, is an adult individual who currently resides at 9 North Locust Street, #102, Shiremanstown, Cumberland County, Pennsylvania 17011. 2. Defendant, Shirley Porter, is an adult individual whose last known address is 1177 Easy Road, Carlisle, Cumberland County, Pennsylvania 17013. 3. The facts and circumstances hereinafter set forth took place on June 9, 2004 at or about 6:35 a.m. in the Pennsylvania Turnpike Plainfield Service Plaza employee parking lot, West Pennsboro, Cumberland County, Pennsylvania. 4. At the aforesaid time and place, Plaintiff, Diane McMillin, was walking north in said employee parking lot towards the walkway opening. 3 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, Pennsylvania 17025 717-728-3200 (tel) 717-728-3400 (fax) 5. At the aforesaid time and place, Defendant, Shirley Porter, was the operator of a 2003 Chevrolet Trailblazer. 6. At the aforesaid time and place, Defendant, Shirley Porter, was traveling northbound on Pine Lane and turned west into the employee parking lot in the aforesaid 2003 Chevrolet Trailblazer. 7. At the aforesaid time and place, Defendant, Shirley Porter, was looking for an open parking spot when she struck the Plaintiff, Diane McMillin, with the front of the aforesaid 2003 Chevrolet Trailblazer causing her to be thrown up into the air and come crashing down on the parking lot on her left side. 8. Defendant Porter never saw the Plaintiff before striking her with the vehicle. 9. As a result of the aforesaid collision, Plaintiff, Diane McMillin, has suffered serious and permanent injuries, including but not limited to the following: a. Severe shock to the nerves and nervous system; b. Mental and physical anguish; C. Left knee abrasion; d. Left elbow contusion; e. Full thickness tear of the left rotator cuff; f. Calcific tendonitis about the left rotator cuff including the supraspinatus tendon; g. Adhesive casulitis, left shoulder; 4 Shollenberger & 3anuzzi, LLP 2225 Millennium Way, Enola, Pennsylvania 17025 717-728-3200 (tel) 717-728-3400 (fax) h. Left knee sprain with torn posterior cruciate ligament and co- existent medical meniscal tear; Cervical strain/sprain with left cervical radiculitis at C6 and/or C7; Lumbar strain/sprain with HNP at L4-5 with left sciatic radiation; k. Aggravation of previously asymptomatic degenerative disc disease at C3-4, C4-5, C5-6 and C6-7; 1. Herniated disc at C6-7; M. C6-C7 radiculopathy on the left; n. Left shoulder impingement syndrome; o. Calcific bursitis, left shoulder;. P. S1 radiculopathy; q. Left lower extremity radiculopathy/sciatica; r. Depression; S. Aggravation of pre-existing asymptomatic degenerative disc disease at L5-S1; t. Superficial flap tear of the lateral patellar facet cartilage; and U. Post traumatic left patello femoral arthritis. 10. The aforesaid collision was the direct and proximate result of the negligence of the Defendant, Shirley Porter, in operating the 2003 Chevrolet Trailblazer 5 Shollenberger & Janumi, LLP 2225 Millennium Way, Enola, Pennsylvania 17025 717-728-3200 (tel) 717-728-3400 (fax) in a careless, reckless, and negligent manner as follows: a. In operating her vehicle at an excessive rate of speed under the circumstances; b. In failing to have her vehicle under proper and adequate control; C. In failing to apply the brakes in time to avoid striking the Plaintiff; d. In failing to observe Plaintiff in the parking lot prior to striking her with the vehicle she was operating; e. In failing to keep a proper lookout for the Plaintiff; f. Driving at a speed greater than was reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing and/or at a speed greater than would have permitted her to bring her vehicle to a stop within the assured clear distance ahead in violation of Section 3361 of the PA Motor Vehicle Code; and g. Driving her motor vehicle in careless disregard for the safety of persons in violation of Section 3714 of The PA. Motor Vehicle Code. 11. As a direct and proximate result of the aforesaid injuries, Plaintiff, Diane McMillin, has undergone and in the future will undergo great pain and suffering for which damages are claimed. 12. As a further result of the aforesaid injuries, Plaintiff, Diane McMillin, has 6 Shollenberger & Janum, LLP 2225 Millennium Way, Enola, Pennsylvania 17025 717-728-3200 (tel) 717-728-3400 (fax) suffered and may continue to suffer a loss of earnings for which damages are claimed. 13. As a further result of the aforesaid injuries, Plaintiff, Diane McMillin has and/or may in the future incur a loss of earning capacity for which damages are claimed. 14. As a further result of the aforesaid injuries, Plaintiff, Diane McMillin, has sustained scarring and disfigurement for which damages are claimed. 15. As a further result of the aforesaid injuries, Plaintiff, Diane McMillin, has sustained a permanent diminution in her ability to enjoy life and life's pleasures for which damages are claimed. 16. As a further result of this collision, Plaintiff, Diane McMillin, has and/or may incur reasonable and necessary medical rehabilitative costs and expenses in excess of the amounts paid or payable pursuant to Subchapter B of the Pennsylvania Motor Vehicle Financial Responsibility Law or any program, group contract, or other arrangement for payment of benefits as defined in 75 Pa. C.S.A. Section 1719. 17. As a further result of the aforesaid injuries, Plaintiff, Diane McMillin, has incurred or may hereinafter incur financial expenses and losses which exceed sums recoverable under the limitations and exclusions of the Pennsylvania Motor Vehicle Financial Responsibility Law for which damages are claimed. 18. Plaintiff, Diane McMillin, sustained a serious injury in this collision which has caused her a serious impairment of body function. In addition, Plaintiff was a pedestrian such that her selection of tort option is irrelevant. Therefore, Plaintiff, Diane 7 Shollenberger & Januni, LLP 2225 Millennium Way, Enola, Pennsylvania 17025 717-728-3200 (tell 717-728-3400 (fax) McMillin, remains eligible to claim compensation for non economic loss and economic loss sustained in this collision pursuant to applicable tort law. WHEREFORE, Plaintiff, Diane McMillin demands judgment against Shirley Porter for compensatory damages in an amount in excess of the amount requiring compulsory arbitration. By: Respectfully submitted, SHOLLENBERGER & JANUZZI, LLP Attorneys f9i PJ*nto-7 Attorney I.D. #34343 2225 Millennium Way Enola, PA 17025 (717) 728-3200 (717) 728-3400 (fax) 8 Shollenberger & .lanuzzi, LLP 2225 Millennium Way, Enola, Pennsylvania 17025 717-728-3200 (lei) 717-728-3400 (fax) VERIFICATION I, Diane McMillin, hereby acknowledge that I am a Plaintiff in this action and that I have read the Complaint and that the facts stated herein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relatino to unsworn falsification to authorities. Signature - Diane McMilli Date: - 6 0 G:\GLOBAL\WPDATA\DOCS\INITIAL CONSULT DOCS (SET-UPS)\Verifimtion.wpd SHOLLENBERGER B JANUZZL LLP 2225 Millennium Way. Enola. PA 17025 (717) 728-3200 FAX (717) 728-3200 U-k 1 L- VEBOil 15 F.\FILES\DATAFILE?Progressive993TCur to I99\ans 1/ma\m /nlm Created 920/04 0:06PM Revised: 4/10/06 346PM 7837 197 George B. Faller, Jr., Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. No. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant DIANE McMILLIN, IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-1173 CIVIL ACTION - LAW SHIRLEY PORTER, Defendant. JURY TRIAL DEMANDED DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT TO: DIANE McMILLIN, Plaintiff, and her attorney, TIMOTHY A. SHOLLENBERGER, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW comes Defendant, Shirley Porter, by and through her attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby responds to Plaintiff's Complaint as follows: After reasonable investigation, the Answering Defendant is without knowledge or information sufficient to form abelief as to the truth or falsity ofthe averments contained in this paragraph. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Denied as stated. Plaintiffextended her hand onto the front ofDefendant's vehicle and then fell over. Therefore, since she was not "thrown up in the air" she could not have come "crashing down." 8.-18. Denied pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendant, Shirley Porter, respectfully requests that this Court dismiss Plaintiff's Complaint with prejudice and enter judgment in her favor. NEW MATTER 19. The averments of paragraphs 1 through 18 of this Answer are incorporated herein by reference. 20. At the rime ofthe accident referred to in the Complaint, the parties were both in the parking lot used by all employees of their employer, HMS Host. 21. The parking lot was where HMS Host employees were required to park. 22. The parking lot is onlyused byMVS Host employees who work at the Plainfield Service Plaza of the Pennsylvania Turnpike. 23. Within 15 minutes after the accident, both the Plaintiff and the Defendant punched in for work with their employer, HMS Host. 24. The Plaintiff srecovery is barred orreducedbythe Pennsylvania Motor Vehicle Financial Responsibility Law as amended. 25. Plaintiffs or their representatives chose the limited tort option by signing a valid selection form. 26. Plaintiffs' injuries do not involve death, serious impairment ofbodily function orpermanent disfigurement. 27. Plaintiff's claim is barred by the Pennsylvania Workers' Compensation Act. WHEREFORE, Defendant demands judgment in her favor and dismissal ofPlaintiff s Complaint with prejudice. MART,,SONjDEARD F ?VILLIAMS & OTTO 4Esqu' By ? G orge B , aller, JI.D. No. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: April 20, 2006 Attorneys for Defendant VERIFICATION The foregoing Answer is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language ofthe document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of IS Pa. C.S. Section 4904 relating to unworn falsification to authorities, which provides that ifl make knowingly false averments, I may be subject to criminal penalties. hirley Port F?HLESVDATAFILEVPmgm11i,c7N37ACurzenp197Aw,I CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent for Martson Deardorff Williams & Otto, herebycertify that a copy ofthe foregoing Defendant's Answer with New Matter to Plaintiff s Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Timothy A. Shollenberger, Esquire SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 MARTSON DEARDORFF WILLIAMS & OTTO BYE %' Melissa A. Scholly 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: April 20, 2006 ;;', _?, ..;_. :., -- SHERIFF'S RETURN - REGULAR CASE NO: 2006-01173 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCMILLIN DIANE VS PORTER SHIRLEY JASON VIORAL , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within NOTICE SHIRLEY was served upon the DEFENDANT , at 0010:20 HOURS, on the 6th day of March , 2006 at CUMBERLAND CO SHERIFF'S OFFICE 1 COURTHOUSE SQAURE CARLISLE. PA 17 SHIRLEY PORTER by handing to a true and attested copy of NOTICE together with COMPLAINT, INTERROGATORIES, REQUEST FOR PRODUCTION OF DOCUMENTS and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service .00 Affidavit .00 Surcharge 10.00 .00 28.00 Sworn and Subscribed to before me this d(A?4- day of /w g dM(. A. D. 01057 rot n tary So Answers: R. Thomas Kline 03/06/2006 SHOLLENBERGER & JANUZZI By: G./ ep ity Sheriff SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff DIANE McMILLIN, Plaintiff V. SHIRLEY PORTER, Defendant IN THE COURT CUMBERLAND( PENNSYLVANIP COMMON PLEAS NO. 06-1173 CIVIL ACTION - JURY TRIAL DE DED REPLY TO NEW MATTER I AND NOW, comes the Plaintiff, Diane McMillin, by SHOLLENBERGER & JANUZZI, LLP, files her Reply to New Porter, and, in support thereof, respectfully represents the 19. Paragraphs 1 through 18 of the Plaintiff's by reference as if set forth in full. 20. After reasonable investigation, the Plaintiff is form a belief as to the truth of said averment and therefore 21. After reasonable investigation, the Plaintiff is form a belief as to the truth of said averment and therefore 22. After reasonable investigation, the Plaintiff is form a belief as to the truth of said averment and therefore 23. After reasonable investigation, the Plaintiff is form a belief as to the truth of said averment and therefore through her attorneys, of Defendant Shirley are incorporated herein knowledge sufficient to averment is denied. knowledge sufficient to averment is denied. knowledge sufficient to averment is denied. knowledge sufficient to averment is denied. 1 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, Pennsylvania 17025 717-728-3200 (tel) 717-728-3400 (fax) 24. The above referenced averment is a conclusion ofllaw to which no answer is required. To the extent an answer is required, same is denied pursuant to Pa. R.C.P. 1029(e). 25. The above referenced averment is a conclusion of law to which no answer is required. To the extent an answer is required, same is denie pursuant to Pa. R.C.P. 1029(e). 26. The above referenced averment is a conclusion of law to which no answer is required. To the extent an answer is required, same is denie pursuant to Pa. R.C.P. 1029(e). 27. The above referenced averment is a conclusion of law to which no answer is required. To the extent an answer is required, same is denie pursuant to Pa. R.C.P. 1029(e). WHEREFORE, the Plaintiff respectfully requests that tho Defendant's New Matter be dismissed and judgment entered in favor of the Plaintiff as 4 matter of law. Respectfully submitte , SHOLLENBERGER & JANUZZI, LLP Attorneys for Plaintiff By: Date: MP U 2 ?, Joo6 Attorney I.D. #34343 2 Shollenberger & Janumi, LLP 2225 Millennium Way, Enola, Pennsylvania 17025 717-728-3200 (tell 717-728-3400 (fax) SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff DIANE McMILLIN, Plaintiff V. SHIRLEY PORTER, Defendant IN THE COURT c CUMBERLAND( PENNSYLVANIA NO. 06-1173 CIVIL ACTION - JURY TRIAL DE COMMON PLEAS JNTY, cE'RTwmATE OF SERVICE I AND NOW this L!?"day of May, 2006, 1 hereby cer following Reply to New Matter on the following via U.S. mail, George B. Faller, Jr., Esquire 10 East High Street Carlisle, PA 17013 Date: 200Respectfully SHOLLENBE Attorneys for /////// By: Ti t A. S A ornev I.D. that I have served the stage prepaid: ER & JANUZZI, LLP ntiff I- r= ? t. 'r C7 y"! N -G i F:\FILES\DATAFILE\Progressive7837\Cutrent\ 197\pettoamend/had Created: 9/20/04 0:06PM Revised: 10/6/06 2:39PM George B. Faller, Jr., Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. No. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant DIANE McMILLIN, IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-1173 CIVIL ACTION - LAW SHIRLEY PORTER, Defendant. : JURY TRIAL DEMANDED PETITION TO AMEND ANSWER WITH NEW MATTER AND NOW, comes the Defendant, Shirley Porter, by and through her attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and files the following Petition to Amend Answer with New Matter and in support thereof avers as follows: 1. On or about February 21, 2006, Plaintiff filed a Complaint alleging injuries as the result of a motor vehicle accident which occurred on June 9, 2004. 2. Defendant filed her Answer with New Matter on April 21, 2006. Defendant's New Matter included (but was not limited to) an averment that Plaintiff's claim was barred by the Pennsylvania Workers' Compensation Act. 3. On or about May 26, 2006, Plaintiff filed her Reply to New Matter. 4. On June 22, 2006, Defendant received from Plaintiff's counsel an Order signed by Brian G. Eader, Worker's Compensation Judge, attached hereto as Exhibit "A." 5. The Worker's Compensation Judge found as a Conclusion of Law that Plaintiff's, "disability was caused by her underlying left shoulder condition, and not the June 9, 2004, motor vehicle accident." See Exhibit "A," Conclusion of Law #3. 6. Defendant did not have the information from the worker's compensation case available to her at the time she filed her Answer with New Matter on April 21, 2006. i AL 7. In light ofthe foregoing discovery, Defendant seeks to amend her Answer with New Matter to include the New Matter affirmative defenses of res judicata and collateral estoppel. See Amended Answer with New Matter attached hereto as Exhibit "B." 8. Defendant sought concurrence from Plaintiff's counsel to amend her Answer with New Matter by letter dated October 2, 2006, attached hereto as Exhibit "C." 9. Plaintiffs counsel did not concur with Defendant's request to amend her Answer with New Matter. WHEREFORE, Defendant Shirley Porter hereby requests this Honorable Court to grant her leave to amend her Answer with New Matter to include the affirmative defenses of res judicata and collateral estoppel. MARTSO1 DEARDORFF WILLIAMS & OTTO By V George aller, Jr., s? I.D. Number 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: /, Attorneys for Defendant Rt CVCItD PAPER tol -1111-1 'fir-)(4 V J` t " 17 L JUN-22-2006 11:11 PROM:SHOLLENGERGERSJANUZZ 723 7_7400 LTR-005 REV 09(03100 ACo1wt NWEALTH OF Pe ?Sn.VA.VA DEPART ENT OF LABOR AND INDUSTRY WORICI P COMP NSATION OFFICE OF AMUDICAnON 7141-793-4410 DIANE X MILLIIlt 9 nr LOCUST ST 102 SHIRMANSTOWN PA 17011 TO:7112431350 1V. 17 L Cieculaden Date; 02/09/2006 AMEIYDEUIGOMCTM D3RCISION COVER LETTER Burrnu Claim Nnnnber: 2665348 lmarer Claim Number: 00566003674NVC03 Petitions: Penalty-Pet Pet-To Reinstate Compmsadon Bmefits DIANE MCAE.LLN 9 N LOCUST ST 102 SHME MANSTOWN, PA 17011 TIMOT14Y J YL NCHER ESQ SMGEL ANDERSON 8t SACKS LLF RWER CHASE OFFICE CTR 3 RD FL 4431 N FRONT ST HARRISBURG FA 17110 vs i111rIS HOST CORPORATION PA TURNME _110UPOST 249 7 MWDL TOWN, PA 17057 FRANCIS P. M7SIMiv10NS, ESQUIRE POST & SCHELL PC PO 130X 10248 LANCASTER, PA 17605.0248 ESIS 1VC PO BOX 15527 1 BEAVER VALLLY RD WILMINGTON, DE 19850 GALL AGHER BASSETT PO 30X 1508 MT LAUREL, r1J 080540000 1C uq Date: 06/0911004 Judge: Brian EBdlet East cxw Ceater 1010 North Seventh Street Harrisburg„ PA 17102-1400 The, d=hed Decision of the Judge is fwal =less an appall is taken to the Wark m' Compensation Appeal Board as provided by law. If yon do mat agree with this Decik m. an appal ram be Hlad wit& dtc Workers' Compambou Appeal Board within 20 days of the date of this notice. Forms for as appeal may be obtained ftm the Workc& Compmsation Appeal Board, Capital Associates Building 901 Forth Seventh Street Tbird Floor South Harrisburg, PA 17102 Auxiliary aids and services art available upon request to individuals with dtsabilities. Equal Opportunity Employer/Prop= 'age I of 3 EXHIBIT "A" P. 3/13 JUA 22-2006 11:11 FROM:SHOLLENBERGER&JANUZZ 728 3400 TO:7172431850 P.4/13 .UF, IZ. zv,.,U i •U1rl.n V Gr i II vv _ CMUONWEALTH OF PV NSYLVANIA jswC LEGAL DTV 1171 S. CAN ERON STREET ROOM 3 2,, HL R SBURG, PA 17104.2501 DIANE.MCMILLFN - 2665148 Auxiliary aids and savice8 a e available Won zequed to individuaU with disabibties. Equal OPP=nty Employer/ProVm PaRc 2 of 3 JUN-22-2006/11:11 FRCM:SHOLLENSERGER&JPNUZZ '28 3-ioa .Emplm•ee Vii esm & Exbitits: None Fm loo witness XjMbity, None 8t E . eM B-01 7/15/ NCP Em by- otmse messes & h C-01 10/30/04 Letter from Attamey Yunckcr to Burcau C-02 Statement of Wages prepared by Claimfmt C-03 6/W04 Letter C-a4 6/18/04 I=cr C-05 Crocker Letter C-06 11/15/04 Letter C-07 12/8/04 Letter C-08 Fee Agrecme:at C-09 4119/05 Depo. of Dr. HoLeakik C-10 511810$ IDepo. of Dr. Richwine C-11 6/7105 Depo, of Dr. Gokz C-12 Costs of litigation C-11 Application for Quantum Merest Employer Coansel yjtumses & XWbi D-01 10/6105 Depo - Mchael Mib is k, D.0, D-02 Request for Information go-digs: 5/2/200515:00:00 Held 3/15/200515:35:00 Held 3/15/200510:05:00 Postponed 2/8/2005 09:35:00 Held TO:7172431850 F.5/13 . . DIANE ?4CMILIJN - 2665348 by Employee Counsel on 42/24/05 Awaary aids and services are available upon request to individuals with disabgities. Equal Opportuaity PmployaMrogram Page 3 of 3 JLN-22-2006 11:11 FROM:SHOLLENBERGER&iPNU2Z 728 3400 Diane McMillin PAgWC Claim #2665348 Reinstatement/Penalty Page 1 of a AMENDED ORDER: T0:7172471850 P.6/13 IV. 1" , J . J . Pursuant to the authority RANTED under Section 131.1*1s of the Speciol- rules of Adatlnistrative Practice and Procedure, the JucWs Order circuloftd on Jamwry 27, 2006 is amended to include the complete list of e*Jbits. NN0I1W5 OF FACT: 1. Claimant in this matter, Diane McMillin,'wos involved in a traffic accident on- 'her way to work on June 4, 2004 at which 'time she allegedly suffered injuries in the•noture of o left knee, arm and hip contusion. 2. . Claimant was out of work from June 9, 2004 through June 20, 2005,;. She returned to work with limited hours from June 21, 2004 through July 1, 2004, when she returned to work in a full-time capacity. 3. ClWmant was then off work from October 28, 2004 through November 22, 2004. ,. 4.: Claimant underwent surgery to bar left shoulder on January- 20, 2005, and was . again out of. work until April 4, 2005, when she again, returned to work with restrictions. 5. In. ebruary 2005 Claimant filed a FWA'statement Petition seeking to have her benefits reinstated. Defendant filed a timely and responsive Answer to this Petitior4 At the first hearing in this matter it came to Ilght that a Notice of Compensation Payable had been issued in this matter, however, the I+ICP wad rejected by the Bureau, end therefore` there was ne+?er a formal acknowledgment of the alleged injury. Claimant has Indicahd ; that in light of the failure of the Bureau to accept the NCP that the Reinstat?e,tieht' ` Petition would be treated as a Claim Petition. 6. Claimant's average weekly wage. was $679.65 with a corresponding compemation rate of $453.10. 7. CWnwt testified, that on June 9, 2004 she drove to work, parked her car on the far side of the lot, approximately V10 of a mile from the entrance to the Ernployor,,=4 was walking across the parking lot when another employee came around the corner'of 'the.; parking tot and struck her with the front of her car. Claimcit indicated that it takes her approximately ten minutes to walk from where she. parks her ccr to the entrance of her JUN-22-2006 11:12 FRON:SHOLLENBERGERUTnNUZZ 728 3.400 Jr;v>r i lO Diane McMillin PABWC Claim #2665348 Reinstatementlperm.1ty Page 2 of 8 T0:7172,431850 P.7/13 Employer. She confirmed that the earliest she could have been at.her'desk.thai morning would have been at 6:45 a.m. based on the length of the walk into the building. e. Claimant testified that her hours of employment were from 7,00 a.m through 3:00 p.m., and that the accident occurred at 6.35 mm., 25 minutes prior to the beginning of her shift. 9. Claimant confirmed she was not paid when she arrived on the Employer's premises,. hL a only once she went in and sat down at her computer, 10. Claimant stated "yes, it was on my way gaing to work . I was aGtunlfy` cri the, Employer parking lot when it happened; yes." 11. Claimant testif ied that once she eaters the building she goes in and immediatefy sits down at her desk and begins working with no other duties which require her to. be in the parking lot or elsewhere on the Employer's premises prior" to.beglnning her duties as an administrative assistant. 12. Claimant alsa testified that it was a clear and sun ny day, and that the the parking lot was clear and dry,:'' 13. Claimant testified that after she was struck she flew through the air, and larded on her left side, and rolled over at feast four times before she came to rest. Claimant refused an ambulance, went in to work, filled out an accident report and wadttd for a fellow employee to call her manager before finally agreeing to go to the hospital. 14. CWmant was taken to Carlisle Regiondl Medical Center, and indicated, she, i bruised on the rot and left side and she had injuries from her neck d own, unable to prove her arms, accept any weight and was limping. Thehospital took x-rays?nf her left arm and knee, and sent her home. Claimant did not go to work, or to a doctor-on , June 10, 2004, but kept a regular, previously scheduled appointment with her family doctor on June 11, 2005. 15. Claimant alleged she `limped" into his office that day, and could not move her arm She also indicated he sent her for an x-ray of her pelvis because she was having difficulty moving her left leg. Claimant underwent several diagnostle studies,. and was rieferivd;t*:,-i-,, Dr. Holencik 16. Claimant was out of work June 9, 2004 through June 21, 2004 when she returned JUA-22-2006 11:12 FRGM:SHULLENBERGER&JAHU3Z -28 3400 TO:7172431850 P.8'13 F rhp „!1. [L. LlIvD i:'t•'? ?'3 -f L ., ti;•i:.R-b .i,?`•:' Diane McMillin PABWc Claim #2665348 Reinstatement/Penalty - Page 3 of 8 to work part time, ahd on July 1, 2004 she returned to work in a full-time capacity.:. , Claimwt was removed from work again on October 28, 2004 through November 22, 2004:.. '.: Cldimant went out of work again on January 20, 2005, at which time she underwent surgery on her left shoulder for repair of a tarn rotator cuff. Claimant returned to work on April 5, 2005. 17.. Claimant submitted several pieces of correspondence regarding the accident that occurred on June 9, 2004. Defendant raieed hearsay objections to various notes from Dr. Richwine regarding his restrictions and limitations. They were not properly verified during Dr. RiChwine's deposition, and are rejected as hearsay. .18. The emergency room records from Carlisle Regional, indicated that Claimant suffered -a minor MVA, dad contusions of the left knee and elbow, and did not merntiah .shoulder, cervical or lumbar Injuries. 19. Dr. Mark P. Holendk first saw Claimant on September 14, 2004; dr. Holencik indicated that Claimant was referred by her family physician who had asked him,to . address her neck pain, shoulder pain, radiating arm pain and backrche mid a left.#; ;.. injury,. In reviewing Claimant's history she did not admit to rY any relevant other than a lower back injury some 17 years prior. y 20. Dr, Holeacik perfdomed an examination of her left knee, shoulder and cervical area, and based upon his examination, his review of the rnedtcal records and the hstory he obtained from the-Claimant, he diagnosed her as suffering, front glenoid humital instability in +e :left shoulder, a cervical sprain/strain, and a sprained left knu with a torn posterior crudate ligament and co-existing medial meniscal teor' and a lutnix r. " strain/sprain with left sciatic radiation, Dr. Holenclk noted Claimant hod a eA ... :? _. loculated calcium deposit of calcific tandonitis in the supraspinatus tendon and Q :toNi?' rotator cuff. Dr. Holencik indicates that all of. his diagnoses are related to her Jame •916 2004 traffic accident. 21. He referred 'Claimant to an orthopedic surgeon to repair, the tear. He also ittdic4ted that claimant had significant degenerative dwnges in her cervical spine, and . possibly some traumatic injury ds well.. Dr. Holencik admitted that her left shoulder calcif is tendonitis -probably did not occur in three or four months, but th4t_the"16rd rotator cuff was the product of the accident. 22. Dr. Holencik indicated that he realized there were several degenerative Issues at JUh+-22-2e06 11:13 FROM:SHOLLENBERGER&JANUZZ 728 3400 ' .L iLL??'JC ?'IC4?? Dray -r 4') r Diane McMillin PA8WC Claim #2663348 ReinstatementlPenal ty Page 4 of 8 TO: 7172431850 141.). L f I J P. 9/13 ?. V - '14 work in her cervical spine',,shoulder and lumbar spine prior to the June. 9, 2004 incident. hk also confirmed that the . Cicirmant would have experienced all of the injuries he described immediately upon being struck by ths_car, and would have developed all of .140 significant pain within two to three days. 23, Dr. Holencik indicated he authored ma' notes, and offered no,oplnions removing Claimant f rom work at any time. 24. Dr. William Richwine hag been treating Claimant since February 2000. Dr. Richwine first saw Claimant for her alleged work-related Injuries on Time. 11, 2004. He initially diagnosed her with a fall acid contusion of the left knee, pelvic ubiquity,.lumboiaeraI s! '? , ?. i at .They ?. and 5 rad'culopa by a was no mention of shoulder problems, 25. Dr. Richwine indicated he. provided no note removing. Claimant. from work from June 11" through the 17+h, but did provide her with a release to return half days beginning on June 17*, and to full duty in one week 26, Ow. Richwine saw Claimant on July 23, 2004 at 'which point she described being back to her old self and generally doing better. Claimant ,tide no mention of any. shoulder = . pain, up until this point, and be. Richwin" note of July. 23, 2004 indicated"o`fi motion without difficulty. In the left shoulder. 27. On October 27, 20041 Claimant for the first time cam, plO ned of ongoing pain in her shoulder and neck. She also indicated she had been stretching her left knee, and had hyperextended it causes an ina4me in her pain.* When he saw her.ng4in on November 11, 2044 her shoulder was much improved, but not completely resolved. 28. Dr. Richwine believed that Al of Claimant's complaints were related to the occid ni:: , of June 9, 2W4. He also indicated that Clainwt was removed from Mrork in?pc t*vember 2004 because of her incraased pain, which he attributed to the accident; specifically difficulty sleeping because of her shoulder symptoms 29. Dr. Richwine confirmed that Initially Clainwt reported no pain or injury to her left shoulder, and that in the emergency room no x-rays. were performed on her left shoulder. He confirmed that the ER noted only left knee and left elbow contusions following the accident of June 9, 2044. He also indicated that the anatomical drawing only noted. injuries in the elbow and knee, and not in the neck, shoulder or lower back. He`olea t ,r - .r,,• ? F. that the ER had indicated this was-o minor injury. ` t M .. JAN-22-2006 11:13 FR0M:SH0LLEN0ERGER&JAhU7Z 728 7400 TO:7172431850 P.10/13 ,;;1. ?1 L;(111 i.,,0J,aV?' i' GG 1J. :µ;J I, 7 Diane McMillin PABWC Claim #2665348 Reinstatement/Penalty Page 5 of 8 30. Despite the absence of the word shoulder, or any specific complaints or diagnosis of any injury to the left arm, Dr. Richwine testified that he may have lumped n11 of her complaints under the term left arm, and not bothered to set forth any -specific description of pain or injury in the shoulder, Dr. Richwine then indicated that he doe 'ndt know when Claimant developed the calcif is bursitis in her left shoulder. 31. Dr. Richwine's treatment records from December 12, 2001 indicdte_ that he had been treating the Claimant for calcific bursitis in the right shoulder, and indicated she . was beginning to develop the same condition W her left shoulder; Dr. Richwine indicated he did not recall her having any left-sided condition, ad lndlcated the reference to left shoulder problems was either a typo, or he misspoke. Or. Richwine also admitted that the calcific bursitis in 2001 could lead to an lnterna) derangement of.the shoulder., and a tort r rotator cuff. He also confirmed that on May 14, 2004 (prior to her accident); seen for re-existi neck and lower back roblams. • Fi Richwl 'k was p ng p rally, Dr. ne corrfir-ie? that after November 2004. he allowed the other doctors to supervise her. work ' restrictions. . 32, Dr. Curtis 6oltz first saw CWmmt in October of 2004, at which time he reviewed Ckdmont's history, performed an examination, and reviewed an MRY showing a partial thickness tear of the supraspinatus tendon of the rotator cuff, 33. Based on the diagnosis, Claimant underwent an open acromio los , VOW ofd 3 ?Y; grade partial thickness rotator cuff tear, and manipulation under anesthesia of far .1? ` shoulder. Following the surgery she. Nlowed a normal course, of past-op care. 34. Dr, Goltz kept Claimant off work from January 20, 2005 through.April 4, 2005 when she was allowed to return to work in half days, and on April 18, 2005 she was released to work in a full-time capacity. It also appears that Claimant ryas reduced to a six. and a half hour workday in March 2005, and then, returned to work full-time again in may. 35. Dr, 6oltz indicated that based on what Claimant told him it appew ed her It t shoulder problems were related to her June 9,.2004 MVA. Dr. Goltz confirmed he had seen no records from Dr. Richwine, from the Carlisle Hospital ER, or of any of her treatment from June 9, 2004 through when he began treating her. 36. Dr. "tz testified that someone with a torn rotator cuff would experience weakness with abduction of the shoulder, weakness with forward elevation, pain with full JUN-EE-2006 11:13 rROM:SHOLLENEERGER&JANUZZ i28 3400 2 2. Diane McMillin PASWC Claim #2665348 Reinst Bement/Penalty Page 6 of 8 T0: r1?243185E1 P.11/13 I forward f lexion and internal rotation. Dr. roltz indicated he believed, based upon. the history related by the Claimant that she tore her rotator cuff on.June' 9, 2004, and that she would have had some symptoms from June when she was struck by the car through October when hi first treated her. He further indicated that she would haws had. sotne -symptoms .from the time she tore hat natator cuff, and would have realized that she had torn it. There is nd evidence she had these complaints ari the time of injury, 37. br. Michael F. Mitrick performed an. Independent Medical. Evaluation, oh - the' Claimant on June 1, 2005. Prior to the 'examination, Dr. Mitrick reviewed numeroU$ medical records predating her MVA on June 9, 2004. A Or. Mitrick noted that the records of Dr. Richwine revealed that Claimant had been treated for*inonY of the same complaints she was crow alleging arose from the MVA prior to Tune 9, 2004. Specifically she had prior complaints of neck problems, low back problems, left ii= problems, and some left shoulder complaints from 2000 through 2004, On February 22, 2004 she was treated for neck pain and multiple draw of.aric' tt; dysfunction. She was treated again on March 2, 2004 suffering cranial, cervical, thor4i';tr? lumbar, pelvic sacral rib and upper extremity somatic dysfunction. This was true pin, 0. March" 23, 2044, May 3, 2004 and May 14, 2004. 39. Following June 9, 2044 br, Richwine diagnosed Claimmt as suffering only a contusion of the left knee and a kn?bosacral strain, In visits on Juice 17, 2004, tune •23, 2004 and Jura 30, 2004, Claimant continued to have a diagnosis of the multiple somatic problems that predated the MVA, but still no mention of any left shoulder problems or injuries. 40 'Dr. Mitrick indicated it was important to note the absence of any shoulder-: complaints contemporaneous to the actual date of injury. Or. Mitrick also reviewed diagnostic studies, including an MAX on June 15, 2004 which revealed a slight disc bulge at L4-5, but not a full herniation or annular tearing as diagnosed bar tht radiologist. 41. Based upon the physical exmination, Claimmt's medical history, and his discussion with the Claimant, Dr. Mitrick. concluded thou the MVA caused a temporary aggravation her neck and low back, but that as of the date of his exurilnation she had rreturnrd' `?t- pre-injury base line as set forth in her medical records. He did not believe, she tore.:`Af ;'' anything in her left knee during the MVw, but rather that she has degener6 ive changes in both knees, and that her shoulder injury was based on her left shoulder impingement, and not the June 9, 2005 incident. zEij-22-2006 11:14 FROM: SHOLLENBERGER&ITANUZZ 728 2400 T0:7172431850 P.12/13 ` Ur.. AM Diane McMillin PASWC Claim ##2665346 Reinstater?tie?tfPenalty _ ...:. - . ; .: Page 7 of 8 .,• _ t,,?;. ; , 42, T1+a testimony offered by the Claimant with regard to how the Funs 9, 2004 motor vehicle accident occurred is found to be credible, however her description of these verity. of her injuries; and her ongcing complaints are not credible as they are contradicted by thi medical records discussed during the depositions of both Claimant's and Defendant's . expert witnesses. 43. The testimony offered by Dr. Mitrick is more credibla than that offered by Dr. Holencik, Dr. Richwine, and far. 6oltz. Dr. kolencik and Dr. Goltz both admitted to.;..W- having reviewed the inedicai records contemporaneous with Claimant's alleged injuries, and relied inste4d solely on the Claimant's •version of events, and their physical findings four months after the June 9, 2004 incident as the basis for their opinions, Dr. Rlchwine rejected the contemporaneous notes, of which he •dictated, in concluding that the. Claimant's injuries were caused by the MVA when in fact his records. clearly show that her zervicai, lumbar and knee conditions pre-dated the MVA, and that her shoulder injury did' not occur as a result of the MVA,, but rather was the result of a pre--existing colcific bursitis which had begun developing in December 2001; as per his off ice records... :, ? :: ir ,film coNCWSIONS of LAW: L The parties dra bound by the provisions of the Pemsylvola Workers' Compensation Act; as wwded. 2. The claimant failed to melt her burden of proof under her Claims Petitio- as she was outside the course of her employment at the time the June g, 404 MVa.fao`k` as she was in the process of commuting to work when she was struck by the oncamirtg Borne 15 to 25 minutes prior to the beginning of her assigned shift. Claimant's occiderit ' was clearly not caused by a condition of the premises where it took place. 3. Clainmt failed to offer medical evidence in support of a compensoble period of disability as her disability was caused by her underlying It". shoulder condition, and not the . June 9, 2004 motor vehicle accident: For the reasons stated above, Claimannt'8 Reinstatement/Clahn/Penalty petitions Petition are denied and dismissed. 4. As Claimant was unsuccessful under her Petitions, both parties shall bear their own' costs of litigation. 5. Defendant's contest in this matter has been reasonable; therefore no unreasonable OLLENBERGERSJPNUZZ EB X400 4 FROM:?NSH ju `-`E-E©U6 11 1 ; . t ; . i n. i L. TO:i1i2?3iSSO ' P. 1:5'13 biane McMillin PAawc C1a+M #2665348 Reinstatementip"Ity p 8 of 8 assawsed 09071nst the to be :...??..?..contes't' aitorn?j fetes or ??ties are ' - _- . matter. 4RlR and Patty Petitions this 27` day of January 2006, AND NOW, are denied and dismissed. Brian 6. [-cider ton Judgt Wort el t, CO np t s '% V .s RECYCLED PAPER 11 RECYCLABLE jt? xhib1,1'"13 r 1 s FA IL[S'•D.?T.-AIrILC`,Vr,+v"?s,?,??St,C.n Cre.i:ed '0 JJ i? r.,PyI -1 z- G George B. Faller, Jr., Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. No. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant DIANE McMILLIN, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SHIRLEY PORTER, Defendant NO. 06-1173 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S AMENDED ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT TO: DIANE McMILLIN, Plaintiff, and her attorney, TIMOTHY A. SHOLLENBERGER, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW comes Defendant, Shirley Porter, by and through her attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby responds to Plaintiff's Complaint as follows: 1. After reasonable investigation, the Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments contained in this paragraph. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Denied as stated. Plaintiff extended her hand onto the front of Defendant's vehicle and then fell over. Therefore, since she was not "thrown up in the air" she could not have come "crashing down." 5.-18. Denied pursuant to Pa. R.C.P. 1029(e). EXHIBIT "B" v r y `VHEREFORE, Defendant, Shirley Porter, respectfully requests that this Court dismiss Plaintiffs Complaint with prejudice and enter' udgment in her favor. NEW MATTER 19. The averments of paragraphs 1 through 18 of this Answer are incorporated herein by reference. 20. At the time of the accident referred to in the Complaint, the parties were both in the parking lot used by all employees of their employer, HMS Host. 21. The parking lot was where HMS Host employees were required to park. 22. The parking lot is only used by HMS Host employees who work at the Plainfield Service Plaza of the Pennsylvania Turnpike. 23. Within 15 minutes after the accident, both the Plaintiff and the Defendant punched in for work with their employer, HMS Host. 24. The Plaintiff s recovery is barred or reduced by the Pennsylvania Motor Vehicle Financial Responsibility Law as amended. 25. Plaintiffs or their representatives chose the limited tort option by signing a valid selection form. 26. Plaintiffs' injuries do not involve death, serious impairment of bodily function or permanent disfigurement. 27. Plaintiff's claim is barred by the Pennsylvania Workers' Compensation Act. 28. Plaintiff's claim is barred by the doctrine of res judicata. 29. Plaintiff's claim is barred by the doctrine of collateral estoppel. WHEREFORE, Defendant demands judgment in her favor and dismissal ofPlaintiff s Complaint with prejudice. Respectfully Submitted, Date: MARTSON DEARDORFF WILLIA?41S & OTTO George B. Faller, Jr., Esquire I.D. No. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 By. Attorneys for Defendant f VERIFICATION The foregoing Amended Answer is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. l have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of IS Pa. C.S. Section 4904 relating to unswor falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. Shirley Porter F -FILES\DATAFILE!Progressive783TCuRCnt\197amendansI ' , 3 CERTIFICATE OF SERVICE I, Arni J. Thun-una, an authorized agent for Nlartson Deardorff Williams & Otto, hereby certi fy that a copy ofthe foregoing Defendant's Amended Answer with New Matter to Plaintiff's Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Timothy A. Shollenberger, Esquire SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 MARTSON DEARDORFF WILLIAMS & OTTO By Ami J. Thumma 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: LvID V - 0 October 2, 2006 Timothy A. Shollenberger, Esquire SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 RE: Diane McMillin v. Shirley Porter No. 06-1173-Cumberland County C.C.P. Our File Number: 7837.197 Dear Tim: t: I further reviewed the information that was supplied regarding Diane McMillin's workers' compensation case. Since her workers' compensation case was not appealed, we are left with a final judgment that says her disability was caused by her underlying left shoulder condition and not the June 9, 2004 accident. I would, therefore, like to amend our Answer to include res judicata and collateral estoppel. This was obviously not information that I had at the time of filing the original answer and I feel this would barr Ms. McMillin's claim. Please contact me as soon as possible to let me know your position on the amendment to the Answer. I obviously am not asking you to concur with the viability of the Answer, but just the fact that I may raise it at this time. In the meantime, ifyou have any other questions, please give me a call. Very truly yours, MARTSON DEARDORFF WILLIAMS & OTTO GBF.,nlm cc: Ms. Michelle Shank (043117492) F FILES D,ITAFILL'Pr,igresarve733T(1tRent`1-o7 7 George B. Faller, Jr. EXHIBIT "C" .0 1 P a VERIFICATION George B. Faller, Jr., Esquire, of the firm ofMARTSON DEARDORFF WILLIAMS & OTTO, attorneys for Defendant Shirley Porter in the within action, certifies that the statements made in the foregoing Petition to Amend Answer with New Matter are true and correct to the best of his knowledge, information and belief. He understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. W4 . i CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Petition to Amend Answer with New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Timothy A. Shollenberger, Esquire SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 MARTSON DEARDORFF WILLIAMS & OTTO By (717) 243-3341 Dated: 1 (,1 Carlisle, PA 17013 t ? ?' C? ?,... ?:: ? ?„ -r? _ ? -? t t- ? . ? ' rz -? ? ___ .z, ? _. ?; ` --? _;; _ _._i . ? ::_ _ •-G DIANE MCMILLIN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW NO. 06-1173 CIVIL SHIRLEY PORTER, Defendant JURY TRIAL DEMANDED IN RE: PETITION TO AMEND ANSWER WITH NEW MATTER ORDER AND NOW, this /0' day of October, 2006, a rule is issued on the plaintiff to show cause why the relief requested in the within petition ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, 41 Kevin . Hess, J. v ro to 1 ?!} ' t i tip: SHOLLENBERGER & J ANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff DIANE McMILLIN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. SHIRLEY PORTER, Defendant NO. 06-1173 CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER TO DEFENDANT'S PETITION TO AMEND ANSWER Wl't1I NEW MATTER AND NOW COMES THE PLAINTIFF, DIANE McMILLIN, by and through her attorneys, SHOLLENBERGER AND JANUZZI, LLP, respectfully files this Answer to Defendant's Petition to Amend Answer with New Matter, and in support thereof, avers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. The Order speaks for itself. Importantly, the Judge found that the claimant was outside the course and scope of her employment, rendering moot the issue of whether or not her disability was caused by her underlying left shoulder condition and not the June 9, 2004 motor vehicle accident. r? 6. Denied. After reasonable investigation, the Plaintiff is without knowledge sufficient to form a belief as to the truth of said averment and therefore said averment is denied. 7. It is admitted that the Defendant seeks to amend her Answer with New Matter and it is denied that she should have the right to do so. 8. Admitted. 9. Admitted. WHEREFORE, the Plaintiff, DIANE McMILLIN, respectfully requests that this Honorable Court deny the Defendant's Petition seeking leave to amend her answer with new matter to include the affirmative defenses of res judicata and collateral estoppels. By: Date: 10, ?) () f 06 Respectfully submitted, SHOLLENBERGER & JANUZZI, LLP Attorneys for Plaintiff Attorney LD ?' [_ t. ? =? C? =T1 -?^^t ? . ' L .?'^° vjti ? ? ? . t?! r?? .. ''? ?._. ? SHOLLENBERGER & J ANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff DIANE McMILL1N, Plaintiff V. SHIRLEY PORTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1173 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE +h AND NOW, this 10 day of October, 2006, I hereby certify that I have served the following Answer to Defendant's Petition to Amend Answer with New Matter on the following, via U.S., first-class mail, postage prepaid: George B. Faller, Jr., Esquire 10 East High Street Carlisle, PA 17013 Respectfully submitted, SHOLLENBERGER & JANUZZI, LLP Attorneys for Plaintiff By: 44&v_jl&? Ti othy A. hol enberger, Esquire Attorney I. . #34343 Date: ? ?/ i o - 06 C} ? C7 CYp ° `z"t Ij p -I C;-, N yr' ?o PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in.full) DIANE McMILLIN (Plaintiff) vs. SHIRLEY PORTER (Defendant) No. 06 1173 'T'erm 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Petition to Amend Answer 2. Identify counsel who will argue cases: (a) for plaintiff: Timothy A. Shollenberger, Esquire (Name and Address) 2225 Millennium Way, Enola, PA 17025 (b) for defendant: George B. Faller, Jr., Esquire (Name and Address) 10 East High Street, Carlisle, PA 17013 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4, Argument Court Date: ire mnt your name Shirley Porter, Defendant Date: November 2, 2006 Attorney for r"s GD •? DIANE MCMILLIN, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1173 CIVIL V. CIVIL ACTION - LAW SHIRLEY PORTER, DEFENDANT JURY TRIAL DEMANDED IN RE: DEFENDANT'S PETITION TO AMEND ANSWER WITH NEW MATTER BEFORE OLER J., GUIDO, J., AND EBERT, J. ORDER OF COURT AND NOW, this 6th day of December, 2006, after consideration of Defendant's Petition to Amend Answer with New Matter, the Plaintiff's Answer thereto and after review of the briefs filed by the parties and argument, IT IS HEREBY ORDERED AND DIRECTED that the Petition is GRANTED in part and DENIED in part. The Defendant will be allowed to Amend her Answer with New Matter to include the Affirmative Defense of Collateral Estoppel; however, the Defendant's Petition is DENIED with regard to adding the Defense of Res Judicata. By the Court, Timothy A. Shollenberger, Esquire Attorney for Plaintiff George B. Faller, Jr., Esquire Hillary A. Dean, Esquire Attorneys for Defendant N\ M. L. Ebert, Jr., J. 1 to 3-30 9001 ,? 1f 1 { 1 7 1 t ., "Hi JO ,1..4e1 ?w .JI F:\FTLEWlients\Progressive7837\Cwrent\ 197\7837.197.pet l.wpd Created: 9/20/04 0:06PM Revised: 5/28/08 2:57PM George B. Faller, Jr., Esquire I.D. No. 49813 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant DIANE McMILLIN, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SHIRLEY PORTER, Defendant NO. 06-1173 CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION OF DEFENDANT TO JOIN PLAINTIFF'S WORKERS' COMPENSATION CARRIER AS AN INTERVENING PLAINTIFF AND NOW comes the Defendant, Shirley Porter, by and through her attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and hereby files this Petition as follows: 1. Plaintiff, Diane McMillin ("Plaintiff'), is an adult individual who currently resides at 9 North Locust Street, #102, Shiremanstown, Cumberland County, Pennsylvania 17011. 2. Defendant, Shirley Porter ("Petitioner"), is an adult individual who resides at 1177 Easy Road, Carlisle, Cumberland County, Pennsylvania 17013. 3. ESIS, Inc. ("Proposed Intervenor") is a corporation with a principal office address at P.O. Box 15527, 1 Beaver Valley Road, Wilmington, Delaware. 4. Plaintiff's Complaint alleges that Petitioner struck Plaintiff with her vehicle as Plaintiff was walking into work at the Pennsylvania Turnpike Plainfield Service Plaza on June 9, 2004. 5. On June 9, 2004, Proposed Intervenor was the workers' compensation carrier for Plaintiff's employer. 6. Following Plaintiff's alleged injuries, Proposed Intervenor paid money to Plaintiff without either acknowledging her injury or filing a Notice of Compensation Payable. 7. Thereafter, when Plaintiff submitted additional bills to Proposed Intervenor, she was forced to file both a Claim Petition and a Reinstatement Petition. 8. The Workers' Compensation Judge held, inter alia, that Plaintiff was not injured in the scope of her employment. 9. Proposed Intervenor is now asserting a lien for workers' compensation payments made to Plaintiff. See correspondence from Francis P. Fitzsimmons, Esquire to Timothy Shollenberger, Esquire dated August 17, 2006, which is attached hereto as Exhibit "A." 10. If Proposed Intervenor has a valid lien against Plaintiff, then Respondent would be entitled to receive at least a portion of any recovery Plaintiff receives from Petitioner. 11. Both Plaintiff and Petitioner deny the existence of a valid workers' compensation lien since Proposed Intervenor voluntarily made payments to Plaintiff in the form of a gift. 12. In the interest of judicial economy, Proposed Intervenor should be joined as an intervening plaintiff in this matter. 13. Proposed Intervenor should be required to file the attached Petition to Intervene. A copy of the Petition to Intervene is attached hereto as Exhibit "B." 14. Counsel for Plaintiff concurs in this Petition. 15. The Honorable Judge M.L. Ebert, Jr. previously ruled on Defendant's Petition to Amend Answer with New Matter. WHEREFORE, Defendant's Petition to Join should be granted, and ESIS, Inc., should be required to file a Petition to Intervene. MARTSON LAW OFFICES By: ?• /?y? George B. Faller, Jr., Esquire I.D. No. 49813 Seth T. Mosebey, Esquire I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: May 28, 2008 Attorneys for Defendant C R -,A. PAPER RFCYCLARFF DOST& (?CHIELL,, A 1'1'O1! N l.) S AT I.A%V August 17, 2006 Timothy Shollenberger, Esquire Shollenberger & Januzzi, LLP 2225 Millennium Way Enola, PA 17025 RE: Diane McMillin v. HMS Host Corporation DOI: 6/9/04 Claim No.: 000566-003674-WC-01 Dear Tim: 1857 William Penn Way P.O. Box 10248 Lancaster, PA 17605-0248 717-291-4532 Main 717-291-1609 Fax www.postschell.com Francis P. Fitzsimmons fitzsimmons@postsch ell, com 717-391-4425 Direct 717-291-1609 Fax File #: 130258 Thanks for discussing this matter with me recently. As you know, I represent the workers' compensation carrier who paid $11,640.74 to the Claimant in medical bills. I understand that you have instituted a third-party action against the tortfeasor in this case. Please accept this letter as notification of our intention to try to get the comp payments back as the lien in this case. Please keep me advised of the progress of the third party action and do not distribute any proceeds you receive from the settlement or verdict from that claim prior to satisfying the above- referenced lien. I appreciate your cooperation and attention to this matter and if you need anything further from me, let me know. Very truly yours, FraYis 7Fiimmons I'PF:ssc Cc: Ms. Barbara Press, Gallagher Bassett AU G 18 2006 ALLENTOWN HARRISBURG LANCASTER PHILADELPHIA PITTSBURGH PRINCETON WASHINGTON,D.C. A PENNSYLVANIA PROFESSIONAL CJRPORATION Exhibit "A" OW RECYCLED PAPER % J RECYCLABLE DIANE McMILLIN, Plaintiff, and ESIS, Inc., Intervenor, V. SHIRLEY PORTER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1173 CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION TO INTERVENE 1. Plaintiff, Diane McMillin ("Plaintiff'), is an adult individual who currently resides at 9 North Locust Street, #102, Shiremanstown, Cumberland County, Pennsylvania 17011. 2. Defendant, Shirley Porter ("Defendant"), is an adult individual who resides at 1177 Easy Road, Carlisle, Cumberland County, Pennsylvania 17013. 3. ESIS, Inc. ("Intervenor") is a corporation with a principal office address at P.O. Box 15527, 1 Beaver Valley Road, Wilmington, Delaware. 4. Plaintiff commenced this action by filing a Complaint against Defendant on or about February 16, 2006. 5. Plaintiff's cause of action arises out of an incident on June 9, 2004, in which Plaintiff alleges that she was struck by Defendant's vehicle while she was walking into work. 6. Intervenor was the workers' compensation carrier for Plaintiff s employer on the date of the accident. 7. As a result of the accident, Intervenor alleges that it made payments in the amount of approximately $26,000 for Plaintiff's medical bills and lost wages. 8. Intervenor alleges that it has a right of subrogation with regard to the payments it made to Plaintiff. 9. Intervenor files this petition pursuant to Pa. R. Civ. P. 2327(4) because the determination of Plaintiff's suit may affect a legally enforceable interest of Intervenor. 10. If permitted to Intervene in this case, Intervenor will adopt, in whole or in part, the Complaint filed by Plaintiff on or about February 16, 2006. WHEREFORE, ESIS, Inc. requests that this Court issue an Order amending the caption to reflect that ESIS, Inc. is a Plaintiff in the above-referenced matter. Exhibit "B" CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Petition of Defendant to Join Plaintiff's Workers' Compensation Carrier as an Intervening Plaintiff was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Timothy A. Shollenberger, Esquire SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 Counsel for Plaintiff MARTSON LAW OFFICES By: 0 C,- Vt C189L4 Melissa A. Scholly Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: May 28, 2008 ?"°? ^,J _._ -, y _ {?.:} - ?- ---E ? -,- „ ???. _ „?,a - ? _ f . ,,, ?. ; ti ' DIANE MCMILLAN, PLAINTIFF V. SHIRLEY PORTER, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-1173 CIVIL ORDER OF COURT AND NOW, this 5th day of June, 2008, upon consideration of the Defendant's Petition to Join Plaintiff's Workers' Compensation Carrier as an Intervening Plaintiff, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Plaintiff and ESIS, Inc. (Proposed Intervenor), to show cause why the relief requested should not be granted; 2. The parties will file an answer on or before June 25, 2008; 3. The Prothonotary is directed to forward said Answer to this Court 4. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Defendant shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Parties file an answer to this Rule to Show Cause, the Court will determine if a hearing, status conference or further Order of Court is required. Timothy A. Shollenberger, Esquire /Attorney for Plaintiff Z Seth T. Moseby, Esquire George B. Faller, Jr., Esquire Attorneys for Defendant ,,/'ESIS, Inc. P. O. Box 15527 1 Beaver Valley Road Wilmington, DE 19803 M. L. Ebert, Jr., rwak, tqL qt./o - # By the Court, X14 'tv'VAIASN I -em 6c llwv 9..No F:\FILES\CIi-\ProgreSsive7837\Clatent\197\7837.197.pral.wpd Created: 9/20/04 0:06PM Revised: 6/26/08 7:51AM George B. Faller, Jr., Esquire I.D. No. 49813 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant DIANE McMILLIN, IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-1173 CIVIL ACTION - LAW SHIRLEY PORTER, Defendant JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW PETITION TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pursuant to correspondence of June 17, 2008, from Michael Boomsma, Esquire, a copy of which is attached hereto, confirming that Plaintiff s workers' compensation carrier is not asserting a lien in this case, please mark the Petition of Defendant to Join Plaintiffs Workers' Compensation Carrier as an Intervening Plaintiff withdrawn. MARTSTN LAW By: -/lZ4 ' ' Z4-? George B. Faller, Jr., Esy I.D. No. 49813 Seth T. Mosebey, Esquire I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: June 26, 2008 Attorneys for Defendant s, oST? \\0 P sCHELL, ATTORNET\ 4'f LAW June 17, 2008 Timothy A. Shollenberger, Esquire SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 Seth T. Mosebey, Esquire MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 RE: McMillan v. Porter Petition to Intervene Dear Counsel: 1857 William Penn Way P.O. Box 10248 Lancaster, PA 17605-0248 717-291-4532 Main 717-291-1609 Fax www.postschell.com Michael A. Boomsma mboomsma@postschell.com 717-391-4421 Direct 717-291-1609 Fax File #: 1751137301 I am in receipt of both Fran Fitzsimmons' August 17, 2006, letter to Tim advising of the assertion of a lien in the underlying workers' compensation action together with the Petition to Intervene filed by Seth in the third-party action. This is to advise that the workers' compensation carrier which paid $11,640.74 to Ms. McMillan in the underlying workers' compensation action will not be asserting a lien against any settlement or verdict in the third party action captioned Diane McMillan v. Shirley Porter, Cumberland County CCP, No. 06-1173. Accordingly, in light of this decision, this renders the Petition to Intervene moot. As we discussed, Seth, you are going to take whatever steps are necessary to withdraw this Petition. Kindly copy me on whatever filing you deem appropriate to accomplish this. Thank you for your attention in this regard. Please call with any questions or concerns. Very truly yours, Michael . Boomsma MAB\sm cc: Marion Yates (Claim No. 000566-003674-WC-01) Fran Fitzsimmons ALLENTOWN HARRISBURG LANCASTER PHILADELPHIA PITTSBURGH PRINCETON WASHINGTON. D.C. A PENNSYLVANIA PROFESSIONAL CORPORATION CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Praecipe to Withdraw Petition was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Timothy A. Shollenberger, Esquire SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Wav Enola, PA 17025 Counsel for Plaintiff MARTSON LAW OFFICES By. Melissa A. Scholly Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: June 26, 2008 `?-cti t ? ? ?` r' - ? ?? ...-- _; .• ?:? `'.?;e' ? '?.. `• F:\FILES\Clirnts\Pmgressive7837\Cur=t\197\7837.197.cert1/nlmn <. Created: 9/20/04 0:06PM Revised: 9/24/08 1:5 5 PM 7837.197 George B. Faller, Jr., Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant DIANE McMILLIN IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-1173 CIVIL ACTION - LAW SHIRLEY PORTER : Defendant CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, defendant certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, (4) opposing counsel has waived the twenty day waiting period from the Notice of Intent to Serve Subpoena, and (5) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. MART L F S By Ge . F er, Jr., Esqu' I.D. No. 49813 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: 9/24/08 Attorneys for Defendant 1 I ILLS C:.ams Proprs>n a-?t-'C.:iT?, tt :117?-?3- IQ- "Mai. 1 :curd. I _ __ a- 11: . i_t _J \M George B. Faller, Jr., Esquire .1:kRTSON DEARDORFF WILLIA?IS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant DIANE McMILLIN IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-1173 CIVIL ACTION - LAW SHIRLEY PORTER Defendant : JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. MARTSON LAW OFFICES By_ ? ?A George B. Faller, Jr., Esquir I.D. No. 49813 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Defendant Date: 9, 1 L 08 I' COMMONWEALTH OF PENNSYLV'AN'IA COUNTY OF CU?fBERL.A2\7D DIANE `101ILLI` v. SHIRLEY PORTER . File No. 06-1173 SUBPOENA TO PRODUCE DOCL'NIENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: William Richwine, D.O. (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: Your complete records of all services provided to Diane McMillin, D.O.B. 6/14/52, S.S.# 166-46-4307 and the billing for same, including without limitation all office notes, correspondence, memoranda, reports, forms, results of tests or studies (but no actual films), consultations, referrals and the like. at 10 East High Street, Carlisle, PA 17013 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: George B. Faller, Jr., Esquire ADDRESS: MARTSON LAW OFFICES 10 Fact Rich _q c- A 17011 tEL PHONE: ', _ SUPREME COU T #4 1 ATTORNEYFOR: Defendant BY THE COURT: Prothonotary, Civil Division Date: -- Sea of the C:uurt 7} 1? C `?1 it t'v CERTIFICATE OF SERVICE I, Nichole L. Myers, an authorized agent of Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Certificate Prerequisite to Service of Subpoena was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Timothy A. Shollenberger, Esquire SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 MARTSON LAW OFFICES By i?'? Mp- Nichole L. Myers Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: 9/24/08 ?.: ..a -- ?l -- ? i1 -r ? _? ; ?,, ? Y; w ?.? ...i F:\FILES\Clients\Progressive7837\Cu mt\ I 97\7837.197.pra2 Created: 8/1/05 2:47PM Revised: 9/29/08 3:40PM 7837.197 George B. Faller, Jr., Esquire I.D. No. 49813 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant DIANE McMILLIN, V. IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY PORTER, Defendant NO. 06-1173 CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND: Kindly withdraw the appearance of George B. Faller, Jr., Esquire and MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER on behalf of Defendant Shirley Porter in the above-captioned matter. B Dated: Cf ko ? 0 MARTS LAW OFFICES Y 2?' Georg . Faller,-Tf , Esquire I.D. No. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Enter the appearance of Joseph F. Murphy, Esquire and FORRY ULLMAN ULLMAN & FORRY, P.C., on behalf of Defendant Shirley Porter in the above-captioned matter. FORRY UI LMAN ULLMAN & FORRY, P.C. By J Suite 301 Harrisburg, PA 17110 Dated: j { (717) 441-9257 c°ac, n rlo ?c SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attornevs for Plaintiffs DIANE McMILLIN, Plaintiff V. SHIRLEY PORTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. O!D- 03 CIVIL ACTION - LAW JURY TRIAL DEMANDED CEfvT(F cATE OE SERV E AND NOW, this 27th day of January, 2009, 1 hereby certify that a copy of PLAINTIFF'S RESPONSE TO DEFENDANT'S REQUEST FOR PRODUCTION OF DOCUMENTS has been served upon the following via U.S. Mail, Postage Prepaid: Joseph F. Murphy, Esquire Forry Ullman Ullman & Forry, P.C. 2000 Linglestown Road Suite 301 Harrisburg, PA 17110 Respectfully submitted, SHOLLENBERGE' & JANUZZI, LLP By: VIAey Shollenberger, Esq. D . . # 34343 a c All Cl PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Diane McMillin, vs. Shirley Porter No. 06-1173 Term State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Timothy A. Shollenberger,Esquire, 2225 Millennium Way, Enola, PA 17025 (Name and Address) Joseph F. Murphy, Esq., 2000 Linglestown Rd., Suite 301, Harrisburg, PA 17110 (b) for defendants: (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. Yes. 4. Argument Court Date: October 14, 2009 Print your name Defendant Date: August 21, 2009 Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. ' I., Wk FORRY ULLMAN Joseph F. Murphy, Esquire Attorney I. D. No. 78119 2000 Linglestown Road, Suite 301 Harrisburg, PA 17110 (717) 441-9257 Attorneys for Defendant DIANE McMILLIN : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY VS. : NO. 06-1173 SHIRLEY PORTER Defendant : JURY OF TWELVE DEMANDED CERTIFICATE OF SERVICE I, Beth Myers, of FORRY, ULLMAN, attorneys for Defendant certify that the within documents were served, this date, by first-class mail, postage prepaid, addressed as follows: Timothy A. Shollenberger, Esquire Shollenberger & Januzzi, LLP 2225 Millennium Way Enola, PA 17025 I understand that the statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unworn falsification to authorities. FORRY ULLMAN BETH MYER EGAL DATE: g_ ol?-U 7 CAIAL RLI - OF THE j 2009 AUG 24 Pill 3? 37 FORRY ULLMAN Joseph F. Murphy, Esquire Attorney I. D. No. 78119 2000 Linglestown Road, Suite 301 Harrisburg, PA 17110 (717) 441-9257 Attorneys for Defendant DIANE McMILLIN : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY VS. :NO. 06-1173 SHIRLEY PORTER Defendant : JURY OF TWELVE DEMANDED MOTION OF DEFENDANT SHIRLEY PORTER FOR SUMMARY JUDGMENT 1. This civil action arises out of an automobile accident that occurred on June 9, 2004 at the Plainfield Service Plaza employee parking lot for HMS Host Corporation. (See plaintiff's complaint at paragraph 3; see also plaintiff's deposition testimony at 50- 51, which transcript is attached hereto as Exhibit A, including plaintiff's errata sheet). 2. The Plainfield Service Plaza is located on the Pennsylvania Turnpike, which is a limited access roadway. (Exhibit A at 51). 3. At the time of the accident, plaintiff was employed full time as an Administrative Assistant by HMS Host Corporation. (Exhibit A at 22, 25, 27, and 31). 4. At the time of the accident, defendant was also an employee of HMS Host Corporation. (See Exhibit A at 50-51). 5. At the time of the accident, defendant was pulling into the employee parking lot to report to work. (See deposition testimony of defendant Shirley Porter at 14, which deposition transcript is attached hereto as Exhibit B). 1 6. In the complaint, plaintiff alleges that she was walking in the employee parking lot when defendant Shirley Porter struck her, causing her to suffer various injuries. (See plaintiff's complaint at paragraphs 4-9). 7. At the time of the accident, HMS Host Corporation required its employees to park in the "employee parking lot" as a matter of policy. (See Exhibit A at 52). 8. The accident giving rise to this action occurred at 6:35 a.m. (Plaintiff's March 15, 2005 testimony before the Department of Labor and Industry at 22, which transcript is attached hereto as Exhibit Q. 9. Plaintiff testified that it normally took her approximately ten minutes to walk from the employee parking lot to the HMS Host building, and she would have arrived at her desk to begin work at approximately 6:45 a.m. (Exhibit C at 23-24). 10. Plaintiff testified that her normal work schedule was 7:00 a.m. to 3:30 p.m.; however, she was required to swipe a time card to clock in for work and was paid from the moment she arrived at work, whether she arrived at 6:30 a.m., 6:45 a.m., or 7:00 a.m. (Exhibit C at 22; Exhibit A at 59). 11. Despite the fact that plaintiff's scheduled shift began at 7:00 a.m., she usually arrived at work at approximately 6:30 a.m., and her supervisor was aware of that fact and would approve her "micro payroll and check logs," or time sheets, by signing them. (Exhibit A at 63 and errata sheet). 12. After parking her car at the employee parking lot at the Host, plaintiff would walk through the lot, through the walkway and into the front of the building, swipe her time card, and head immediately to her desk to prepare for the arrival of the first shift. (Exhibit A at 64-65 and errata sheet). 2 13. At her deposition, plaintiff testified that she was at the Plainfield Service Plaza at the time of the accident to work, and she was not on a personal venture of any sort. (Exhibit A at 65-66). 14. Pursuant to Pennsylvania law, plaintiff and defendant were in the course and scope of their employment at the time of the accident. 15. The alleged injuries claimed by plaintiff were caused by a condition of the employer's premises, pursuant to Pennsylvania law. 16. The alleged injuries claimed by plaintiff were caused by the operation of her employer's business or affairs on the employer's premises. 17. Pursuant to Pennsylvania law, the parking lot upon which this accident occurred was so related to the carrying on of HMS Host's business as to constitute and integral part of its operation, and plaintiff's injuries are, therefore, compensable under the Workers' Compensation Act. 18. The Workers' Compensation Act protects all co-employees in all situations where negligent conduct of one employee may cause injury to a fellow employee, provided only that the injury in question is one that is compensable under the Act. 19. Based upon the facts of this case, defendant was a co-employee, or fellow employee, of the plaintiff at the time of the accident; both were in the course of their employment at the time of the accident; and defendant is thus entitled to immunity from suit, pursuant to the Act. 3 WHEREFORE, moving defendant Shirley Porter respectfully requests that this Honorable Court grant this Motion for Summary Judgment and enter judgment in favor of defendant and against plaintiff. FORRY, ULLMAN, ULLMAN & FORRY, P.C. By: I.D. No. 119 2AOO Linglestown Road Suite 301 Harrisburg, PA 17110 (717) 441-9257 Attorneys for Defendant Date: ?7 I4 FORRY ULLMAN Joseph F. Murphy, Esquire Attorney I. D. No. 78119 2000 Linglestown Road, Suite 301 Harrisburg, PA 17110 (717) 441-9257 Attorneys for Defendant DIANE McMILLIN : IN THE COURT OF COMMON Plaintiff : OF CUMBERLAND COUNTY VS. : NO. 06-1173 SHIRLEY PORTER Defendant : JURY OF TWELVE DEMANDED CERTIFICATE OF SERVICE I, Beth Myers, of FORRY, ULLMAN, attorneys for Defendant certify that the within documents were served, this date, by first-class mail, postage prepaid, addressed as follows: Timothy A. Shollenberger, Esquire Shollenberger & Januzzi, LLP 2225 Millennium Way Enola, PA 17025 I understand that the statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. DATE: 6T-' o21- f3''j FORRY ULLMAN By BETH MYERS, AL DIANE MCMILLIN, IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V NO. 06-1173 SHIRLEY PORTER, DEFENDANT JURY TRIAL DEMANDED DEPOSITION OF: DIANE MCMILLIN TAKEN BY: DEFENDANT BEFORE: MARIA N. O'DONNELL, RPR NOTARY PUBLIC DATE: APRIL 22, 2009, 3:41 P.M. PLACE: SHOLLENBERGER & JANUZZI, LLP 2225 MILLENNIUM WAY ENOLA, PENNSYLVANIA APPEARANCES: SHOLLENBERGER & JANUZZI, LLP BY: TIMOTHY A. SHOLLENBERGER, ESQUIRE FOR - PLAINTIFF FORRY, ULLMAN, ULLMAN & FORRY, PC BY: JOSEPH F. MURPHY, ESQUIRE FOR - DEFENDANT ALSO PRESENT: JESSICA M. SWEDENHJELM, RP t 11 Hughes Albnqht F (lift Nat.ile 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 0 Fax 717.540.0221 • Lancaster 717.393.5101 Multi-Page TM DIANE MCMILLIN APRIL 22, 2009 Page 2 Page 4 I WITNESSES 1 you do understand it because if you do provide me with a 2 NAME EXAMINATION 2 response, I will assume that you both heard and understood 3 DIANE MCMILLIN 3 the question that I asked; okay? 4 BY: MR. MURPHY 3 4 A Correct. 5 5 Q Okay. I don't want you to guess at anything, but 6 6 certainly you can give me reasonable approximations; okay? 7 EXHIBITS 7 A Okay. 8 DEPOSITION EXHIBIT NO. PRODUCED AND MARKED 8 Q I just ask that you wait until I finish my 9 1. Diagram 62 9 question before you provide a response so that the court 10 10 reporter can take down everything that is said. I will try 11 11 to remember to wait till you have answered the question 12 12 before I ask another; okay? 13 13 A Okay. 14 14 Q If you want to take a break at any time, during 15 15 the course of the deposition, let me know, we will 16 16 accommodate you; okay? 17 17 A Thank you. is 18 MR. SHOLLENBERGER: Excuse me. I think you want 19 19 to put something on the record before we start. 20 20 MR. MURPHY: About the left shoulder. 21 21 MR. SHOLLENBERGER: Tell me when you are ready. 22 22 MR. MURPHY: Now is as good a time as any. 23 23 MR SHOLLENBERGER: I want to put on the record 24 24 that I have permission from Diane to file an amended 25 25 complaint taking the following subparagraphs -- removing Page 3 1 STIPULATION 2 It is hereby stipulated by and between counsel 3 for the respective parties that sealing, certification and 4 filing are hereby waived; and that all objections except as 5 to the form of the question are reserved to the time of 6 trial. 7 8 DIANE MCMILLIN, called as a witness, being duly 9 sworn, testified as follows: 10 EXAMINATION 11 BY MR. MURPHY: 12 Q Good afternoon, ma'am. 13 A Good afternoon. 14 Q My name is Joseph Murphy. I represent Miss 15 Porter in a civil action that you brought. 16 Before we get into the substantive questions as 17 to what happened in this incident and the claims that you 18 are presenting, I need to go through some instructions on 19 answering deposition questions. 20 First of all, your answers have to be verbal. 21 You have to say yes or no as opposed to a nod of the head 22 or shake of your head. Do you understand? 23 A Yes. 24 Q If you don't understand one of the questions that 25 I ask you, please ask me to rephrase the question so that Page 5 1 the following subparagraphs of her complaint, A, B, E -- 2 not C; E, F, G, N, O, R. 3 Diane, is that agreeable to you? 4 THE WITNESS: Yes, it is. 5 MR SHOLLENBERGER: There you go. 6 MR. MURPHY: Thank you, counsel. 7 BY MR. MURPHY: 8 Q Can you state your full name for the record, 9 please? 10 A Diane Elaine McMillin. 11 Q What is your current address? 12 A Nine North Locust Street, Apartment 102, 13 Shiremanstown, 17011. 14 Q Your date of birth? 15 A 6-14-1952. 16 Q Your social security number? 17 A 166-46-4307. 18 Q Are you married? 19 A No. 20 Q Do you have any children? 21 A No. 22 Q I apologize for asking you this question in 23 advance, ma'am. I believe that I may have asked it in our 24 interrogatories. Have you ever pled guilty to or been 25 convicted of a crime involving dishonesty such as theft, Page 2 - Page 5 HUGHES- ALBRIGHT- FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page`-m DIANE MCMILLIN APRIL 22, 2009 Page 6 Page 8 1 perjury, any crime involving dishonesty? 1 benefits of any kind in this case arising out of this 2 A Not to my knowledge, not to my recall. 2 accident or incident other than I believe the workers' comp 3 Q Okay. Have you provided any statements in this 3 carrier did pay some of the medical expenses in this case? 4 case as to what happened in the accident or the injuries 4 Other than what workers' comp, have you received any money 5 that you sustained? By statement, I mean where you 5 or any benefits of any kind? 6 prepared a written statement, you signed it, or where 6 A I received a check. 7 someone prepares a statement, you read it and adopt it as 7 Q From whom? 8 the truth, or a recorded statement where someone calls you 8 A From Gallagher Bassett. 9 on the phone and asks you questions, you provide answers to 9 Q Okay. What was that check for? 10 those questions? 10 A It was for lost time wages. 11 A Yes. 11 Q Okay. And is that a check that you testified to 12 Q Okay. Which? 12 at the workers' compensation hearing that you didn't cash? 13 A I have provided statements to each doctor that I 13 A Correct. I returned it. 14 saw regarding the accident. 14 Q Any other monies that you received or benefits 15 Q Okay. 15 that you received? 16 A I have provided statements when I was asked to 16 A Not that I can recall. 17 fill out the form for an accident at my employers. 17 Q Okay. Can you tell me about your educational 18 Q Okay. 18 background? 19 A I was asked to fill out a statement I believe at 19 A I completed through twelfth grade, and then 1 20 Carlisle Hospital, and I am not certain if that is all 20 went to a few semesters at a local college before I was -- 21 inclusive. 21 before I finished. 22 Q Okay. 22 Q Okay. I am not going to ask you too much in 23 A That's all I can recall at this time. 23 depth about your education because I believe your counsel 24 Q The name of your insurer at the time of this 24 has agreed that if you do present a lost earnings claim or 25 accident was whom? 25 more importantly an impaired earning capacity claim in this Page 7 Page 9 1 A Could you please rephrase that? 1 case, that I would have the right to redepose you with 2 Q What was the name of your insurance carrier for 2 regard to that claim and that certainly include questions 3 the vehicle that you were driving at the time of the 3 with regard to education. So I will conchate my questions 4 accident? 4 with regard to your education because we don't have a 5 A I believe that it was Travellers. 5 specific claim being presented at this time for those 6 Q Okay. Or shortly before the accident I should 6 damages. 7 have said. Did you report this accident to Travellers? 7 When did you go to college, approximately how 8 A I reported the accident, yes. 8 many years ago? 9 Q Okay. And did Travellers obtain a statement from 9 A I would say approximately 1982. 10 you? 10 Q Okay. Any formal education after that? 11 A I don't recall. 11 A Yes. 12 Q Okay. Any other statements other than the 12 Q Okay. What was that? 13 statements that you mentioned that you can recall? 13 A I was sent from many of the places that I worked 14 A Not at this time, I can't recall any. 14 at to business school or writing school or communication 15 Q Have you ever made a claim for workers' 15 school or quality school. 16 compensation benefits other than the workers' compensation 16 Q Okay. When was the last time that you had any 17 claim that you made arising out of this accident or 17 formal education? 18 incident? 18 A 1992. 19 A No. 19 Q 1992? 20 Q Why don't we start with that. 20 A Yes. 21 A No, no. 21 Q Okay. Okay. Ma'am, again, I may have -- if you 22 Q Have you ever made a claim for social security 22 do present an impairment earning capacity claim at some 23 disability benefits or disability benefits of any kind? 23 point, I may ask you to return to answer questions with 24 A No, not that I can recall. 24 regard to your education more specifically, but I will 25 Q Okay. Have you received any money or any 25 leave it at that since apparently you have not had any Page 6 -Page 9 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Pap TM DIANE MCMILLIN APRIL 22, 2009 Page 10 1 formal education since this accident, is that correct? 2 A Correct. 3 Q Are you currently employed? 4 A Yes. 5 Q By whom? 6 A Drayer Physical Therapy Institute. 7 Q Where is that located? 8 A The corporate office is in Hummelstown. 9 Q Where do you work in that corporate office? 10 A I now work from home. 11 Q Okay. Is that a full-time position? 12 A Yes. 13 Q Okay. Approximately forty hours per week? 14 A Yes. 15 Q What's your title? 16 A Transcriptionist. 17 Q Okay. And as a transcriptionist, what do you do? 18 What do you transcribe? Is that physical therapy notes 19 dictated by the therapist? 20 A Exactly. 21 Q Okay. Any other duties other than transcribing? 22 A I do -- I attend a committee meeting at the 23 Linglestown office once a quarter, and do the notes and 24 transcribe those also. 25 Q Okay. So far as the physical demands associated Page 11 1 with that position as a transcriptionist, can you tell me 2 about those? 3 A I sit most all day, and I transcribe from head 4 phones documents one after another for patients in two 5 clinics. 6 Q Okay. The one in the Hershey area and the one in 7 the Linglestown area? 8 A The one in Linglestown and the one at o1P West. 9 Q Okay. By Hersheypark, is that the one, or no? 10 A No, sir. I am song. 11 Q Where is that located? 12 A 01P West? 13 Q Yes. On the West Shore? 14 A Yes. 15 Q I am sorry? 16 A Yes, yes. 17 Q By Holy Spirit Hospital, they used to be there I 18 think? 19 A No. I am sorry, I don't know. 20 Q That's okay. 21 A Where -- they're located where the new Giant, 22 it's the new Giant Food Store. 23 Q Okay. 24 A Across the parking lot. 25 Q Okay. Any other physical demands associated with Page 12 1 the job other than the fact that you are sitting all day? 2 A It's just that the phone can ring from any of the 3 clinics asking for stat reports. 4 Q Okay. When you are sitting all day, I take it 5 that the vast majority of responsibilities are actually 6 typing? 7 A Correct. 8 Q You are listening to dictation on headphones? 9 A Correct. 10 Q And I take it from what you are telling me that 11 there is no strenuous lifting with your job, is that 12 correct? 13 A Correct. 14 Q Okay. When did you begin working for Drayer? 15 A I can't recall the exact dates. 16 Q Okay. Can you tell me approximately the year, 17 maybe the month? 18 A It was April, but I believe it was three years 19 ago, but it may have been four. I am -- 20 Q Okay. 21 A I am not one hundred percent positive. 22 Q Okay. It may have been '06 or '07? 23 A Correct. 24 Q Okay. Is it your intention to continue 25 employment with Drayer as a transcriptionist? Page 13 1 A Correct. 2 Q Okay. You don't have any plans to leave and do 3 something else as we sit here? 4 A No. 5 Q Okay. 6 A No, sir. 7 Q Has your job always been full time while you have 8 been employed with Drayer? 9 A Yes. 10 Q Okay. Any other employment that you have had 11 since you began working at Drayer? 12 A No, sir. 13 Q Okay. What did you do before you worked at 14 Drayer? 15 A I worked at HMS Host Corporation, and I worked a 16 short time at Messiah Village. 17 Q Okay. What did you do for Messiah Village? 18 A HR assistant. 19 Q When did you begin that position? 20 A I am sorry, I cannot recall at this time. 21 Q For how long did you have that position? 22 A About three months. 23 Q Okay. What is the reason why you left that 24 position? 25 A It was -- it was too stressful. Page 10 - Page 13 HUGHES. ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page `N` DIANE MCMILLIN APRIL 22, 2009 Page 14 1 Q Did this -- did any of the injuries or damages 2 that you claim resulted from this accident, did that have 3 anything to do with your decision to leave Messiah Village? 4 A Yes. 5 Q How so? 6 A There was a lot of writing, filling forms. So I 7 would have to put my head down, and that seemed to cause an 8 aggravation of injury to my neck. 9 Q Okay. Was there any other reason why you left 10 that position? 11 A I don't think -- yes. 12 Q What was the reason? 13 A I don't think it was a good fit. 14 Q What do you mean by that? 15 A I don't think it was a good fit for them, for me, 16 and I don't think I was a good fit in that position for 17 them. 18 Q Okay. Did you just not click, as we say? 19 A Yes. 20 Q With the people that you were working with? 21 A Yes, yes. 22 Q Okay. I am song. Did you say that you worked 23 there for about three or four months? 24 A Correct. 25 Q Can you tell me more about your job duties? You Page 15 1 are an HR assistant. What did you actually do? 2 A Fill out employee forms for new hires, for any 3 sort of medical problems that they had, for any sort of 4 life insurance that they had, for any sort of health 5 insurance that they had, did all of the filing for all of 6 the buildings, everything, et cetera. 7 Q Who was your supervisor while you work at Messiah 8 Village? 9 A I cannot recall her name. 10 Q Other than the lack of fit between you and the 11 people at Messiah Village and the pain that you said that 12 you were experiencing in your neck from your head being 13 bent over while you were writing, is there any other reason 14 why you left that position at Messiah Village? 15 A Not that I can recall. 16 Q Other than any differences that you may have had 17 with other co-employees there at Messiah Village, did you 18 like the job? 19 A Not particularly. 20 Q Okay. While you were working for Messiah 21 Village, did you obtain employment with Drayer? 22 A No. 23 Q Okay. Was there a period of time between the 24 time that you left Messiah Village and you began at Drayer 25 that you were unemployed? Page 16 1 A Yes. 2 Q For how long a period of time? 3 A Approximately three months. 4 Q Can I ask you, did you voluntarily leave Messiah 5 Village or were you fired? 6 A I resigned. 7 Q Okay. When you resigned, did you complete some 8 sort of form or spell out in writing the reasons why you 9 were leaving employment? 10 A No, it was not asked of me. 11 Q Okay. Did you have an exit interview of any 12 kind? 13 A No. 14 Q Did you tell them the reasons why you -- 15 A I cannot recall. 16 Q Okay. The reasons why you didn't want to work 17 there. You understood the question that I was going to 18 ask? 19 A Yes, I cannot recall. 20 Q Okay. Other than your employment with HMS Host 21 Corporation, with Messiah Village and with Drayer Physical 22 Therapy, have you had any other employment since this 23 accident or incident? 24 A Yes. 25 Q What? Page 171 1 A I worked for a temporary service. 2 Q Okay. What was the name of the temporary 3 service? 4 A I cannot recall. 5 Q Tri-Starr Staffing? 6 A That was it. 7 Q I believe it's T-r-i S-t-a-r-r Staffing? 8 A Correct. 9 Q Okay. Where are they located? 10 A In Lemoyne. 11 Q I apologize for jumping around, ma'am, but where 12 is Messiah Village located? 13 A In Mechanicsburg. 14 Q When did you work -- well, let me ask you this 15 first. When you say that you worked for Tri-Starr 16 Staffing, they placed you into employment, is that what I 17 take, or did you actually work for Tri-Starr? 18 A They placed me into employment. 19 Q Okay. Did you apply -- I presume that you had to 20 fill out an application with Tri-Starr? 21 A Correct. 22 Q Okay. When was it that you applied? 23 A I believe January, but I cannot tell you the 24 year. 25 Q Was that after your employment at HMS Host, or Page 14 - Page 17 HUGHES- ALBRIGHT- FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM DIANE MCMILLIN APRIL 22, 2009 Page 18 I was that during your employment there? 2 A I believe it was after. 3 Q And did Tri-Starr Staffing actually find you 4 employment? 5 A Yes. 6 Q With whom? 7 A There were two locations, one was HAPP. 8 Q I am sorry? 9 A HAPP, Harrisburg Hospital Association of 10 Pennsylvania. 11 Q Okay. 12 A The other was a temporary position. 13 Q So you worked for two different entities through? 14 A Correct. 15 Q Through Tri-Starr Staffing? 16 A Correct. 17 Q You don't recall the -- but you don't recall the 18 name of the second entity? 19 A No, sir. 20 Q What did you do for HAPP? 21 A I was executive assistant to the CEO. 22 Q Do you remember when it was that you worked for 23 them? 24 A It was the entire month of February of that year. 25 Q The year that you actually applied at Tri-Starr? Page 19 1 A Yes, yes. 2 Q Okay. For how long did you work for HAPP? 3 A One month. 4 Q Was it your understanding when you took the 5 position that it was a temporary position? 6 A Correct. 7 Q Okay. And what is the reason why you stopped 8 working there? 9 A They hired a full-time person for that position. 10 Q Okay. Did you apply for that position? 11 A Yes. 12 Q As a full-time employee? 13 A Yes, yes. 14 Q I take it that as an executive assistant, that 15 there were not very many physical demands associated with 16 that job, am I correct? 17 A Correct. 18 Q Okay. You were mainly sitting at a desk? 19 A Correct. 20 Q Was that a full-time position? 21 A Temporarily. 22 Q I understand, but was it full time, in other 23 words, did you work forty hours a week during that month? 24 A I cannot recall. 25 Q Okay. Page 20 1 A For sure. 2 Q The other employer for whom you worked through 3 Tri-Starr Staffing, what did you do for that employer? 4 A They had stacks of filing that needed to be put 5 in alphabetical order and filed in multiple file cabinets. 6 Q Okay. So you were doing filing? 7 A Correct. 8 Q Any -- well, did you have a particular title with 9 that company? 10 A No. 11 Q Okay. Did you have any other job 12 responsibilities other than filing these stacks of paper? 13 A We were first called in to do an expansive mail. 14 Q What does that mean? 15 A The company had as stack of forms that they 16 wanted mailed out, folded and put in envelopes and mailed 17 out to their clients or whatever it was. So we were called 18 in to -- to actually take a piece of paper, fold it, put it 19 in an envelope and somebody else would put the postage on 20 it and mail it. 21 Q Was that the original job that you were assigned 22 when you began working for this company? 23 A No, that was the second job. 24 Q Second job. Your first job was the filing? 25 A Correct. Page 21 1 Q For how long -- 2 A No, no. I am sorry. 3 Q That's all right. 4 A I am sorry. Please repeat your question. 5 Q I am trying to get a sense of what you were doing 6 for this company while you were employed by them. 7 A Okay. 8 Q You indicated that you were filing stacks of 9 paper. Right? 10 A Correct. 11 Q Okay. And you were also folding letters and 12 putting them in envelopes? 13 A Correct. 14 Q Any other jobs that you did while you worked for 15 that employer? 16 A No, sir. 17 Q All right. For how long did you work for this 18 company? 19 A One day. 20 Q Okay. 21 A Then two of us were called back for the second 22 day. 23 Q Okay. So did you only work two days for the 24 company? 25 A Yes. Yes, sir. Page 18 -Page 21 HUGHES, ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM DIANE MCMILLIN APRIL 22, 2009 Page 22 1 Q Was that -- did you understand that to be the 2 length of the employment before you started working there 3 that -- in other words, that they needed somebody for a 4 couple of days? 5 A Yes. 6 Q Okay. And so the reason why you stopped working 7 for that company is that you understood they only needed 8 you for a very limited period of time? 9 A Correct. 10 Q Okay. Have you been employed anywhere else other 11 than what you have -- these employers that you have 12 testified to since the June 2004 accident or incident? 13 A I was still at HMS Host at that time. 14 Q I understand that. 15 A Okay. 16 Q Any other employers that you worked for since the 17 accident other than HMs Host, Drayer Physical Therapy, 18 Messiah, and the temp work that you testified to that you 19 testified through Tri-Starr? 20 A Not that I can recall. 21 Q When did you begin working for HMS Host? 22 A I cannot recall the year. 23 Q When did you stop working there? 24 A 12-31-2005. 25 Q Why did you stop working there? Page 23 1 A I was laid off. 2 Q Okay. 3 MR. SHOLLENBERGER: Did you say '04 or '05, I am 4 sorry? 5 THE WITNESS: I think it was '05. 6 MR SHOLLENBERGER: Was it? 7 THE WITNESS: I think it was '05. 8 MR SHOLLENBERGER: Excuse the interruption. 9 BY MR. MURPHY: 10 Q That's fine. 11 So you -- can you estimate for me approximately 12 how long that you worked for HMS Host? 13 A It would be an estimation. 14 Q Okay. 15 A Anywhere between three to five years. 16 Q Okay. When you first -- well, let me ask you 17 this first. What is HMS Host? 18 A It is a corporation that reports to the Turnpike 19 Commission that has all of the rest stops and restaurants 20 on the turnpike. Excuse me, not all of them, it has a 21 select few that have been contracted for. 22 Q Okay. 23 A On the turnpike. 24 Q They contract with the Pennsylvania Turnpike 25 Commission? Page 24 1 A Correct. 2 Q To run restaurants along the turnpike? 3 A Correct. 4 Q Do they run any other businesses along the 5 turnpike other than restaurants, to your knowledge? 6 A Well, that would include -- to me that includes 7 the snack bar and/or gift shops and/or any -- 8 Q Okay. 9 A -- like Starbucks or McDonalds or whatever else 10 that is in that particular location. 11 Q At the time when you left your employment at HMS, 12 what was your title? 13 A I think just administrative assistant. 14 Q What was your title when you first began with 15 them? 16 A The same. 17 Q Okay. So your title was the same throughout your 18 employment with them? 19 A Correct. 20 Q Were your job duties generally the same 21 throughout your employment with them? 22 A Yes, sir. 23 Q How about the location where you worked, where 24 was the location of your employment when you left? 25 A When I left? Page 25 1 Q Yes. 2 A At the Plainfield Service Plaza in Plainfield. 3 Q Is that the plaza where this accident occurred, 4 the accident for which we're here today? 5 A Yes. Yes, sir. 6 Q Okay. Did you work at any other location for HMs 7 Host other then the Plainfield Service Plaza? 8 A Yes. 9 Q Where? 10 A I worked at the Middletown location. It's called 11 Highspire. 12 Q Was that another restaurant on the turnpike? 13 A Correct, but I worked in the office part. 14 Q Okay. What is the name of the restaurant at the 15 Plainfield Service Plaza, do you know, was it a Roy Rogers? 16 A Yes, I believe it was. 17 Q Okay. It's my understanding that at the time of 18 this accident, there was the Roy Rogers at the service 19 plaza, is that correct? 20 A Yes, there was. 21 Q There was also a Sunoco gas station at that 22 plaza? 23 A That would be a separate building. 24 Q Okay. But in the same rest area, if you will? 25 A Yes. Page 22 -Page 25 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM DIANE MCMILLIN AY1UL ZZ, ZUU9 Page 26 1 Q Were there any other businesses in that rest area 2 other than Roy Rogers and Sunoco? 3 A We had the snack bar, the ice cream bar, the game 4 room and what they would call I guess gift room, kind of a 5 gift area. 6 Q Gift shop? 7 A Yes. 8 Q And did HMs Host own and run each one of these 9 stores, if you will, Roy Rogers, the snack bar, the game 10 room, the ice cream room and the gift shop? 11 A At that location, yes. 12 Q Okay. Now, I forget the term that you used. I 13 will just use the term building for the time being. Were 14 the Roy Rogers, the snack bar, the game room, the ice cream 15 and the gift shop, were they all contained in one building? 16 A Correct. 17 Q Okay. And at that rest stop, the only other 18 building would have been the Sunoco gas station, or were 19 there others? 20 A The Sunoco gas station would have been a business 21 part of the building. 22 Q Okay. Were there any other business at this rest 23 stop other than the ones that you mentioned? 24 A Not that I can recall. 25 Q Okay. And I am specifically referring to the Page 27 1 time of this accident? 2 A Not that I can recall. 3 Q Okay. Can you tell me about your job title as 4 administrative assistant with HMs Host? 5 A At the Plainfield location, it was helping -- 6 helping with the administrative duties of the manager at 7 that time. 8 Q Okay. 9 A And helping the HM benefits questions and HR 10 questions, and bringing on new staff with the paperwork and 11 putting them through training. 12 Q Would that be for all of these businesses that we 13 mentioned, the Roy Rogers, the snack bar, the game room, 14 all of them? 15 A Correct. 16 Q Okay. Any other job duties other than answering 17 questions from employees of Hms Host, being involved in the 18 hiring and training of staff, and helping the assistant, 19 excuse me, helping the administrator or the manager? 20 A I answered the phone and took orders and gave 21 orders to the food suppliers that we were dealing with, but 22 that's all I can recall at this time. 23 Q When you say that you took orders, what does that 24 mean? 25 A I would check for ice cream, for example, when we Page 28 1 needed to order ice cream for the snack bar I would say 2 check with the person say with what would you need, then 3 write it down, then I would call Hershey, say we need X 4 number of cartons of chocolate chip and whatever we needed. 5 Q Okay. How would you describe the physical 6 demands of the job? 7 A Light. 8 Q Okay. There wasn't lifting involved, stooping, 9 squatting, those sorts of things? 10 A Well, there was lifting. My books were kept 11 overhead, so I had to stand up to lift the books overhead. 12 Q Any other lifting other than books? 13 A I had -- I did all of the filing, so I had to 14 lift the files out of the file cabinet. 15 Q Any other lifting? 16 A I cannot recall. 17 Q The books that you mentioned, are they standard 18 size books? 19 A They were three ring notebooks, some were two 20 inches thick, some were three, one or two were five inches 21 thick. 22 Q The filing that you mentioned, was that 23 physically demanding work? 24 A I cannot state. I do not know. 25 Q Okay. After this accident when you returned to Page 29 1 work, were you able to perform the job duties that were -- 2 that you were expected to perform? 3 A Not entirely. 4 Q And can you explain that to me? 5 A I had difficulty lifting the notebooks and 6 bringing them down to the area that I needed to work on 7 them. 8 Q The three ring binders that you mentioned? 9 A Yes. Correct. 10 Q Any other job duties that you had difficulty 11 doing after the accident? 12 A When they had -- yes. 13 Q What? 14 A When they had the micro system go down, and I was 15 the one that had to call and they wanted to crawl on the 16 floor and check out this wire and that wire, I had to have 17 somebody else do that. 18 Q Was that just one time? 19 A That was unfortunately more than that. 20 Q How many times, approximately? 21 A Whenever the system would go down when we would 22 have a rain storm. So until they got it fixed, they got it 23 fixed maybe twice a week, it might be three times a week, 24 it might be once a week, then not again for four weeks. 1 25 cannot-- Page 26 - Page 29 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page DIANE MCMILLIN APRIL 22, 2009 Page 30 1 Q Did it happen that often? 2 A Until they found the source of the problem, yes. 3 Q Okay. And for how long did that go on that the 4 micro system went down? 5 A Approximately three months. 6 Q When was that, do you recall? 7 A No, I do not. 8 Q After the system was fixed, if you will, they 9 didn't request that -- well, after it was fixed, there was 1o no more problem with the micro system, is that correct? 11 A Correct. 12 Q Any other aspect of your job that you had 13 difficulty doing after this accident because of injuries 14 sustained in the accident? 15 A Yes. 16 Q What? 17 A I had difficulty typing on the computer. 18 Q Okay. I'd like to ask you about that, but before 19 I do, is there any other aspect of the job that you had 20 difficulty doing after this accident other than what you 21 have mentioned? 22 A Not that I can recall. 23 Q What was it about typing on the computer that yol 24 had difficulty with? 25 A It was at an angle because the desk was so small. Page 31 Page 33 1 So it left my left arm off the desk, on the keyboard, but 1 Q Can you estimate for me approximately the 2 kind of off. It wasn't supported at all, so it left -- it 2 percentage of time that you were typing on the computer as 3 was just hanging like in -- like if this was the computer, 3 opposed to doing other job duties? 4 it would be hanging like off. 4 A Approximately 50 percent. 5 Q Okay. So the typing area of the computer was 5 Q So far as your earlier testimony, you were 6 very close to the edge of the work area? 6 motioning with your arm, I don't remember if it was the 7 A Correct. 7 right or the left that you were motioning with, but you 8 Q Did you try to move it at all to give yourself 8 indicated that at -- one of the different -- that one of 9 more support? 9 the difficulties that you had with your job was that the 10 A Yes. 10 key pad, the typing pad was very close to the edge of the 11 Q Okay. Did that help? 11 desk, is that correct? 12 A I had somebody else try to move it. They 12 A Correct. 13 couldn't move it. There was no place to move it to. No, 13 Q And that you had essentially no where to rest 14 it did not. 14 your left arm. Is that what your testimony is? 15 Q Did you ever ask your employer for any special 15 A Yes, sir. 16 accommodations following this accident because of injuries 16 Q Is that the difficulty that you had with typing 17 sustained in the accident other than what you have 17 on the computer that you referred to before? 18 mentioned about not being able to crawl on the floor when 18 A As far as I can recall. 19 the micro system went down and someone else had to do that? 19 Q Okay. Did you ever request of H1vts that they 20 Any other accommodation that you asked of your employer? 20 alter your work station to provide you with some support 21 A I cannot recall. 21 for the arm? 22 Q Was your job as administrative assistant with HMS 22 A No, sir. 23 Host in the Plainfield Service Plaza, was that a full-time 23 Q Okay. Did you ever ask them for that? 24 position? 24 A Not that I can recall. 25 A Yes. 25 Q Was that because you were able to do the job the Page 32 1 Q Forty hours per week? 2 A Yes. 3 Q Okay. Did you do overtime? 4 A Sometimes. 5 Q Can you estimate for me how much overtime that 6 you did in a week or month? I am just trying to get some 7 sense of how long that you would be working each week? 8 A It would be an estimate. 9 Q Okay. 10 A It could be two hours a week up to ten hours a 11 month. It might be weeks without any. 12 Q Okay. 13 A It was at the request of the store manager. 14 Q Were there ever any instances where you declined 15 overtime? Well, let me ask you this. Was it mandatory 16 overtime or optional? 17 A I do not -- I cannot state. 18 Q Was there ever an instance where you declined 19 overtime when it was offered to you, so to speak? 20 A I cannot recall. 21 Q Do you know the reason why you were laid off on 22 December 31, 2005? 23 A There was no money in the budget. 24 Q Are you aware of any other reason? 25 A No, sir. Page 30 - Page 33 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page 'M DIANE MCMILLIN APRIL 22, 2009 Page 34 Page 36 1 way it was? 1 A I cannot recall the dates of it, but I know later 2 A With limitations. 2 that year, I missed additional work. 3 Q What are the limitations that you are referring 3 Q Do you know approximately how much time that you 4 to? 4 missed? 5 A That I -- difficulty doing it. I could still do 5 A Not that I can recall. 6 it. 6 Q Okay. How about after that, you had surgery on 7 Q Right. 7 your left shoulder it's my understanding? 8 A But it took longer and I wasn't as efficient. 8 A Correct. 9 Q Okay. Did that effect your work product? 9 Q You were out of work from January 20th of 2005, 10 A I am not certain. 10 correct? 11 Q Was that in any way reflected in your 11 A That was the day of the surgery, correct. 12 evaluations? 12 Q And you were out of work for a couple of months 13 A Not that I can recall. 13 after that before you returned? 14 Q Your hours of employment while you worked at the 14 A As far as I can recall. is -- excuse me, Plainfield Service Plaza were? 15 Q Okay. And when you returned to work after that 16 A Usually 7:00 to 3:00. 16 surgery -- well, let me back up. 17 Q 7:00 a.m. to 3:00 p.m.? 17 After your initial absence from work following 18 A Yes. 18 this accident, when you returned, did you return to work 19 Q You were paid on an hourly basis? 19 full time? 20 A Yes, I was. 20 MR. SHOLLENBERGER: I think you mean at some point 21 Q I recall your employer sending a letter 21 at some point did she return to work full time after the 22 indicating that you were earning 16 dollars and 83 cents 22 accident but before the shoulder surgery, do you mean? 23 per hour at the time of this accident. Is that correct? 23 THE WITNESS: I can't recall, I can't recall. 24 A I cannot recall. 24 BY MR. MURPHY: 25 Q Okay. If you did perform overtime, it was time 25 Q Yes, I mean you were out of work from the day of Page 35 Page 37 1 and a half? 1 the accident until -- again, according to the records we 2 A That would --yes. 2 have, it's June 21st of 2004. I know that you don't recall 3 Q Okay. So far as the time that you were out of 3 that. But when you did return to work after that initial 4 work following this accident, I believe that your counsel 4 absence, did you return on a part-time basis? 5 made representations in correspondence that you were out of 5 MR. SHOLLENBERGER: I see. 6 work from the day of the accident -- well, first of all, 6 BY MR. MURPHY: 7 the day of the accident was June 9th of 2004, is that 7 Q Or full-time basis? I apologize if the prior 8 correct? 8 question was confusing. 9 A Correct. 9 A I believe it was part time but I am not one 10 Q You were out from that date and returned to work 10 hundred percent certain. 11 on June 21st of 2004? 11 Q Okay. Did you at some point after that return to 12 A I cannot recall. 12 full-time employment before you went out of work again? 13 Q Okay. Were you out of work after this accident? 13 A Yes. 14 A Yes. 14 Q Okay. Do you know for approximately how long 15 Q Okay. Was the first time that you were out of 15 that you worked part time? 16 work the day of the accident? 16 A My apologies, no, I cannot recall. 17 A Yes. 17 Q That's okay. You can only testify as to what you 18 Q Okay. Do you know for approximately how long 18 recall. I don't want you making things up. 19 that you were out before you returned? 19 A No. 20 A Not at this time. 20 Q So that you think, you know, the way it might 21 Q You were also out of work according to the 21 have been or the way it should have been. I only want to 22 records in October of 2004. Do you recall that? 22 know the way that you recall it happening; okay? 23 A Some, yes. 23 When you returned to work for the first time full 24 Q Okay. What do you mean by some? Do you recall 24 time after this accident, did you return to your full 25 it specifically or you missed work in October? 25 duties? Page 34 - Page 37 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page"` DIANE MCMILLIN APRIL 22, 2009 Page 38 1 A I cannot recall. 2 Q Okay. Did you at some point after this accident 3 return to your full duties? 4 A Yes. 5 Q Do you know for how long it was before you 6 returned to your full duties following the accident? 7 A I cannot recall. 8 Q Okay. Other than the time that you missed 9 immediately after the accident, the time that you missed 10 later that year that you testified to, and the time that 11 you missed following your surgery, did you miss any other 12 time from work at any job because of injuries sustained in 13 this accident? 14 A Yes. 15 Q When and with whom? 16 A I know most probably with Drayer Physical 17 Therapy. 18 Q Were you employed -- okay. 19 Let me back up then to Hms Host Corporation. 20 After you returned to work following your surgery, did you 21 at some point after the surgery return full time, full 22 duties? 23 A I cannot recall. 24 Q Okay. After you returned to work following your 25 surgery on January 20th, 2005, did you miss any time from Page 39 1 work at routs Host because of the injuries sustained in this 2 accident? 3 A Can you clarify the question again, please? 4 Q I think -- sure. You testified that you missed 5 some time from work understandably when you had the surgery 6 in January 20th, 2005, correct? 7 A Correct. 8 Q At some point after that, you returned to work, 9 correct? 10 A Correct. 11 Q Did you miss any time from work after that from 12 that period of time until the time that you ultimately left 13 on December 31, 2005 because of injuries sustained in this 14 accident? 15 A I cannot recall. 16 Q Other than the time that you just testified to 17 that you missed from Drayer because of injuries sustained 18 in this accident, did you miss any time from work with any 19 other employer since this accident because of injuries 20 sustained in the accident? 21 A I cannot recall. 22 Q Okay. Tell me about the time that you missed 23 from Drayer. 24 A I was having problems with my neck and my 25 especially with transcription. Page 40 1 Q Okay. 2 A And I don't know, I remember losing sporadic 3 days. 4 Q Okay. Can you estimate for me approximately how 5 much time that you lost? 6 A Perhaps four to six days. 7 Q Okay. 8 A Over the course of employment. 9 Q You understood my previous question when I said 10 estimating how much time that you lost. You understood me 11 to mean how much time did you lose from work because of 12 injuries sustained in this accident, correct? 13 A Yes, sir. 14 Q Okay. Your answer is four to six days 15 approximately? 16 A (Witness nodding). 17 Q When was the last time that you missed work from 18 Drayer because of injuries sustained in the accident? 19 A I missed it just before we met with your 20 insurance company. 21 Q Okay. Do you know when that was? 22 A I am sorry, I don't. 23 Q Okay. Was that because of the meeting or because 24 of your injuries? 25 A Oh, no, that was because of the injuries. Page 41 1 Q Okay. At what point -- well, strike that. When 2 you testified earlier that you currently work out of your 3 home, I take it that that wasn't always the case? 4 A Correct. 5 Q All right. What was -- what was the situation 6 before you began working for Drayer so far as location of 7 your employment is concerned? 8 A I worked at the corporate office. 9 Q And at what point did you work beginning working 10 out of your home? 11 A I believe it was in October the year after I 12 started. 13 Q Okay. 14 A '07 or '08. 15 Q You said '07 or '08? 16 A Yes, sir. 17 Q Do you remember it being this past October? 18 A No. 19 Q So it likely was October of '07? 20 A Correct. 21 Q Who was your supervisor at Drayer? 22 A It was Pam Ehrenzeller. 23 Q Can you try to spell that for the court reporter? 24 Ehrenzeller? 25 A Zeller. Ehrenzeller. Page 38 -Page 41 HUGHES, ALBRIGBT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page` DIANE MCMILLIN APRIL 22, 2009 Page 42 Page 44 1 Q For how long has Pam been your supervisor? 1 hands? 2 A At that -- she was until I went home. 2 A They have -- I have increasing periods of 3 Q Okay. Pam is your supervisor ever since you have 3 numbness and tingling, left is worse than right, but at 4 been working out of your home? 4 times it's both hands at the same time. 5 A No. 5 Q Left worse than right? 6 Q Okay. 6 A Yes. 7 A I am sorry. 7 Q How frequently do you have numbness and tingling 8 Q Who was your supervisor? Who is your supervisor 8 in your hands? 9 currently? 9 A It's becoming more frequent. 10 A That would be Jim Clahan. 10 Q Can you estimate for me how frequently now? 11 Q Jim Clahan? 11 A Two to three times a week. 12 A Correct. 12 Q For how long does it last? 13 Q And for how long has Jim been your supervisor? 13 Do you want to take a break, ma'am? 14 A Since I went home in October of that year. 14 MR. SHOLLENBERGER: Do you need to take a break? 15 Q Your supervisor before Jim, was that Pam? 15 THE WITNESS: Yes. 16 A Correct. 16 MR. MURPHY: Okay. That's fine. Take your time. 17 Q For how long had Pam been your supervisor? 17 (Brief recess.) 18 A Since the date of higher. 18 BY MK MURPHY: 19 Q Okay. Since you began working for Drayer 19 Q Ma'am, when you do experience this numbness and 20 Physical Therapy, have you requested any special 20 tingling in your wrists, I think you said it's more 21 accommodations of them because of injuries sustained in 21 frequently now, about two to three times per week. How 22 this accident? 22 long does it last for? 23 A Yes. 23 A It's not in my wrists. 24 Q And what accommodations did you request? 24 Q Your hands? 25 A They ordered a special chair for me to use. I 25 A It's -- the last episode was almost four and a Page 43 Page 45 1 had a special keyboard attachment that took the stress off 1 half hours. 2 my wrist when I was typing. 2 MR. SHOLLENBERGER: Was how long, Diane? 3 Q Okay. 3 THE WITNESS: Four and a half hours. 4 A And I get a special monitor riser so that it 4 MR. MURPHY: I couldn't hear you. You have to 5 would bring everything up to eye level so I wouldn't have 5 speak up, I am on this side of you. 6 to look -- push my neck down to look. 6 THE WITNESS: I am sorry. I am sorry. 7 Q When did you request these items? 7 BY MR. MURPHY: 8 A The monitor was the first week, and everything 8 Q And when you do experience the numbness and 9 else came in due course after they found out the trouble 9 tingling, does it in any way effect your wrists? 10 that I was having. 10 A No. 11 Q Okay. When you mentioned earlier that you missed 11 Q Okay. I take it that you have not been diagnosed 12 time -- I think that you said that you missed time -- I 12 with carpal tunnel syndrome, is that correct? 13 don't want to mischaracterize your testimony, but I believe 13 A Correct. 14 that you said that you missed time from Drayer about four 14 Q What's the shortest period of time that you get 15 to six days because you had problems with your neck and 15 numbness and tingling? I am just trying to get some range. 16 your hands? 16 A I know. An hour and a quarter shortest. 17 A Correct. 17 Q Okay. And for how long have you been 18 Q Okay. You also suggested that you had problems 18 experiencing the numbness and tingling in your hands? 19 with your wrists as well? 19 A Off and on since I have started this job. 20 A No. 20 Q Since you started the Drayer Physical Therapy 21 Q Okay. I thought that you might have been 21 job? 22 alluding to the fact that you have been diagnosed with 22 A Correct, correct. 23 carpal tunnel syndrome? 23 Q Okay. Do you believe or has any medical provider 24 A No. 24 of any kind told you that they believe that the numbness 25 Q What is the problem that you have with your 25 and tingling that you're experiencing is related in any way Page 42 -Page 45 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page DIANE MCMILLIN APRIL 22, 2009 Page 46 1 to your job duties at Drayer? 2 A No. 3 Q Okay. When you do experience this numbness and 4 tingling, does it prevent you from doing anything? 5 A Yes. 6 Q What? 7 A I take a break from the transcription. 8 Q Okay. 9 A And move my hands to a neutral surface and treat 10 it with heat, then when the numbness and tingling go away, 11 I go back to the transcription. 12 Q Do you treat it with anything other than heat? 13 A I haven't found anything else that works, no. 14 Q Okay. And are you treating with any medical 15 providers for this numbness and tingling? 16 A Not at the time. 17 Q Okay. With regard to your -- do you have any 18 other problems with your hands other than the numbness and 19 tingling that you just testified to? 20 A My grip seems to be very weak. 21 Q Okay. Your grip in both hands? 22 A Yes, but left more than right. 23 Q Okay. Are you right-hand dominant or left? 24 A Right. 25 Q Okay. And how does the grip problems manifest Page 47 1 themselves? Do you understand what I am asking you? Can 2 you hold things? Do you drop things? 3 A I drop things constantly, and I am unable to open 4 simple things, like a pickle jar or ketchup bottle or 5 anything. I can't -- bleach bottle, any of that, I can't 6 do that on my own. 7 Q Okay. I take it that these symptoms that you 8 mentioned, the numbness and tingling, the grip problems, 9 the dropping things, these things are all things that are 10 of concern to you, am I correct? 11 A Yes. 12 Q Why haven't you treated with any medical 13 providers or attempted to determine whether there is 14 anything that can be done to alleviate this problem? 15 A I don't always seem to get better when I treated 16 by somebody. 17 Q Okay. You just don't have any faith in the 18 health system? 19 A Not all of the time. 20 Q Has any medical provider told you that the 21 problem that you experience or the problems that you 22 experience with your hands are in any way related to the 23 June 9, 2004 accident or incident? 24 A Yes. 25 Q Who has told you that? Page 48 I A Dr. Holencik. 2 Q When was the last time that you saw Dr. Holencik? 3 A I cannot recall. 4 Q Was it sometime in 2005? .5 A It might have been. 6 Q Okay. 7 A I cannot recall. 8 Q What is the reason why you haven't returned to 9 Dr. Holencik? 10 A I don't have the funds to pay for him, and it 11 wouldn't be covered under my medical. 12 Q Okay. Do you have medical coverage through -- 13 A Yes. Correct. 14 Q Do you have private health insurance? 15 A It's through the employer. 16 Q Through Drayer? 17 A Yes. 18 Q Okay. Do you know who that insurance carrier is? 19 A Capital Blue Cross. 20 Q Has it always been Capital Blue Cross ever since 21 you have had the insurance through Drayer? 22 A I cannot recall. 23 Q What leads you to believe that treatment for this 24 is something that's not covered under your Capital Blue 25 Cross policy? Page 49 1 A Because I believe it stems from the auto 2 accident. 3 Q Okay. Have you contacted Capital Blue Cross 4 about paying for treatment relative to your -- 5 A No. 6 Q Hands? 7 A No, sir. 8 Q Okay. Have you read in any of the literature 9 that leads you to believe that is not covered treatment for 10 your hands? 11 A It says if that's -- if it's caused by a car 12 accident, it would not be covered under Blue Cross. 13 Q Okay. Have you made a claim with your automobile 14 insurance carrier Travellers? 15 A No, sir. 16 Q Okay. 17 A Well, no, sir, I have not. 18 Q You haven't approached Travellers about paying 19 any of your medical bills or paying for any future 20 treatments? 21 A No. No. 22 Q Now, the -- your automobile insurance policy 23 declarations page was provided to us, and I recall seeing 24 it, but I didn't see where it indicated on the declaration 25 sheet the amount of medical coverage and lost earnings Page 46 - Page 49 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM DIANE MCMILLIN APRIL 22 2nna Page 50 Page 52 1 coverage that you may have had under that policy. I think 1 Q Am I correct that this was the employee parking 2 it just says see endorsement. 2 lot for HMS Host? 3 Do you know how much medical coverage was on your 3 A Correct. 4 Travellers policy, the policy on the vehicle that you were 4 Q Am I also correct that at the time of this 5 in shortly before this accident occurred? 5 accident, that employees were required to park in that 6 A No, sir. 6 parking lot? 7 Q Okay. How about lost earnings coverage, do you 7 A Correct. 8 know whether or not there is lost earnings coverage under 8 Q That was HMS policy, correct? 9 the policy? 9 A Correct. 10 A No, sir, I am sorry. 10 Q And in order to get to the parking lot, you would 11 Q Can I ask you why, if you believe that this hand 11 drive down -- is it Pine Road? 12 problem is related to this accident, why you haven't made a 12 A Pine Lane. 13 claim with Travellers? 13 Q Pine Lane? 14 A I do not know. 14 A I believe it is Pine Lane. 15 Q Okay. The neck problem that you mentioned, you 15 Q Okay. And that would lead to the back of the 16 said that you have neck problems that caused you to be out 16 service plaza, is that fair? 17 of work I think as part of those four to six days. What 17 A It would lead to a fence. 18 kind of neck problems do you have? 18 Q Okay. Where was the parking lot that you were 19 A Not being able to turn my head when it is 19 required to park in with regard to that fence? 20 aggravated, having severe pain, unable to concentrate, 20 A It was -- the fence gate was here for trucks to 21 sometimes even unable to get out of bed. 21 go through so that they could unload the heavy wears, and 22 Q I'd like to talk with you more about your 22 there was also a small doorway about a third of the way 23 injuries, particularly your neck, but before I do, I'd like 23 down in the fenced area and it was fenced on three sides. 24 to talk with you a little bit more about your employment. 24 Q Okay. 25 The defendant in this lawsuit -- well, let me ask 25 A So you turn just -- left just before you hit the Page 51 Page 53 1 you this first. At the time of the accident, were you an 1 gate in order to access the parking lot? 2 employee of HMS, or you were working for HMS Host 2 Q Now, I apologize for this, ma'am. I normally 3 Corporation, is that correct? 3 don't ask plaintiffs to prepare diagrams of the accident 4 A Correct. 4 scene, but in this case, I'd like you to do that because I 5 Q And the defendant in this lawsuit, Miss Porter, 5 am having'a very difficult time visualizing Pine Lane, the 6 was also working for that company at the time of this 6 parking lot where the HMS Host building is located, if you 7 accident, correct? 7 will, and I think that might be helpful. Can you just draw 8 A Correct. 8 me a diagram of where the parking lot is located? 9 Q And she was also working at the same location 9 A Where the fence is located -- it's not going to 10 that you worked at, correct? 10 be to scale. 11 A Correct. 11 MR. SHOLLENBERGER: I will give her a white sheet. 12 Q The Plainfield rest stop? 12 MR. MURPHY: Okay. Thank you. 13 A Correct. 13 MR. SHOLLENBERGER: NOW, remember, I will say if 14 Q You were co-employees, is that correct, when you 14 you can, I am not telling you not to, if you can, you 15 worked together? 15 should, but always these questions are if you can. 16 A We were employees at the same location. 16 BY MR. MURPHY: 17 Q Okay. Now, would you agree with me, ma'am, that 17 Q Yes. I understand it's not going to be to scale, 18 the Plainfield Service Plaza is located on the Pennsylvania 18 ma'am. I am not going to try to hold you to scale with the 19 Turnpike? 19 diagram. I don't want to be unfair to you in this case, l 20 A Yes. 20 just want you to be able to explain. It's very difficult 21 Q Okay. And it's a limited access roadway, is that 21 to explain these things on the records without having some 22 correct? 22 sort of a diagram. 23 A Correct. 23 A I am just trying to place it in my mind before 24 Q The accident occurred in a parking lot? 24 I -- 25 A Correct. 25 Q Sure. Page 50 -Page 53 HIJGHES_ ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Pager` DIANE MCMILLIN APRIL 22, 2009 Page 54 1 A -- put it down. 2 Q Show me the -- where the turnpike is, the HMS 3 Host building? 4 MR. SHOLLENBERGER: Do you want to try a pencil 5 first in case you have to erase? 6 THE wrrNEss: Okay. This is the turnpike. 7 BY MR. MURPHY: 8 Q Can you write turnpike, please? You wrote 9 turnpike over the line you drew for the turnpike, correct? 10 A Yes. 11 This would be -- this would be the Host building. 12 Q Okay. Can you just write Host building? 13 A Okay. 14 Q That's fine. 15 A This over here would be Sunoco. 16 Q Okay. 17 A (Indicating.) This would be traffic parking here 18 from all of the customer parking. 19 Q Public parking? 20 A Okay. 21 Q Is that what you are saying? 22 A Yes. 23 Q Can you just put some dashed lines where you are 24 indicating public parking or write public parking? That's 25 fine. Page 55 1 A All right. This is public parking here. 2 Q Where is the fence? 3 A It's quite a distance from there. 4 Q Okay. 5 A It would be -- I won't have room. 6 Q Again, I am not asking you to do it to scale. I 7 want to make sure you are able to include it on one sheet 8 of paper. Show me the fence and the parking lot and at 9 least the beginning of the lane -- 10 A Here is the fence. 11 Q --that you mentioned. 12 A This is a driveway, thru fence if you have a key 13 or if you have somebody call to bring you to open the door 14 for you. 15 Q Okay. Deliveries? 16 A Deliveries, exactly. 17 Q So that's a drive-thru fence. So that's -- 18 A That opens. 19 Q Okay. 20 A Then here -- and this continues I think. And 21 then there is a little walkway, just very little walkway. 22 Q Can you write -- 23 A This is the little walkway. It's a doorway. 24 Q A cut out in the fence? 25 A Yes. Yes. That's it. Page 56 1 Q Cut in the fence? 2 A There is no like arch or anything like -- it's 3 just a -- the fence ends here, the fence begins there. 4 Q Can you just write walkway in there? 5 A Okay. Okay. Then it comes down here to the end 6 of the parking lot. And it's fenced in here at -- it's 7 fenced in here at the end. Then down here is where Pine 8 Lane is. That goes all of the way down there. 9 Q Can you just write Pine Lane, then indicate the 10 parking lot? 11 A Okay. Then this would be -- there is parking 12 here along this, not where the doorway is, but before, you 13 know. Not there, sorry. 14 Q That's okay. 15 A Then there is no parking there, but there is 16 parking back here. 17 Q Okay. When you say there is no parking there, 18 just so the record is clear, you indicated in the dashed 19 parking spaces that you made to the left of the diagram? 20 A Here there was no -- 21 Q There is no parking allowed in that area, is that 22 right? 23 A Yes. 24 Q Okay. 25 A At least the time that I was there, there was no Page 57 1 parking lot there. 2 Q Okay. Okay. Now, you would come up -- 3 A Here is Pine Lane. 4 Q You come up the page on Pine Lane, make a left 5 turn into that parking lot? 6 A Right, right, right there. 7 Q Okay. And you would park your vehicle? 8 A Yes. 9 Q Get out? 10 A Yes. 11 Q Walk through that walkway? 12 A Yes. 13 Q To the Host building? 14 A Correct. 15 Q And then begin work? 16 A Correct. 17 Q Okay. Is there any public roadway separating the 18 Host building from that parking lot where you put the 19 dashed lines? 20 A I am sorry, come again. 21 Q There is no public roadway? 22 A It's no public, but people would sometimes drive 23 their cars, customers would. 24 Q I understand. 25 A You gain access back to the turnpike over here, Page 54 - Page 57 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Pagerm DIANE MCMILLIN "KIL ZZ, ZUU9 Page 58 I but sometimes they didn't go in front of the building, 2 sometimes they went behind it. Depends on where they were 3 parked, because there a lot -- it's not just public parking 4 there, it comes up to, you know, the parking here. We had 5 trucks that were here also. 6 Q In the area where you indicated the employee 7 parking lot is located, can you just write employee parking 8 lot in there so it's clear? 9 A Yes. Yes. (Witness complies.) 10 Q Okay. That is the way that you would get to work 11 every day, by taking Pine Lane, making that left turn, 12 parking in the employee parking lot and walking to the Host 13 building? 14 A Yes. 15 Q Okay. Now, did you punch a time clock at work? 16 A Yes. 17 Q Okay. Was that true on the day of this accident 18 that you -- 19 A I cannot recall. 20 Q But you, at the time on the day of this accident, 21 had the accident not happened, you would have been required 22 to punch in? 23 A Yes. 24 Q Okay. And are you paid from the time that you 25 punched till the time that you punched out? Page 59 1 A As I recall. 2 Q Okay. So that if you appeared at work later than 3 your scheduled time at 7:00 o'clock, you would only be paid 4 from the time that you actually punch in, not from 7:00 5 o'clock, is that correct? 6 A Correct. 7 Q Conversely, if you appear at work let's say 8 fifteen minutes early and punch the clock, you would be 9 paid from 6:45 until the time that you left, is that 10 correct? 11 A Correct. 12 Q Okay. Now, my recollection of your workers' 13 compensation testimony is that you left your home at 6:30 14 a.m. to go to work? I am sorry, maybe I am incorrect. I 15 didn't want to misrepresent what is in there. 16 MR. SHOLLENBERGER: Are you asking -- 17 BY MR. MURPHY: 18 Q Let me ask you. Do you recall what time that you 19 left your home for work that morning? 20 MR. SHOLLENBERGER: That's fine. 21 THE wITNEss: Not that particular morning. 22 BY MR. MURPHY: 23 Q Okay. Do you remember what time that you arrived 24 at the employee parking lot on the morning of the accident? 25 A Not that particular time. Page 60 1 Q Okay. You don't recall -- 2 A No. 3 Q --when you arrived? 4 A No, no. 5 Q Okay. My recollection of your testimony is that 6 this accident occurred somewhere around 6:34 a.m.? 7 A Uh-huh. 8 Q Is that correct? 9 A That is my recollection, yes. 10 Q And you also indicated in that testimony that 11 it's approximately a ten-minute walk from the parking lot 12 to the HMs Host building? 13 A I cannot recall. 14 Q You don't recall how long a walk it is as you sit 15 here today? 16 A No. 17 MR. SHOLLENBERGER: Can I just say I am going to 18 try to tell you what I think without testifying. 19 My confusion is I don't know whether you are 20 asking her if she recalls her testimony or if you are 21 asking her today what she thinks. I think her testimony 22 speaks for itself. I mean I -- whatever she said she said. 23 MR. MURPHY: I understand. 24 MR. SHOLLENBERGER: What her recollection may be 25 today it is what it is. Page 61 1 MR. MURPHY: Right. 2 MR. SHOLLENBERGER: But your question, you keep 3 prefacing your question with I think your testimony on that 4 day was, and I think -- I don't know whether he she's 5 telling you she doesn't remember what she said that day. 6 MR. MURPHY: Right. 7 MR SHOLLENBERGER: Or whether she doesn't 8 remember today. So maybe if you could be a little more 9 specific. It's not an objection per se, just -- 10 MR. MURPHY: I understand. 11 MR. SHOLLENBERGER: A request for clarification. 12 MR. MURPHY: I understand where you are coming 13 from. 14 BY MR. MURPHY: 15 Q Do you recall, ma'am, that this accident occurred 16 at approximately 6:30 a.m.? 17 A Yes. 18 Q And as you sit here, is it your testimony that 19 you don't recall approximately how much time that it would 20 normally take you to walk from the parking lot to the Host 21 each morning? 22 A I am sorry, I cannot recall. 23 Q Okay. I'd like you to take a look at what's been 24 provided to us by the -- I believe it was the court 25 reporter involved in the workers' comp case that you Page 58-Page 61 ALE 717-540-0220/717-393-5101 Multi-Page DIANE MCMILLIN APRIL 22, 2009 Page 62 1 presented. It's a transcript dated March 15 of 2005 of 2 your testimony in that workers' comp case, and I would just 3 like to show you page 23, line 24 through page 24, line 4 three. 5 MR. SHOLLENBERGER: Did you read that? 6 THE WITNESS: Yes. 7 BY MR. MURPHY: 8 Q I am just going to ask you if that refreshes your 9 recollection. 10 A If it's in the records, I said it. 11 Q Oh, I am not suggesting that you are making 12 anything up, ma'am. It's just -- I want to know whether or 13 not in reading that, that refreshed your recollection as to 14 the amount of time that it would have taken you to walk 15 from the parking lot to the Host? 16 A I am sorry, it's been too long. 17 MR. MURPHY: I understand. 18 Now, we will mark that diagram that you prepared 19 as McMillin 1 is fine. 20 (Diagram produced and marked McMillin Exhibit 21 Number 1.) 22 BY MR. MURPHY: 23 Q Prior to this accident, what time would you 24 normally arrive for work at the Host? 25 A I usually arrived close to the same time. Page 63 1 Q Same time as what? 2 A About 6:30 in the morning. 3 Q Okay. When you arrived at 6:30 in the morning, 4 were there any other employees typically there at that 5 time? 6 A Yes. 7 Q Who? 8 A Third shift was there; first shift was coming in. 9 Q Okay. Was your employer aware that you were 10 appearing for work approximately a half an hour before your 11 scheduled start time? 12 A Yes, sir, he signed my timesheets. 13 Q I am sorry? 14 A He signs my timesheets. 15 Q Who is that, your supervisor? 16 A George App. 17 Q George App was your supervisor? 18 A Yes. 19 Q For how long had Mr. App, I believe it's A-P-P, 20 correct? 21 A Correct. 22 Q How long had Mr. App been your supervisor? 23 A Since April 1 st of that year. 24 Q Okay. So since April 1 st, '04? 25 A Correct. Page 64 1 Q Who was your supervisor -- well, was Mr. App 2 still your supervisor when you left in December of '05? 3 A Yes. 4 Q Okay. Who was your supervisor before Mr. App? 5 A Carol Eubank. 6 Q Is Carol still with the company? 7 A Carol is as far as I know. 8 Q Is Mr. App? 9 A I do not know. 10 Q Okay. E-u-b-a-n-k? 11 A Correct. 12 Q Was Carol your supervisor from the time that you 13 began employment with HMS Host? 14 A Correct. 15 Q So you only had those two supervisors while you 16 were employed there? 17 A Correct. 18 Q Okay. You testified that George App would 19 normally sign your timesheets, correct? 20 A Correct. 21 Q Okay. Your time cards? 22 A Correct. 23 Q And then those time cards were submitted to whom? 24 A I am song, I do not know. 25 Q Okay. Did Mr. App or anyone else at HMS Host Page 65 I ever express to you any dissatisfaction or concern with the 2 fact that you appeared for work at 6:30 a.m. as opposed to 3 seven? 4 A No, sir. 5 Q Okay. If you did appear at work on a regular 6 basis at approximately 6:30 a.m., would you normally work 7 until three anyway? 8 A Yes, sir. 9 Q Okay. And tell me what you would typically do on 10 a typical morning when -- after you parked your car at the 11 employee parking lot at the Host? 12 A I would walk through the walkway and among the 13 trucks and go into the front of the building where the door 14 was, punch in my time card, and head immediately back to my 15 desk and start answering the phone for the people that were 16 calling off for first shift, for the people that needed to 17 speak to a manager, for the orders that were coming in, for 18 the orders that needed to be placed. 19 Q Okay. 20 A Then as employees came in and punched in, I was 21 already on the job working and could answer their 22 questions. 23 Q Okay. And I take it that on the morning of this 24 accident, you were at the Plainfield Service Plaza to work 25 that day, is that correct? Page 62 - Page 65 HUGHES. ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Pager"` 1 COUNTY OF DAUPHIN 2 : ss Page 66 1 A Correct. 2 Q Okay. You weren't on a personal venture of any 3 sort, correct? 4 A Correct. 5 Q Did you have supervisory responsibilities over 6 anyone? 7 A No, sir. 8 Q Okay. Were you the only administrative assistant 9 employed by HMs Host at the Plainfield Service Plaza? 10 A By that title, yes. 11 Q Okay. Was there anyone else employed by HMs Host 12 at the time of this accident that was doing the same job 13 that you were just on a different shift, or something along 14 those lines? 15 A No, sir. 16 Q Okay. Did you get periodic reviews by HMs Host 17 of your employment performance? 18 A Yes. 19 Q Okay. Did you also have lunch break during a 20 typical workday? 21 A Not scheduled. 22 Q Okay. Does that mean that you could take a break 23 and eat food any time that you felt like it? 24 A (Witness nodding). 25 MR. SHOLLENBERGER: You have to give a verbal Page 67 1 answer. 2 THE WITNESS: Yes, sir, yes, sir, yes, sir. 3 BY MR. MURPHY: 4 Q Where it was convenient for you and for the 5 company as well, right? 6 A Correct. 7 Q Okay. Approximately how long did you normally 8 take with a break? 9 A I ate at my desk because I answered phones, so it 10 was rive minutes maybe. 11 MR. MURPHY: Okay. 12 MR. SHOLLENBERGER: Off the record. 13 (Discussion held off the record.) 14 (Whereupon, the deposition was adjourned at 15 5:20 p.m.) 16 17 18 19 I21 22 DIANE MCMILLIN APRIL 22, 2009 Page 68 3 COMMONWEALTH OF PENNSYLVANIA : 4 I, Maria N. O'Donnell, a Notary Public, authorized to 5 administer oaths within and for the Commonwealth of 6 Pennsylvania, do hereby certify that the foregoing is the 7 testimony of DIANE MCMILLIN. 8 I further certify that before the taking of said 9 deposition, the witness was duly sworn; that the questions 10 and answers were taken down stenographically by the said 11 Reporter-Notary Public, and afterwards reduced to 12 typewriting under the direction of the said Reporter. 13 1 further certify the said deposition was taken at 14 the time and place specified in the caption sheet hereof. 15 I further certify that I am not a relative or 16 employee or attorney or counsel to any of the parties, or a 17 relative or employee of such attorney or counsel, or 18 financially interested directly or indirectly in this 19 action. 20 I further certify the said deposition constitutes 21 a true record of the testimony given by the said witness. 22 IN wrrNEss WHEREOF, I have hereunto set my hand 23 this 13TH day of MAY, 2009. 24 Maria N. O' , RPR 25 Notary Public Page 66 -Page 68 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page`"` & - cannot DIANE MCMILLIN &[3l 1:14 1:18 1:21 104 [21 23:3 63:24 '05 [41 23:3 23:5 23:7 64:2 '06 [11 12:22 '07 [41 12:22 41:14 41:15 41:19 '08 12] 41:14 41:15 -0- 06-1173 [11 1:5 -1- 1 [31 2:9 62:19 62:21 102[11 5:12 12-31-2005 [1122:24 13TH [11 68:23 15 [11 62:1 16 [11 34:22 166-46-4307 [11 5:17 17011 [11 5:13 1982 [1] 9:9 1992[2] 9:18 9:19 1 st [21 63:23 63:24 -2- 2004 [6] 22:12 35:7 35:11 35:22 37:2 47:23 2005 [] 32:22 36:9 38:25 39:6 39:13 48:4 62:1 2009 [211:13 68:23 20th [31 36:9 38:25 39:6 22[11 1:13 2225 [1] 1:15 23 [11 62:3 24 [2] 62:3 62:3 21St [21 35:11 37:2 -3- 3 [11 2:4 31 [2] 32:22 39:13 3:00 [21 34:16 34:17 3:41 [1] 1:13 50 [1] 33:4 5:20 [1] 67:15 -6- [11 5:15 62 [11 2:9 6:30 [61 59:13 61:16 63:2 63:3 65:2 65:6 6:34 [1] 60:6 6:45 [11 59:9 -7- - 7:00 [41 34:16 34:17 59:3 59:4 -8- 83 [1] 34:22 -9- 9 [11 9th [11 47:23 35:7 [11 68:2 -A- A-P-P [1] 63:19 a.m [4] 34:17 59:14 65:2 65:6 a.m. [2] 60:6 61:16 able [61 29:1 31:18 33:25 50:19 53:20 55:7 absence [21 36:17 37:4 access [3] 51:21 53:1 57:25 accident [671 6:4 6:14 6:17 6:25 7:4 7:6 7:7 7:8 7:17 8:2 10:1 14:2 16:23 22:12 22:17 25:3 25:4 25:18 27:1 28:25 29:11 30:13 30:14 30:20 31:16 31:17 34:23 35:4 35:6 35:7 35:13 35:16 36:18 36:22 37:1 37:24 38:2 38:6 38:9 38:13 39:2 39:14 39:18 39:19 39:20 40:12 40:18 42:22 47:23 49:2 49:12 50:5 50:12 51:1 51:7 51:24 52:5 53:3 58:17 58:20 58:21 59:24 60:6 61:15 62:23 65:24 66:12 accommodate [1] 4:16 accommodation [11 31:20 accommodations [31 31:16 42:21 42:24 according [2] 35:21 37:1 ACTION [1] 1:4 action [21 3:15 68:19 additional [11 36:2 address [11 5:11 adjourned [11 67:14 administer [1] 68:5 administrative [51 24:13 27:4 27:6 31:22 66:8 administrator [11 27:19 adopt [11 6:7 advance [1] 5:23 afternoon [21 3:12 3:13 afterwards [1] 68:11 Again [11 55:6 again [61 9:21 29:24 37:1 37:12 39:3 57:20 aggravated [1] 50:20 aggravation [11 14:8 ago [2] 9:8 12:19 agree [1] 51:17 agreeable [11 5:3 agreed [11 8:24 alleviate [11 47:14 allowed [11 56:21 alluding [11 43:22 almost [1] 44:25 along [4] 24.2 24:4 56:12 66:13 alphabetical [11 20:5 alter [1] 33:20 always [s] 13:7 41:3 47:15 48:20 53:15 amended [11 4:24 among [11 65:12 amount [2] 49:25 62:14 angle [11 30:25 answer [4] 9:23 40:14 65:21 67:1 answered [3] 4:11 27:20 67:9 answering [31 3:19 27:16 65:15 answers [31 3:20 6:9 68:10 anyway [1] 65:7 Apartment [11 5:12 apologies [1] 37:16 apologize [4] 5:22 17:11 37:7 53:2 App [91 63:16 63:17 63:19 63:22 64:1 64:4 64:8 64:18 64:25 appear [21 59:7 65:5 APPEARANCES [11 1:17 appeared [21 59:2 65:2 appearing [11 63:10 application [1] 17:20 applied [2] 17:22 18:25 apply [21 17:19 19:10 approached [11 49:18 approximations [1] 4:6 APRIL [11 1:13 April [31 12:18 63:23 63:24 arch [11 56:2 area [111 11:6 11:7 25:24 26:1 26:5 29:6 31:5 31:6 52:23 56:21 58:6 arising [2] 7:17 8:1 arm [4] 31:1 33:6 33:14 33:21 arrive [11 62:24 arrived [41 59:23 60:3 62:25 63:3 asks [11 6:9 aspect [2] 30:12 30:19 assigned [11 20:21 assistant [91 13:18 15:1 18:21 19:14 24:13 27:4 27:18 31:22 66:8 associated [31 10:25 11:25 19:15 Association [1] 18:9 assume [11 4:2 ate [11 67:9 attachment [11 43:1 attempted [1] 47:13 attend [11 10:22 attorney [2] 68:16 68:17 authorized [1] 68:4 auto [11 49:1 automobile [21 49:13 49:22 aware [2] 32:24 63:9 away [1]46:10 -B- B [11 5:1 background [118:18 bar [71 24:7 26:3 26:3 26:9 26:14 27:13 28:1 basis [4134:19 37:4 37:7 65:6 Bassett [11 8:8 becoming [1] 44:9 bed [11 50:21 began [71 13:11 15:24 20:22 24:14 41:6 42:19 64:13 begin [4] 12:14 13:19 22:21 57:15 beginning [21 41:9 55:9 begins [11 56:3 behind [11 58:2 benefits [7] 7:16 7:23 7:23 8:1 8:5 8:14 27:9 bent [11 15:13 better [11 47:15 between [41 3:2 15:10 15:23 23:15 bills [1] 49:19 binders [1] 29:8 birth [1] 5:14 bit [1] 50:24 bleach [11 47:5 Blue [5] 48:19 48:20 48:24 49:3 49:12 books [s1 28:10 28:11 28:12 28:17 28:18 bottle [21 47:4 47:5 break [7] 4:14 44:13 44:14 46:7 66:19 66:22 67:8 Brief [1144:17 bring [2] 43:5 55:13 bringing [2] 27:10 29:6 brought [1] 3:15 budget [11 32:23 building [1s] 25:23 26:13 26:15 26:18 26:21 53:6 54:3 54:11 54:12 57:13 57:18 58:1 58:13 60:12 65:13 buildings [1] 15:6 business [31 9:14 26:20 26:22 businesses [31 24:4 26:1 27:12 -C- C [11 5:2 cabinet [11 28:14 cabinets [11 20:5 calls [1] 6:8 cannot [29] 13:20 15:9 16:15 16:19 17:4 17:23 19:24 22:22 28:16 28:24 Index Page 1 MIrHF& ALBRIGHT_ FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page"` capacity - during DIANE MCMILLIN 29:25 31:21 32:17 32:20 34:24 35:12 36:1 37:16 38:1 38:7 38:23 39:15 39:21 48:3 48:7 48:22 58:19 60:13 61:22 capacity [2] 8:25 9:22 Capital [4] 48:19 48:20 48:24 49:3 caption [1] 68:14 car [2] 49:11 65:10 card [1] 65:14 cards [2] 64:21 64:23 Carlisle [1] 6:20 Carol [4] 64:5 64:6 64:7 64:12 carpal [2] 43:23 45:12 carrier [4] 7:2 8:3 48:18 49:14 cars [1] 57:23 cartons [1] 28:4 case [1o] 6:4 8:1 8:3 9:1 41:3 53:4 53:19 54:5 61:25 62:2 cash [1] 8:12 caused [2] 49:11 50:16 cents [1] 34:22 CEO (1] 18:21 certain [3] 6:20 34:10 37:10 certainly [2] 4:6 9:2 certification [1] 3:3 certify [s] 68:6 68:8 68:13 68:15 68:20 cetera [1] 15:6 chair [1] 42:25 check [6] 8:6 8:9 8:11 27:25 28:2 29:16 children [1] 5:20 chip [1] 28:4 chocolate [1] 28:4 CIVIL [11 1:4 civil [1] 3:15 Clahan [2] 42:10 42:11 claim [11] 7:15 7:17 7:22 8:24 8:25 9:2 9:5 9:22 14:2 49:13 50:13 claims [1] 3:17 clarification [1] 61:11 clarify [1] 39:3 clear [2] 56:18 58:8 click [1] 14:18 clients [11 20:17 clinics [2] 11:5 12:3 clock [2] 58:15 59:8 close [3131:6 33:10 62:25 co-employees [2] 15:17 51:14 college [2] 8:20 9:7 coming [3] 61:12 63:8 65:17 Commission [2] 23:19 23:25 committee [1] 10:22 COMMON [1] 1:1 COMMONWEALTH [11 68:3 Commonwealth [1] 68:5 communication [1] 9:14 COMP [4] 8:2 8:4 61:25 62:2 company [11] 20:9 20:15 20:22 21:6 21:18 21:24 22:7 40:20 51:6 64:6 67:5 compensation [4] 7:16 7:16 8:12 59:13 complaint [2] 4:25 5:1 complete [1] 16:7 completed [1] 8:19 complies [1] 58:9 computer [6] 30:17 30:23 31:3 31:5 33:2 33:17 concentrate [1] 50:20 concern [2] 47:10 65:1 concerned [1] 41:7 conchate [1] 9:3 confusing [1] 37:8 confusion [1] 60:19 constantly [1] 47:3 Constitutes [1] 68:20 contacted [1] 49:3 contained [1] 26:15 continue [1] 12:24 continues [1] 55:20 contract [1] 23:24 contracted [1] 23:21 convenient [1] 67:4 Conversely [1] 59:7 convicted [1] 5:25 corporate [3] 10:8 10:9 41:8 Corporation [4] 13:15 16:21 38:19 51:3 corporation [1] 23:18 Correct [66] 4:4 8:13 10:2 12:7 12:9 12:13 12:23 13:1 14:24 17:8 17:21 18:14 18:16 19:6 19:17 19:19 20:7 20:25 21:10 21:13 22:9 24:1 24:3 24:19 25:13 26:16 27:15 29:9 30:11 31:7 33:12 35:9 36:8 39:7 39:10 41:4 41:20 42:12 42:16 43:17 45:13 45:22 48:13 51:4 51:8 51:11 51:13 51:23 51:25 52:3 52:7 52:9 57:14 57:16 59:6 59:11 63:21 63:25 64:11 64:14 64:17 64:20 64:22 66:1 66:4 67:6 correct [32] 10:1 12:12 19:16 25:19 30:10 33:11 34:23 35:8 36:10 36:11 39:6 39:9 40:12 45:12 45:22 47:10 51:3 51:7 51:10 51:14 51:22 52:1 52:4 52:8 54:9 59:5 59:10 60:8 63:20 64:19 65:25 66:3 correspondence [1] 35:5 counsel [6] 3:2 5:6 8:23 35:4 68:16 68:17 COUNTY [2] 1:2 68:1 couple [2] 22:4 36:12 course [3] 4:15 40:8 43:9 COURT [1] 1:1 court [3] 4:9 41:23 61:24 coverage [6] 48:12 49:25 50:1 50:3 50:7 50:8 covered [4] 48:11 48:24 49:9 49:12 crawl [2] 29:15 31:18 cream [s] 26:3 26:10 26:14 27:25 28:1 Crime [2] 5:25 6:1 Cross [s] 48:19 48:20 48:25 49:3 49:12 CUMBERLAND [1] 1:2 current [11 5:11 customer[1] 54:18 customers [1] 57:23 Cut [1] 56:1 cut [1] 55:24 -D- damages [2] 9:6 14:1 dashed [3] 54:23 56:18 57:19 DATE [1] 1:13 date [3] 5:14 35:10 42:18 dated [11 62:1 dates [2] 12:15 36:1 DAUPHIN [1] 68:1 days [7] 21:23 22:4 40:3 40:6 40:14 43:15 50:17 dealing [1] 27:21 December [3] 32:22 39:13 64:2 decision [1] 14:3 declaration [1] 49:24 declarations [11 49:23 declined [2] 32:14 32:18 DEFENDANT [3] 1:8 1:10 1:23 defendant [2] 50:25 51:5 Deliveries [2] 55:15 55:16 DEMANDED [1] 1:8 demanding [1] 28:23 demands [4] 10:25 11:25 19:15 28:6 DEPOSITION [2] 1:9 2:8 deposition [6] 3:19 4:15 67:14 68:9 68:13 68:20 depth [1] 8:23 describe [1] 28:5 desk [6] 19:18 30:25 31:1 33:11 65:15 67:9 determine [1] 47:13 diagnosed [2] 43:22 45:11 Diagram [2] 2:9 62:20 diagram [s] 53:8 53:19 53:22 56:19 62:18 diagrams [1] 53:3 DIANE [s] 1:1 1:9 2:3 3:8 68:7 Diane [4] 4:24 5:3 5:10 45:2 dictated [11 10:19 dictation [1] 12:8 differences [1] 15:16 different [3] 18:13 33:8 66:13 difficult [2] 53:5 53:20 difficulties [1] 33:9 difficulty [s] 29:5 29:10 30:13 30:17 30:20 30:24 33:16 34:5 direction [1] 68:12 directly [1] 68:18 disability [2] 7:23 7:23 Discussion [1] 67:13 dishonesty [2] 5:25 6:1 dissatisfaction [1] 65:1 distance [1] 55:3 doctor [11 6:13 documents [1] 11:4 doesn't [2] 61:5 61:7 dollars [11 34:22 dominant [1] 46:23 done [1147:14 door [2] 55:13 65:13 doorway [3] 52:22 55:23 56:12 down [16] 4:10 14:7 28:3 29:6 29:14 29:21 30:4 31:19 43:6 52:11 52:23 54:1 56:5 56:7 56:8 68:10 Dr [3] 48:1 48:2 48:9 draw [1] 53:7 Drayer [22] 10:6 12:14 12:25 13:8 13:11 13:14 15:21 15:24 16:21 22:17 38:16 39:17 39:23 40:18 41:6 41:21 42:19 43:14 45:20 46:1 48:16 48:21 drew [1] 54:9 drive [2152:11 57:22 drive-thru [1] 55:17 driveway [1] 55:12 driving [1] 7:3 drop [2] 47:2 47:3 dropping [1] 47:9 due [1] 43:9 duly [2] 3:8 68:9 during [4] 4:14 18:1 19:23 66:19 Index Page 2 HUGHES, ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page duties - hours DIANE MCMILLIN duties [13] 10:21 14:25 24:20 27:6 27:16 29:1 29:10 33:3 37:25 38:3 38:6 38:22 46:1 -E- E [2] 5:1 5:2 E-u-b-a-n-k [1] 64:10 early [1] 59:8 earning [3] 8:25 9:22 34:22 earnings [4] 8:24 49:25 50:7 50:8 eat [1] 66:23 edge [2] 31:6 33:10 education U] 8:23 9:3 9:4 9:10 9:17 9:24 10:1 educational [1 18:17 effect [2] 34:9 45:9 efficient [1] 34:8 Ehrenzeller [3] 41:22 41:24 41:25 Elaine 111 5:10 employed [81 10:3 13:8 21:6 22:10 38:18 64:16 66:9 66:11 employee [11] 15:2 19:12 51:2 52:1 58:6 58:7 58:12 59:24 65:11 68:16 68:17 employees [s] 27:17 51:16 52:5 63:4 65:20 employer [9] 20:2 20:3 21:15 31:15 31:20 34:21 39:19 48:15 63:9 employers [3] 6:17 22:11 22:16 employment [23] 12:25 13:10 15:21 16:9 16:20 16:22 17:16 17:18 17:25 18:1 18:4 22:2 24:11 24:18 24:21 24:24 34:14 37:12 40:8 41:7 50:24 64:13 66:17 end [2] 56:5 56:7 endorsement [ 11 50:2 ends [1] 56:3 ENOLA [1] 1:16 entire 111 18:24 entirely [11 29:3 entities [1] 18:13 entity [11 18:18 envelope [1] 20:19 envelopes [2] 20:16 21:12 episode [11 44:25 erase [1] 54:5 especially [1] 39:25 ESQUIRE [2] 1:19 1:22 essentially [1] 33:13 estimate [6] 23:11 32:5 32:8 33:1 40:4 44:10 estimating [11 40:10 estimation [1] 23:13 et [1] 15:6 Eubank [11 64:5 evaluations [1] 34:12 exact [11 12:15 Exactly [11 10:20 exactly [1] 55:16 EXAMINATION [2] 2:2 3:10 example [1] 27:25 except [1] 3:4 Excuse [3] 4:18 23:8 23:20 excuse [2] 27:19 34:15 executive [21 18:21 19:14 EXHIBIT [1] 2:8 Exhibit [1] 62:20 EXHIBITS [1] 2:7 exit [11 16:11 expansive [1] 20:13 expected [11 29:2 expenses [1] 8:3 experience [s] 44:19 45:8 46:3 47:21 47:22 experiencing [3] 15:12 45:18 45:25 explain [3] 29:4 53:20 53:21 express [1] 65:1 eye [1] 43:5 -F- F [2] 1:22 5:2 fact [3] 12:1 43:22 65:2 fair [1] 52:16 faith [1] 47:17 far [,] 10:25 33:5 33:18 35:3 36:14 41:6 64:7 February [1] 18:24 felt [1] 66:23 fence [13] 52:17 52:19 52:20 53:9 55:2 55:8 55:10 55:12 55:17 55:24 56:1 56:3 56:3 fenced [41 52:23 52:23 56:6 56:7 few [2] 8:20 23:21 fifteen [11 59:8 file [3] 4:24 20:5 28:14 filed [1] 20:5 files [1] 28:14 filing [91 3:4 15:5 20:4 20:6 20:12 20:24 21:8 28:13 28:22 Fill [1] 15:2 fill [3] 6:17 6:19 17:20 filling [1] 14:6 financially [1] 68:18 fine [6] 23:10 44:16 54:14 54:25 59:20 62:19 finish [1] 4:8 finished [11 8:21 fired [1] 16:5 First [11 3:20 first [14] 17:15 20:13 20:24 23:16 23:17 24:14 35:6 35:15 37:23 43:8 51:1 54:5 63:8 65:16 fit [4] 14:13 14:15 14:16 15:10 five [3] 23:15 28:20 67:10 fixed [4129:22 29:23 30:8 30:9 floor [2129:16 31:18 fold [1] 20:18 folded [11 20:16 folding [1] 21:11 following [9] 4:25 5:1 31:16 35:4 36:17 38:6 38:11 38:20 38:24 follows 111 3:9 Food [,111:22 food [21 27:21 66:23 foregoing [1] 68:6 forget [1] 26:12 form [3] 3:5 6:17 16:8 formal [3] 9:10 9:17 10:1 forms [31 14:6 15:2 20:15 FORRY [2] 1:21 1:21 Forty [11 32:1 forty [2110: 13 19:23 found [31 30:2 43:9 46:13 Four [1] 45:3 four [a] 12:19 14:23 29:24 40:6 40:14 43:14 44:25 50:17 frequent [1] 44:9 frequently [3] 44:7 44:10 44:21 front [2] 58:1 65:13 full [111 5:8 13:7 19:22 36:19 36:21 37:23 37:24 38:3 38:6 38:21 38:21 full-time [7] 10:11 19:9 19:12 19:20 31:23 37:7 37:12 funds [1] 48:10 future [1] 49:19 -G- G [1] 5:2 gain [1] 57:25 Gallagher [11 8:8 game [4126:3 26:9 26:14 27:13 gas [3] 25:21 26:18 26:20 gate [2] 52:20 53:1 generally [1] 24:20 George [3] 63:16 63:17 64:18 Giant [2] 11:21 11:22 Gift [11 26:6 gift [s] 24:7 26:4 26:5 26:10 26:15 given [1] 68:21 goes [1] 56:8 Good [2] 3:12 3:13 good [414:22 14:13 14:15 14:16 grade [1] 8:19 grip [4] 46:20 46:21 46:25 47:8 guess [21 4:5 26:4 [11 5:24 -H- half [4] 35:1 45:1 45:3 63:10 hand [2150:11 68:22 Hands [11 49:6 hands [11] 43:16 44:1 44:4 44:8 44:24 45:18 46:9 46:18 46:21 47:22 49:10 hanging [2] 31:3 31:4 HAPP [4] 18:7 18:9 18:20 19:2 happening [1] 37:22 Harrisburg [1] 18:9 head [7] 3:21 3:22 11:3 14:7 15:12 50:19 65:14 headphones [1] 12:8 health [3] 15:4 47:18 48:14 hear [1] 45:4 heard [11 4:2 hearing [1] 8:12 heat [2] 46:10 46:12 heavy [11 52:21 held [1] 67:13 help [1] 31:11 helpful [1] 53:7 helping [s] 27:5 27:6 27:9 27:18 27:19 hereby [3] 3:2 3:4 68:6 hereof [1] 68:14 hereunto [11 68:22 Hershey [2] 11:6 28:3 Hersheypark [1] 11:9 higher [1] 42:18 Highspire [11 25:11 hired [1] 19:9 hires [1115:2 hiring p] 27:18 hit [1] 52:25 HM [1] 27:9 HMS [29] 13:15 16:20 17:25 22:13 22:17 22:21 23:12 23:17 24:11 25:6 26:8 27:4 27:17 31:22 33:19 38:19 39:1 51:2 51:2 52:2 52:8 53:6 54:2 60:12 64:13 64:25 66:9 66:11 66:16 hold [21 47:2 53:18 Holencik [31 48:1 48:2 48:9 Holy [11 11:17 home [s] 10:10 41:3 41:10 42:2 42:4 42:14 59:13 59:19 Hospital [3] 6:20 11:17 18:9 Host [34] 13:15 16:20 17:25 22:13 22:17 22:21 23:12 23:17 25:7 26:8 27:4 27:17 31:23 38:19 39:1 51:2 52:2 53:6 54:3 54:11 54:12 57:13 57:18 58:12 60:12 61:20 62:15 62:24 64:13 64:25 65:11 66:9 66:11 66:16 hour [3] 34:23 45:16 63:10 hourly [1] 34:19 hours 191 10:13 Index Page 3 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page"` HR - needed DIANE MCMILLIN 19:23 32:1 32:10 32:10 34:14 45:1 45:3 HR [3] 13:18 15:1 27:9 Hummelstown [11 10:8 hundred [2] 12:21 37:10 -I- ice [s] 26:3 26:10 26:14 27:25 28:1 immediately [21 38:9 65:14 impaired [1] 8:25 impairment p] 9:22 importantly [1] 8:25 inches [21 28:20 28:20 incident [6] 7:18 8:2 22:12 47:23 include [3] 24:6 55:7 includes [i] inclusive [1] incorrect [1] increasing [1] indicate [1] indicated [61 33:8 49:24 58:6 60:10 Indicating [1] indicating [2] 54:24 indirectly [1] initial [2] 37:3 injuries [1s] 14:1 30:13 38:12 39:1 39:17 39:19 40:18 40:24 42:21 50:23 injury [1] instance [1, instances [1] Institute [1] insurance [9] 15:4 15:5 48:14 48:18 49:14 49:22 insurer [1] intention [1l interested [1l 5:24 3:17 16:23 9:2 24:6 6:21 59:14 44:2 56:9 21:8 56:18 54:17 34:22 68:18 36:17 6:4 31:16 39:13 40:12 40:25 14:8 32:18 32:14 10:6 [1] 3:18 7:2 40:20 48:21 6:24 12:24 68:18 [1] nterruption [1123:8 nterview [1, 16:11 evolved [3] 27:17 28:8 61:25 involving [2] 5:25 6:1 items [1] 43:7 itself [1160:22 _J_ January [4] 17:23 36:9 38:25 39:6 JANUZZI [2] 1:14 1:18 jar [1] 47:4 JESSICA [1] 1:25 Jim [4] 42:10 42:11 42:13 42:15 job [291 12:1 12:11 13:7 14:25 15:18 19:16 20:11 20:21 20:23 20:24 20:24 24:20 27:3 27:16 28:6 29:1 29:10 30:12 30:19 31:22 33:3 33:9 33:25 38:12 45:19 45:21 46:1 65:21 66:12 jobs [1] 21:14 JOSEPH [11 1:22 Joseph [1] 3:14 jumping [1] 17:11 June [s] 22:12 35:7 35:11 37:2 47:23 JURY [1] 1:8 -K- keep [1] 61:2 kept [1] 28:10 ketchup [1] 47:4 key [2] 33:10 55:12 keyboard [2] 31:1 43:1 kind [81 7:23 8:1 8:5 16:12 26:4 31:2 45:24 50:18 knowledge [21 6:2 24:5 lack[i] 15:10 laid [2] 23:1 32:21 Lane [9] 52:12 52:13 52:14 53:5 56:8 56:9 57:3 57:4 58:11 lane [1] 55:9 last [61 9:16 40:17 44:12 44:22 44:25 48:2 LAW [1, 1:4 lawsuit [2] 50:25 51:5 lead [21 52:15 52:17 leads [2148:23 49:9 least [21 55:9 56:25 leave [419:25 13:2 14:3 16:4 leaving [1] 16:9 Left [1] 44:5 left [26] 4:20 13:23 14:9 15:14 15:24 24:11 24:24 24:25 31:1 31:1 31:2 33:7 33:14 36:7 39:12 44:3 46:22 46:23 52:25 56:19 57:4 58:11 59:9 59:13 59:19 64:2 Lemoyne [1] 17:10 length [11 22:2 letter [1] 34:21 letters [1] 21:11 level [1] 43:5 life [1] 15:4 lift [2] 28:11 28:14 lifting [6] 12:11 28:8 28:10 28:12 28:15 29:5 Light [11 28:7 likely [1] 41:19 limitations [2] 34:2 34:3 limited [2] 22:8 51:21 line [3] 54:9 62:3 62:3 lines [3154:23 57:19 66:14 Linglestown [3] 10:23 11:7 11:8 listening [1l 12:8 literature [11 49:8 LLP [21 1:14 1:18 local [1] 8:20 located 1101 10:7 11:11 11:21 17:9 17:12 51:18 53:6 53:8 53:9 58:7 location [1o, 24:10 24:23 24:24 25:6 25:10 26:11 27:5 41:6 51:9 51:16 locations [1] 18:7 Locust [1] 5:12 longer [1l 34:8 look [3] 43:6 43:6 61:23 lose [1] 40:11 losing [1] 40:2 lost [7] 8:10 8:24 40:5 40:10 49:25 50:7 50:8 lunch [1] 66:19 -M- M[1] 1:25 Ma'am [2] 9:21 44:19 ma'am [9] 3:12 5:23 17:11 44:13 51:17 53:2 53:18 61:15 62:12 mail [2] 20:13 20:20 mailed [2] 20:16 20:16 majority [1] 12:5 manager [4] 27:6 27:19 32:13 65:17 mandatory [11 32:15 manifest [1] 46:25 March [1] 62:1 MARIA [?] 1:11 Maria [2] 68:4 68:24 mark [1] 62:18 MARKED [1] 2:8 marked [1] 62:20 married [1] 5:18 MAY [1] 68:23 may [S] 5:23 9:21 9:23 12:19 12:22 15:16 50:1 60:24 McDonalds [1] 24:9 MCMILLIN [s] 1:1 1:9 2:3 3:8 68:7 McMillin [31 5:10 62:19 62:20 mean [u] 6:5 14:14 20:14 27:24 35:24 36:20 36:22 36:25 40:11 60:22 66:22 Mechanicsburg [1] 17:13 medical [111 8:3 15:3 45:23 46:14 47:12 47:20 48:11 48:12 49:19 49:25 50:3 meeting [21 10:22 40:23 mentioned [121 7:13 26:23 27:13 28:17 28:22 29:8 30:21 31:18 43:11 47:8 50:15 55:11 Messiah [13] 13:16 13:17 14:3 15:7 15:11 15:14 15:17 15:20 15:24 16:4 16:21 17:12 22:18 met [1] 40:19 micro [41 29:14 30:4 30:10 31:19 Middletown [1] 25:10 might [7] 29:23 29:24 32:11 37:20 43:21 48:5 53:7 MILLENNIUM [1, 1:15 mind [1] 53:23 minutes [21 59:8 67:10 mischaracterize [1] 43:13 misrepresent [1] 59:15 Miss [2] 3:14 51:5 miss [4] 38:11 38:25 39:11 39:18 missed [14] 35:25 36:2 36:4 38:8 38:9 38:11 39:4 39:17 39:22 40:17 40:19 43:11 43:12 43:14 money [3] 7:25 8:4 32:23 monies [11 8:14 monitor [21 .43:4 43:8 month [61 12:17 18:24 19:3 19:23 32:6 32:11 months [51 13:22 14:23 16:3 30:5 36:12 morning [s] 59:19 59:21 59:24 61:21 63:2 63:3 65:10 65:23 most [2] 11:3 38:16 motioning [21 33:6 33:7 move [s] 31:8 31:12 31:13 31:13 46:9 multiple [11 20:5 MURPHY [3o] 1:22 2:4 3:11 4:20 4:22 5:6 5:7 23:9 36:24 37:6 44:16 44:18 45:4 45:7 53:12 53:16 54:7 59:17 59:22 60:23 61:1 61:6 61:10 61:12 61:14 62:7 62:17 62:22 67:3 67:11 Murphy [1l 3:14 N- N[41 1:11 5:2 68:4 68:24 NAME [11 2:2 name 191 3:14 5:8 6:24 7:2 15:9 17:2 18:18 25:14 neck [9] 14:8 15:12 39:24 43:6 43:15 50:15 50:16 50:18 50:23 need [41 3:18 28:2 28:3 44:14 needed 181 20:4 22:3 22:7 28:1 28:4 29:6 65:16 Index Page 4 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page Im neutral - records DIANE MCMILLIN 65:18 neutral [i] 46:9 new [41 11:21 11:22 15:2 27:10 Nine Ill 5:12 nod [11 3:21 normally [61 53:2 61:20 62:24 64:19 65:6 67:7 North[i] 5:12 NOTARY [il 1:12 Notary [2] 68:4 68:25 notebooks [21 28:19 29:5 notes [2] 10:18 10:23 Now [io] 4:22 26:12 49:22 51:17 53:2 53:13 57:2 58:15 59:12 62:18 now [3] 10:10 44:10 44:21 Number Ill 62:21 number [21 5:16 28:4 numbness [12] 44:3 44:7 44:19 45:8 45:15 45:18 45:24 46:3 46:10 46:15 46:18 47:8 -O- O [i] 5:2 o'clock [2] 59:3 59:5 O'DONNELL [i] 1:11 O'Donnell [21 68:4 68:24 oaths hl 68:5 objection [1] 61:9 objections [11 3:4 obtain [2] 7:9 15:21 occurred [s] 25:3 50:5 51:24 60:6 61:15 October [61 35:22 35:25 41:11 41:17 41:19 42:14 Off [2] 45:19 67:12 off [s] 23:1 31:1 31:2 31:4 32:21 43:1 65:16 67:13 offered [1l 32:19 office [s] 10:8 10:9 10:23 25:13 41:8 Often [1130:1 OIP[2) 11:8 11:12 once [2l 10:23 29:24 One [2] 19:3 21:19 one [is) 3:24 11:4 11:6 11:6 11:8 11:8 11:9 12:21 18:7 26:8 26:15 28:20 29:15 29:18 33:8 33:8 37:9 55:7 ones [i] 26:23 Open [2] 47:3 55:13 Opens Ill 55:18 opposed [3] 3:21 33:3 65:2 optional Ill 32:16 order [4] 20:5 28:1 52:10 53:1 ordered Ill 42:25 orders [fl 27:20 27:21 27:23 65:17 65:18 original Ill 20:21 overhead [2] 28:11 28:11 overtime [6l 32:3 32:5 32:15 32:16 32:19 34:25 own [2] 26:8 47:6 -P- P.M [il 1:13 p.m Ill 67:15 p.m. Ill 34:17 pad [21 33:10 33:10 page [41 49:23 57:4 62:3 62:3 paid [4] 34:19 58:24 59:3 59:9 pain [2] 15:11 50:20 Pam [s] 41:22 42:1 42:3 42:15 42:17 paper [4] 20:12 20:18 21:9 55:8 paperwork [11 27:10 park [3] 52:5 52:19 57:7 parked [2] 58:3 65:10 parking [3s] 11:24 51:24 52:1 52:6 52:10 52:18 53:1 53:6 53:8 54:17 54:18 54:19 54:24 54:24 55:1 55:8 56:6 56:10 56:11 56:15 56:16 56:17 56:19 56:21 57:1 57:5 57:18 58:3 58:4 58:7 58:7 58:12 58:12 59:24 60:11 61:20 62:15 65:11 part [s] 25:13 26:21 37:9 37:15 50:17 part-time Ill 37:4 particular [41 20:8 24:10 59:21 59:25 particularly [2115:19 50:23 parties [21 3:3 68:16 past Ill 41:17 patients Ill 11:4 pay [21 8:3 48:10 paying [3] 49:4 49:18 49:19 PC Ill 1:21 pencil Ill 54:4 PENNSYLVANIA [3] 1:3 1:16 68:3 Pennsylvania [4] 18:10 23:24 51:18 68:6 people [s] 14:20 15:11 57:22 65:15 65:16 per [s1 10:13 32:1 34:23 44:21 61:9 percent [3] 12:21 33:4 37:10 percentage Ill 33:2 perform [3] 29:1 29:2 34:25 performance Ill 66:17 Perhaps Ill 40:6 period [s] 15:23 16:2 22:8 39:12 45:14 periodic [11 66:16 periods [l] 44:2 perjury Ill 6:1 permission (1) 4:24 person [2] 19:9 28:2 personal Ill 66:2 Phone [4] 6:9 12:2 27:20 65:15 phones [2] 11:4 67:9 Physical [6] 10:6 16:21 22:17 38:16 42:20 45:20 physical [s] 10:18 10:25 11:25 19:15 28:5 physically [11 28:23 pickle [i] 47:4 piece [1120:18 Pine [io] 52:11 52:12 52:13 52:14 53:5 56:7 56:9 57:3 57:4 58:11 PLACE Ill 1:14 place [3] 31:13 53:23 68:14 placed [3] 17:16 17:18 65:18 places [1] 9:13 Plainfield [ii] 25:2 25:2 25:7 25:15 27:5 31:23 34:15 51:12 51:18 65:24 66:9 PLAINTIFF [2] 1:2 1:20 plaintiffs Ill 53:3 plans [1l 13:2 Plaza lsl 25:2 25:7 25:15 31:23 34:15 51:18 65:24 66:9 plaza [4] 25:3 25:19 25:22 52:16 PLEAS [i] 1:1 pled [i] 5:24 point [919:23 36:20 36:21 37:11 38:2 38:21 39:8 41:1 41:9 Policy [7] 48:25 49:22 50:1 50:4 50:4 50:9 52:8 PORTER [i] 1:7 Porter [2] 3:15 51:5 position [is] 10:11 11:1 13:19 13:21 13:24 14:10 14:16 15:14 18:12 19:5 19:5 19:9 19:10 19:20 31:24 positive [i] 12:21 postage [1] 20:19 prefacing [11 61:3 prepare [i] 53:3 prepared [2] 6:6 62:18 prepares Ill 6:7 PRESENT [i] 1:24 present [2] 8:24 9:22 presented [2] 9:5 62:1 presenting [11 3:18 presume [1] 17:19 prevent [i] 46:4 previous Ill 40:9 private [il 48:14 problem [71 30:2 30:10 43:25 47:14 47:21 50:12 50:15 problems pol 15:3 39:24 43:15 43:18 46:18 46:25 47:8 47:21 50:16 50:18 PRODUCED [i] 2:8 produced [l] 62:20 product Ill 34:9 provide [41 4:1 4:9 6:9 33:20 provided [s) 6:3 6:13 6:16 49:23 61:24 provider [2] 45:23 47:20 providers [21 46:15 47:13 PUBLIC [i] 1:12 Public [41 54:19 68:4 68:11 68:25 public [7] 54:24 54:24 55:1 57:17 57:21 57:22 58:3 punch [s] 58:15 58:22 59:4 59:8 65:14 punched [3] 58:25 58:25 65:20 push [11 43:6 put po] 4:19 4:23 14:7 20:4 20:16 20:18 20:19 54:1 54:23 57:18 Putting [21 21:12 27:11 _Q_ quality Ill 9:15 quarter [2] 10:23 45:16 questions [14] 3:16 3:19 3:24 6:9 6:10 9:2 9:3 9:23 27:9 27:10 27:17 53:15 65:22 68:9 quite Ill 55:3 -R- R [i1 5:2 rain Ill 29:22 range Ill 45:15 read [3] 6:7 49:8 62:5 reading Ill 62:13 ready Ill 4:21 reason [9] 13:23 14:9 14:12 15:13 19:7 22:6 32:21 32:24 48:8 reasonable Ill 4:6 reasons [3] 16:8 16:14 16:16 recalls [i] 60:20 received [s] 7:25 8:4 8:6 8:14 8:15 recess [11 44:17 recollection [6159:12 60:5 60:9 60:24 62:9 62:13 record ui 4:19 4:23 5:8 56:18 67:12 67:13 68:21 recorded Ill 6:8 records [4] 35:22 37:1 53:21 62:10 Index Page 5 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM redepose - system DIANE MCMILLIN redepose [1] 9:1 reduced [1] 68:11 referred [1] 33:17 'referring [21 26:25 34:3 reflected [11 34:11 refreshed [11 62:13 refreshes [1] 62:8 regard [6] 9:2 9:3 9:4 9:24 46:17 52:19 regarding [11 6:14 regular [1] 65:5 related [31 45:25 47:22 50:12 relative [3] 49:4 68:15 68:17 remember p] 4:11 18:22 33:6 40:2 41:17 53:13 59:23 61:5 61:8 removing [1] 4:25 repeat [1] 21:4 rephrase [2] 3:25 7:1 report [1] 7:7 reported [1] 7:8 Reporterp] 68:12 reporter [3] 4:10 41:23 61:25 Reporter-Notary [1] 68:11 reports [2] 12:3 23:18 represent [1] 3:14 representations [1] 35:5 request [61 30:9 32:13 33:19 42:24 43:7 61:11 equested [1] 42:20 equired [3] 52:5 52:19 58:21 eserved [11 3:5 esigned [21 16:6 16:7 espeCtive [11 3:3 espouse [21 4:2 esponsIUMUCS [3] 12:5 20:12 66:5 est [7] 23:19 25:24 26:1 26:17 26:22 33:13 51:12 [2] 25:12 25:14 restaurants [3] 23:19 24:2 24:5 resulted [1] 14:2 return 191 9:23 36:18 36:21 37:3 37:4 37:11 37:24 38:3 38:21 returned [13] 8:13 28:25 35:10 35:19 separating [1] 57:17 36:13 36:15 36:18 Service [81 25:2 37:23 38:6 38:20 25:7 25:15 31:23 38:24 39:8 48:8 34:15 51:18 65:24 reviews [11 66:16 66:9 Right [6] 21:9 service [4] 17:1 34:7 46:24 57:6 17:3 25:18 52:16 61:1 61:6 set [1] 68:22 right [131 9:1 seven [1] 65:3 21:3 21:17 33:7 [11 severe 50:20 41:5 44:3 44:5 shake 1 3:22 46:22 55:1 56:22 [ ] 57:6 57:6 67:5 Sheet [4149:25 53:11 right-hand [11 46:23 55:7 68:14 ring [3] 12:2 28:19 shift [41 63:8 63:8 29:8 65:16 66:13 riser [11 43:4 Shiremanstown [11 Road (1) 52:11 5:13 roadway [3] 51:21 SHIRLEY [1] 1:7 57:17 57:21 SHOLLENBERGER Rogers [6] 25:15 [27] 1:1 1:18 1:19 4 4:18 25:18 26:2 26:9 4:21 4:23 5:5 26:14 27:13 23:3 23:6 23:8 room [7] 26:4 26:4 36:20 37:5 44:14 26:10 26:10 26:14 45:2 53:11 53:13 27:13 55:5 54:4 59:16 59:20 Roy [61 25:15 25:18 60:17 60:24 61:2 26:2 26:9 26:14 61:7 61:11 62:5 27:13 66:25 67:12 RP [1] 1:25 shop [31 26:6 26:10 RPR [2] 1:11 68:24 26:15 run [3] 24:2 24:4 Shops [11 24:7 26:8 Shore [1] 11:13 short [1] 13:16 -S- shortest [21 45:14 S-t-a-r-r [1] 17:7 45:16 shortly [2] 7:6 saw [2] 6:14 48:2 50:5 says [21 49:11 50:2 shoulder [3] 4:20 scale [4] 53:10 53:17 36:7 36:22 53:18 55:6 Show [2] 54:2 scene [1] 53:4 55:8 scheduled [3] 59:3 show [1] 62:3 63:11 66:21 side [1] 45:5 school [41 9:14 sides [1] 52:23 9:14 9:15 9:15 se [1] 61:9 sign [1] 64:19 sealing [1] 3:3 signed [2] 6:6 Second [11 20:24 signs gns [1] 63:14 second [31 co 3] 18:18 simple [11 47:4 Sit [a] 11:3 13:3 security [2] 5:16 7:22 60:14 61:18 see [3] 37:5 49:24 Sitting [3] 12:1 50:2 12:4 19:18 situation [1] 41:5 seeing [11 49:23 seem [1] 47:15 Six [4] 40: 40:14 43:15 50:17 select 111 23:21 Semesters [1] 8:20 Size [1] 28:18 small [2] 30:25 sending [11 34:21 52:22 sense [2] 21:5 snack [6] 24:7 32:7 26:3 26:9 26:14 sent [11 9:13 27:13 28:1 separate [1] 25:23 social [21 5:16 7:22 someone [3] 6:7 6:8 31:19 sometime [11 48:4 Sometimes [11 32:4 sometimes [a] 50:21 57:22 58:1 58:2 somewhere [11 60:6 Sorry [211 11:10 11:15 11:19 13:20 14:22 18:8 21:2 21:4 23:4 40:22 42:7 45:6 45:6 50:10 56:13 57:20 59:14 61:22 62:16 63:13 64:24 sort [6] 15:3 15:3 15:4 16:8 53:22 66:3 Sorts [1] 28:9 source [1] 30:2 spaces [1] 56:19 Speak [3] 32:19 45:5 65:17 Speaks [1] 60:22 special [51 31:15 42:20 42:25 43:1 43:4 Specific [21 9:5 61:9 Specifically [319:24 26:25 35:25 specified [1] 68:14 Spell 121 16:8 41:23 Spirit [11 11:17 sporadic [1] 40:2 squatting [1] 28:9 SS [1] 68:2 stack [1] 20:15 stacks [3] 20:4 20:12 21:8 Staff [21 27:10 27:18 Staffing [6] 17:5 17:7 17:16 18:3 18:15 20:3 stand 111 28:11 standard [1] 28:17 Starbucks [1] 24:9 Start [41 4:19 7:20 63:11 65:15 Started [4] 22:2 41:12 45:19 45:20 stat [1] 12:3 state [3] 5:8 28:24 32:17 statement [6] 6:5 6:6 6:7 6:8 6:19 7:9 statements [s] 6:3 6:13 6:16 7:12 7:13 Station [4] 25:21 26:18 26:20 33:20 stems [11 49:1 stenographically [i] 68:10 Still [41 22:13 34:5 64:2 64:6 stipulated [1] 3:2 STIPULATION [11 3:1 stooping [11 28:8 Stop [51 22:23 22:25 26:17 26:23 51:12 stopped [21 19:7 22:6 stops [1] 23:19 Store [1111:22 store [1] 32:13 stores [11 26:9 storm [1] 29:22 Street [11 5:12 strenuous [1] 12:11 Stress [11 43:1 stressful [1] 13:25 strike [11 41:1 submitted [1] 64:23 subparagraphs [21 4:25 5:1 substantive [1] 3:16 such [21 5:25 68:17 suggested [1] 43:18 suggesting [1] 62:11 Sunoco [s] 25:21 26:2 26:18 26:20 54:15 supervisor [16] 15:7 41:21 42:1 42:3 42:8 42:8 42:13 42:15 42:17 63:15 63:17 63:22 64:1 64:2 64:4 64:12 supervisors [1] 64:15 supervisory [1166:5 suppliers [11 27:21 support [2] 31:9 33:20 supported [1] 31:2 surface [1] 46:9 surgery [9] 36:6 36:11 36:16 36:22 38:11 38:20 38:21 38:25 39:5 sustained [11] 6:5 30:14 31:17 38:12 39:1 39:13 39:17 39:20 40:12 40:18 42:21 SWEDENHJELM [1] 1:25 sworn [2] 3:9 68:9 Symptoms [1] 47:7 Syndrome [2] 43:23 45:12 System [71 29:14 29:21 30:4 30:8 30:10 31:19 47:18 Index Page 6 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page T-r-i - Zeller DIANE MCMILLIN -T- T-r-i [11 17:7 taking [31 4:25 58:11 68:8 telling [3] 12:10 53:14 61:5 temp [1l 22:18 Temporarily Ill 19:21 temporary [4] 17:1 17:2 18:12 19:5 ten [1l 32:10 ten-minute [1l 60:11 term [2] 26:12 26:13 testified [11] 3:9 8:11 22:12 22:18 22:19 38:10 39:4 39:16 41:2 46:19 64:18 testify [1l 37:17 testifying [11 60:18 testimony [13] 33:5 33:14 43:13 59:13 60:5 60:10 60:20 60:21 61:3 61:18 62:2 68:7 68:21 Thank [3] 4:17 5:6 53:12 theft [1] 5:25 44:7 44:20 45:9 45:15 45:18 45:25 46:4 46:10 46:15 46:19 47:8 title [71 10:15 20:8 24:12 24:14 24:17 27:3 66:10 today [51 25:4 60:15 60:21 60:25 61:8 together [1l 51:15 too [3] 8:22 13:25 62:16 took [5] 19:4 27:20 27:23 34:8 43:1 traffic [1l 54:17 training [2] 27:11 27:18 transcribe [31 10:18 10:24 11:3 transcribing [1l 10:21 transcript [11 62:1 transcription [31 39:25 46:7 46:11 Transcriptioni st Ill 10:16 transcriptionist [3] 10:17 11:1 12:25 Travellers [7] 7:5 7:7 7:9 49:14 49:18 50:4 50:13 treat [2] 46:9 46:12 treated [21 47:12 47:15 treating [1l 46:14 treatment [3] 48:23 49:4 49:9 treatments [1] 49:20 Tri-Starr [9] 17:5 17:15 17:17 17:20 18:3 18:15 18:25 20:3 22:19 TRIAL [1l 1:8 trial [1] 3:6 57:25 twelfth[1l 8:19 twice [11 29:23 TWO [1l 44:11 two [1o1 11:4 18:7 18:13 21:21 21:23 28:19 28:20 32:10 44:21 64:15 typewriting [1 ] 68:12 typical [2] 65:10 66:20 typically [2] 63:4 65:9 typing [sl 12:6 30:17 30:23 31:5 33:2 33:10 33:16 43:2 -U- ULLMAN [2] 1:21 1:21 Ultimately [11 39:12 unable [31 47:3 50:20 50:21 under [6] 48:11 48:24 49:12 50:1 50:8 68:12 understand [1313:22 3:24 4:1 19:22 22:1 22:14 47:1 53:17 57:24 60:23 61:10 61:12 62:17 understandably [1l 39:5 understood [51 4:2 16:17 22:7 40:9 40:10 unemployed [11 15:25 unfair [11 53:19 unfortunately [1l 29:19 unload [1] 52:21 up [111 28:11 32:10 36:16 37:18 38:19 43:5 45:5 57:2 57:4 58:4 62:12 used [21 11:17 26:12 visualizing [1] 53:5 voluntarily [1l 16:4 -w- wages [1l 8:10 wait [2] 4:8 4:11 waived [1l 3:4 Walk [1l 57:11 walk [5] 60:11 60:14 61:20 62:14 65:12 walking Ill 58:12 walkway [61 55:21 55:21 55:23 56:4 57:11 65:12 weak [1l 46:20 wears [1l 52:21 week [12] 10:13 19:23 29:23 29:23 29:24 32:1 32:6 32:7 32:10 43:8 44:11 44:21 weeks [2] 29:24 32:11 West [3] 11:8 11:12 11:13 WHEREOF [1l 68:22 white [1] 53:11 wire [21 29:16 29:16 within 111 68:5 without [3] 32:11 53:21 60:18 WITNESS [12] 5:4 23:5 23:7 36:23 44:15 45:3 45:6 54:6 59:21 62:6 67:2 68:22 Witness [3] 40:16 58:9 66:24 witness [3] 3:8 68:9 68:21 WITNESSES [1] 2:1 54:12 54:24 55:22 56:4 56:9 58:7 writing [41 9:14 14:6 15:13 16:8 written [11 6:6 wrote [1l 54:8 themselves [1] 47:1 therapist [11 10:19 Therapy [6] 10:6 16:22 22:17 38:17 42:20 45:20 therapy [1l 10:18 thick [2128:20 28:21 thinks [1l 60:21 Third [1l 63:8 third [1l 52:22 thought [1l 43:21 three [1s] 12:18 13:22 14:23 16:3 23:15 28:19 28:20 29:8 29:23 30:5 44:11 44:21 52:23 62:4 65:7 Through [2] 18:15 48:16 through [13] 3:18 8:19 18:13 20:2 22:19 27:11 48:12 48:15 48:21 52:21 57:11 62:3 65:12 throughout [21 24:17 24:21 thru [1] 55:12 times [5] 29:20 29:23 44:4 44:11 44:21 tirnesbeets [3] 63:12 63:14 64:19 TIMOTHY [1] 1:19 tingling [121 44:3 trouble [1] 43:9 trucks [3] 52:20 58:5 65:13 true [2] 58:17 68:21 truth [1] 6:8 try [71 4:10 31:8 31:12 41:23 53:18 54:4 60:18 trying [4] 21:5 32:6 45:15 53:23 tunnel [2] 43:23 45:12 turn [4] 50:19 52:25 57:5 58:11 Turnpike [3] 23:18 23:24 51:19 turnpike [111 23:20 23:23 24:2 24:5 25:12 54:2 54:6 54:8 54:9 54:9 Usually [11 34:16 usually [1] 62:25 -V- V [1l 1:5 vast [11 12:5 vehicle [3] 7:3 50:4 57:7 venture [1] 66:2 verbal [21 3:20 66:25 Village [12] 13:16 13:17 14:3 15:8 15:11 15:14 15:17 15:21 15:24 16:5 16:21 17:12 words [21 19:23 22:3 workday [1] 66:20 worked [211 9:13 13:13 13:15 13:15 14:22 17:1 17:15 18:13 18:22 20:2 21:14 22:16 23:12 24:23 25:10 25:13 34:14 37:15 41:8 51:10 51:15 workers' [s] 7:15 7:16 8:2 8:4 8:12 59:12 61:25 62:2 works [1l 46:13 worse [2] 44:3 44:5 wrist [1143:2 wrists [41 43:19 44:20 44:23 45:9 write [s) 28:3 54:8 -X- X [1] 28:3 -Y- year [1ol 12:16 17:24 18:24 18:25 22:22 36:2 38:10 41:11 42:14 63:23 years [3l 9:8 12:18 23:15 yourself [1] 31:8 -Z- Zeller [11 41:25 Index Page 7 HUGHES, ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 6.0v S'' f? VE j"un MCMILLIN V PORTER CAPTION DIANE MCMILLIN NAME OF DEPONENT ERRATA - •ir I '?.6 '?- FV:-? APRIL 22, 2009 DATE OF DEPOSITION MARIA N. O'DONNELL, RPR REPORTER I hereby certify that I have read the foregoing deposition and that, to the best of my knowledge, it is true and correct (With the exception of the following correction): PAGE LINE CORRECTION w nci/ Pct? a Q It CQ ?? /?/2 jP t 40t QD MES C7 c ?l"? A,^ /LQ Sr., M a of 3 s- QW mo't', c o.9 3S L /0 CY-/Cl- ka =.S "Ck i A u s f >1 S ti• f f ? E ? til ?e Lr Q?, t oil /?1?(3: N< &A. (1-k -C h1 ?6 i ? ?Qc?t ON tl.?.. '?? y h e ( t r \.p (110x( l r'C =J S SA (f v-\ --? t, nk 6 A!Q- oAck K4 /i-\\/ 611,, 7- DAT (2 u DATE (lt ?:44 Rti %t' fit- l i t • SIG ATURE OFDEPIOWN ' COMMONWEALTH DF PENNSYLVANIA Now" awl DMNsi L Parsons, Notary Public tt n1Vi 9 IMM RECEI'V'ED ,,U 2009 vas ????5• ,u?cC ??- ?---1° NI 21 ?13 L ,? Z/Y- s7 2z ?j ?' ? o ft off.. ?1o'c? ?-:???? c:?..?. -?• t! n ?.? ?? n ? c?? L zit SS l( v l Vim- ?? ft ?fLQ• U? l? d Qt t S? ?y?-QJ G ttiG??f /A 0~? /`? t P4?LP S? - e.- (?tic•.? r &Y- 4i &a' 4// J &R et AA 1?( xt",z h NO ? - a? Ate-, ' ? p ?o? -See A44-c?-ckeci FORM OF INDIVIDUAL ACKNOWLEDGMENT Commonwealth of Pennsylvania County of C?W)bCAa\1 A n this, the Qy-' day of 200 , before me O CA 'l , the undersigned officer, personally appeared blavy- IJ t, vl 10CU. 1143?. #la slvrPlhClr\S- -o ta1IPA , known to me (or satisfactorily proven) to be the person- whose name- ' S subscribed to the within instrument, and acknowledged that -5 he- executed the same for the purposes therein contained. In witness whereof, I hereunto set my hand and official seal. Notary Public COMMONWEALTH OF PENNSYLVANIA L Notarial sow Dartlal L Pataom. NO" Public East Paombom TWP.. Ctenbatla 4 County jAy Cotrwadm Expires Jttty 22, 2012 Member. PanmyWanle Aasodalbn of Notaries PAN-1 (52/05; Phone: 412-281-0678 • Fax: 412-281-0321 • Web site: www.notary.org • E-m ff: pan@emwnro.com ?r CA a ? J ? ' c-r 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 26 27 28 29 30 31 32 33 34 35 36 37 38 Recorded Interview of. Shirley Porter [SP] = Spelling Claim No.: 043117492 [SS] = Speaking Simultaneously Date Of Interview: 6/9/2004 [TD] = Tape Damage Page 1 EXHIBIT Q: Craig Sassaman A: Shirley Porter Q: This is Craig Sassaman at Progressive Northern Insurance Company. Speaking with Shirley Porter regarding an accident that happened today, June 9`b, 2004. Today is, uh, the time rather is 10:25 a.m. currently. Um, I'm calling from phone number 717-791- 5101. Um, Ms. Porter, do you understand I am recording this interview? A: Yes, I do. Q: And do I have your permission to do that? A: Yes, you do. Q: Please state your full name? A: Shirley Lorraine Porter. Q: And spell your last name? A: P-O-R-T-E-R. Q: OK. And I need you to confirm your date of birth? A: August 12', 1955. Q: And your current mailing address? A: P.O. Box 35, Plainfield, 71 Grayson [SP] Road. Q: And your ZIP Code? A: 17081. Q: OK. And can you go ahead and tell me in your own words what happened in the accident please? A: I was coming up, I was on private property. Q: Uh-huh. Allegis InvoicelD: 400643 Recorded Interview of: Shirley Porter [SP] = Spelling Claim No.: 043117492 [SS] = Speaking Simultaneously Date Of Interview: 6/9/2004 [TD] = Tape Damage Page 2 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 A: I was, uh, going to work. The lane that we go back is on private property. Q: Uh-huh. A: And the parking lot is private property, and I made a left-hand turn going in and I did not see the pedestrian for the simple fact was I glanced away for a couple of seconds. Q: Where exactly was the pedestrian in relation to the road you were trying to left onto? A: Um, she was walking across the parking lot. She was in about the middle of the parking lot and I did not see her. Q: Was this person blocking the lane that you were trying to turn into? A: No, she was, she was parked. She was out of her car ... Q: Uh-huh. A: ... and she was crossing the parking lot to go into the building to go to work. Q: OK. So, um, from where you were sitting in your car would she have been coming from your left or from your right or was she right in front of you? A: She was right in front of me when I hit her. Q: OK. And, uh, are you able to tell me which part of your car made contact with her? A: The front. Q: Like front center, or, say about front center? A: Yes. Q: OK. [pause] OK. And do you know this individual personally? A: Yes, she works at the same place I do [chuckles]. Q: OK. Uh, was she knocked over? A: She was knocked pretty good. Q: OK. Do you remember about how fast you were traveling? Allegis InvoicelD: 400643 Recorded Interview of: Shirley Porter Claim No.: 043117492 Date Of Interview: 6/9/2004 Page 3 [SP] = Spelling [SS] = Speaking Simultaneously [TD] = Tape Damage 81 82 A: Uh, no I don't. 83 84 Q: OK. And were, were you actually in a marked lane? 85 86 A: No, this is just the lane that goes back into where we work at. We work on the turnpike . . 87 88 89 Q: OK. 90 91 A: And the parking lot is behind their property ... 92 93 Q: Uh-huh. 94 95 A: It's a private parking lot. It's the only way we get access to the parking, to the building. 96 97 Q: OK. And, uh, what's the that's building? 98 99 A: Uh, all I know is it's turnpike ... [SS] ... 100 101 Q: Uh-huh. 102 103 A: ... Plainfield. I don't know the, the address. Um, you know ... 104 105 Q: OK. 106 107 A: She was crossing the parking lot to go to work. 108 109 Q: OK. All right, and, um, so she would have been crossing, from your right ... [SS] ... 110 111 A: She was crossing, yes, she was ... 112 113 Q: OK. 114 115 A: No, she was crossing from the left because it's a pretty, it's a nice little parking lot but 116 she was parked as I was going in, I went into the parking lot and she was right like in the 117 middle of the parking lot. And I just glanced away. 118 119 Q: OK. 120 121 A: And I realized I, I heard her screaming and that's when I hit my brakes. 122 Allegis InvoiceID: 400643 Recorded Interview of: Shirley Porter [SP] = Spelling Claim No.: 043117492 [SS] = Speaking Simultaneously Date Of Interview: 6/9/2004 [TD] = Tape Damage Page 4 123 124 125 126 127 128 129 130 131 132 133 134 135 736 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 Q: OK. Um, did any police come out? A: We had, uh, the Turnpike Police from Newville out. Q: Uh-huh. A: And they took a report, took the report and he asked us what we wanted, what, he asked me what I wanted him to do, and I said I wanted it to be so that I was covered. She was covered. And the company was covered, because it was not the company's fault. It was my fault. Q: Uh-huh. A: And I, I felt that I needed to have them there. And so that when I contacted the insurance, contacted you instead. Q: M'kay. Did they write a, um, a full report? A: Uh, they took a statement from her. They didn't take any from me. Uh, he gave me a warning. Q: Uh-huh. A: Um, they said it was just, uh, she basically said it was just a freak, because I was upset. She's up-she was upset you know. Q: Uh-huh. A: I mean he took a report but there was nothing, you ... Q: OK. And, um, how is this parking lot set up? Is it parallel parking or do they straight spaces on both sides of where you were drivin' in? A: It's, it's just the same, it just looks like a driveway. There's, there's ... Q: M'kay. So ... [SS] ... A: You know? Q: ... so where you were right when the accident happened, where were cars parked in relation to where you were on both sides of you? Or just to your right or ahead of you? Allegis InvoiceID: 400643 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 Recorded Interview of: Shirley Porter Claim No.: 043117492 Date Of Interview: 6/9/2004 Page 5 A: Cars are parked on both sides. Q: OK. A: And there was hardly any cars there? Q: OK. And were there any witnesses? A: No. [SP] = Spelling [SS] = Speaking Simultaneously [TD] = Tape Damage Q: OK. A: I mean there was two gentleman come across the parking lot with a black dog but I ... Q: OK. A: So I got calmed down to get out of the car. They, they, they were gone. Q: They were gone, OK. And what type of car were you operating? A: Trail Blazer. Q: OK. OK. And my understanding is that there is no damage to that, is that correct? A: No, there's no damage to my Blazer there is ... Q: OK. A: ... just, she's banged up pretty good. She's bruised up. Q: OK. Was she knocked unconscious? A: No. Q: OK. A: She was just knocked down hard. Q: OK. And what injuries did you notice on her? A: She had a bruise, and I mean a bruise, on her left arm and her knee was like scraped. But her leg was getting stiff. Allegis InvoicelD: 400643 Recorded Interview of: Shirley Porter Claim No.: 043117492 Date Of Interview: 6/9/2004 Page 6 [SP] = Spelling [SS] = Speaking Simultaneously [TD] = Tape Damage 207 208 Q: OK. OK. And what's this person's name? 209 210 A: I only know her first name. It's Diane. I, if, um, you could call back to work and get the 211 information, her name, and her last name and her address and phone number. 212 213 Q: OK. Call you at work or someone else? 214 215 A: You could call back there. They would give it to you. 216 217 Q: OK. 218 219 A: You know? 220 221 Q: All right. 222 223 A: I just, you know, I wanted her taken and checked out. And she said she would go. 224 225 Q: OK. All right. Um, was it, what time of day did this happen exactly? 226 227 A: Uh, 6:45. 228 229 Q: OK. Was it already daylight out by then? 230 231 A: Yes, it was. 232 233 Q: OK. OK. Um, that's all I have for now. Um, I might have to, um, come out and take some 234 pictures of your, your vehicle just to document the file better, but, um, let me give you 235 my phone number. 236 237 A: Yeah, just a minute. 238 239 Q: In case you need to call me. Do you have a pen handy? 240 241 A: I'm getting one right now. 242 243 Q: OK. 244 245 A: Go ahead. 246 247 Q: OK. It's 717-791-5101. 248 Allegis InvoiceED: 400643 Recorded Interview of: Shirley Porter [SP] = Spelling Claim No.: 043117492 [SS] = Speaking Simultaneously Date Of Interview: 6/9/2004 [TD] = Tape Damage Page 7 249 A: 717, what? 250 251 Q: 791.. . 252 253 A: Uh-huh. 254 255 Q: ... 5101. And my name again is Craig, C-R-A-I-G Sassaman. Spelled S, as in Sam A-S- 256 , S-A-M, as in Mary, A, N as in Nancy. And let me give you the claim number too. It's 257 043117492. 258 259 A: OK. It's 791-51 ... 260 261 Q: 01. 262 263 A: M'kay. 264 265 Q: M'kay? 266 267 A: All righty. 268 269 Q: All right. Now just I need to re-verify a couple things, and then I'll turn the tape off, OK? 270 271 A: OK. 272 273 Q: OK. I just need to re-verify, um, do you understand this was recorded? 274 275 A: Yes. 276 277 Q: And did I have your permission to do that? 278 279 A: Yes. 280 281 Q: M'kay. And did you understand all my questions? 282 283 A: Yes. 284 285 Q: And was everything we discussed true and accurate to the best of your recollection? 286 287 A: Yes. 288 289 Q: OK. Um, unless there's anything else you want to add, I'm gonna go ahead and end the 290 tape with your permission, OK? Allegis InvoiceID: 400643 291 292 293 294 Recorded Interview of: Shirley Porter Claim No.: 043117492 Date Of Interview: 6/9/2004 Page 8 A: Uh-huh. Q: OK. It's 10:34 a.m. and I'm gonna turn the tape off now. [SP] = Spelling [SS] = Speaking Simultaneously [TD] = Tape Damage Allegis InvoiceID: 400643 f 7 L K ! DIANE MCMILLIN, PLAINTIFF V SHIRLEY PORTER, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-1173 JURY TRIAL DEMANDED DEPOSITION OF: SHIRLEY PORTER TAKEN BY: PLAINTIFF BEFORE: MARIA N. O'DONNELL, RPR NOTARY PUBLIC DATE: APRIL 22, 2009, 2:22 P.M. PLACE: SHOLLENBERGER & JANUZZI, LLP 2225 MILLENNIUM WAY ENOLA, PENNSYLVANIA APPEARANCES: SHOLLENBERGER & JANUZZI, LLP BY: TIMOTHY A. SHOLLENBERGER, ESQUIRE FOR - PLAINTIFF FORRY, ULLMAN, ULLMAN & FORRY, PC BY: JOSEPH F. MURPHY, ESQUIRE FOR - DEFENDANT ALSO PRESENT: JESSICA M. SWEDENHJELM, RP DIANE MCMILLIN 71 3?1 ?,I, E 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 0 Lancaster 717.393.5101 Multi-Page SHIRLEY PORTER AYKtL 22, ZUU9 Page 2 Page 4 1 WITNESSES i Q And, Miss Porter, what is your current address? 2 NAME EXAMINATION 2 A 1177 Easy Road, Carlisle. 3 SHIRLEY PORTER 3 Q Who do you live with there? 4 BY: MR. SHOLLENBERGER 3 4 A Stuart H. Porter, Jr., husband. 5 5 Q Miss Porter, I am going to ask you a bunch of 6 6 questions here today. The first question is, have you ever 7 EXHIBITS 7 given adeposition before? 8 DEPOSITION EXHIBIT NO. PRODUCED AND MARKED 8 A No, sir. 9 1. STATEMENT 33 9 Q All right. Have you ever testified before? ID 10 A No, sir. 11 11 Q All right. You are doing very well so far giving 12 12 verbal answers. 13 13 If you don't understand my question, will you 14 14 tell me that? 1s 15 A Yes, sir. 16 16 Q If you don't hear my question, will you tell me 17 17 that? le 18 A Yes, sir. 19 19 Q Can I assume that if you have answered my 20 20 question, you have both heard it and understood it? 21 21 A Yes, sir. 22 22 Q Thank you. 23 23 If you need to take a break at any time, either 24 24 to talk to your lawyer or for any other mason, let me 25 25 know, we will accommodate you. Do you understand that? Page 3 1 STIPULATION 2 It is hereby stipulated by and between counsel 3 for the respective parties that reading, signing, sealing, 4 certification and filing are hereby waived, and that all 5 objections except as to the form of the question are 6 reserved to the time of trial. 7 8 SHIRLEY PORTER, called as a witness, being duly 9 sworn, testified as follows: 10 EXAMINAnON 11 BY MR. SHOLLENBERGER: 12 Q Good morning, ma'am. 13 A Good morning. 14 Q Good afternoon now. I guess you were here this 15 morning. We apologize for any inconvenience that may have 16 caused. 17 A That's okay. 18 MR. MURPHY: That's my fault. 19 BY MR. SHOLLENBERGER: 20 Q Would you state your name, please? 21 A Shirley Lorraine Porter. 22 Q Spell your first name, please. 23 A S-h-i-r-l-e-y. 24 Q Spell Lorraine for us. 25 A L-o-r-r-a-i-n-e. Page 5 1 A Yes, I do. 2 Q Good. 3 Let me finish my question before you give your 4 answer. Will you try to do that? 5 A Yes, sir. 6 Q If I have interrupted you, this is really 7 important, if I have interrupted you and not allowed you to 8 finish your answer, you let me know and I will stop talking 9 and let you finish your answer. 10 Do you understand that? 11 A Yes, sir. 12 Q And of all of the rules I am giving you, that's 13 the most important one for me, because I want you to be 14 able to tell me what you want to tell me. Do you 15 understand? 16 A Yes, sir. 17 Q Good. 18 I don't want you to guess. It's been a long 19 time, nobody's memory is perfect. 20 A Okay. 21 Q So if you can't remember something or you just -- 22 that's okay, you just tell me that, I will accept that as 23 your answer. Do you understand that? 24 A Yes, sir. 25 Q Good. All right. -""""" *'^T q-7 A& VATALE 717-540-0220/717-393-_5101 Page 2 - Page 5 Multi-Page M SHIRLEY PORTER APRIL 22, 2009 Page 6 Page 8 i Do you need me to repeat any of the instructions 1 A And she had stuck her hand out and touched the 2 that I have given you? 2 hood of my car, and I believe that's what may have knocked 3 A No, sir. 3 her down. 4 Q All right. Do you take responsibility for 4 Q Okay. Other than the rocking motion at the 5 striking and injuring Diane McMillin? 5 moment that my client reached out her hand -- well, did my 6 MR. MURPHY: I will object to the form of the 6 client's -- did my client's hand come in contact with your 7 question. 7 car? 8 BY MR. SHOLLENBERGER: 8 A The palm of her hand carne in contact with my car. 9 Q You can go ahead and answer. 9 Q What happened to her at that time? 10 A I object. I am not answering. 10 A She went down. 11 MR. MURPHY: Well, he can ask you whether or not 11 Q And tell me what you saw happened to her body 12 you believe that you're responsible for what happened in 12 from the time -- 13 the accident. So far as what she's claiming so far as 13 A You couldn't -- 14 injuries are concerned, my objection is that you are not a 14 MR. MURPHY: Wait till he finishes the question. 15 qualified expert to determine whether she was injured. 15 Okay? 16 If you did see obvious injuries to her, of 16 THE WUNESS: Okay. 17 course, I have no objection and you have to answer his 17 BY MR. SHOLLENBERGER: 18 question with regard to whether or not you observed any 18 Q Tell me what happened to her body from the moment 19 obvious injury to the plaintiff in this case. But he's 19 you saw the palm of her hand come into contact with the 20 entitled to ask you whether or not you feel that you're 20 front of the vehicle that you were driving until the next 21 responsible for the happening of the accident itself, and 1 21 time that you saw her. 22 ask that you answer that question. 22 A I didn't see her till she got up. 23 THE WITNESS: Yes. 23 Q That was a poorly-phrased question. 24 BY MR. SHOLLENBERGER: 24 After the front of your car hit the palm of her 25 Q Okay. And why do you say that? 25 hand, where was Diane when you next saw her? Page 7 1 A For the simple reason was I glanced away for a 2 quick second. 3 Q Okay. I appreciate that answer. And why is it, 4 Miss Porter, that you glanced away for a second? 5 A I glanced over to see where there was a parking 6 space. 7 Q Okay. And how much time, if you can tell us, 8 went by from glancing away until your vehicle struck Miss 9 McMillin? 10 MR. MURPHY: Objection to the form. 11 THE WnNESs: Just a second. My vehicle didn't 12 strike her. 13 BY MR SHOLLENBERGER: 14 Q Okay. Tell me what happened. I mean just tell 15 me how the accident happened. 16 A Okay. When I seen her, I hit my brakes right 17 away and I came to a stop. My car was in motion, like the 18 body part. 19 Q You are like rocking your hand, have made what I 20 would describe as a rocking motion? 21 A You know how you hit your brakes and it moves, 1 MR. MURPHY: I will object to the form, but you 2 can answer the question. 3 THE wrrNEss: In front of my car, laying in 4 front. Page 9 22 the front, goes -- 23 Q Forward? 24 A Yes. 25 Q Yes. Go ahead. 5 BY MR SHOLLENBERGER: 6 Q Okay. Was she laying face down, face up? 7 A That I could not see. 8 Q Okay. And why couldn't you see that? 9 A Because I drive a Trail Blazer and I was still 10 sitting in my car. 11 Q Okay. Then how did you know -- I am confused. 12 How did you know she was in front of your car or the Trail 13 Blazer then if you couldn't see if she was laying up or 14 down because your vision was blocked? How did you know 15 that she was in front? 16 A Because she was right in line with my car when 17 she went down. 18 Q Okay. What did you do next? 19 A Put my car in park, and I set there for a little 20 bit. I didn't get out of my car. 21 Q What is a little bit? 22 A I just set there for about a minute or two. And 23 she had got up and came around to the driver's side and 24 asked me if I was okay, and I asked if she was okay. 25 Q And what did you tell her? Page6-Page9 --__ - - _,v,*^--iorr vnir 1-7 Rr WATALE 717-540-0220/717-393-5101 Multi-Page M SHIRLEY PORTER APRIL 22, 2009 Page 10 Page 12 1 A I was fine. 1 Q Okay. 2 Q What did she tell you? 2 A She did the billings and that. 3 A She had a bump on her arm. 3 Q All right. And then what happened? 4 Q Which arm you are pointing to, your left arm, 4 A And I asked for her to call the police. And she 5 but -- 5 had called Newville police which is on the turnpike. And I 6 A This arm. Well, she had a bump on her arm and a 6 told her that I wanted an ambulance called because I wanted 7 bruise and a scrape on her knee. 7 Diana looked at. 8 Q Do you know which knee? 8 Q Okay. 9 A No. 9 A And Diana refused treatment. And the officer 10 Q I know it's been a long time. 10 questioned me on what happened. I told the officer. 11 A I can't remember, I really can't. 11 And -- 12 Q All right. Did you see any other visible sign of 12 Q What did you tell the officer? 13 injury? 13 A That I was pulling into the parking lot, and 14 A No. 14 Diana was in the middle of the parking lot. And I glanced 15 Q All right. Then what did you do? 15 away for a quick second and when I glanced back, she was in 16 A Parked the car. 16 front of my car. I hit my brakes, and that her hand hit 17 Q Excuse me? 17 had made contact with the front of my car, and that she had 18 A I parked my car. 18 went down. 19 Q Okay. Do you need a break? 19 Q Okay. And I understand it was a long time ago, 20 A Yes. 20 but is that essentially what you told the police officer? 21 MR. SHOLLENBERGER: Sure. 21 A Yes. 22 Do you want us to leave or do you want to -- we 22 Q Okay. Now, when you spoke to the police officer, 23 will leave. We'll leave. 23 did he write down what you were telling him? 24 (Brief recess.) 24 A Yes. 25 BY MR SHOLLENBERGER: 25 Q Okay. Page 11 Page 13 1 Q Are you ready to continue, Miss Porter? 1 A He. 2 A Yes, yes. 2 Q Go ahead. 3 Q Now, what did you -- you mentioned that you had a 3 A I talked to him. I couldn't -- could not tell 4 conversation with Diane. What happened next? 4 you whether he wrote anything down or not. 5 A I parked-my car. She had walked over into the 5 Q In other words -- 6 restaurant. 6 A To be honest, honestly, I don't know if he did. 7 Q Okay. 7 Q Okay. Allright. Excuse me one second. 8 A I followed shortly after that. 8 All right. Did you have a cell phone at the 9 Q Okay. 9 time? Did you own one? 10 A Went in and told the woman in the office that 10 A A cell phone? 11 there was an accident in the parking lot. 11 Q Yes. 12 Q Okay. 12 A No. 13 A And that I wanted the police called. 13 Q Okay. Was anyone in your vehicle with you? 14 Q Okay. 14 A No. 15 A And that I had hit Diana. 15 Q You mentioned that it was a Blazer? 16 Q Okay. Who did you tell? 16 A Yes. 17 A Mary Brownewell. 17 Q What color was it? 18 Q Can you spell Brownewell, please? Is it Brown 18 A Red. 19 A-W-E-L-L? 19 Q All right. What time did the incident occur? 20 A No. B-r-o-w-n-e-w-e+l, 20 A 6:45. 21 Q Thank you. 21 Q Would that be a.m. or p.m ? 22 What was her -- what did she do at your place of 22 A In the morning. 23 employment? 23 Q You mentioned I think a parking lot? 24 A She was in the office. She was an administrator 24 A Yes. 25 or something. 25 Q Did the parking lot have a name? nTT9--T c AT uuirr*RT_ FOLTZ & NATALE 717-540-0220/717-393-5101 Page 10 - Page 13 Multi-Page TM SHIRLEY PORTER APRIL 22, 2009 Page 14 1 A It's the employee parking lot. 2 Q And who was your employer at the time? 3 i A Host. 4 Q Host? 5 A Yes. 6 Q Is that the start and end of the full name, just 7 Host? 8 A Yes, Host Marriott. 9 Q Marriott. Okay. 10 I notice that you're not wearing eye glasses 11 today. Do you require eye glasses when driving? 12 A No. 13 Q All right. What time are you required to be -- 14 what time were you required to report to work that day? 15 A Fifteen minutes before my shift. 16 Q And when did your shift start? 17 A 7:00 o'clock. 18 Q Do you believe Diane has any responsibility for 19 the happening of this accident? 20 A No. 21 Q You mentioned that Diane refused treatment? 22 A Yes, because I had told the -- Mary that I wanted 23 an ambulance called, and she wanted no ambulance called 24 Q Did she give a reason for that? 25 A Right offhand, I can't remember. Page 15 1 Q Did you see Diane at any -- any more that day? 2 A I went home. I was too upset to work. 3 Q All Tight. So that would be a no? 4 A Yes. 5 Q Is that correct? 6 A Yes. 7 Q All Tight. When did you next see Diane? 8 A I can't remember. 9 Q Well, let's see if we can -- was it like -- is 1o today the first time that you have seen her since the 11 incident? 12 A No. 13 Q All right. Did you continue to work at -- both 14 work at the Host for a period of time? 15 A Yes. 16 Q For how long did you work at the Host at the same 17 time? 18 MR. MURPHY: After the accident? 19 BY MR. SHOLLENBERGER: 20 Q After the accident. 21 A I left shortly -- I left in '03 -- wait a minute. 22 Q This happened on June 9th, '04. 23 A '04. Okay. I just left last year. She had left 24 right -- way before that. 25 Q Okay. Page 16 I A I seen her off and on. 2 Q You would see her off and on? 3 A Yes. 4 Q Where would you see her, at the place of 5 business, at your place of work? 6 A Yes. 7 Q All right. When you saw her, did you and she 8 ever speak to one another? 9 A I would say hello to her. 10 Q What -- would she say hello back? 11 A Yes. 12 Q Is that a yes? 13 A Yes. 14 Q Okay. And did you ever notice anything about 15 Diane that suggested to you that she was injured or in pain 16 after the accident when you were working at the same place? 17 A She had a bating pad back on her chair in the 18 office and a foot thing under her desk. 19 Q Anything else? 20 A Every once in awhile I would see her with a brace 21 on. 22 Q Was that an arm brace, a leg brace, what kind of 23 brace? 24 A She would have a leg brace on and an arm brace. 25 Q So both? Page 17 1 A Yes. 2 Q Okay. Was she still using a leg or arm brace 3 when she last worked -- when she left, at the time she left 4 the Host, or did she stop using that before she left 5 working for the Host? 6 A Well, depending on the days that I worked, it was 7 on. Days I didn't work, she had not had it on, so.... 8 Q On the days that you worked, did those -- up 9 until the time that she left on the days that you worked, 10 did she have one or the other of the braces on? 11 A Yes. 12 Q Okay. Were you cited for this incident? 13 A No, I was not. 14 Q Okay. Were you issued a warning? 15 A I was issued a warning, but that was it. 16 Q Do you know why you were issued a warning as 17 opposed to a citation? 18 A From my understanding, Diana didn't want me to 19 get a citation. It was just a freak accident. 20 Q And how did you learn that? 21 A The State Police officer told me. 22 Q All right. Have you given any statements 23 regarding how this crash occurred other than to your 24 lawyer? 25 MR. MURPHY: Objection to the form. Page I4 -Page 17 ??^?'° Air ?DTrAT FOLTL & NATALE 717-540-0220/717-393-5101 Multi-Page SHIRLEY PORTER "KIL 22, ZUU9 Page 18 1 MR. SHOLLENBERGER: What is wrong with that? I 2 MR. MURPHY: The word crash. 3 MR. SHOLLENBERGER: What is wrong with that? I 4 will object every time to the form, every time you use the 5 word accident, is that fair? 6 MR. MURPHY: Yes, that's fair. 7 MR. SHOLLENBERGER: Okay. So if that's the way 8 you want to proceed, let's get a judge on the phone. 9 MR. MURPHY: Why don't you ask her if it was a 10 wreck or crash because you assume in the question that you I 1 asked, that's my objection. 12 MR. SHOLLENBERGER: You can take that up with the 13 judge. 14 MR. MURPHY: Okay. Well, I -- 15 MR. SHOLLENBERGER: If we can't get a judge -- 16 because I have to ask many questions that would include the 17 word crash or wreck and because her counsel won't allow -- 18 is going to object to the form of every question that I ask 19 including those terms, I am forced to suspend the 20 deposition of Miss Porter and fmish it until we get a 21 ruling on that particular issue. 22 MR MURPHY: Well, I don't think that's necessary. 23 I mean Miss Porter has already testified that she takes 24 responsibility for what happened in this accident, crash, 25 incident, whatever you want to call it. My objection is Page 19 1 based purely upon the form of the question and use of the 2 word crash. 3 Counsel has not asked my client, Miss Porter, 4 whether or not she believes that this was a crash as 5 opposed to a pedestrian knock down, an incident. Again -- 6 MR. SHOLLENBERGER: Hold on. I will -- I am 7 prepared to call it a pedestrian knock down. I am prepared 8 to call it that. 9 MR. MURPHY: Okay. I don't think that was her 10 testimony though. 11 MR. SHOLLENBERGER: I am prepared to call it that. 12 Are you objecting to that term also? 13 MR. MURPHY: I am objecting to it because that's 14 not what her testimony is. It's a mischaracterization of 15 her testimony. What her testimony was, was that she 16 stopped and Miss McMillin put her hand up and fell to the 17 ground. I am not sure it's even a pedestrian knock down. 18 But to characterize it as anything other than what she has 19 testified to I think is a mischaracterization of her 20 testimony. Frankly, I am not even sure whether or not 21 counsel asked Miss Porter whether or not her vehicle 22 knocked the plaintiff down as opposed to the plaintiff 23 putting her hand up and falling to the ground. So that 24 would be the basis of my objection to the characterization 25 of it as a pedestrian knock down. Page 20 1 (Discussion held off the record.) 2 (Brief recess.) 3 MR. SHOLLENBERGER: Please read the question 4 back. 5 (Question read.) 6 BY MR. SHOLLENBERGER: 7 Q After your Blazer tapped my client's hand, did 8 you give any statements in this case? 9 MR. MURPHY: Objection to the form. 10 MR. SHOLLENBERGER: What is wrong with that? 11 MR. MURPHY: I am not sure that she said that her 12 Blazer tapped the plaintiff's hand. 13 BY MR. SHOLLENBERGER: 14 Q Did your Blazer tap Miss McMillin's hand? 15 A Only when she put her hand out. 16 Q Is that a yes? 17 A Is it a yes? 18 Q Is that a yes to my question? 19 A No. 20 Q All right. What did your vehicle do with Miss 21 McMillin's hand? 22 A She laid her hand on the hood of my car. 23 Q Hold on. Let me get this precise so that we 24 don't have an objection to the form of my next question. 25 When Miss McMillin laid her hand on the hood of Page 21 i your car, is that what she did? 2 A She stuck her arm out and put her hand on the 3 hood of my car. 4 Q When Miss McMillin stuck her hand out and did 5 what? 6 A She placed it on the hood of my car. 7 Q Placed it on the hood of my car. Yes. What 8 happened when she did that? 9 A She fell down. l o Q And fell down. Okay. 11 At any time after Miss McMillin stuck her hand 12 out and placed it on the hood of your car and fell down, 13 did you give a statement? 14 A No. 15 Q Let me tell you about different ways that you can 16 give statements. One can be a written statement where you 17 write it out in your own handwriting and sign it at the 18 end. Did you give any such statement? 19 A No. 20 Q All right. One can be -- is when you are called 21 on the phone and you are asked to give a statement and you 22 agree to record the statement, and then they ask you 23 questions and you give answers. Have you given any 24 statements like that? 25 A To my insurance company only. Page 18 -Page 21 . T ,2?TV-14T FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM SHIRLEY PORTER APRIL 22, 2009 Page 22 1 Q Okay. And have you had a chance to review that 2 before your testimony here today? 3 A Yes. 4 Q Okay. Do you have the statement with you? 5 A He has it. 6 Q Your lawyer has it? 7 A Yes. 8 Q Okay. Other than that statement, have you given 9 any other statements? 10 A Only to my insurance company. i i Q Which is the one that you just talked about? 12 A Yes. 13 Q Okay. And how soon after the day when Miss 14 McMillin stuck her hand out and placed it on the hood of 15 your car and fell down did you give that statement? 16 A The same day I called the insurance company, the 17 day it happened. 18 Q And you -- they took the statement the same day? 19 A They had the gentleman get in touch with me the 20 same day. 21 Q Okay. And is there anything in that statement 22 that you wish to change after you read it today? 23 A No. 24 Q Okay. Is it true and accurate as you remember 25 it? Page 23 1 A Best of my ability. 2 Q Okay. Let's take a break 3 Let's go on until she brings that in. 4 Did you see Diane at any time after she stopped 5 working at the Host/Marriott until today? 6 A No. 7 Q Other than discussions with your lawyer, have you 8 heard anything from anyone about how she's been doing? 9 A No. 10 Q Have you heard anything other than from your 11 lawyer as to the nature and extent of her injuries? 12 A Only from the lawyer. 13 Q Okay. Did you conduct any investigation of your 14 own regarding the happening of this event where Miss 15 McMillin stuck her hand out and placed it on the hood of 16 your car and fell down as you have alleged? 17 A Did I do any investigation? 18 Q That's what I asked you. 19 A No. 20 Q Okay. Were you taking any medications on the day 21 of the -- when Miss McMillin stuck her hand out and placed 22 it on the hood of your car and fell down? 23 A I take blood pressure pills. 24 Q Did you take any that day? 25 A Yes. Page 24 ? 1 Q All right. 2 A Oh, and I do take Prozac. 3 Q Were you taking Prozac as of the time of -- that 4 you allege that Miss McMillin stuck her hand out and placed 5 it on the hood of your car and fell down? 6 A I have been taking it for years. 7 Q Would that be a yes then? 8 A Yes. 9 Q Did you take it that morning? 10 A Yes. 11 Q How much do you take? 12 A Twenty milligrams. 13 Q Who prescribes it? 14 MR. MURPHY: Objection. I will object to the 15 question and instruct her not to answer with regard to 16 Prozac or any other medication that she was taking that 17 wouldn't have effected her ability to drive. She's already 18 admitted in this case that she takes responsibility for 19 what happened in the accident. 20 BY MR SHOLLENBERGER: 21 Q Are there any warnings on the Prozac bottle 22 regarding operating a motor vehicle? 23 A The only warning that's on the bottle is do not 24 take with alcohol. 25 Q Okay. So as far as you know, there is no Page 25 I restriction on your ability -- 2 A No. 3 Q Let me finish question now. Operate a motor 4 vehicle by virtue of you taking Prozac? 5 A No. 6 Q Okay. You said that you were upset after this 7 event where you allege that Miss McMillin stuck her hand 8 out and placed it on the hood of your car and fell down, 9 correct? 10 A Yeah. 11 Q Okay. Why was this so upsetting if all Miss 12 McMillin did was stuck her hand out and placed it on the 13 hood of your car and fell down and then refused treatment 14 and then only had a bruise on her knee and elbow? 15 A Because I have never been in an accident. 16 Q So up to that time, you had never been in what 17 you tail an accident? 18 A Yeah. 19 Q You think this was just an accident? 20 A Yes. 21 Q And in fact, do you agree with the police officer 22 that this was just a freak accident? 23 A Yes. 24 Q So going back to my original question. Do you 25 think that you were in any way responsible for the Page 22 -Page 25 ?r^""V . T uvTr?TT FnT-TZ & NATALE 717-540-0220/717-393-5101 Multi-PageTM SHIRLEY PORTER APRIL 22, 2009 Page 26 1 happening of this accident? 2 MR. MURPHY: It's been asked and answered. 3 THE wrmEss: No. 4 BY MR. SHOLLENBERGER: 5 Q Okay. All right. 6 Now, to be fair to you, you have now changed your 7 answer from the beginning of this deposition to now. You 8 started out by saying yes, now you are saying no. Why the 9 change in your answer? 10 A I am responsible for hitting her, yes. I was 11 willing to pay all medical bills, yes, but to keep dragging 12 it out like this is unreal. I am song. 13 Q Okay. And -- 14 A I offered her -- I offered to pay all of her 15 medical bills. I offered -- I wanted her to go get medical 16 -- see a doctor the day it happened when it happened, and 17 she refused the treatment. 18 Q Okay. What do you mean by dragging it out? 19 A It's just been going on for so long, and I can't 20 understand why. 21 Q Okay. And you think that Diane is responsible 22 for why it is dragging on? 23 A I will take the fifth on that one. Thank you. 24 Q Well, you have to answer the question. 25 MR MURPHY: No, she doesn't have to answer that Page 27 1 question. I mean it's not relevant to this case. 2 THE wrm-EsS: I take the fifth. 3 MR. MURPHY: It's not relevant. If she doesn't 4 want to answer that question, I am not going to ask her to 5 answer it. 6 Whether or not the plaintiff dragged this out, 7 you dragged it out, I dragged it out, we all dragged it 8 out, the Court dragged it out, it's not relevant in this 9 case. 10 MR. SHOLLENBERGER: This is a discovery 11 deposition, Mr. Murphy, and you know that relevance alone 12 is not the issue. I am asking a follow-up question based 13 on her answer. 14 Are you instructing her not to answer, because I 15 am just adding them together so we go back to the Court a 16 second time? 17 MR. MURPHY: What is the question? 18 MR. SHOLLENBERGER: Read it back. 19 MR. MURPHY: Is she responsible for dragging it 20 out, why does she feel it's responsible for dragging out 21 the case? 22 MR. SHOLLENBERGER: Mr. Murphy, let the court 23 reporter read the question. 24 (Question read.) 25 MR. sHOLLENBERGER: Are you instructing her not to Page 281 1 answer the question? 2 MR. MURPHY: She can do whatever she wants with 3 that question. 4 MR. SHOLLENBERGER: No, she can't. She either has 5 to answer or she doesn't. Are you instructing her not to 6 answer the question? 7 MR. MURPHY: She can do as she pleases with that 8 question. I am not going to instruct her one way or the 9 other. If she wants to, she can answer; if she doesn't, I 10 don't got to tell her she has to. I 1 THE wiTNEss: I take the fifth. 12 MR. MURPHY: All right. 13 BY MR. SHOLLENBERGER: 14 Q What does that mean you are taking the fifth? Do 15 you think you committed a crime? 16 MR. MURPHY: No, I think what she's saying -- 17 MR. SHOLLENBERGER: I am not asking you the 18 questions, you are the lawyer, you are supposed to be 19 making objections, but you are not supposed to be coaching 20 your client and telling her what to do and not to do. 21 Either instruct her not to answer or make an objection, but 22 start to behave like a lawyer, not like the witness. 23 MR MURPHY: Well, then you behave like a lawyer. 24 Comport yourself a little bit. 25 MR SHOLLENBERGER: Well, you come out and have a Page 29 1 private discussion with me. 2 (Brief recess.) 3 (Discussion held off the record.) 4 BY MR. SHOLLENBERGER: 5 Q Thank you. 6 Now, Miss Porter, your attorney has produced this 7 statement. We will make a copy of it later. I want to be 8 fair to you, just show this to you. 9 Is this the statement that you were referring to 10 earlier as having just reviewed? 11 A Yes. 12 Q Okay. Now, to be, again, fair to you, do you 13 wish to review it, re-review it at any time, or right now, 14 excuse me, before I -- because I want to give you another 15 opportunity to tell me if there is anything that you want 16 to change. If you feel confident that you read it near 17 enough to now that you don't need to reread it, that's 18 fine, but if you wish to reread it, I want to give you that 19 opportunity. 20 A I would like to reread it. 21 Q You may. Take your time. 22 MR. sxoLLENBERGER: While she's reviewing that, do 23 you mind if we swear Diane in? 24 Do you need to talk to your lawyer? 25 THE wnwEss: Yes. Page 26 -Page 29 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page M SHIRLEY PORTER AYK1LLl, 2009 Page 30 1 MR SHOLLENBERGER: Would you like us to leave? 2 MIL MURPHY: We can leave instead of everybody 3 else leaving. 4 (Witness confers with Mr. Murphy outside of the 5 deposition room.) 6 BY MR.SHOLLENBERGER: 7 Q Are you done? 8 A Yes. 9 Q Okay. Do you think your recollection of events 10 was better then or better today? 11 A Today. 12 Q Okay. Did you now --I want to be very clear 13 about this, you have no obligation legal or otherwise to 14 tell me anything that you and Mr. Murphy discussed; okay? 15 A Okay. 16 Q I don't want you to volunteer that, but here is 17 the question that I am going to ask. Since -- since 18 this -- have you ever met with Mr. Murphy before today? 19 A No. 20 Q Okay. Did you meet today? 21 A Yes. 22 Q Were you given this statement today when you -- 23 A Yes. 24 Q All right. Again, don't tell me anything that 25 you discussed. Again, is there anything in this statement Page 32 1 Q Do you want to change the part where you said 2 pretty good? 3 A Yes. 4 Q Okay. What do you want to change about that? 5 A No, I want to change the knocked. 6 Q Not the pretty good? 7 A Yes, not the pretty good, that she was just 8 knocked. 9 Q Again, everybody might mean something different 10 by those words pretty good. I I What do you mean by the words pretty good, or 12 what did you mean by the words pretty goods when you said 13 that, gave that statement? 14 A That she was hit hard enough that she went down. 15 Q Okay. Now, do you remember how fast that you 16 were going at the time? 17 A Fifteen. 18 Q How do you know that? 19 A Because you can only go up that lane at fifteen 20 miles an hour. 21 Q No. I meant at the time that the Blazer came 22 into contact with her hand, how fast was the Blazer going? 23 A I was at a dead stop. 24 Q Okay. And how long had you been stopped between 25 the time that the vehicle came into contact with her, with Page 31 1 that you want to modify and -- or change? 2 A Yes. 3 Q Okay. Why don't you find the page, and then when 4 you get to where -- what you want to change, we will do 5 each change. Is there one change or more than one? 6 A There is two. 7 Q Two. All right. Let's go to the first one. I 8 know the pages aren't numbered, but if you find -- there is 9 line numbers, so find the line number, tell me what line 10 number the question is on. 11 A 78. 12 Q All right. Can you read it out loud for us? 13 A She was knocked pretty good 14 Q Okay. So the question was, uh, was she knocked 15 over. Would you agree that was the question. on line 76? 16 A Yes. 17 Q Then your answer was she was knocked pretty good. 18 A What I meant to say, that -- 19 Q Is that the answer that you want to change? 20 A Yes. 21 Q Okay. Go ahead. 22 A She wasn't -- the momentum of my car is what 23 knocked her down. It's -- and it wasn't that I was going 24 fast. I meant to say that the momentum of the car knocked 25 her down. Page 33 1 Diane's hand? 2 A I stopped instantly. 3 Q Was it simultaneous, pretty much at the same 4 time? 5 A Uh-huh. 6 Q You stopped and her hand came in contact -- 7 A Uh-huh. 8 Q -- almost at the same time, is that what you -- 9 A Yes. 10 MR. SHOLLENBERGER: Okay. Okay. Thank you. 11 That's all the questions that I have. We will mark this as 12 Exhibit 1. Is that all right, Mr. Murphy? I will make a 13 copy, give you back yours. 14 MR. MURPHY: Yes, please. 15 (Statement produced and marked Porter Exhibit 16 Number 1.) 17 (Whereupon, the deposition was concluded at 18 3:40 a.m. ) 19 20 21 22 23 24 25 Page u TT[:NFC_ ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 30 - Page 33 Multi-Page TM SHIRLEY PORTER APRIL 22- 2009 Page 34 1 COUNTY OF DAUPHIN 2 : Ss 3 COMMONWEALTH OF PENNSYLVANIA : 4 I, Maria N. O'Donnell, a Notary Public, authorized to 5 administer oaths within and for the Commonwealth of 6 Pennsylvania, do hereby certify that the foregoing is the 7 testimony of SHIRLEY PORTER 8 I further certify that before the taking of said 9 deposition, the witness was duly sworn; that the questions 10 and answers were taken down stenographically by the said 11 Reporter-Notary Public, and afterwards reduced to 12 typewriting under the direction of the said Reporter. 13 I further certify the said deposition was taken at 14 the time and place specified in the caption sheet hereof. 15 I further certify that I am not a relative or 16 employee or attorney or counsel to any of the parties, or a 17 relative or employee of such attorney or counsel, or 18 financially interested directly or indirectly in this 19 action. 20 I further certify the said deposition constitutes 21 a true record of the testimony given by the said witness. 22 IN WITNESS WHEREOF, I have hereunto set my hand 23 this 13TH day of MAY, 2009. 24 Maria N. ,RPA 25 Notary Public I=TV-TTFS_ ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 Page 34 - Page 34 Multi-Page"` & - doesn't SHIRLEY PORTER & [3) 1:14 1:21 i 1:18 '03 [1] 15:21 10412] 15:22 15:23 -0- 06-1173 [1i 1:5 -1- 1 [3) 2:9 33:16 1177 [114:2 13TH [1] 33:12 34:23 -2- 2009 (211:13 22 [1] 1:13 2225 [1)1:15 2:22 [1] 1:13 34:23 -3- 3 [1) 2:4 33 [1) 2:9 3:40 [1) 33:18 -6- 6:45 [1) 13:20 -7- 76[1] 31:15 78 [1] 31:11 7:00[1114:17 -9- 9th [1) 15:22 (1l 34:2 -A- A-W-E-L-L [1111:19 a.m [2] 13:21 33:18 ability [31 23:1 24:17 25:1 able p] 5:14 accept [1] 5:22 accident [17] 6:13 6:21 7:15 11:11 14:19 15:18 15:20 16:16 17:19 185 18:24 24:19 25:15 25:17 25:19 25:22 26:1 accommodate [1) 4:25 accurate p] 22:24 ACTION p) 1:4 action [1] 34:19 adding (11 27:15 address p) 4:1 administer p) 34:5 administrator [1) 11:24 admitted p) 24:18 afternoon (1) 3:14 afterwards p] 34:11 Again [4) 19:5 30:24 30:25 32:9 again [1] 29:12 ago [1) 12:19 agree [3] 21:22 25:21 31:15 ahead [4] 6:9 7:25 13:2 31:21 alcohol pi 24:24 allege [2) 24:4 25:7 alleged p] 23:16 allow [1] 18:17 allowed pi 5:7 almost [1) 33:8 alone [1) 27:11 ambulancei3l 12:6 14:23 14:23 answer [25] 5:4 5:8 5:9 5:23 6:9 6:17 6:22 7:3 9:2 24:15 26:7 26:9 26:24 26:25 27:4 27:5 27:13 27:14 28:1 28:5 28:6 28:9 28:21 31:17 31:19 answered [21 4:19 26:2 answering [1] 6:10 answers [3] 4:12 21:23 34:10 apologize (1] 3:15 APPEARANCES [1] 1:17 appreciate p] 7:3 APRIL. [1] 1:13 arm (91 10:3 10:4 10:4 10:6 10:6 16:22 16:24 17:2 21:2 assume [21 4:19 18:10 attorney p] 29:6 34:16 34:17 authorized [11 34:4 away [517:1 7:4 7:8 7:17 12:15 awhile (1i 16:20 -B- B-r-o-w-n-e-w-e-1-1 [1] 11:20 based [2] 19:1 27:12 basis [1] 19:24 beginning [1] 26:7 behave [21 28:22 28:23 believes (1) 19:4 Best [1) 23:1 better [2] 30:10 30:10 between [2] 3:2 32:24 billings [1l 12:2 bills [21 26:11 26:15 bit [3] 9:20 9:21 28:24 Blazer [a] 9:9 9:13 13:15 20:7 20:12 20:14 32:21 32:22 blocked [1] 9:14 blood [1l 23:23 body (3] 7:18 8:11 8:18 bottle [2] 24:21 24:23 brace n] 16:20 16:22 16:22 16:23 16:24 16:24 17:2 braces [1] 17:10 brakes [3) 7:16 7:21 12:16 break [31 * 4:23 10:19 23:2 Brief (3] 10:24 20:2 29:2 brings [11 23:3 Brown [1) 11:18 Brownewell (2] 11:17 11:18 bruise [2) 10:7 25:14 bump (21 10:3 10:6 bunch [1] 4:5 business p) 16:5 _C_ Caption [1) 34:14 car [30] 7:17 8:2 8:7 8:8 8:24 9:3 9:10 9:12 9:16 9:19 9:20 10:16 10:18 11:5 12:16 12:17 20:22 21:1 21:3 21:6 21:7 21:12 22:15 23:16 23:22 24:5 25:8 25:13 31:22 31:24 Carlisle [1] 4:2 case [6) 6:19 20:8 24:18 27:1 27:9 27:21 caused p) 3:16 cell [2] 13:8 13:10 certification in 3:4 certify [5) 34:6 34:8 34:13 34:15 34:20 chair [1] 16:17 chance [11 22:1 change p1) 22:22 26:9 29:16 31:1 31:4 31:5 31:5 31:19 32:1 32:4 32:5 changed [1) 26:6 characterization p] 19:24 characterize [1) 19:18 citation [2] 17:17 17:19 cited [1] 17:12 CIVIL [11 1:4 claiming [1] 6:13 clear [1) 30:12 client [31 8:5 19:3 28:20 client's [3) 8:6 8:6 20:7 coaching [1l 28:19 color pi 13:17 committed [1] 28:15 COMMON pi 1:1 COMMONWEALTH [1) 34:3 Commonwealth [1] 34:5 company p] 21:25 22:10 22:16 Comport pl 28:24 concerned [1) 6:14 concluded 111 33:17 conduct [1] 23:13 confers [1] 30:4 confident [1] 29:16 confused [1) 9:11 constitutes [11 34:20 contact [7] 8:6 8:8 8:19 12:17 32:22 32:25 33:6 continue (21 11:1 15:13 conversation p) 11:4 Copy [2) 29:7 33:13 correct [2] 15:5 25:9 Counsel (1] 19:3 counsel [s) 3:2 18:17 19:21 34:16 34:17 COUNTY [21 1:2 34:1 course [1) 6:17 COURT [1] 1:1 Court [2] 27:8 27:15 court [1) 27:22 crash [7] 17:23 18:2 18:10 18:17 18:24 19:2 19:4 crime [1] 28:15 CUMBERLAND [1] 1:2 current (11 4:1 -D- DATE [1) 1:13 DAUPHIN [1) 34:1 Days [1] 17:7 days pi 17:6 17:8 17:9 dead p] 32:23 DEFENDANT [21 1:8 1:23 DEMANDED [1] 1:8 depending [11 17:6 DEPOSITION [21 1:9 2:8 deposition [91 4:7 18:20 26:7 27:11 30:5 33:17 34:9 34:13 34:20 describe [11 7:20 desk p) 16:18 determine [1] 6:15 Diana [s] 11:15 12:7 12:9 12:14 17:18 DIANE [2] 1:1 1:26 Diane 1111 6:5 8:25 11:4 14:18 14:21 15:1 15:7 16:15 23:4 26:21 29:23 Diane's [1) 33:1 different [2) 21:15 32:9 direction pi 34:12 directly [11 34:18 discovery [1] 27:10 discussed [2) 30:14 30:25 Discussion [21 20:1 29:3 discussion [11 29:1 discussions [1) 23:7 doctor (11 26:16 doesn't [4] 26:25 27:3 28:5 28:9 Index Page 1 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Pagerm done - meet SHIRLEY PORTER done [1) 30:7 down [26] 8:3 8:10 9:6 9:14 9:17 12:18 12:23 13:4 19:5 19:7 19:17 19:22 19:25 21:9 21:10 21:12 22:15 23:16 23:22 24:5 25:8 25:13 31:23 31:25 32:14 34:10 dragged [s] 27:6 27:7 27:7 27:7 27:8 dragging [s] 26:11 26:18 26:22 27:19 27:20 drive [2) 9:9 24:17 driver's [1) 9:23 driving [21 8:20 14:11 duly (21 3:8 34:9 -E- lasy [1] 4:2 flected [11 24:17 Nther 111 28:21 7ther [2) 4:23 28:4 :lbow [11 25:14 :mployee [3) 14:1 34:16 34:17 mployer [1] 14:2 :mployment [11 11:23 end [21 14:6 21:18 ENOLA [1] 1:16 entitled Ill 6:20 ESQUIRE [2] 1:19 1:22 essentially [11 12:20 event [2) 23:14 25:7 111 30:9 ody [2) 30:2 EXAMINATION [2] 2:2 3:10 except [1) 3:5 Excuse [2] 10:17 13:7 excuse [1] 29:14 EXHIBIT [1] 2:8 Exhibit [2) 33:12 33:15 EXJHBITS [1) 2:7 expert[i] 6:15 extent [11 23:11 eye [21 14:10 14:11 -F- Flil 1:22 face 121 9:6 9:6 fact (1] 25:21 fair [s] 18:5 18:6 26:6 29:8 29:12 falling [1) 19:23 far [4) 4:11 6:13 6:13 24:25 fast [3) 31:24 32:15 32:22 fault [113:18 fell [lo) 19:16 21:9 21:10 21:12 22:15 23:16 23:22 24:5 25:8 25:13 Fifteen 12) 14:15 32:17 fifteen [1) 32:19 fifth [4) 26:23 27:2 28:11 28:14 filing [1I 3:4 financially (11 34:18 fine [2) 10:1 29:18 finish [5] 5:3 5:8 5:9 18:20 25:3 finishes Rl 8:14 first [4) 3:22 4:6 15:10 31:7 follow-up [11 27:12 followed [1) 11:8 follows [1] 3:9 foot (11 16:18 forced [11 18:19 foregoing [1) 34:6 form [101 3:5 6:6 7:10 9:1 17:25 18:4 18:18 19:1 20:9 20:24 FORRY [21 1:21 1:21 Forward [1) 7:23 Frankly 11] 19:20 freak [2117:19 25:22 front [917:22 8:20 8:24 9:3 9:4 9:12 9:15 12:16 12:17 full [1] 14:6 -G- gentleman [1] 22:19 given rn 4:7 6:2 17:22 21:23 22:8 30:22 34:21 giving 121 4:11 5:12 glanced [5) 7:1 7:4 7:5 12:14 12:)5 glancing [11 7:8 glasses [2) 14:10 14:11 goes [1) 7:22 Good [61 3:12 3:13 3:14 5:2 5:17 5:25 good [7) 31:13 31:17 32:2 32:6 32:7 32:10 32:11 goods [1) 32:12 ground [2) 19:17 19:23 guess [21 3:14 5:18 H [11 4:4 hand [301 7:19 8:1 8:5 8:6 8:8 8:19 8:25 12:16 19:16 19:23 20:7 20:12 20:14 20:15 20:21 20:22 20:25 21:2 21:4 21:11 22:14 23:15 23:21 24:4 25:7 25:12 32:22 33:1 33:6 34:22 handwriting (1] 21:17 happening [41 6:21 14:19 23:14 26:1 hard [1) 32:14 hear [1] 4:16 heard I3) 4:20 23:8 23:10 heating (11 16:17 held [21 20:1 29:3 hello [2116:9 16:10 hereby [3) 3:2 3:4 34:6 hereof [i) 34:14 hereunto [1) 34:22 hit M 7:16 7:21 8:24 11:15 12:16 12:16 32:14 hitting [1] 26:10 Hold [2)19:6 20:23 home [1] 15:2 honest Ill 13:6 honestly [1) 13:6 hood [13] 8:2 20:22 20:25 21:3 21:6 21:7 21:12 22:14 23:15 23:22 24:5 25:8 25:13 Host [s] 14:3 14:4 14:7 14:8 15:14 15:16 17:4 17:5 Host/Marriott [1) 23:5 hour [11 32:20 husband [1) 4:4 -I- important (21 5:7 5:13 incident [s] 13:19 15:11 17:12 18:25 19:5 include 111 18:16 including [11 18:19 inconvenience [1] 3:15 indirectly [1) 34:18 injured [2) 6:15 16:15 injuries [3) 6:14 6:16 23:11 injuring D) 6:5 injury [2) 6:19 10:13 instantly [1) 33:2 instead (1) 30:2 instruct (3) 24:15 28:8 28:21 instructing [3] 27:14 27:25 28:5 instructions [1 ] 6:1 insurance [3) 21:25 22:10 22:16 interested (11 34:18 interrupted [2) 5:6 5:7 investigation [2) 23:13 23:I7 issue [2118:21 27:12 issued [3] 17:14 17:15 17:16 itself [1) 6:21 -J- JANUZZII2) 1:14 1:18 JESSICA [1) 1:25 JOSEPH [11 1:22 Jr (1) 4:4 judge [3) 18:8 18:13 18:15 June (1) 15:22 JURY (1) 1:8 -$- keep 111 26:11 kind (11 16:22 lamp] 10:7 10:8 25:14 knock (41 19:5 19:7 19:17 19:25 knocked [91 8:2 19:22 31:13 31:14 31:17 31:23 31:24 32:5 32:8 -L- L-o-r-r-a-i-n-e [1] 3:25 laid 121 20:22 20:25 lane [1) 32:19 last [2] 15:23 17:3 LAW V] 1:4 lawyer (1o] 4:24 17:24 22:6 23:7 23:11 23:12 28:18 28:22 28:23 29:24 laying [31 9:3 9:6 9:13 learn (1) 17:20 leave (5)10:22 10:23 10:23 30:1 30:2 leaving Ill 30:3 left [9) 10:4 15:21 15:21 15:23 15:23 17:3 17:3 17:4 17:9 leg [31 16:22 16:24 17:2 legal (1) 30:13 line 151 9:16 31:9 31:9 31:9 31:15 live [1) 4:3 LLP [2] 1:14 1:18 looked 111 12:7 Lorraine (2) 3:21 3:24 loud [1) 31:12 -M- M [11 1:25 ma'am [1) 3:I2 MARIA (1) 1:11 Maria [21 34:4 34:24 mark [1133:11 MARKED [1) 2:8 marked [1] 33:15 Marriott [2) 14:8 14:9 Mary [2) 11:17 14:22 MAY Ill 34:23 may [3) 3:15 8:2 29:21 MCMILLIN 121 1:1 1:26 McMillin [12) 6:5 7:9 19:16 20:25 21:4 21:11 22:14 23:15 23:21 24:4 j 25:7 25:12 McMillin's (21 20:14 20:21 mean [s] 7:14 18:23 26:18 27:1 28:14 32:9 32:11 32:12 meant [3) 31:18 31:24 32:21 medical (3] 26:11 26:15 26:15 medication [1] 24:16 medications [1] 23:20 meet [1) 30:20 Index Page 2 M11GURS_ ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-PageT" pleases [1l 28:7 pointing [1) 10:4 Police [1] 17:21 police (6l 11:13 12:4 12:5 12:20 12:22 25:21 poorly-phrased [1l 8:23 PORTER [51 1:7 1:9 2:3 3:8 34:7 Porter (121 3:21 4:1 4:4 4:5 7:4 11:1 18:20 18:23 19:3 19:21 29:6 33:15 precise [1] 20:23 prepared (3) 19:7 19:7 19:11 prescribes [1] 24:13 PRESENT [11 1:24 pressure 111 23:23 pretty 191 31:13 31:17 32:2 32:6 32:7 32:10 32:11 32:12 33:3 private (1) 29:1 proceed (11 18:8 PRODUCED p) 2:8 produced [21 29:6 33:15 Prozac [s) 24:2 24:3 24:16 24:21 25:4 PUBLIC [1] 1:12 Public [31 34:4 34:11 34:25 pulling [1) 12:13 purely 111 19:1 Put [11 9:19 put [3) 19:16 20:15 21:2 zemory [1] 5:19 ientioned (4l 11:3 13:15 13:23 14:21 let (1) 30:18 fiddle 111 12:14 light 111 32:9 tiles [1) 32:20 MILLENNIUM (1l 1:15 milligrams (1) 24:12 mind [1129:23 minute [2] 9:22 15:21 111 14:15 [21 19:14 19:19 Miss (221 4:1 4:5 7:4 7:8 11:1 18:20 18:23 19:3 19:16 19:21 20:14 20:20 20:25 21:4 21:11 22:13 23:14 23:21 24:4 25:7 25:11 29:6 modify [1) 31:1 moment (2) 8:5 8:18 momentum [2] 31:22 31:24 morning [5] 3:12 3:13 3:15 13:22 24:9 most [11 5:13 motion [3l 7:17 7:20 8:4 motor [2) 24:22 25:3 roves [1) 7:21 uiURPHY [31) 1:22 3:18 6:6 6:11 7:10 8:14 9.1 15:18 17:25 18:2 18:6 18:9 18:14 18:22 19:9 19:13 20:9 20:11 24:14 26:2 26:25 27:3 27:17 27:19 28:2 28:7 28:12 28:16 28:23 30:2 33:14 ''Inrphy [61 27:11 27:22 30:4 30:14 30:18 33:12 -N- r(31 1:11 34:4 34:24 4AMh (1) 2:2 lame [4) 3:20 3:22 13:25 14:6 ature 111 23:11 ear [il 29:16 eeessary [1) 18:22 iced [5] 4:23 6:1 10:19 29:17 29:24 never [21 25:15 25:16 Newville [1) 12:5 next [6l 8:20 8:25 9:18 11:4 15:7 20:24 nobody' S [i) NOTARY [1l 1:12 Notary [2l 34:4 34:25 notice 12l 14:10 16:14 Now [6) 11:3 12:22 26:6 29:6 29:12 32:15 now [a] 3:14 25:3 26:6 26:7 26:8 29:13 29:17 30:12 Number [1i 33:16 number [2) 31:9 31:10 numbered [1l 31:8 numbers [1l 31:9 -O- o'clock [1) 14:17 O'DONNELL [1] 1:11 O' Donnell [21 34:4 34:24 oaths [1) 34:5 object [6) 6:6 6:10 9:1 18:4 18::18 24:14 objecting (21 19:12 19:13 Objection (41 7:10 17:25 20:9 24:14 Objection n1 6:14 6:17 18:11 18:25 19:24 20:24 28:21 objections [21 3:5 28:19 obligation [11 30:13 observed [11 6:18 obvious [21 6:16 6:19 occur [1) 13:19 occurred [11 17:23 off [41 16:1 16:2 20:1 29:3 offered [3) 26:14 26:14 26:15 Offhand 11] 14:25 office [31 11:10 11:24 16:18 Officer m 12:9 12:10 12:12 12:20 12:22 17:21 25:21 once [1l 16:20 One [21 21:16 21:20 one [111 5:13 13:7 13:9 16:8 17:10 22:11 26:23 28:8 31:5 31:5 31:7 Operate [1) 25:3 operating [il 24:22 opportunity [2) 29:15 29:19 opposed [3) 17:17 19:5 19:22 Original [1) 25:24 otherwise (1l 30:13 outside (1l 30:4 own p] 13:9 21:17 23:14 -P- P.M [11 1:13 p.m. (1) 13:21 pad [1) 16:17 page (1) 31:3 pages [1) 31:8 pain [1) 16:15 palm (318:8 8:19 8:24 park [1l 9:19 Parked [1i 10:16 parked [2) 10:18 11:5 parking (r) 7:5 11:11 12:13 12:14 13:23 13:25 14:1 part [2] 7:19 32:1 particular (1l 18:21 parties [2) 3:3 34:16 pay [2) 26:11 26:14 PC [1) 1:21 pedestrian [41 19:5 19:7 19:17 19:25 PENNSYLVANIA 131 1:3 1:16 34:3 Pennsylvania [1l 34:6 perfect [1] 5:19 period (1l 15:14 phone [41 13:8 13:10 18:8 21:21 pills [1] 23:23 PLACE [11 1:14 place [s1 11:22 16:4 16:5 16:16 34:14 Placed [11 21:7 placed [a) 21:6 21:12 22:14 23:15 23:21 24:4 25:8 25:12 PLAINTIFF [31 1:2 1:10 1:20 plaintiff [4) 6:19 19:22 19:22 27:6 plaintiff's [1] 20:12 PLEAS [1l 1:1 Putting [1) 19:23 memory - Road SE IRLEY PORTER really [21 5:6 10:11 reason [3) 4:24 7:1 14:24 recess [3) 10:24 20:2 29:2 recollection [1l 30:9 record [41 20:1 21:22 29:3 34:21 Red[il 13:18 reduced [1] 34:11 referring [1] 29:9 refused [41 12:9 14:21 25:13 26:17 regard [21 6:18 24:15 regarding (31 17:23 23:14 24:22 relative [2] 34:15 34:17 relevance [1] 27:11 relevant [31 27:1 27:3 27:8 remember [6i 5:21 10:11 14:25 15:8 22:24 32:15 'repeat [1) 6:1 report [1] 14:14 Reporter[i] 34:12 reporter [1) 27:23 Reporter-Notary [1) 34:11 require [1) 14:11 required [21 14:13 14:14 reread [3) 29:17 29:18 29:20 reserved [11 3:6 respective [1] 3:3 responsibility [41 6:4 14:18 18:24 24:18 5.25 26.10 26:21 27:19 27:20 Iresponsible [tl 6:12 6 21 2 Nz- restaurant [11 11:6 qualified 111 6:15 restriction [11 25:1 questioned [11 12:10 review [2] 22:1 questions [6) 4:6 29:13 18:16 21:23 28:18 reviewed [1) 29:10 33:11 34:9 reviewing [1) 29:22 quick [21 7:2 Right [11 14:25 12:15 -R- re-review [1i 29:13 reached (11 8:5 Read [1] 27:18 read (r) 20:3 20:5 22:22 27:23 27:24 29:16 31:12 reading (1l 3:3 ready [1l 11:1 right [z9) 4:9 4:11 5:25 6:4 7:16 9:16 10:12 10:15 12:3 13:7 13:8 13:19 14:13 15:3 15:7 15:13 15:24 16:7 17:22 20:20 21:20 24:1 26:5 28:12 29:13 30:24 31:7 31:12 33:12 [toad [114:2 5:19 Index Page 3 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page rocking - yourself SHIRLEY PORTER rocking [3] 7:19 spoke [1] 12:22 testimony (s) 19:10 7:20 8:4 SS [1l 34:2 19:14 19:15 19:15 -W- room [1] 30:5 Start 131 14:6 14:16 19:20 22:2 34:21 34:7 Wait [1] 8:14 RP [1] 1:25 28:22 Thank [s] 4:22 wait [1] 15:21 RPR [2] 1:11 34:24 started [1] 26:8 11:21 26:23 29:5 waived [1] 3:4 rules (1] 5:12 State (?] 17:21 33:10 walked P] 11:5 ruling [1] 18:21 state (1] 3:20 TIMOTHY [l l 1:19 wants [2] 28:2 STATEMEN T (1] 1 Toda 30 11 28 9 y [ ] : : -S- 2:9 today [la] 4:6 warning [4] 17:14 S-h-i-r-l-e-y (il Statement [1] 33:15 14:11 15:10 22:2 17:15 17:16 24:23 3:23 statement (15] 21:13 22:22 23:5 30:10 warnings [11 24:21 saw [s] 8:11 8:19 21:16 21:18 21:21 30:18 30:20 30:22 ways (1] 21:15 8:21 8:25 16:7 21:22 22:4 22:15 22:18 22:8 22:21 together[l] 27:15 wearing [1] 14:10 Scrape [1] 10:7 29:7 29:9 30:22 too [1] 15:2 WHEREOF [1 ] 34:22 sealing [1] 3:3 30:25 32:13 took [1] 22:18 willing [!] 26:11 second [6] 7:2 statements [s] 17:22 touch [1] 22:19 wish [3] 22:22 29:13 7:4 7:11 12:15 20:8 21:16 21:24 touched [1] 8:1 29:18 13:7 27:16 22:9 Trail [21 9:9 9:12 within [1] 34:5 see (1s] 6:16 7:5 stenographically [1] treatment [4] 12:9 WITNESS [9] 6:23 8:22 9:7 9:8 34:10 14:21 25:13 26:17 7:11 8:16 9:3 9:13 10:12 15:7 15:9 15:1 16:2 Still [2] 9:9 17:2 TRIAL, [1] 1:8 26:3 27:2 28:11 16:4 16:20 23:4 stipulated [1] 3:2 trial [1] 3:6 29:25 34:22 26:16 STIPULATION (1] true [2] 22:24 34:21 Witness (1] 30:4 set t3] 9:19 9:22 3:1 try pi 5:4 witness [4] 3:8 34:22 stop [41 5:8 7:17 turnpike [ll 12;5 28:22 34:9 34:21 sheet (1] 34:14 17:4 3223 Twenty [1] 24:12 WITNESSES [1] shift [2] 14:15 14:16 stopped [s) 19:16 Two (ll 31:7 2:1 SHIRLEY [s] 1:7 23:4 32:24 33:6 33:2 two [2l 9:22 31:6 woman [1] 11:10 1:9 2:3 34:7 3:8 strike [1] 7:12 typewriting [1 ] 34:12 wg d (4118:2 18:5 striking [1] 6:5 words 13 5 Shirley [1] 3:21 [4] : SHOLLENBERGER struck [1] 7:8 -U- 32:10 32:11 32:12 (401 1:14 Stuart [1] 4:4 ULLMAN [2] 1:21 worked (4] 17:3 1:18 1:19 2:4 stuck [10] 8:1 1:21 17:6 17:8 17:9 3:11 3:19 6:8 21:2 21:4 21:11 under [2] 16:18 wreck [2] 18:10 6:24 7:13 8:17 22:14 23:15 23:21 34:12 18:17 9:5 10:21 10:25 24:4 25:7 25:12 understand [r] 4:13 write [2112:23 21:17 15:19 18:1 18:3 such [2] 21:18 34:17 4:25 5:10 5:15 written [1] 21:16 18:7 18:12 19:6 19:11 18:15 20:3 suggested [1] 16:15 5:23 12:19 26:20 ng 18:1 20:6 2Q:10 20:13 sed (2] ?PPo 28:18 understood [1] 4:20 8:3 20:10 24:20 26:4 27:10 28:19 unreal [1] 26:12 wrote [i] 13:4 27:18 27:22 27:25 suspend [1] 18:19 up pol 8:22 9:6 28:4 28:13 28:17 swear [i] 29:23 9:13 9:23 17:8 -Y- 28:25 29:4 29:22 SWEDENHJELM [1] 18:12 19:16 19:23 30:1 30:6 33:10 1:25 25:16 32:19 Year [1] 15:23 shortly [21 11:8 Sworn [2] 3:9 upset [21 15:2 years [1] 24:6 l 34:9 25:6 yourself (1] 28:24 show [1129:8 upsetting [1] 25:11 side [1] 9:23 -T- using [2] 17:2 Sign [2] 10:12 21:17 takes [2118:23 24:18 17:4 Signing [1] 3:3 simple [1] 7:1 taking m 23:20 -V- 24:3 24:6 24:16 simultaneous [l] 25:4 28:14 34:8 V [1] 1:5 33:3 tap [ll 20:14 vehicle [9] 7:8 sitting (1] 9:10 2P? [2] 20.7 7:11 8:20 13:13 soon [1] 22:13 20:12 19 :21 20:20 24:22 Sorry [1] 26:12 telling <zl 12:23 25:4 32:25 space [1] 7:6 28:20 verbal D] 4:12 speak [1] 16:8 term (ll 19:12 virtue [1] 25:4 specified pi 34:14 terms [l1 18:19 visible [1] 10:12 Spell [213:22 3:24 testified [41 3:9 vision [1] 9:14 spell (1] 11:18 4:9 18:23 19:19 volunteer (1) 30:16 Index Page 4 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 K 3 o' :« C7 2 C O N T E N T S WITNESSES DIRECT CROSS REDIRECT RECROSS Diane McMillin (By Mr. Yuncker) 6 -- -- -- (By Mr. Fitzsimmons) -- 21 -- -- E X H I B I T S NUMBER FOR IDENTIFICATION IN EVIDENCE Defense: 1 (Request for Information) S -- Claimant: 3 (Letter of 14 Jun 04) 15 -- 4 (Letter of 18 Jun 04) 16 -- 5 (Crocker letter) 18 -- 6 (Letter of 15 Nov 04) 18 -- 7 (Letter of 8 Dec 04) 19 -- 8 (Fee agreement) 21 Any reproduction of this transcript is prohibited without authorization by the certifying reporter. COMMONWEALTH REPORTING COMPANY (711) 761-7150 3 1 2 3 4 S 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 P R O C E E D I N G S JUDGE FADER: We'll go on the record. We'll call the case of Diane McMillin. The Claimant is present, represented by Attorney Yuncker. Defense is present, represented by Attorney Fitzsimmons. This is a hearing on a Reinstatement Petition and also to review the description. You didn't file a Review Petition? MR. YUNCKER No, your Honor, I just amended it at the last hearing. JUDGE FADER: Also a Penalty regarding calculation of the average weekly wage. We had a brief hearing previous to today. Ms. McMillin, you're still living at 9 North Locust Street, Shiremanstown? THE CLAIMANT: That's correct. JUDGE EADER: Raise your right hand. Whereupon, DIANE MCMILLIN having been first duly sworn, testified JUDGE EADER: Thank you. over here. That way we can hear you a MR. YUNCKER: Your Honor, JUDGE EADER: Yes. MR. YUNCKER: Your Honor, as follows: You'd better sit Little bit better. may I approach? at the last hearing, COMMONWEA:TH REPORTING COMPANY (717) 761-7150 4 1 we talked about the average weekly wage and you had asked 2 for wage records. I wanted to hand up to you a copy of a 3 letter with attached wage records from October 2Dtr, 2004. 4 The letter is from Carol Eubank, Accounting Manager with HMS 5 Host. I ask that be admitted into the record for our 6 calculation of the average weekly wage. 7 JUDGE EADER: Sir, the Statement of Wages we 8 marked as C-2. Do you want to just attach this to the 9 Statement of Wages? 10 MR. YUNCKER: That would be fine. 11 JUDGE EADER: I think that's what the 12 objection was. Mr. Fitzsimmons wanted an opportunity to see 13 what you were basing that on. 14 MR. YUNCKER: Right. 15 MR. FITZSIMMONS: We're not far off on our 16 calculations, Tim. Yours come out to what? 17 MR. YUNCKER: Mine comes out to ... 18 JUDGE EADER: $453.10 Comp. Rate; $679.65 19 average weekly wage. 20 MR. FITZSIMMONS: Right. I knew we were in the 21 ballpark. Okay. That's fine. Your Honor, do you have any 22 Bureau documents? 23 JUDGE EADER: I don't have any - B-1 was the 24 Notice of Comp. Payable. 25 MR. FITZSIMMONS: Is that the extent of what COMMONWEALTH -R-'PORTING COMPANY (717) 761-7150 5 1 you have? 2 JUDGE EADER: Yes. And a Statement of Wages 3 with it. 4 MR. FITZSIMMONS: I received just recently 5 some faxed file contents. It appears the Bureau had 6 rejected that Notice of Compensation Payable. 7 JUDGE EADER: Oh, really? 8 MR. FITZSIMMONS: Because it was inaccurate. 9 I have a copy of what was sent to me and would like to offer 10 it to your Honor as Exhibit D-1. I just got this. It just 11 so happened they faxed two copies. Can I have it marked as 12 a Defense exhibit? 13 (Handing document to Court) 14 JUDGE EADER: Yes. 15 MR. FITZSIMMONS: My position being the NCP 16 may not have been accepted or recognized by the Bureau. 17 JUDGE EADER: D-1 is the Request for 18 Information from the Bureau that's dated - stamped September 19 1601, 2004. Do you have any response to it? 20 (Whereupon, the document was marked 21 Defense Exhibit No. 1 for identification.) 22 MR. YUNCKER: I don't have any objection to 23 it, your Honor. Fran and I talked before the hearing. I 24 don't know if he's going on the basis that there is no 25 accepted work injury and I need to proceed with a Claim COMMONWEALTH REPORTING COMPANY (717) 761-7150 6 1 Petition. 2 MR. FITZSIMMONS: I don't know what the result 3 of that is. I honestly don't know. Tim and I spoke. It's 4 going to be my strong recommendation, because I think what 5 the company intended to do was to acknowledge that the 6 injury occurred and that there probably is some lost time as 7 well. But I think what we're arguing about now, as far as 8 the Reinstatement from the November 2004, has to do with the 9 shoulder injury that was not acknowledged as part of the 10 compensable injury. 11 JUDGE EADER: You have amended your 12 Reinstatement to take care of that. 13 MR. YUNCKER: Correct. 14 JUDGE EADER: We may very well be, everything 15 procedurally might be covered. Now all we have to do is go 16 about gathering the information and then proving it. Okay? 17 MR. YUNCKER: Not a problem. 18 JUDGE EADER: All right. Proceed. 19 DIRECT EXAMINATION 20 BY MR. YUNCKER: 21 Q. State your name for the record, please. 22 A. Diane Elaine McMillin. 23 Q. Who is your employer? 24 A. HMS Host Corporation. 25 Q. Carl you tell us what happened on June 9, 2004? COMMONWEALTH REPORTING COMPANY (717) 761-7150 7 1 A. As I drove in to work, it was a bright, sunny, red 2 sun morning, one of the clearest days I ever remember 3 seeing. I drove into the parking lot and parked my car on 4 the f ar side of the lot, which is a closed-end parking lot 5 with about 100 feet in between. I closed my door, locked my 6 car, and was walking into the pathway that leads into the 7 build ing when an employee came rushing around the corner, 8 squea ling her brakes, and came right around the corner. And 9 I was smack dab in the middle of the parking lot with no 10 place to go and she hit me because she was looking at the 11 left side for a parking place. She never saw me standing in 12 front of her. 13 Q. Did she hit you with the front of her car? 14 A. Yes. 15 Q. What happened when she hit you? 16 A. I flew up in the air and landed on the parking lot 17 on my left side, and I rolled over, and over, and over, and 18 over. I remember seeing the blacktop as I rolled over, and 19 over, and over, until finally gravity just made me stop. 20 Q. Do you know this employee's name? 21 A. Yes, I do. 22 JUDGE EADER: What's her name? 23 THE WITNESS: Shirley Porter. 24 JUDGE EADER: Is she also an employee of HMS 25 Host? COMMONWEALTH REPORTING COMPANY (717) 761-7150 9 1 A. Yes, I did. 2 Q. Which one? 3 A. Carlisle Regional Medical Center. 4 Q. When this happened, what parts of your body were 5 hurti ng? 6 A. Well, I put down at the hospital my right and left 7 sides were completely bruised. Everything basically from my 8 chin, up was okay and everything I could feel from my chin, 9 down, was broken, per se. I was limping. I couldn't accept 10 any w eight. I couldn't move my arms. I couldn't do any of 11 that stuff. 12 Q_ What'd they do for you at the hospital? 13 A. They took x-rays of my leg and elbow and a 14 urina lysis and sent me home. 15 Q. Do you know which leg and which elbow? 16 A. Left, both. 17 Q. Then who did you see after that? 18 A. Then I saw - I already had a family doctor's 19 appointment on Friday, June 11". 20 Q. Is that Doctor Richwine? 21 A. Yes, it is. 22 Q. Did you tell him about the incident? 23 A. Yes, he did. 24 Q. What did he do for you, without telling us what he 25 said? Just tell us what he did. CONMONWMTH REPORTING COMPANY (717) 761-7150 8 1 THE WITNESS: Yes, she is. 2 BY MR. YUNCKER: 3 Q. What happened after this incident? Did you report 4 it? 5 A. I reported it. There were two witnesses that 6 happened to be walking in the parking lot that are not 7 employees because I work for a Travel Plaza on the Turnpike 8 and they witnessed the accident and they came running to my 9 aid while Shirley just sat in the car. 10 And they came running to me and asking me if I needed 11 an ambulance. And I, like always, said, "No, I don't". 12 They finally helped me to my feet and helped me into the 13 building. 14 Q. Do you know their names? 15 A. I know one person's name, but I don't have it with 16 me. 17 Q. Were they just visitors to the Travel Plaza? 18 A. Yes, they were. 19 Q. What happened once you got inside? 20 A. I reported to it to the clerk on duty at the time, 21 Mary Brownwell. And she gave me an Accident Report to file, 22 fill out and file. And she called our manager at home, 23 George App. And he said that Mary was to take to me to the 24 hospital and be checked out and we would go from there. 25 Q. Did you go to the hospital? COMMONWF-41TH REPORTING COMPANY (717) 761-7150 10 1 A. Well, he could not do anything at the time, because 2 he was not certain how far my injuries extent was because I 3 limped into the office. I could barely put any weight on my 4 leg and I couldn't move my arm. 5 So he sent me for x-rays for my pelvis because he 6 thought, based on how I could not raise my leg at all, my 7 pelvis might be broken. 8 Q. You say your "leg", you're talking about your left 9 leg? 10 A. Correct. 11 Q. You say your "arm", you're talking about your left 12 arm? 13 A. Correct. 14 Q. What did he eventually do for you regarding those 15 injuries? 16 A. Eventually, he did - when he found out I did not 17 have a broken pelvis, then he realigned my spinal cord to 18 take some of the pressure off the nerves and tendons. 19 Q. Have you undergone an MRI of your low back? 20 A. Yes. 21 Q. Did Doctor Richwine order that? 22 A. Can I look at my notes? 23 Q. Certainly. 24 A. I've been through so many things - MRI of lumbar 25 spine o n June 16. Yes. COMONWMTH REPORTING COMPMY (717) 761-7150 11 1 Q. Have you had an MRI of your knee? 2 A. Yes. 3 Q. Who ordered that? 4 A. That was Doctor Hollenchek. 5 Q. Did Doctor Richwine send you to Doctor Hollenchek? 6 A. Yes, he did. 7 Q. What parts of your body does Doctor Hollenchek 8 address other than your knee? 9 A. He addressed my shoulder and my cervical neck and my 10 lumber spine. 11 Q. What other doctors have you seen besides Doctor 12 Richwine and Doctor Hollenchek? 13 A. Doctor Hausein at the Clinic and Healthsouth Rehab 14 and he gave me a cortisone injection because I had a partial 15 tear in my rotator cuff. And I was seeing Doctor McAfee in 16 Baltimore, Maryland because he's one of the three spine 17 specialists in this country that can do mini-disc 18 replacements with a herniated disc in my neck. 19 And I saw -I've seen five: Doctor Richwine, 20 Hollenchek, Doctor McAfee, Doctor Hausein - I'm sorry, it 21 just escapes me right now. 22 Q. That's all right. 23 A. Doctor Goltz, I'm sorry. That shouldn't haven't 24 escaped my mind- 25 Q. When you first injured yourself on June 9, 2004, did COMMONWEALTH REPORTING COMPANY (717) 761-7150 12 1 you miss some time from work? 2 A. Yes, I did. 3 Q. Do you remember what days you missed? 4 A. Exactly? I missed June 9. I missed all the way to 5 June 2111, at which time I returned to work parttime. From 6 June 21" to July 111-, I returned to work €ulltime. 7 Q. Were you contacted by Gallagher Bassett, the S insu rance company? 9 A. I was contacted on June 14t". 10 Q. Did they eventually send you a check for the time 11 you had missed? 12 A. Yes, she sent me a check in July when I called her 13 back because I wondered why I had not heard from them since 14 the initial contact on June 14tH. 15 Q. When you say "her", are you talking about Terri 16 Corchado? 17 A. Yes, I am. 16 Q. Did you immediately cash that check? 19 A. No, I did not. I was of the opinion, from what I had 20 read in the Workers' Comp. Statute, that it was incorrect 21 and I didn't want to cash something that was incorrect, so I 22 held it until I could contact an attorney about it. 23 Q. Did you eventually attempt to cash it? 24 A. Yes, I did, but not until November. 25 Q. What happened when you tried? COMMONWMALT$ REPORTING COMPANY {717) 761-7150 13 1 A. When I tried it, in that tiny little print above the 2 amount, it says "valid only for 90 days" and at that time, 3 it was too late. 4 Q. Did you eventually start to miss time again? 5 A. Yes, I missed time on October 28th and 29th through 6 November 22nd, at which time I returned to work fulltime. 7 Q. Who took you out of work? 8 A. Doctor Richwine. 9 Q. Why did he take you out of work? 10 A. I'd been having so many problems with all my 11 injuries from the accident that I had been unable to sleep 12 for weeks and months. I was averaging up to 14 hours of 13 sleep a week and I could barely concentrate on work. 14 I had a hard time driving to work since my arm was 15 not operating correctly. Even sitting for long distances, 16 driving to work and working and then driving home completely 17 exhausted me and I did not have the strength to go any 18 further. And he took me out to put me on medication to help 19 me feel better, to get my good endorphins working and to, 20 hopefully, allow me to get a little bit of work before I had 21 surgery scheduled. 22 Q. Did you have surgery? 23 A. Yes, I did. I've had one surgery so far. 24 Q. What part of your body was it on? 25 A. It was my left shoulder rotator cuff. Doctor Curtis COMMONWEALTH REPORTING COMPANY (717) 761-7150 14 1 Goltz did it on January 2014, 2005. 2 Q. Since January 20th, 2005, have you been out of work? 3 A. Yes. 4 Q. Did Doctor Goltz take you out of work? 5 A. Yes, he did. 6 Q. Are you currently in physical therapy for the 7 should er? B A. Yes, I am. 9 Q. You said you treat with a doctor down in Maryland? 10 A. Correct. 11 Q. That's for your neck? 12 A. My cervical neck. 13 Q. Does that doctor want to do surgery on your neck to 14 the be st of your knowledge? 15 A. Yes, he does. 16 Q. You also treat with Doctor Hollenchek for the neck 17 problems? 18 A. Yes. Well, he - he's my triage doctor, the one that 19 refers me to the other doctors for surgery as he sees fit 20 because he no longer does surgery. 21 Q. When is the last time you saw Doctor Hollenchek? 22 A. Just before the surgery. I believe it was the 11th 23 or 12" of January. 24 Q. So your major complaints now are the cervical COMMONWEALTH REPORTING COMPANY (717) 761-7150 15 1 problems, left shoulder problems and the left knee? 2 A. And my lumbar spine. 3 Q. Have any of the doctors recommended surgery on the 4 lumbar spine or on your left knee? 5 A. My left knee is the last problem that we are working 6 on. Doctor Hollenchek told me he thought we could start 7 with the technically non-complicated, which was my arm 8 first. Then we would move to my neck to see if we could 9 resolve some of my lumbar problems. And the knee would be 10 the last part. 11 MR. JACOBSON: Your Honor, I'd like to hand up 12 a few documents. Again, I don't know if Mr. Fitzsimmons' 13 client is going to accept his recommendation, but if they're 14 going to deny there was any injury that took place, I'd like 15 to put a few documents in regarding the injury. 16 The first thing is a June 14, 2004 letter, 17 your Honor, from Terry Corchado at Gallagher Bassett to my 18 client, asking her to contact Ms. Corchado and ask that be 19 admitted. 20 JUDGE FADER: That's the June 14, 2004 letter, 21 C-3. 22 (Whereupon, the document was marked 23 Claimant Exhibit No. 3 for identification.) 24 MR. YUNCKER: The next, your Honor, is a June 25 28, 2004 letter from Carol Eubank, from HMS Host to Terri COMMONWEALTH REPORTING COMPANY (717) 761-7150 16 2 Corchado, giving Ms. Corchado the Statement of Wages, a note 2 from Doctor Richwine indicating half the time, max of four 3 hours per day times - I don't really know what that says. 4 JUDGE EADER: I'll look at it. That will be 5 C-4. That's the June 18, 2004 letter. 6 (Whereupon, the document was marked 7 Claimant Exhibit No. 4 for identification.) 8 BY MR. YUNCKER: 9 Q. Diane, when you went out of work on October 28th - 10 was it October 28t='? 11 A_ Yes, sir. 12 Q. That was by Doctor Richwine. Were you contacted by 13 anybody from Gallagher Bassett regarding your inability to 14 work at that time? 15 A. No, I was not. 16 Q. Did you attempt to contact somebody at Gallagher 17 Bassett? 18 A. I sent a fax to Sarah Crocker, but I believe that 19 was before I went out of work on October 28th. 20 Q. Did you ever hear from her? 21 A. Never. 22 Q. What was the fax? 23 A. I sent it twice. I wanted to make sure she got it. 24 I didn't think anybody dould fail seeing that. But what I 25 said what - let me see - December 3=d, I sent it to her and I COMMONWEALTH REPORTING COMPANY (717) 761-7150 17 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 - it says, "Thank you for your letter today dated November 24th, 2004. Copy attached." And I can't remember what that was. - oh, just a stop payment, that's what it was. And I sent her a letter saying I did not cash it and why I wanted it to be reimbursed, why I wanted it to be re- sent to me. And I sent all the connections with what information you had sent me. Q. That was the check they initially sent you? A. Yes, for $575.00. Q. Did you, in that fax, indicate to her, or at any point in time, indicate to her that you were being taken out of work by Doctor Richwine? A. I said, "Since that time, I've lost additional time from work due to the injury suffered in this car accident on Employer property June 56, 2004. This information has been submitted to Gallagher Bassett by Attorney Yuncker. Unfortunately, no lost time wages have been reimbursed by your company." Yes, I did. MR. FITZSIMMONS: Your Honor, I'd like to hand up a copy of a letter that I sent to Sarah Crocker dated November 23rd, 2004, with a copy of the check that was initially issued to her, and asking that the check be reissued. And I also provided Ms. Crocker with a copy of the note f rom Doctor Richwine taking her out of work COMMONWEALTH REPORTING COMPANY 1717? 761-7150 18 1 until. November 2211, 2004 2 THE WITNESS: May I make an additional 3 statement? 4 MR. YUNCKER: Hold on a second. 5 JUDGE FADER: All right, sir. The November 6 23, 2004 letter is C-5 with the attachments. 7 (Whereupon, the document was marked 6 Claimant Exhibit No. 5 for identification.) 9 MR. FITZSIMMONS: I object, to protect the 10 record, to hearsay, Doctor Richwine's note. 11 JUDGE EADER: Okay. That's fine. If it goes 12 more than 52 weeks, then you're going to take it anyway; 13 right? 14 MR. YUNCKER: Right. 15 JUDGE FADER: All right. Thank you. 16 MR. YUNCKER: Your Honor, I would also like to 17 hand up a letter dated November 15, 2004 from my office to 18 Debbie Chambers,•a claims rep. with Gallagher Bassett. 19 JUDGE EADER: That will be C-6. That's the 20 November 15, 2004 letter with the attachments. 21 (Whereupon, the document was marked 22 Claimant Exhibit No. 6 for identification.) 23 MR. FITZSIMMONS: Same objection to Doctor 24 Richwine's notes, Judge. 25 MR. YUNCKER: Your Honor, it's just being COMMONWEALTH REPORTING COMPANY (717) 761-7150 19 1 offered to establish that we're giving them notice that 2 she's out of work and never really received a response from 3 them. 4 JUDGE FADER: Okay. 5 MR. YUNCKER: Finally, your Honor, I'd like to 6 hand up a letter dated December 8, 2004 to Ms. Crocker from 7 my office indicating that my client is capable of returning 8 to work and that my client had not received any wage loss 9 benefits. She was allowed to return to work as of November 10 22°d, 2004 with restrictions. 11 JUDGE EADER: That will be C-7, the December 12 8, 2004 letter with the attached note. Okay? 13 (Whereupon, the document was marked 14 Claimant Exhibit No. 7 for 1dent1ficati.on.) 15 BY MR. YUNCKER: 16 Q. Diane, when you returned to work as of November 221, 17 were you on restrictions? 18 A. Yes, I was. 19 Q. Do you recall what those were? 20 A. Yes. To lift no more than two pounds with my left 21 arm. 22 Q. You were going to say something else? 23 A. Yes, in my fax to Sarah Crocker on November 30t' and 24 again on December 3rd, which I re-faxed the same information, 25 I put down that these are the dates I have been disabled due COMMONWEALTH REPORTING COMPANY (717) 761-7150 20 1 to the injury suffered in this car accident. And I listed 2 all the dates for her. So she was aware, again, of what was 3 missed. 4 Q. Did you ever receive any checks other than the one 5 that we sent back to Gallagher Bassett? 6 A. I received one for patient reimbursement for some 7 things that I had put out at cost before my claim was 8 accepted; yes. It was $53.74, I believe. 9 Q. Other than that, no wage loss checks; correct? 10 A. Correct. 11 MR. YUNCKER: That's all I have, your Honor. 12 JUDGE EADER: All right. Do you have a fee 13 agreement at this point? 14 MR. YUNCKER: I do. I didn't make a copy of 15 it. 16 JUDGE EADER: Okay. 17 MR. YUNCKER: I'll submit it in the mail. 18 BY MR. YUNCKER: 19 Q. I'll ask you, Diane, do you have a fee agreement 20 with our firm? 21 A. Correct. 22 Q. If the Judge awards you compensation, you understand 23 our firm will receive a percentage of your benefits? 24 A. Correct. 25 MR. YUNCKER: I'll put that in the mail, your COMMONWEALTH REPORTING COMPANY (717) 761-7150 21 1 Honor. 2 JUDGE EADER: I'll mark that as C-8 and that 3 can come either by mail or the next time. All right? 4 (Whereupon, the document was marked 5 Claimant Exhibit No. 8 for identification.) 6 MR. YUNCKER: Okay. 7 JUDGE EADER: Mr. Fitzsimmons is going to ask 8 you some questions. 9 MR. FITZSIMMONS: Thank you. 10 CROSS EXAMINATION 11 BY MR. FITZSIMMONS: 12 Q. Ms. McMillin, did you have a set salary for HMS 13 while you were working there? 14 A. Yeah, I have a salary that my job offer included 15 over time. That's time-and-a-half over 40 hours. 16 Q. What was the regular basis? 17 A. The regular base is $16.83. 18 JUDGE EADER: Do you ever figure out what that 19 entail s if you multiply it by 40? 20 THE WITNESS: Yes, but I can't remember. 21 BY MR. FITZSIMMONS: 22 Q. What was your job title in June 2004? 23 A. Administrative assistant. 24 Q. Did you have regular work? 25 A. Yes, 7:00 to 3:00. COMMONWEALTH REPORTING COMPANY 1717) 761-7150 22 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 Q. A. Q. A. What time of day did this actually happen? 6:35 a.m. You drove to work; right? I drove to work. Q. You had parked your car at about 6:35? A. Q. correct? Correct. You were to start work at 7:00 a.m.; is that A. Correct. Q. Do you punch in the clock or do you have set hours? A. Yes. Q. You start getting paid at 7:00 in the morning? A. No, that's incorrect. I start getting paid from the moment I got in to work and sit down. If it's 6:30, it's 6:30. It's a quarter to 7:00, it's a quarter to 7:00. If it`s 7:00 o'clock, it's 7:00 o'clock. Q. How do you keep track of that? A. I write it down on my calendar. Q. But that's only when you enter the building and sit down and do your job; correct? A. Correct. Q. This unfortunate event that you just referred to in your testimony, this unfortunate event, it occurred before you were able to get in the building? A. Yes, it was on my way going to work. I was actually COMMONWEALTH REPORTING COMPANY (717) 761-7150 23 1 on the Employer parking lot when it happened; yes. 2 Q. When you say the "Employer parking lot", is that a 3 parking lot owned by HMS? 4 A_ Yes, it was. 5 Q. You said it was b right, clear, sunny day; right? 6 A. Bright red sun in the morning, 6:30 in the morning - 7 actually, 6:15 when I started driving to work. 8 Q. I'm sure the pavement was clear? 9 A. The pavement was clear and dry. 10 Q. You just happened to be hit, unfortunately, by that 11 car driving by Ms. Porter. 12 A. Correct. She was not watching where she was going. 13 I stood right in front of her and watched and she was 14 looking to her left for a parking space and never saw me 15 standing in front of her. 16 Unfortunately, I was at the 50-foot mark in the 17 parking lot, so there was nowhere to go with that car 18 zooming down towards me. 19 Q. How far were you from the entrance to the place 20 where you... 21 A. It's a good tenth of a mile. 22 Q. A bit of a hike. 23 A. Yes, it is. 24 Q. What's it usually take to walk from your car after 25 you park? COMMONWEALTH REPORTING COMPANY (711) 761-7150 24 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 A. Ten minutes. Q. Ten-minute walk. A. Correct. Q. So if you parked at 6:35, probably the earliest you would have sat down at your desk and started work would have been like... A. 6:45. Q. So you go right in and go immediately to your desk? A. Exactly. Immediately. I'm the fastest worker there is. I go in and turn on my computer before I even take off my coat and put my purse down. I'm ready to go. Q. Very good. When this all happened, as you described it, you were hit by the car, the injuries occurred, you went in, you reported it and you were taken to the hospital; is that correct? A. Correct. Q. Mr. Yuncker had sent me the records from the Carlisle Regional Medical Center and I've looked at the Emergency Room handwritten notes, which seem to indicate that you were only complaining of knee and arm discomfort at that time. Your testimony seems to be different. A. It was different. I wrote down - if you have my handwritten notes from the pre-admission, it will say "right and left side bruised". COMMONWEALTH REPORTING COMPANY (717) 761-7150 25 1 2 3 4 5 6 7 6 9 10 11 12 13 14 15 16 17 16 19 20 21 22 23 24 25 Q. Have you seen those notes before? It sounds as if you have. A. That's what I told them. I wrote it down and gave it to them. They said, "You need to see a Womens Shelter". I said, "For what"? She says, "Well, you're not here of your own accord." I said, "Yes, I am." She goes, "What do you mean?" I said, "I was hit by a truck." Q. She thought that you were abused? A. Yes. Q. I'm not sure -.we'll get those records. A. Please do. Q. Can I approach, Judge? JUDGE FADER: Yes. BY MR. FITZSIMMONS: Q. There's also a diagram that they've done. I'm curious as to whether you filled it out or... A. No, I've never seen it before. Q. You agree the diagram is devoid of any marks at or around your shoulder level? A. Yes, but they didn't ask me about that. I just said my right and left sides were bruised. Q. I see. Okay. A. And I had a great big thing here, a great big ostrich egg on my elbow and I had scrapes on my knees and that's all I thought... COM40NWEALTH REPORTING COMPANY 1717) 761-7150 26 1 Q_ Is that why they took the x-ray of your elbow at 2 that time because that's what the most obvious injury was? 3 A. (Nodding) 4 Q_ Yes? 5 A. Yes. 6 Q. There's a Center for Natural Health. Did you go 7 ther e as well? 8 A. Yes, that's Doctor Richwine. 9 Q. Doctor Richwine. There's a note in here from July -10 23=d, 2004 when he checked your shoulders and indicated there 11 was full range of motion without difficulty at that time. 12 Do you remember July 2004, when you were treating with 13 Doct or Richwine, whether your shoulders were painful when 14 you moved them? 15 A. Yes, and I told him so. He was able to do this what 16 he considered full range of motion. (Indicating) 17 Q. "This" meaning as you just demonstrated with your 18 arm? What we would describe as a circular motion above your 19 head and below your neck? 20 A. Right; correct. 21 Q. So if this note indicates your shoulder has a full 22 range of motion without difficulty, you would disagree with 23 that assessment, that you had problems? 24 A. No, I had the problems, but I could do that. That's 25 not where the problem arose. COMMONWEALTH REPORTING COMPANY (717) 761-7150 27 1 Q. Up until November 2211, 2004, you've only missed time 2 from work as you've described here with specificity, on the 3 record, on those various dates; correct? You were out of 4 work- You returned parttime. You returned again from July 5 until October. You were out from October to November 22nd 6 when you returned fulltime; correct? 7 A. Correct. 8 Q. When you returned fulltime, did you start making 9 pretty much as much as you were before the injury? 10 A. No, I limited my hours to only 40. 11 Q. All right. But then you continued working until you 12 were taken out because of your left shoulder surgery; is 13 that correct? 14 A. Correct. 15 Q. Did you treat, when you were treating for all these 16 problems that arose from being hit by a car, in all these 17 medical records, were you always complaining of and being 18 treated for your left shoulder problems? 19 A. I had so many injuries. We were trying to isolate 20 the ones that were easiest to treat first. I complained all 21 the time about my left shoulder and my left arm and my left 22 knee. And then I started complaining when I couldn't sleep 23 at night. I said I could feel the bones grating in my neck 24 and my arm when I turned over. Then we'd try to isolate the 25 problems further. COMMON F-ALTH REPORTING COMPANY (717) 761-7150 28 1 So all these were not made evident the first day it 2 happened, but as we worked through my pain levels at what 3 was causing my restrictions and what I could not do further 4 on, as the swelling subsided, then we knew what the real 5 issues were. 6 Q. That's essentially, as you said, October 281h when 7 you left work again, that it was just the culmination of 8 everything? 9 A. Yeah, I had not - to be honest with you, I had not 10 been able to work the whole time from the time I was sent 11 back to work. 12 Q. But you did? 13 A. I did what I had to do. But I payed the price on my 14 own. 15 Q. I see. Now in addition, there's a lot of 16 technicalities in this case about the notes and Compensation 17 Payable being issued, whether that was acceptable or not. 18 Do you remember receiving what are called Supplemental 19 Agreements from Gallagher Bassett? 20 A. I received one Agreement, I believe, in the 21 beginning of July. They sent my check and I gave it to my 22 attorney to handle. I've not gotten anything like that 23 since. 24 Q. But you didn't sign it; correct? 25 A. No. I'm not even certain if it was a Supplemental COIOKWWMTH REPORTING COM-EANY (717) 761-7150 29 1 Agreement. It was some agreement and I just gave it to him. 2 Q. But you never signed anything that Gallagher Bassett 3 sent you trying to acknowledge the claim and your work 4 status and things of that sort? 5 A. I don't think they sent me anything other than what 6 they sent me in July. 7 Q. Okay. The reason, as I understand it, that you left 8 work in January - what was it? ...January 2V17 9 A. 20th. 10 Q. January 2011, 2005, was for the specific purpose of 11 having surgery on your left shoulder; is that correct? 12 A. Correct. 13 Q. But you anticipated the possibility of additional 14 surgery to your neck and possibly to your knee; is that 15 correct ? 16 A. My neck, possibly, my lumbar spine and last would be 17 my leg. And that's only as I know it now. 16 Q. Has anybody released you at this point to go back to 19 work in any capacity? 20 A. Not at this time. 21 Q. Have you started any kind of suit against Ms. Porter 22 or her insurance carrier for the injuries you sustained? 23 A. Not at this time. 24 Q. Have you retained anybody to do so? 25 A. I have talked with Attorney Yuncker about the COMMONMMUR REPORTING COMPANY (717) 761-7150 30 1 possibility. 2 Q. I trust that you've given us the identify today of 3 all the doctors that you've treated with for this problem? 4 A. Yes, sir. 5 Q. Is it your opinion that all of the time that you 6 missed from work from June 9, 2004 up until November 22nd, 7 2004 was directly related to problems you were experiencing 8 from that motor vehicle accident? 9 A. Absolutely. 10 Q. There were no other problems, slips, falls, injuries 11 during that time-frame? 12 A. Not at all. 13 Q. Were you discussing this with anybody at HMS about 14 the time you were missing? 15 A. No, other than my manager, who was need to know and 16 he would have informed the Regional Office as he saw fit. 17 MR. FITZSIMMONS: Judge, I think that's all I 18 have. 19 JUDGE EADER: Mr. Yuncker, anything else? 20 MR. YUNCKER: No, your Honor. 21 JUDGE EADER: Keep Mr. Fitzsimmons informed if 22 you are going to file something. Okay? What I'll do is 23 I'll re-list. You're going to need an IME, you think? 24 MR. FITZSIMMONS: Certainly. 25 JUDGE EADER: So you'll be given notice to go COMMOMWEALTH REPORTING COMPANY (717) 761-7150 31 1 to the doctor that the insurance company schedules you for, 2 you need a ride or can't make it, you let Mr. Yuncker know. 3 Okay? 4 THE WITNESS: (Nodding) 5 JUDGE EADER: We'll re-list it. I don't know 6 if you're going to have any Employer witnesses or whether 7 Mr. Yuncker is going to present any of those people that 8 witnessed it. 9 MR. FITZSIMMONS: I don't anticipate it, 10 Judge. But if you will, to keep it on track... 11 JUDGE EADER: We're going to re-list it. I'll 12 also check to s ee what the status is. The Notice of Comp. 13 Payable. Okay? 14 MR. FITZSIMMONS: Okay. Thank you. 15 JUDGE EADER: All right. Thank you. 16 (Whereupon, at 3:54 p.m., the hearing was 17 adjourned.) 18 COMMONWEALTH REPORTING COMPANY (717) 761-7150 32 1 C E R T I F I C A T E 2 I hereby certify, as the stenographic 3 reporter, that the foregoing proceedings were taken 4 stenographically by me, and thereafter reduced to 5 typewriting by me or under my direction; and that this 6 transcript is a true and accurate record to the best of my 7 ability. 8 9 10 11 COMMONWEALTH REPORTING COMPANY, INC. By. Mari F. nLyn" Wilson, CVR COMONWEALTH REPORTING COMPANY (717) 761-7150 OF THE °P ,)THnl N,',ITARY 2009 AUG 2S AM 1 ! : 44 CE1t,??;4.,_ E1 F7-/ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Diane McMillin, vs. Shirley Porter No. 06-1173 Term State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Timothy A. Shollenberger,Esquire, 2225 Millennium Way, Enola, PA 17025 (Name and Address) Joseph F. Murphy, Esq., 2000 Linglestown Rd., Suite 301, Harrisburg, PA 17110 (b) for defendants: (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. Yes. 4. Argument Court Date: October 14, 2009 Defendant August 21, 2009 Attorney for Date: INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case Is relisted. Print your name FORRY ULLMAN Joseph F. Murphy, Esquire Attorney I. D. No. 78119 2000 Linglestown Road, Suite 301 Harrisburg, PA 17110 (717) 441-9257 Attorneys for Defendant DIANE McMILLIN : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY VS. : NO. 06-1173 SHIRLEY PORTER Defendant : JURY OF TWELVE DEMANDED CERTIFICATE OF SERVICE I, Beth Myers, of FORRY, ULLMAN, attorneys for Defendant certify that the within documents were served, this date, by first-class mail, postage prepaid, addressed as follows: Timothy A. Shollenberger, Esquire Shollenberger & Januzzi, LLP 2225 Millennium Way Enola, PA 17025 I understand that the statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. DATE: g- 021- oc? FORRY ULLMAN BETH MYE EGAL CA/AL s!'yy FILED'!, r- iC (inn .,i`.,STfRill o 2009 AUG 2 5 A 11: 4 3 CUM6L DIANE McMILLIN, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. SHIRLEY PORTER, DEFENDANT 06-1173 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of October, 2009, IT IS ORDERED that summary judgment IS GRANTED to defendant, Shirley Porter, on the complaint of plaintiff, Diane McMilllin. By the , Edgar B. Bayley, J. 'Timothy A. Shollenberger, Esquire For Diane McMillin -,- Joseph Murphy, Esquire For Shirley Porter :sal ?d a?lo9 ?ry) DIANE McMILLIN, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. SHIRLEY PORTER, DEFENDANT 06-1173 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., October 26, 2009:-- Plaintiff, Diane McMillin, and defendant, Shirley Porter, were employees of HMS Host Corporation at its Plainfield Service Plaza on the Pennsylvania Turnpike in Cumberland County. On June 9, 2004, they both drove to work. Plaintiff parked her vehicle in her employer's parking lot. At 6:35 a.m., she was walking in the parking lot when she was struck by a vehicle operated by defendant. Plaintiff instituted this suit for damages caused by that accident. Defendant filed a motion for summary judgment maintaining that she is entitled to immunity under the Workers' Compensation Act.' As set forth in Albright v. Fagan, 671 A.2d 760 (Pa. Super. 1996): "Where an employee's injury is compensable under the Act, the compensation provided by the statute is the employee's exclusive remedy against his or her employer." 77 P.S. § 481(a). "Thus, an injured employee cannot maintain a tort action against his or her employer if the injury is compensable under the provisions of the Act." Gertz v. Temple University, 443 Pa.Super. 177, 181-82, 661 A.2d 13, 15 (1995). Where an employee's injury is compensable, the exclusivity provision of the Act immunizes fellow employees from liability for their negligence. See: 77 P.S. § 72. (Emphasis added.) 06-1173 CIVIL TERM The issue was briefed and argued on October 14, 2009. HMS Host Corporation requires its employees working at the Plainfield Plaza to park in its employee parking lot. At her deposition, plaintiff testified that it normally took her approximately ten minutes to walk from the parking lot to the HMS Host building, and she would have arrived at her desk to begin work at approximately 6:45 a.m. The normal work schedule of plaintiff was 7:00 a.m. to 3:30 p.m.; however, she was required to "punch in" a time clock with an employee card on the "micro system" and was paid from the moment she arrived at work. Although her scheduled shift began at 7:00 a.m., she usually arrived at work at approximately 6:30 a.m., and her supervisor was aware of that fact and would sign her "micro payroll and check logs." After parking her car in the employee parking lot she would walk through the lot, through the walkway and into the front of the building, swipe her employee timecard, and head immediately to her desk. Plaintiff filed a workmen's compensation claim against her employer as a result of the accident on June 9, 2004. Following a hearing, a referee made the following conclusions of law: 1. The parties are bound by the provisions of the Pennsylvania Workers' Compensation Act, as amended. 2. The Claimant failed to meet her burden of proof under her Claim Petition as she was outside the course of her employment at the time the June 9, 2004 MVA took place, as she was in the process of commuting to work when she was struck by the oncoming car some 15 to 25 minutes prior to the beginning of her assigned shift. Claimant's accident was clearly not caused by a condition of the premises where it took place. 3. Claimant failed to offer medical evidence in support of a compensable period of disability as her disability was caused by her underlying left shoulder condition, and not the June 9, 2004 motor vehicle -2- 06-1173 CIVIL TERM accident. For the reasons stated above, Claimant's Reinstatement//Claim/Penalty petitions Petition are denied and dismissed. (Emphasis added.)' Accordingly, the referee decided the case on the merits notwithstanding having found that the accident was not caused by a condition of the employer's premises where it took place, and it occurred outside the course of McMillin's employment. In the case sub judice, McMillin initially maintains that, based on the Worker's Compensation referee's conclusions, Porter is collaterally estopped from claiming immunity under the Workers' Compensation Act. In Erie Insurance Exchange v. Muff, 851 A.2d 919 (Pa. Super. 2004), the Superior Court of Pennsylvania stated: The doctrine of collateral estoppel, which is sometimes referred to as issue preclusion, operates to prevent questions of law or issues of fact which have once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit. Collateral estoppel is applicable when: (1) the issue in the prior adjudication was identical to the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; (4) the party against whom it is asserted had a full and fair opportunity to litigate the issue in a prior action; and (5) the determination in the prior proceeding was essential to the judgment. Cohen v. Workers' Compensation Appeal Board, 909 A.2d 1261 (Pa. Commw. 2006). Porter is not collaterally estopped by the conclusion of the Worker's Compensation referee that the accident was not caused by the condition of the 2 This is a final decision. -3- 06-1173 CIVIL TERM employer's premises where it took place, and it occurred outside the course of McMillin's employment, because she was not a party to the Worker's Compensation case and had no opportunity to litigate the issue. Furthermore, since the Worker's Compensation referee also decided the case on the merits, the conclusion that the accident was not caused by a condition of the employer's premises where it took place, and it occurred outside the course of McMillin's employment, was not essential to the judgment which denied McMillin compensation because she did not prove that any disability was caused by the June 9, 2004 motor vehicle accident. We must now determine whether McMillin was acting in the course and scope of employment at the time of her injury so as to fall into coverage of the Workers' Compensation Act. This is a question of law to be determined on the basis of the facts which are not in dispute in this motion for summary judgment. See Wasserman v. Fifth & Reed Hospital, 660 A.2d 600 (Pa. Super. 1995). When coming to work in her vehicle McMillin was required to use the employee parking lot provided by her employer. Thus, the parking lot was an integral part of her employer's business and part of its premises. See Epler v. North American Rockwell Corporation, 482 Pa. 391 (1978). Injuries occurring to an employee upon the parking lot of an employer are compensable under the Workers' Compensation Act when the employee's presence on the lot is temporally proximate to the hours of work. Id. "[E]ven though not actually engaging in the employer's work, an employee will be -4- 06-1173 CIVIL TERM considered to have suffered an injury in the course of employment if the injury occurred on the employer's premises at a reasonable time before or after the work period." Motion Control Ind. v. W.C.A.B. (Buck), 145 Pa. Commw. 399 (1992). Plaintiff maintains that because defendant had not yet parked and gotten out of her vehicle at the time of the accident she was still commuting so the "going and coming rule" should apply. "Generally, the `going and coming rule' holds that an injury ... sustained by an employee traveling to and from a place of employment does not occur in the course of employment; thus, it is not compensable under the Act." Wachs v. Workers' Compensation Appeal Board (American Office Systems), 884 A.2d 858 (Pa. 2005). The rule does not apply in the present case because the injuries to plaintiff that occurred in the employee parking lot are compensable under the Workers' Compensation Act if her presence on the lot was temporally proximate to the hours of work, i.e., was a reasonable time before her work period. The fact that defendant had not yet parked in the lot and gotten out of her car does not bring this case within the "going and coming rule." In Thomas Jefferson University Hospital v. Workmen's Compensation Appeal Board, 144 Pa. Commw. 302 (1991), an employee's injury occurred fifteen minutes before the time she was to begin work. In Newhouse v. Workmen's Compensation Appeal Board (Harris Cleaning Services, Inc.), 109 Pa. Commw. 96 (1987), an employee's injury occurred fifteen minutes after "punching out" at work. In Fashion Hosiery Shops v. Commonwealth of Pennsylvania; Workmen's -5- 06-1173 CIVIL TERM Compensation Board, 55 Pa. Commw. 465 (1980), the employee's injury occurred between fifteen and thirty minutes before the time to begin work. In Albright v. Fagan, 671 A.2d 760 (Pa. Super. 1996), Albright's injury occurred after he had finished his shift and was walking toward his automobile in an employee parking lot. He was struck by a vehicle operated by Fagan who worked for the same employer and was leaving the employer's premises after completing his shift. In all of these cases the appellate court concluded that the Workers' Compensation Act applied as an accident occurred within a reasonable time before beginning or leaving work. In the present case, McMillin's injury occurred at 6:35 a.m. She had parked her car in her employer's parking lot and was walking toward the place where she worked which would normally take her approximately ten minutes. Although her normal work schedule started at 7:00 a.m., when she would arrive at her place of work she would punch in a time clock before she went to her desk and would be paid from that moment. We find that the accident between McMillin and Porter in their employer's parking lot was temporally proximate to the beginning of plaintiff's work, i.e., it was within a reasonable time before the time she would begin work. Therefore, the Workers' Compensation Act is applicable and the exclusivity provision of the Act immunizes Porter from any liability for negligence.3 3 It is unfortunate that the Worker's Compensation referee erred in concluding that the accident occurred outside McMillin's course of employment at a time when she was in the process of commuting to work. Fortunately, that conclusion did not prevent the referee from deciding her claim on the merits. -6- 06-1173 CIVIL TERM ORDER OF COURT AND NOW, this ?_day of October, 2009, IT IS ORDERED that summary judgment IS GRANTED to defendant, Shirley Porter, on the complaint of plaintiff, Diane McMilllin. By the Edgar B. Bayley, J. Timothy A. Shullenberger, Esquire For Diane McMillin Joseph Murphy, Esquire For Shirley Porter sal -7- ZICE rg -v- PW 2W OCT 26 O 11: 36