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Home My WebLink About02-3523 INDA 1. McCLEARY and JOSEPH D. cCLEARY, her husband, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA v. : NO. o;l-3S~ CI'u~LOIi~ CNILACTION-LAW . JGJIIAt. : JURY TRIAL DEMANDED ANCASTER DEVELOPMENT OMPANY and HIGH GENERAL ORPORATION, Defendants NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following ages, you must take action within twenty (20) days after this Complaint and Notice are served, by ntering a written appearance personally or by attorney and filing in writing with the Court your defenses r objections to the claims set forth against you. You are warned that if you fail to do so the case may roceed without you and judgment may be entered against you by the Court without further notice for any oney claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose oney or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT VE LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET ORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 1-800-990-9108 INDA 1. McCLEARY and JOSEPH D. cCLEARY, her husband, Plaintiffs : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v. : NO. ANCASTER DEVELOPMENT OMP ANY and HIGH GENERAL ORPORATION, CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants NOTICE Le Hanna demanded a ousted en la corti. Si ousted quire defenders de estas demandas expuestas n las paginas sugnuientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la otificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la orte en forma escrita sus defensas 0 sus objeciones a las demandas en contra de su persona. Sea avisado ue si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder inero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE OGADO 0 SI NO TIENE EL DINERO SUPICIENTE DE P AGAR TAL SERVICIO, VA Y A EN ERSONA 0 LLAME POR TELEPFONO A LA OFlCINA COY A DIRECCION SE ENCUENTRA SCRITA ABAJO PARA A VERIGUAR DONDE SE PUEDE CONSEQUlR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 1-800-990-9108 !I ANGINO & ROVNER, P.C. Richard A. Sadlock. Esquire LD. No. 47281 4503 North Fron! Slree! Harrisburg. PA 17110-1708 (717) 238-679\ FAX (717) 238-56\0 E-mail rsadlock@angino-rovner.com Attorneys for Plaintiffs: Linda l. and Joseph D. McCleary LINDA 1. McCLEARY and JOSEPH D. McCLEARY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs CIVIL ACTION - LAW v. NO. 02-3523 Civil Term LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION, Defendants JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT I. Plaintiffs' Complaint speaks for itself. 2. Defendants' Answer with New Matter speaks for itself. 3. Plaintiffs' Reply to New Matter speaks for itself. 4. Plaintiffs' Complaint speaks for itself. 5. Plaintiffs' Complaint speaks for itself. 6. Plaintiffs' Complaint speaks for itself. 7. Plaintiffs' Complaint speaks for itself. II I 8. Pennsylvania Rule of Civil Procedure 1035.2 speaks for itself It is specifically denied that instant Motion has any merit To the contrary, the instant Motion has no merit and should be denied. 9. Admitted. 10. Admitted. By way of amplification, summary judgment is not appropriate in the instant action. I I. Defendants' averment does not require a responsive pleading. To the extent a response is deemed necessary, Plaintiffs' Complaint states a prima facie cause of negligence. 12. Defendants' averment does not require a responsive pleading. To the extent a response is deemed necessary, Plaintiffs have set forth sufficient evidence to satisfy the prima facie test 13. Defendants' averment does not require a responsive pleading. To the extent a response IS deemed necessary, Plaintiffs have already pres\~nted evidence and will present evidence at trial that the Defendants had an ordinary duty of care toward Plaintiffs, Defendants have breached that duty, the breach was the actual cause of injury, and the Plaintiffs' sustained compensable harm. 14. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, the defect alleged in this case was a significant defect and is therefore sufficient to impose liability upon the instant Defendants. 303493 2 LINDA I. McCLEARY and JOSEPH D. McCLEARY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 02-3523 CIVIL LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION, Defendants JURY TRIAL DEMANDED IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE HESS AND OLER, lJ. ORDER AND NOW, this z ,," day of September, 2005, the motion of the defendants for summary judgment is GRANTED. BY THE COURT, fihard A. Sadlock, Esquire For the Plaintiffs ,4d zegory S. Hirtzel, Esquire For the Defendants I :rlm \l V:N\:~iYl/\:.~~;."JN Jd ,\JNW/' :<, L:y,:ro '1f; :01 Htt 96 d3S SOUZ ILft.Jlf"<"'U'(\"d :lHl :10 AUy;"Vl'>1V(U\../i.,..:..J _ 3::J1:l:10-CEJ1I:J LINDA 1. McCLEARY and JOSEPH D. McCLEARY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION ~ LAW NO. 02-3523 CIVIL LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION, Defendants JURY TRIAL DEMANDED IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE HESS AND OLER, J.J. OPINION AND ORDER On the afternoon of August 28, 2000, at the Rossmoyne Industrial Park in Lower Allen Township, Cumberland County, the plaintiff, Linda McCleary, tripped and fell on a sidewalk in front of the entrance to her place of employment. In a complaint filed on August 9, 2002, the plaintiff sued the owners of the premises, defendants Lancaster Development Company and High General Corporation, claiming that her fall was caused by a negligently constructed sidewalk. She claims that the sidewalk "joint" dividing two adjacent panels of the sidewalk is slightly larger and deeper than normal. This, combined with the fact that one panel was slightly higher than the other, created a tripping hazard. The panels themselves were in good condition with no visible cracks or defects. The defendants eventually filed an answer and new matter. The plaintiffs subsequently filed a reply. Discovery was conducted and the defendants have now filed a motion for summary judgment. In passing upon a motion for summary judgment, the record must be reviewed "in a light most favorable to the nonmoving party and all doubts as to the existence of a genuine issue of NO. 02-3523 CIVIL material fact must be resolved against the moving party." Ertel v. Patriot-News Co., 674 A.2d 1038, 1041 (Pa. 1996). A proper grant of summary judgment depends on an evidentiary record that: (l) shows that material facts are undisputed, or (2) contains insufficient evidence of facts to make a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury. In a case such as this one, for the plaintiff to defend against the defendants' motion for summary judgment, she must adduce facts sufficient to establish a prima facie cause of negligence. Rauch v. Micke-Mayer, 783 A.2d 815, 823-824 (Pa.Super. 2001). In this case, the plaintiffs have failed to make out a prima facie case of negligence because the sidewalk joint at issue involves a "trivial defect" as a matter of law. Our courts long ago recognized that outside walking surfaces are not subject to the more exacting standards applied to indoor surfaces. In the seminal case of German v. City of McKeesport, the Superior Court stated that the "law does not require that sidewalks shall be as free of defects, imperfections, irregularities, unevenness, etc., as the floors of buildings. A reasonably safe condition is all that is necessary." German v. City of McKeesport, 8 A.2d 437 (Pa.Super. 1939).1 The court reasoned that the constant barrage of the elements on outside surfaces and the difficulty in creating a perfectly smooth walking surface militated against requiring a standard of perfection from property owners.2 The court in McKeesport went on to observe: . .. to impose liability on the property owner or the city [irregularities] must be so large and unusual as to appear dangerous to the ordinary pedestrian and everyday passerby. A difference or discrepancy of I The plaintiff complains that some of the cases cited by the defendants are more than sixty years old. We have found no authority for the proposition that the principle stated in these cases is any less valid because of their ages. 2 As we observed at oral argument, ifthe pavement joint in this case is an actionable dangerous condition, then the stretch of sidewalk from the courthouse to the law school in Carlisle is a virtual minefield. 2 NO. 02-3523 CIVIL an inch and a half between the levels of two abutting curbstones was held not to impose liability: McGlinn v. Philadelphia, 322 Pa. 478, 186 A. 747. And such a variation -I 12 inches- between the adjoining ends of flagstones in a street crossing is not evidence of negligence imposing liability for injuries to a pedestrian who fell at [137 Pa.Super. 49] that point: Newell v. Pittsburgh, 279 Pa. 202, 123 A. 768. fa. at 441. In more recent cases, the courts have ruled that a defect is trivial when "it would be completely unreasonable, impractical, and unjustifiable" to hold a defendant liable. Gosha v. City of Philadelphia, 30 D.&C.3rd 190,202, 1982, citing Bosack v. Pittsburgh Railways Co., 189 A.2d 877, 880 (Pa. 1963). In an even more recent decision from the Adams County Court of Common Pleas, the court held that a small deviation in the levels of two adjacent sidewalk panels was a trivial defect as a matter oflaw. In so holding, the court noted that the sidewalk was in otherwise good condition with no "holes or breaks in the concrete." Cline v. Statler, 34 D.&C.4th 289, 292 (1997). In this case, the plaintiff is not certain why she fell. When asked at her deposition if she knew what caused her to fall, the plaintiff responded, "I must have tripped on the sidewalk." Plaintiffs Dep., p. 13. The record of this case includes a photograph of the pavement where the plaintiff fell. The photograph demonstrates that the alleged "defect" is a common gap or expansion joint between two slabs of concrete. Such gaps or joints exist everywhere there are concrete sidewalks and pavement. To hold the defendants liable in this case would suggest liability on every property owner whose outdoor walking surface was less than perfect. 3 NO. 02-3523 CIVIL ORDER AND NOW, this z." day of September, 2005, the motion of the defendants for summary judgment is GRANTED. BY THE COURT, Richard A. Sadlock, Esquire For the Plaintiffs Gregory S. Hirtzel, Esquire For the Defendants :rlm 4 II I 15. Defendants' averment does not require a responsive pleading. To the extent a response is deemed necessary, the defect in the instant action is significant and it is completely reasonable, practical, and justifiable to hold Defendants liable for its existence. 16. Defendants' averment does not require a responsive pleading. To the extent a response is deemed necessary, the Defendants' conduct created an umeasonably unsafe condition. 17. Defendants' averment does not require a responsive pleading. To the extent a response is deemed necessary, the defect in the instant action is sufficient to impose liability on the instant Defendants. 18. Defendants' averment does not require a responsive pleading. To the extent a response is deemed necessary, the defect in the instant action is sufficient to impose liability on the instant Defendants. 19. Plaintiffs' Complaint speaks for itself. 20. Plaintiff Linda McCleary's deposition testimony speaks for itself. Further, Plaintiffs testimony along with all of the remaining testimony to be presented illustrates that this case raises a material question of fact to be resolved by a jury and not by a Motion for Summary Judgment. 21. Plaintiff Linda McCleary's deposition testimony speaks for itself. Further, Plaintiffs testimony along with all of the remaining testimony to be presented illustrates that this case raises a material question of fact to be resolved by a jury and not by a Motion for Summary Judgment. 303493 3 II 22. Defendants' averments are conclusions of law to which no responsive pleading is required. To the extent the averments may be deemed factual, they are specifically denied. By way of amplification, the sidewalk and sidewalk joints in question are not normal or regular. Rather, the sidewalk and joints are significantly defective. Attached hereto as Exhibit A is an Affidavit and full and complete report and exhibits of Plaintiffs' expert, James C. Druecker, P.E. It is anticipated Mr. Druecker will testify at trial consistent with his report 23. See, paragraph 22 herein. 24. See, paragraph 22 herein. 25. See, paragraph 22 herein. 26. Plaintiff Linda McCleary's deposition testimony speaks for itself. Further, Plaintiff s testimony along with all of the remaining testimony to be presented illustrates that this case raises a material question of fact to be resolved by a jury and not by a Motion for Summary Judgment. 27. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, the defect is more than a common gap. Further, see, Exhibit A attached hereto. 28. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, the sidewalk involved in the instant action did pose an unreasonable risk to pedestrians, was not in good and passable condition, and was a significant defect. 303493 4 II Ii 29. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factuaL. it is hereby specifically denied. By way of amplification, the concrete walkway was not in good condition and did contain a defect Therefore, Defendants' Motion for Summary Judgment must be denied. 30. It is respectfully submitted that there was an actual defect at the time of Plaintiff Linda McCleary's fall. 31. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. Plaintiff need not introduce evidence establishing notice in the instant action because Defendants created the defective and dangerous condition. 32. See, paragraph 3 I herein. 33. See, paragraph 31 herein. 34. See, paragraph 3 I herein. WHEREFORE, Plaintiffs respectfully request Your Honorable Court deny Defendants' Motion for Summary Judgment ANGINO Rich I. o. I 03 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiffs Date: July 5, 2005 303493 5 James C. Druecker, PE CONSULTING CIVIL ENGINEER Investigation & Analysis Forensic Services 274 Chestnut Avenue Media, PA 19063-5747 610-459-1977 FAX 610-558-1762 E-mail: jcdpe@craftech.com May 6, 2005 Richard A. Sadlock, Esq. Angino & Rovner, P.c. 4503 North Front Street Harrisburg, PA 17110-1708 RE: McCleary v. Lancaster Development Company D/ A: 8/28/00 My File No. 241173 Subj: Preliminary Report Dear Mr. Sadlock: I have reviewed the Complaint and the 10 color photographs that you forwarded. On March 25, 2005, I inspected the site of the trip and fall of Linda McCleary. Attached are photographs from the inspection. Ms. McCleary caught the toe of her shoe in an uneven, wide, and deep expansion joint in the walkway in front of unit # I 08 at the Rossmoyne Industrial Park at 50 I 0 Ritter Road in Lower Allen Township, Cumberland County, PA. As a result of the trip and stumble, she fell and was injured. The joint occurs in the concrete walkway in front of unit #108. It is parallel to the front of the building and perpendicular to the path of a pedestrian walking from the parking lot to the front door. The overall walkway is 12'0" from the parking lot curb to the front door. At 6' from the curb, the open joint exists. This is also the transition point from a steep uphill sidewalk slope of 14.6% to a normal slope of 1.2%. The joint has a bottom width opening of I". The width is 1 V;,"~ to 1 Vi" at the bottom ofthe tooled edges and 2" at the surface (top of the tooled edgl~s). Its depth is 1'/.'. The concrete walkway on the building side of the joint is 'Is" higher than the walkway on the parking lot side of the joint. Member:NSPE,ASCE,NAFE,BOCA,ASHE,PSPE,SAE James C. Druecker, PE CONSULTING CIVIL ENGINEER RE: McCleary v. Lancaster Development Company (24173) May 6, 2005 Page Two In my opinion, the joint is excessively and unnecessarily wide and deep. In addition, the concrete walkway surface is uneven across the joint. l\rchitectural Graphic Standards (Seventh and Ninth Editions, cl981 and 1994, respectively, John Wiley & Sons, Inc.) show a maximum sidewalk expansion joint of Yz" with a Yz" maximum depth to the top of premolded joint filler material. The standards also show that fOT multiple joint fillers in horizontal cast-in-place concrete, the sealants should be tooled to provide a slightly concave joint surface. PennDOT's RC-67M standard (4/00) indicates sidewalk joints Yz" thick with the top of the joint filler flush with the adjactmt concrete surface. American National Standard A117.1-1998 indicates that openings in floor or ground surfaces shall not be greater in width than Yz". Also, changes in leve:1 between ';.." and Yz" shall be beveled with a slope not steeper than 1:2. The 1986 and 1994 editions contain the same requirements. ASTM's "Standard Practice for Safe Walking Surface" (F1637-95) indicates that changes in level in walkways between 'I." and Yz" shall be beveled with a slope no greater than I :2. In addition, walkways shall be planar, flush, and even to the extent possible. A walkway joint 1" or more in width is not planar, flush, or even. The existing joint width is greatly in excess of those indicated in standards. The width and/or depth is sufficiently large to allow the toe of a pedestrians shoe to enter the large gap, and as the foot tries to move forward for the next step it gets snagged or caught in the excessively large joint, resulting in a stumble or fall. The open joint also could easily catch the heel of a shoe. There is no apparent reason for the joint to be as wide as exists. There is no apparent reason for the joint to be open as deep as exists. These conditions are conducive to trip, stumble, and fall, and in my opinion create a hazardous and dangerous condition. There is no reason the joint could not be filled-in and leveled to provide a planar, flush, and even walking surface. The dangerous condition is exacerbated by the W' change in walking surface level across the crack, and further aggravated by the excessive walkway slope (14.6%--12% should be the maximum). It is not unreasonable for pedestrians to expect a level, even, and planar walking surface in art apparently newer concrete sidewalk. In summary, my preliminary, investigation revealed, and it is my opinion, that the walkway joint in front of unit # I 08 is substandard, is dangerous, and is hazardous. The joint is too wide and is too deep. In addition, the walking surface across the joint is uneven, aggravating the dangerous condition. The dangerous and hazardous condition is the result of improper and defective construction. No warnings are provided. The RE: McCleary v. Lancaster Development Company (24173) May 6, 2005 Page Three James C. Druecker, PE CONSULTING CIVIL ENGINEER defective and dangerous condition is conducive to a trip and faJl, such as occurred. The defective condition is not open and obvious, and is Ofi(~ that would not be expected or anticipated in apparently newer construction. Please feel free to caJl if you have any questions. '\.... James C. Druecker, PE JCD:kmd Attach. Photo #1 - 3/25/05 - Sign at the entrance of 501 0 Ritter Road. ~- ~ Photo #2 - 3/25/05 - Walkway in front of unit #108. ';~~'j;----'-- ~. '- '~i.~;;L-~ --_:- '>-r-- "': - 'L "'-I , I - - - r --~ - " Photo #3 - 3/25/05 - Closer view of the uneven and substandard joint. Photo #4 _ 3/25/05 - The upslope is l4,6%. ~, 'fj!', .~ ,/ , ._ #5 _ 312\104 - Tho ,\0", ,eyood <h' jo'" " \2%. Photo #6 - 3/25/05 - Looking along the joint showing its excessive width and depth. .;; Photo #7 - 3/25/05 - Another view of the excessively wide joint. Photo #8 - 3/25105 - The inside of the tooled edges is 1 Yo", '1'" ~ ;:',..f? g:~ - Photo #9 - 3/25/05 - The joint is 1 W' deep. Photo # I 0 - 3/25/05 - The walkway on the building side of the joint is W' higher. FROM :JAMES C. DRUECKER, P.E. FAX NO, : 510 558 1752 Jul. 01 2005 12:48PM 1"2 UN.30.2005 12!54PM ~NGINO S. ROYNeR HllG.PA, NO. 198 1".3 ANGJI'IO .. kOVNER, P,C, Rich",d A. SadJock, BSQuire I.D. NoAmi 4503 North P..... Slreet Harrisblll'lloPA 171l0-170g (717) 238-6791 FAX (717) 238-S610 E-mail 1'IId10Ck@IlIl&!no-l'O\'IlCr.oom AU"'''.y. t'o. Plain(iftS: I,ina.ll. and losopb D. McClelly LINDA 1. McCLEARY and JOSEPH D, McCLEARY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs CIVIL ACTION - LAW v, NO. 02-3523 Civil Term LANCASTER DBVELOPMENT COMPANY and HIGH GENERAL CORPORATION, Defendants I JURY TRIAL DEMANDED 'Z.1JCr' r, lames C. Druecker, P.E" am a professional engineer. On March 25,;MJ1., I inspected fI the site afths fallet issue in the case, McCleary v. vn~ Dexelonment Co. On May 12005, AF~1PA VIT OF JAMES QRTJ,JCKRR. P.E. I a1$ored a report settinl! forth my fmdings and conclusions regarding the site at issue. I will testify consistent with my report. All of my opinions are made within a reasonable degree of engineering certainty. Swom 10 and subecribed bofore me this y 2005. Notary NOTARIAL SEAL G RBIE D. MADONNA, NoIa.y P\obIIc Prolltdonce 'IIop., 0.10_ County Comm".lon !Jcp..... June 3. 2008 CERTIFICATE OF SERVICE I, Marcy L. Brymesser, an employee of the law firm of Angino & Rovner, P.c., do hereby certify that I am this day serving a true and correct copy of PLAINTIFFS' AMENDED NOTICE OF DEPOSITION on the following via postage prepaid, first class United States mail, addressed as follows: Gregory Hirtzel, Esquire Post & Schell PC 1857 William Penn Way Lancaster, PA 17601 f!l~l~~ Date: July 5, 2005 303493 o <::;; ...:.,,,. "l)cq rnff! ~S~ r:_ ~, ~~:L~ ;;." c,~ ~ -< ,..., i:;:,;:l ,,~ "-" '-- c:: r I O~ " :3:: o .." .--0 :J::n rl1f- --ryf!] :)1': C!l., J ;.,j"h ~5:n ..~n c.im -l :1" Xl :< ~? .;;::- - LINDA 1. McCLEARY and JOSEPH D. McCLEARY, her husband, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v. NO. OJ.. - .3S~ Q"uJ~~ LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION, CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants COMPLAINT 1. Plaintiffs Linda and Joseph McCleary are wife and husband, adult individuals and citizens of the Commonwealth of Pennsylvania residing in Newville, Cumberland County, Pennsylvania. 2. Defendant Lancaster Development Company is a Pennsylvania limited partnership that does business in Cumberland County, Pennsylvania. 3. Defendant High General Corporation is a Pennsylvania Corporation which does business in Cumberland County, Pennsylvania. 4. It is believed and therefore averred that Defendant High General Corporation is the registered general partner of Defendant Lancaster Development Company. 5. It is believed and therefore averred that Defendant Lancaster Development Company and/or Defendant High General Corporation owns property in Cumberland County located at 5010 Ritter Road in the Rossmoyne Industrial Park in Lower Allen Township which includes sidewalks, and further that either or both Defendant are responsible for the maintenance, inspection, and safety of those sidewalks. 6. The facts and occurrences hereinafter related took place on or about August 28, 2000, at approximately 1:30 p.m. on the sidewalk located in front of the entrance to 5010 Ritter 248232.1iJDIBSB 1 Road. At that time and place, Linda McCleary was lawfully walking on the sidewalk in the direction to the entrance of 5010 Ritter Road. 7. At that time and place, Plaintiff Linda McCleary tripped and fell over the irregular, uncaulked and raised sidewalk joint that had been allowed by the Defendant to be an inch deep, an inch wide and approximately Yz inch raised above the preceding sidewalk thereby creating a non-obvious tripping hazard. 8. Defendants Lancaster Development Company and High General Corporation, which are in the business of leasing property in the Rossmoyne Industrial Park, owed Plaintiff Linda McCleary, a business invitee on the premises, a duty to inspect, maintain, repair and/or warn, about the tripping hazard located at 5010 Ritter Road and they failed to do so. 9. The aforementioned fall and all of the injuries and damages as set forth hereinafter sustained by Plaintiffs are the direct and proximate result of the negligent, careless, wanton and reckless manner in which Defendants Lancaster Development Company and High General Corporation constructed, maintained, repaired, warned, and/or inspected its property at 5010 Ritter Road as follows: a) failing to properly construct the sidewalk so as to permit the sidewalk to have a level walking surface; b) failing to properly inspect the property to discover the non-obvious and dangerous condition created by the irregular sidewalk; c) failing to make repairs to the sidewalk to make it safe for persons such as Plaintiff Linda McCleary to travel upon; d) failing to properly post warnings, barricades, signs, or other means of protecting business invitees such as Plaintiff Linda McCleary; 248232.IIJDIBSB 2 e) failing to take other action and other precautions that a reasonably prudent property owner would take under the circumstances for the protection of persons such as Plaintiff Linda McCleary; and f) failing to properly maintain the sidewalk by allowing there to be a raised joint creating a hazard to people such as Plaintiff Linda McCleary. CLAIM I LINDA McCLEARY v. LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION 10. Paragraphs 1 through 9 of this Complaint are incorporated herein by reference. 11. As a direct and proximate result of the negligence of the Defendants as more fully articulated above, Plaintiff Linda McCleary sustained painful and severe injuries which include, but are not limited to, i~uries to her left hand, thumb, wrist and shoulder. 12. By reason of the aforesaid injuries sustained by Plaintiff Linda McCleary, she was forced to incur liability for medical treatment, surgery, medications, hospitalizations, and other similar miscellaneous expenses in an effort to restore herself to health, and claim is made therefor. 13. Because of the nature of her i~uries, Plaintiff Linda McCleary has been advised, and therefore avers that she may be forced to incur similar expenses in the future, and claim is made therefor. 14. As a result of the aforementioned injuries, Plaintiff Linda McCleary has undergone and in the future may undergo physical and mental pain and suffering, inconvenience in carrying out her daily activities, loss of life's pleasures and enjoyment, and claim is made therefor. 248232.1/JDIBSB 3 15. As a result of the aforementioned injuries, Plaintiff Linda McCleary has been and in the future may be subjected to humiliation and embarrassment, and claim is made therefor. 16. As a result of the aforementioned injuries, Plaintiff Linda McCleary continues to be plagued by persistent pain and limitation, and therefore avers that her injuries may be of a permanent nature causing residual problems for the remainder of her lifetime, and claim is made therefor. 17. As a result of the aforesaid injuries, Plaintiff Linda McCleary has sustained scarring, which will result in permanent disfigurement, and claim is made therefor. 18. As a result of her injuries, Plaintiff Linda McCleary has sustained wage loss and a diminution in her earning power and capacity, and claim is made therefor. WHEREFORE, Plaintiff Joseph McCleary demands judgment against Defendants in an amount in excess of Twenty-Five Thousand Dollars ($25,000) exclusive of interest and cost and in excess of any jurisdictional amount requiring compulsory arbitration. CLAIM II JOSEPH McCLEARY v. LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION 19. Paragraphs 1 through 9 and Claim I of this Complaint are incorporated herein by reference. 20. As a result of the aforementioned injuries sustained by his wife, Plaintiff Linda McCleary, Plaintiff Joseph McCleary has been and may in the future be deprived of the care, companionship, consortium, and society of his wife, all of which will be to his great detriment, and claim is made therefor. 248232.l/JD/BSB 4 II I] . WHEREFORE, Plaintiff Linda McCleary demands judgment against Defendants in an amount in excess of Twenty-Five Thousand Dollars ($25,000) exclusive of interest and cost and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully submitted, Date: J! 26( D V ~~:2~2C J ames' DeCinti, Esquire I.D. No. 77421 4503 N. Front Street Harrisburg, P A 1711 0 (717) 238-6791 Attorney for Plaintiffs 248232.lIJDIBSB 5 ^ . VERIFICATION We, JOSEPH D. McCLEARY and LINDA 1. McCLEARY, verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information or belief. I understand that this Verification is made subject to the provisions of 18 Pa. C.S. 94904, relating to unsworn falsification to authorities. ~M:{:~ ~~~~ . L A I. McCLE~Y DATED: 11 't- > I ()1/' ~ ~ ~ o -u p:: ~ () -r)~ rb ~~:' ~')'". I _' ~ zru .. ", ~~'- ~~', j; (:2 '- ;7 =2 ~~ iJ ~ ~ " (' & o --- -.............- . a ]'"-..J '- c:: C) ,'1 ~-j ,:;-n . 'r -,m '....~.7:;.~ G :~2 f:; c5m "':) ~~ :::0 -< '" :;:> r:- :::> SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-03523 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCCLEARY LINDA I ET AL VS LANCASTER DEVELOPMENT COMPANY R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: LANCASTER DEVELOPMENT COMPANY but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of LANCASTER County, Pennsylvania, to serve the within COMPLAINT & NOTICE On August 19th , 2002 , this office was in receipt of the attached return from LANCASTER Sheriff's Costs: Docketing Out of County Surcharge Dep Lancaster Co 18.00 9.00 10.00 61.33 .00 98.33 08/19/2002 ANGINO & ROVNER soa~ R. Tomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this ~tr :J - day of ~",J., , ;L!J'D.2 A . D . 9,;04,. (} /h" 'n", ~ Prothonotary N~%~ ) OF 2 SHERIFF'S OFFICE Linda 1. McCleary et al PLEASE TYPE DO NOT DETACH ANY COPIES. 2 COURT NUMBER 02-3523 civil 3: H (j) () o ~ SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN 1 PLAINTIFF/SI 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608-3480 . (717) 299.8200 Lancaster Development Company et al 4 TYPE OF WRIT OR COMPLAINT Notice and Canplaint '" I W '" W 3 DEFENDANT/SI SERVE {5' NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC.. TO BE SERVED. . High General Corporations 6. ADDRESS (Street or RFD, Apartment No_. City. Bora. Twp.. State and ZIP Code) AT 1853 William Penn Way Lancaster, PA 17~,.. 7 INDICATE UNUSUAL SERVICE, ~DEPUTIZE 0 OTHER Cumberland Now. Juiy L~ 20 UL , I, SHERIFF OF COUNTY, PA., do he(eby geputize the Sh.l"ill'tlf Lancaster County to execute this W(it-~>nr~:'fe)~m tl1il"eotaeCo1d;h.IL-, to law. This deputation being made at the request and risk of the plaintiff. . ,'.' .., " . , ..,. . ." SHERIFF Of OUNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Cumberland NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching allY property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person 01 levy oraltachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof. 9. SIGNATURE of ATTORNEY or other ORIGINATOR INTI 12. SEND NOTICE OF SERVICE COpy TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed) . 10. TELEPHONE NUMBER 11. DATE 7- 2.L-J_ &. CUMBERLAND CO SHERIFF'S OFFICE ANGINO & ROVNER SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE 13. I k I d . I f lh '1 I NAME of Authorized LCSO Deputy or Clerk 14, Date Received 15. Expiration/Hearing date ac nowe ge receFp 0 ewn . mcompla;nlas;nd;caledabove. ANNETTE L WALTON 717- -3609 JER 7-29-02 8-22-02 16. I hereby CERTIFY and RETURN that I 0 have personally served, ve legal evidence of service as shown in "Remarks", 0 have executed as shown in "Remarks~, the writ or complaint described on the individual, company, corporation. etc., at the address shown above or on the individual, company, cor- poration. etc.. at the address inserted below by handing a TRUE and ATTESTED COpy thereof. 17.01 hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc., named above. (See remarks below) 1SU: and~e~ivi/;:~ L~o::o~ ~';onshiP;;'::~ 19 D~="~ON(N030) 20. Address 01 where served (complete only if differenlthan shown above) (Street orRFD,ApartmentNo.,City, Boro, Twp 21 Date of Service 22 Time State and Zip Code) R ')...2.1,~1 100.00 30. REMARKS: 59.50 '8"'-1-0 AM ..1 /." 2..rJ'-mr 23. ATTEMPTS ?~nt. 25. Service Costs 24. Advance Costs S.Tk 34. .;''';;:ss.~ B 1'2-02..- 31 37 (;Q 1. WHITE - Issuing Authority 2. PINK - Attomey 3. CANARY - Sheriff's Office 4. BLUE _ Sheriff's Office po~t~ - -...... 2 OF 2 SHERIFF'S OFFICE SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN 1 PLAINTIFF/SI Linda I. McCleary et al 3 DEFENDANT/SI PLEASE TYPE DO NOT DETACH ANY COPIES. 2 COURT NUMBER 02-3523 civil 4 TYPE OF WAIT OR COMPLAINT Notice & Complaint 3: f-I (J) () ~ 1-3 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608.3480 . (717) 299-8200 Lancaster Development Company et al SERVE {5 NAME OF INDIVIDUAL COMPANY CORPORATION ErG. TO BE SERVED IIIIIIIlr.. Lancaster Development Canpany ..".. 6 ADDRESS (Street or RFO, Apartment No , CIty, Boro Twp State and ZIP Code) AT 1853 Wil iam Penn Wa Lancaster, PA 7 c..../ 7 INDICATE UNUSUAL SERVICE: DEPUTIZE 0 OTHER Now, .l1l1y 25. 20 02 , I, SHERIFF OF i Lancaster County to execute this Writ to law. This deputation being made at the request and risk of the plaintiff. " 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: N I W N w utize the Sheptf f ,~~~~ .,..~~ COUN Cumberland NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching a,1y property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof. 9. SIGNATURE of ATTORNEY or other ORIGINATOR 10. TELEPHONE NUMBER t t DATE JAMES DeCINTI 7- 2L(- 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed If notice is to be mailed) ~ SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE 13. I acknowledge receipt of the writ I NAME of Authorized LeSO Deputy or Clerk 14. Date Received 15 o,complaintasindicatedabove ANNETTE L WALTON 717-2 3609 JER 7-29-02 Expiration/Hearing date 8-22-02 t 6. I hereby CERTIFY.and RETURN that I 0 have personally served, ve legal evidence of service as shown in "Remarks", 0 have executed as shown in "Remarks", the wnt or complaint described on the Individual, company, corporation, etc., at the address shown above or on the indiVidual, company, cor- poration, etc., at the address inserted below by handing a TRUE and ATTESTED COPY thereof t 7, 0 I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc., named above. (See remarks below) Lt~~ividual s~e~fZ~~~tiOnShiP w;.~dant)~ 19 D~~':.."'<>V(N030) 20. Address of where served (COmplete only if different than shown above) (Street or RFD, Apartment No., City, Bora, Twp 2 t. Date of Service 22. Time State and Zip Code) 23. ATTEMPTS 24. Advance Costs 30. S.TA: 31 34 J' 330~ lJ- ~Cl-- 36 0,..., -, (::) I ",-CL 37 ,. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY. Sheriff's Office 4. BLUE _ Sheriff's Office HAROLD S. IRWIN, III, ESQUIRE SUPREME COURT ID NO. 29920 35 EAST HIGH STREET CARLISLE, PA 17013 717.243-8090 ATTORNEY FOR PLAINTIFF Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DUANE L. LEBO, . . . v. : CIVIL ACTION. LAW . . BOROUGH OF MT. HOLLY SPRINGS, : NO. 2002 - 3253 CIVIL TERM Defendant PETITION TO MAKE RULE ABSOLUTE NOW comes Harold S. Irwin, III, Esquire, attorney of record for the plaintiff and presents this petition to make the rule absolute, representing as follows: 1. On July 14, 2003, petitioner obtained a rule upon the parties to show cause why petitioner should not be permitted to withdraw as counsel for plaintiff. 2. Said rule was made returnable ten (10) days of service by certified mail upon plaintiff and upon counsel for defendant. 3. Service of said Rule was made upon the defendant's counsel, Keith O. Brenneman, Esquire, on July 16, 2003, by certified mail addressed to him at 44 West Main Street, Mechanicsburg, PA 17055, certified receipt number 700310100001 1204 9843 (a copy of the signed receipt is attached hereto on Exhibit "A"). 4. Service of said Rule was made upon the plaintiff on July 17, 2003, by certified mail addressed to him 661 West Old York Road, Carlisle, Cumberland County, Pennsylvania 17013, certified receipt number 700310100001 12049867 (a copy of the signed receipt is attached hereto on Exhibit "A"). 5. More than ten (10) days have elapsed since service of the petition and rule as aforesaid, but neither party has responded to the petition and rule. WHEREFORE, your petitioner requests that your Honorable Court make the rule issued upon the parties absolute and in accordance therewith permit petitioner to , withdraw as counsel for the plaintiff. July'Zf; 2003 35 East High Street Carlisle, PA 17013 (717) 243-6090 Supreme Court 10 No. 29920 VERIFICATION I verify that the statements made in the above petition are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. JUly7!J2003 ~ , . Complete ~ . 1, 2, and 3. Also complete ~em 4 i1 RestrI~ed Dellve<y is desired. . Print your name and address on the reverse ~ that we can 'return the c{V'd to you. . Attach this card to the back of the mall piece, or on the front If space petTT1~s. 1. ArticleAdd~ to: Dv zuie. L . Lebo /. ~~I WestOld Vork'Ro Co-r-\'.,l-e, PA 1'76/ \ ~, ~ - 2. Article Number (Transfer from nfl/ice label) PS Form 3811, ~'t.t 2001 7/1~' ,~' A.~ ~ . . , DAgen' X WAf. ./ D Addressee B. R veel ~nt<K1 Name)'. Dale of Delivery D. Is delivery address different frOm item 1? 0 Yes If YES, enter delivery address below: 0 No \ D Expms Mall o Return Receipt for Merchandise DC.O.D, 7003 1010 0001 1204 9&b7 Dyes Doo-'k: -.n Rocoipt 102595"{)2.fvt.1035 ____J).lEa~ . Complete Items . 2, and 3. Also complete Item 4 i1 Restrict Dellve<y Is _Ired. . Print your name nd address on the reverse so that we can ~um the card to you. . Attach this cerci \0 the back of the mailplece. or on the front if ispace permits. 1. Article Addressed to: K ei~O.Br-el"l(')e",ZU\,ESQ. 5.8,&5. 44- West IV! o..it') Sf-r.cet Mec.h~r'l',~bliJ I PA /'7055 , i 2. Article Number , (Transfer from service JsbeI) I PS Form 3811, A~Jlsl L A~ )( . ~ (J .(l~ g~:.... 'B'R' eel4Prlnt<K1~ I;~~igjery O. Is delivery address dtffetent from item 1? [J Yes If YES, enter delivery address below: [J No 3. Service Type ~Certlfled Mail D ReglstlllOd o Insured Mail D Express Mail D Retum Receipt for Met'Chandis6 DC.O.D. 7003 1010 0001 1204 9&43 -4. ~1..:1 J o.IIwery? t&1N ~ CJ Yes ~ Rolum Rocoipt 1025~il-1235 l>, LIloUO EXHIBIT 'A' 0 c c (. S. t. --0 (.c - 921'7". r :i zS-- r ~:. ( !<:c ~r-:, ~C: z ::';'J ~ .. -. , POST & SCHELL, P.c. BY: JOHN R. CANAVAN LD. #:84728 240 GRAND VIEW AVENUE CAMP HILL, PA 17011 (717)731-1970 ATTORNEYS FOR DEFENDANTS HIGH GENERAL CORPORATION COURT OF COMMON PLEAS CUMBERLAND COUNTY LINDA 1. McCLEARY and JOSEPH D. McCLEARY Plaintiff, JURY TRIAL DEMANDED No 02-3523 CIVIL TERM v. LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION Defendants. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of the Defendant, High Ge By: relative to the above-captioned matter. Date: { / ;;2.2. ,2004 Attorneys for Defendant, High General Corporation CERTIFICATE OF SERVICE I, John R. Canavan, an attorney for the law firm of Post & Schell, P.C., hereby certifies that on the date listed below, I did serve a true and correct copy of the foregoing document upon the following person(s) at the following addressees) by sending same in the United States mail, first-class, postage prepaid: James DeCinti, Esquire 4503 North Front Street Harrisburg, P A 171 JO (Counsel for Plaintiffs) Lancaster Development Corporation 1853 William Penn Way Lancaster, PA 17601 p~ & Schell P.C. . : Date: \ ~j Q C) s~~ ,..., C.:J' (::..~J ....:;- CI .'11 "-~1 ~::J '''I -nil' :_:~J ,-~) .,..,.' '-)':::~}; " "I~-, -~~f,~ C,) -', r,) 0' POST & SCHELL, P.C. BY: JOHN R. CANAVAN 1.D. #:84728 240 GRAND VIEW AVENUE CAMP HILL, PA 17011 (717) 731-1970 ATTORNEYS FOR DEFENDANTS LANCASTER DEVELOPMENT COMPANY AND HIGH GENERAL CORPORATION COURT OF COMMON PLEAS CUMBERLAND COUNTY LINDA 1. McCLEARY and JOSEPH D. McCLEARY Plaintiff, JURY TRIAL DEMANDED No: 02-3523 CIVIL TERM v. LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION Defendants. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Company, relative to the above-captioned matter. ,P.C. Kindly enter my appearance on behalf of the Defendant, Lancaster By: ,~ .' '\ J Jo . Canav~, Esquire Ide i cation No: 84728 Atto y for Defendants, Lancaster Development Company and High General Corporation Date: \ "V l') ,2004 . CERTIFICATE OF SERVICE I, Karen L. Worley, an employee at the law firm of Post & Schell, P.C., hereby certifies that on the date listed below, I did serve a true and correct copy of the foregoing document upon the following person(s) at the following addressees) by sending same in the United States mail, first-class, postage prepaid: James DeCinti, Esquire 4503 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiffs) Post & Schell, P.c. Date: I/:::nl#'f I I (') r-.> 0 = c = ", ,&- ;<:: -n ~ -or':'::,1 1"'1 n"lr: , rn~ Z::J:~' CD :;~ r: I :g ~::!: N 86 teei -u :r::fj )';r~' ::r.: Qo 0t) om )o"c: w --i 3 N ?o , -< POST & SCHELL, P.CO BY: JOHN R. CANA VAN I.D. #:84728 240 GRANDVIEW AVENUE CAMP HILL, PA 17011 (717) 731-1970 ATTORNEYS FOR DEFENDANTS LANCASTER DEVELOPMENT COMPANY AND HIGH GENERAL CORPORATION COURT OF COMMON PLEAS CUMBERLAND COUNTY LINDA 1. McCLEARY and JOSEPH D. McCLEARY Plaintiff, JURY TRIAL DEMANDED NO: 02-3523 CIVIL TERM v. LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION Defendants. NOTICE TO PLEAD TO: Plaintiffs: You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. POST & SCHELL, P C By: l/- John . navan, Esquire Identi 1 ation No: 84728 Attorneys for Defendants Lancaster Development Company and High General Corporation POST & SCHELL, P.c. BY: JOHN R. CANAVAN LD. #:84728 240 GRANDVIEW A VENUE CAMP HILL, P A 17011 (717) 731-1970 ATTORNEYS FOR DEFENDANTS LANCASTER DEVELOPMENT COMPANY AND HIGH GENERAL CORPORATION Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED LINDA 1. McCLEARY and JOSEPH D. McCLEARY v. NO: 02-3523 CIVIL TERM LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION Defendants. ANSWER AND NEW MATTER OF DEFENDANTS LANCASTER DEVELOPMENT COMPANY AND HIGH GENERAL CORPORATION TO PLAINTIFFS' COMPLAINT Defendants Lancaster Development Company ("LDC") and High General Corporation ("HGC") (collectively "Defendants"), by and through their attorneys, Post & Schell, P.C., hereby file this Answer and New Matter to Plaintiffs' Complaint as follows: I. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part; denied in part. It is admitted that LDC is the owner of the property described in the corresponding allegation. All remaining allegations are denied -2- pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure and as conclusions of law. 6. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions ofJaw. 7. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions ofJaw. 8. Denied. The allegations are denied pursuant to Rule I 029( e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions of law. 9. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, the allegations are denied as conclusions ofJaw. CLAIM I 10. Defendants incorporate by reference their answers to paragraph I through 9 as if set forth at length herein. -3- I I. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions oflaw. 12. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions of law. 13. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions oflaw. 14. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions oflaw. 15. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the -4- truth of the allegations and, accordingly, all such allegations are denied. Any remammg allegations are denied as conclusions of law. 16. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions ofJaw. 17. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions ofJaw. 18. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions ofJaw. WHEREFORE, Defendants Lancaster Development Company and High General Corporation respectfully request that this Honorable Court enter Judgment in their favor and against Plaintiffs. CLAIM II 19. Defendants incorporate by reference their answers to paragraph I through 18 as if set forth at length herein. -5- 20. Denied. The allegations are denied pursuant to Rule J029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions oflaw. WHEREFORE, Defendants Lancaster Development Company and High General Corporation respectfully request that this Honorable Court enter Judgment in their favor and against Plaintiffs. NEW MATTER 21. Plaintiffs may have failed to state a claim upon which relief can be granted. 22. Plaintiffs' claims may be barred by the statute of limitations. 23. Plaintiffs' claims may be barred or limited by the affirmative defense of consent. 24. Plaintiffs' claims may be barred or limited by the doctrines of waiver and/or release. 25. Plaintiffs' claims may be barred or limited because Defendants may not have had actual and/or constructive possession ofthe property at issue. 26. Plaintiffs' claims may be barred or limited because the Plaintiff-Wife assumed the risk of the occurrences alleged in her Complaint. 27. Plaintiffs' damages, if any, may have been caused by a pre-existing condition which was not caused by any action and/or omission of Defendants. 28. Plaintiffs' damages, if any, may have been caused by her own comparative and/or contributory negligence or that of her agents. 29. Plaintiffs claims may be barred by the doctrine of estoppel. -6- 30. Plaintiffs are not entitled to recover as a matter oflaw and/or equity. 31. Defendants may not have been responsible for the condition alleged to have caused Plaintiff- Wife's damages. 32. Plaintiffs' claims may be barred or limited by the doctrines of res judicata and/or collateral estoppel. 33. Plaintiffs' claims may be barred by the doctrine of spoliation of evidence. 34. Plaintiff- Wife's damages, if any, may have been caused by her failure to maintain her health in a safe, reasonable and appropriate manner. 35. Plaintiffs' alleged damages were the result ofthe actions, omissions and/or breach of obligations of third parties over whom Defendants had no responsibility and for whom Defendants are not liable. 36. Plaintiffs may have failed to mitigate their damages. 37. The actions and/or omissions of Defendants were not the proximate cause of Plaintiffs alleged damages. 38. Plaintiffs may have failed to join all persons and/or parties necessary for a just adjudication of the controversy. 39. Defendants did not have actual and/or constructive notice of any alleged defective condition to the area at issue. 40. The damages are not recoverable under the applicable law. 41. The perils or dangers of which Plaintiffs complain, to the extent any existed, were open and obviously known to Plaintiff-Wife who nevertheless conducted herself in such a manner as to expose herselfto said perils and dangers. 42. Plaintiffs' claims may be barred by the applicable workers' compensation law. -7- WHEREFORE, Defendants Lancaster Development Company and High General Corporation respectfully request that this Honorable Court enter Judgment in their favor and against Plaintiffs. Attorneys for Defendants Lancaster Development Company and High General Corporation -8- V .l;!;l<.1J<'1\';ATlU~ I, ThoIm S R. Esposito, Vice President and Treasurer for HigJ. Industries, Inc., do hereby swear and aflirn I that the facts and matters set forth in the foregoin€ documents are and correct to the best of n y knowledge, infonnation, and belief. The underrigned understands that the statements m<ld.. therein are made subject to the penalties of 18 ?a C.s. 94904 relating to unsworn falsific: ltion to authorities. ~?- DATE: Thomas R. Esposito Vice President and Treuurer High Industries, Inc. CERTIFICATE OF SERVICE I, John R. Canavan, an attorney for the law firm of Post & Schell, P.C., hereby certifies that on the date listed below, I did serve a true and correct copy of the foregoing document upon the following person(s) at the following addressees) by sending same in the United States mail, first-class, postage prepaid: James DeCinti, Esquire 4503 North Front Street Harrisburg, P A 17110 (Counsel for Plaintiffs) 1 J-"t- Date:~ John o r" ;;;~ "-" ~~~ o " "-; T1i:JJ ',. -Dr" :U~-:J ~~'!~J '?(~ ;:---);-(1 ~~~:, on c< ." r1'; l,~" r.,) -.J -:-:' -t-=- -.l ANGINO & ROVNER, P.C. 4503 North Front Street Harrisbnrg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 E-mail jdecinti@angino-rovner.com Attorneys for Plaintiffs: Linda L aod Joseph D. McCleary LINDA 1. McCLEARY and JOSEPH D. McCLEARY, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW v. NO. 02-3523 Civil Term LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION, JURY TRIAL DEMANDED Defendants PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT LANCASTER DEVELOPMENT COMPANY AND HIGH GENERAL CORPORATION 21. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs have failed to state a claim upon which relief can be granted. Strict proof of this defense is demanded at the time of trial. 22. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' claims are barred by the applicable statute oflimitations. On the contrary, Plaintiffs claims are timely filed. Strict proof of this defense is demanded at the time of trial. 23. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' claims are in any way barred or limited by the affirmative defense of consent. Strict proof of this defense is demanded at the time of trial. 273348.1 IJDlMAR 24. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' claims are barred and/or limited by the doctrines of waiver and/or release. Strict proof of this defense is demanded at the time of trial. 25. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' claims are barred and/or limited because Defendants may not have had actual and/or constructive possession of the property at issue. Strict proof of this defense is demanded at the time of trial. 26. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied. By way of further response, pursuant to Pa. R.C.P. 1 030(b), no further response is required. 27. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' damages were caused by any pre-existing condition which was not cause by any action or omission of the Defendants. On the contrary, Defendants are responsible for Plaintiffs injuries. Strict proof of this defense is demanded at the time of trial. 28. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' damages were caused by comparative and/or contributory negligence on the part ofthe Plaintiffs. By way offurther response, pursuant to Pa. R.C.P. 1030(b), no further response is required. 29. The allegation contained in this paragraph is a conclusion of fact and oflaw to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that the 273348.1 IJDIMAR doctrine of estoppel has any relevancy to this case. Strict proof of this defense is demanded at the time of trial. 30. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs are not entitled to recover as a matter of law and/or equity. Strict proof of this defense is demanded at the time of trial. 31. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Defendants were not responsible for the condition that caused Plaintiffs injuries and damages. Strict proof of this defense is demanded at the time of trial. 32. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs claims' are barred and/or limited by the doctrines of res judicata and/or collateral estoppel. By way of further response, these doctrines have no relevance to this case. Strict proof of this defense is demanded at the time oftrial. 33. The allegation contained in this paragraph is a conclusion of fact and oflaw to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' claims are limited or barred by the doctrine of spoliation. Strict proof of this defense is demanded at the time of trial. 34. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' damages were caused as stated in this paragraphs. Strict proof of this defense is demanded at the time of trial. 273348.1IJDlMAR 35. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' damages were the result of actions, omissions, and/or breaches of obligations of third parties over whom Defendant had no responsibility and/or for whom Defendants are not liable. On the contrary, Defendants and Defendants alone acted in this negligent manner and are liable to the Plaintiffs. Strict proof of this defense is demanded at the time of trial. 36. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs have failed to mitigate their damages. Strict proof of this defense is demanded at the time of trial. 37. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that the acts and/or omissions of the Defendants were not the proximate cause of Plaintiffs damages. Strict proof of this defense is demanded at the time of trial. 38. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs have failed to join any necessary parties. Strict proof of this defense is demanded at the time of trial. 39. See, response to '\l25 above. 40. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' damages are not recoverable under applicable law. Strict proof of this defense is demanded at the time of trial. 273348.1 IJDlMAR 41. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that the perils or dangers of which Plaintiff complained were open and obvious and known to Plaintiff. Strict proof of this defense is demanded at the time of trial. 42. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that any claim against the Answering Defendants are barred by the Worker's Compensation Law. Strict proof of this defense is demanded at the time of trial. WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter judgment in their favor and against the Defendants. Respectfully submitted, AN.!;;. . 0 & ROVNER, P.C. \- 7)1 Jalnes DeCinti, Esquire 1.D. No. 77421 4503 N. Front Street Harrisburg, P A 1711 0 (717) 238-6791 Attorney for Plaintiff Date: ~{l (( elf 273348.1 IJDlMAR COMMONWEALTH OF PENNSYLVANIA : SS. COUNTY OF DAUPHIN I, JAMES DECINTI, ESQUIRE, being duly sworn according to law, deposes and states that I am counsel for Plaintiffs, that I am authorized to make this Affidavit on behalf of said Plaintiffs, and that the facts set forth are true and correct to the best of my knowledge, information and belief. ne Sworn to and subscribed before me this I /ill day of March, 2004. IYlLCI/\~)1 D -"1aLh()J\ ll.J Notary Public My Commission Expires: MEGAN A ~OTARlAl SEAL SHlNSGROVEEI:RD, NOTARY PUBLIC MY COMMISSION :. SENYOMER COUNTY AY 2005 273348.1IJD\MAR CERTIFICATE OF SERVICE I, Arkie V. Simmers, an employee of Angino & Rovner, P.C., hereby certify that a true and correct copy of the foregoing was served via United States first-class mail, postage prepaid, upon the following: John R. Canavan, Esquire Post & Schell PC 240 Grandview Avenue CampHill,PA 17011 G.Ib'D. I'll ~.;"""P"h.l Arkie V. Simmers Dated: 3/11/04 273348.1 IJDIMAR 0 .\:S '" (~ = ...- :;I.~ - ;.-,,.. rn.. :;0 -'Jrn -,-' :~J () N (J 1.. .:e,l.) -rl ~5~~ c~ -'- C) ::5\-\' C .. t:? -..\ L.._ }.~'"i ~ r .j;:"" -:.-<: POST & SCHELL, P.C. BY: GREGORY S. HIRTZEL 1.D. #56027 BY: DANA C. PANAGOPOULOS 1.D. #89491 POST & SCHELL, P.C. 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, P A 17605-0248 (7I7) 291-4532 ATTORNEYS FOR DEFENDANTS HIGH GENERAL CORPORA nON and LANCASTER DEVELOPMENT COMPANY COURT OF COMMON PLEAS CUMBERLAND COUNTY LINDA 1. McCLEARY and JOSEPH D. McCLEARY Plaintiff, JURY TR[AL DEMANDED v. NO: 02-3523 CIVIL TERM LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION Defendants. ENTRY OF APPEARANCE~ TO: THE PROTHONOTARY: Please enter the appearance of the undersigned on behalf of Defendants Lancaster Development Company and High General Corporation. DATE: 1/tp/D1 I I BY: ~ (J. p,~ . __ ~____ A C. PANAGOPOULOS, ESQU Attorney 1.D. No. 89492 CERTIFICATE OF SERVICE I, Gregory S. Hirtzel, Esquire do hereby certify that I caused a true and correct copy of the foregoing document(s) to be served upon the following designated person(s) by placing the same in the United States Mail, First Class Delivery, on the dalle set forth below. James DeCinti, Esquire 4503 North Front Street Harrisburg, PA 17110 DATE: .if / (0/ D1 / I POST & SCHELL, P.C. By2J'~ r. L---, Jr GREGORY S. HIRTZEL, ESQU Attorney 1.D. No. 56027 (j c:. fr "'" C":;;;J c.:.:::.' ~- ;~ -0 :;-.iJ - w o -n :-:! ...,1-,1 fl1F -cJrn ~.T~)Y 9c) _,.-\0; t-~~) f-!~:~ , --;:0 :5:.:. N (.) --.J POST & SCHELL, P.c. BY: JOHN R. CANAVAN 1.D. #:84728 240 GRAND VIEW AVENUE CAMP HILL, PA 17011 (717) 731-1970 ATTORNEYS FOR DEFENDANTS LANCASTER DEVELOPMENT COMPANY AND HIGH GENERAL CORPORATION COURT OF COMMON PLEAS CUMBERLAND COUNTY LINDA 1. McCLEARY and JOSEPH D. McCLEARY JURY TRlAL DEMANDED Plaintiff, No: 02-3523 CIVIL TERM v. LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION Defendants. WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of the Defendants, Lancaster Development Company and High General Corporation relative to the above-captioned matter. By: Date:~, 2004 Attorney for Defendants, Lancaster Development Company and High General Corporation CERTIFICATE OF SERVICE I, Gregory S. Hirtzel, Esquire do hereby certify that I caused a true and correct copy of the foregoing document( s) to be served upon the following designated person( s) by placing the same in the United States Mail, First Class Delivery, on the dalte set forth below. James DeCinti, Esquire 4503 North Front Street Harrisburg, P A 17110 DATE: POS1.: & S~HE~~~P:_~. r '~C;SQUlRE Attorney 1.D. No. 56027 BY: (j c~ ~~, ..-,' "'" (>.:1 Co:) ... ~:a ;--0 (-.) -v :::C, l:--') (-.) -' o -n --1 -:T:'i r~lf~ -oCP ~,,-,\..) ~:~~ ~7, ::-p ORIGINAL ANGINO & ROVNER, P.C. Richard A. Sadlock, Esquire 1.D. No. 47281 4503 North Front Street Harrisburg,PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 E-mail idecinti@angino-rovner.com LINDA 1. McCLEARY and JOSEPH D. McCLEARY, Attorneys for Plaintiffs: Linda 1. and Joseph D. McCleary IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs CIVIL ACTION - LAW v. NO. 02-3523 Civil Term LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION, Defendants JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW APPEARANCE AND ENTER APPEARANCE PI- wi""",w my '1>1"-" ~ ,,~"" '7:' in tlre ,bov~""ti""'" ''''"0 . 1M: J es DeCinti, Esquire 1.D. No. 77421 . V 4503 N. Front Street Date: AugustU2004 Harrisburg,. PA 17110 Please enter my appearance as counsel for Plaintiffs i A_~ ...-ro-chard A. Sa LD. No. 47281 Angino & Rovner, P.c. 4503 North Front Street Harrisburg, P A 17110 (717) 238-6791 action. -- sqUire Date: 282156 CERTIFICATE OF SERVICE, I, Marcy L. Brymesser, an employee of the law firm of Angino & Rovner, P.c., do hereby certify that I am this day serving a true and correct copy of )'LAINTIFF'S PRAECIPE TO WITHDRAW APPEARANCE AND ENTER APPEARANCE on the following via postage prepaid, first class United States mail, addressed as follows: Gregory Hirtzel, Esquire Post & Schell PC 240 Grandview Avenue Camp Hill, PA 17011 I!1~~ Dated: August 19,2004 282156 :,..! i'\) c) (,.) .r."~ (,,: POST & SCHELL, P.c. BY: GREGORY S. HIRTZEL 1.D. #56027 POST & SCHELL, P.C. 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, P A 17605-0248 (717) 291-4532 ATTORNEYS FOR DEFENDANTS HIGH GENERAL CORPORATION and LANCASTER DEVELOPMENT COMPANY Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED NO: 02-3523 CIVIL TERM LINDA 1. McCLEARY and JOSEPH D. McCLEARY v. LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION Defendants. MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS. LANCASTER DEVELOPMENT COMPANY AND HIGH GENERAL CORPORATION Defendants, Lancaster Development Company and High General Corporation, by and through their attorneys, Post & Schell, P.C., hereby file the following Motion for Sumrnary Judgment and in support thereof, aver as follows: I. FACTUAL AND PROCEDURAL HISTORY 1. Plaintiffs initiated the instant negligence action by filing a Complaint on or about August 9, 2002. A true and correct copy of Plaintiffs Complaint is attached hereto as Exhibit "A." 2. Defendants filed their Answer and New Matter on or about February 27, 2004. A true and correct copy of Defendants' Answer and New Matter is attached hereto as Exhibit "B." 3. Plaintiffs filed a reply to Defendants' New Matter on or about March 11, 2004. A true and correct copy of Plaintiffs Reply to New Matter is attached hereto as Exhibit "C." 4. Plaintiffs allege that Plaintiff Linda McCleary was injured while on Defendants' property located at 5010 Ritter Road in the Rossmoyne Industrial Park in Lower Allen Township, Curnberland County. See Exhibit A, 'II 5. 5. Plaintiffs claim that on August 28, 2000 Plaintiff was a business invitee on Defendants' property. Plaintiff alleges she tripped and fell over an "irregular, uncaulked and raised sidewalk joist that had been allowed by the Defendant to be an inch deep, an inch wide and approximately 1/2 inch raised above the preceding sidewalk..." See Exhibit A, '11'116-7. 6. Plaintiffs allege Defendants failed to inspect, maintain, repair and/or warn about the tripping hazard and were negligent in the following manner: a) failing to properly construct the sidewalk so as to permit the sidewalk to have a level walking surface; b) failing to properly inspect the property to discovery the non-obvious and dangerous condition created by the irregular sidewalk; c) failing to make repairs to the sidewalk to make it safe for persons such as Plaintiff Linda McCleary to travel upon; d) failing to properly post warnings, barricades, signs, or other means of protecting business invitees such as Plaintiff Linda McCleary; e) failing to take other action and other precautions that a reasonably prudent property owner would take under the circumstances for the protection of persons such as Plaintiff Linda McCleary; and f) failing to properly maintain the sidewalk by allowing there to be a raised joint creating a hazard to people such as Plaintiff Linda McCleary. See Exhibit A, '11'118-9. -2- 7. Plaintiff clairns she suffered personal injuries to her left hand, thumb, wrist and shoulder as well as other econornic and non-economic damages. Plaintiff Joseph McCleary is making a claim for loss of consortium. See generally Exhibit A. II. SUMMARY JUDGMENT STANDARD 8. Pursuant to Pa.R.C.P. 1035.2, "After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for sunnnary judgment in whole or in part as a mater oflaw: (1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to ajury." 9. The record is reviewed "in the light most favorable to the non-moving party and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Ertel v. Patriot-News Co ., 544 Pa. 93, 98-99, 674 A.2d. 1038, 1041 (1996) (citing Pennsylvania State University v. County of Centre, 532 Pa. 142, 144-145,615 A.2d 303, 304 (1992). 10. A proper grant of summary judgment depends on an evidentiary record that: (1) shows the material facts are undisputed, or (2) contains insufficient evidence of facts to make a prima facie cause of action for defense and, therefore, there is no issue to be submitted to the jury. Buchleitner v. Peror, 2002 PA Super 35,_,794 A.2d 366,370 (2002). III. ANALSYSIS a. The alleged defect is trivial and does not impose liability as a matter oflaw. -3- 11. In order for a plaintiff to defend against a defendant's Motion for Summary Judgment, he has to adduce facts sufficient to establish a prima facie cause of negligence. Rauch v. Mike-Mayer, 2001 PA Super 270,_,783 A.2d 815, 823-824 (2001). 12. Although there is no bright line rule for determining when evidence is sufficient to send to the jury, a trial judge is charged with the responsibility and duty to determine if and when the plaintiff's evidentiary burden has satisfied the prima facie test. Mastroddi v. Ventura Enters, 35 Phila. 520 (Phil. Co. 1998). 13. In order to establish the elements of a prirna facie case of negligence, the plaintiff must present evidence from which a jury can infer 1) that the defendants had an ordinary duty of care toward him; 2) that the defendants breached that duty; 3) that the breach was the actual cause and a substantial factor in any injury; and 4) that the plaintiffs sustained compensable harm. In order to be presented to the jury, the evidence must be able to sustain a logical deduction from the facts proven, but it need not be the only logical conclusion a jury could have reached. Sperrazza v. Cambridge Mutual Fire Insurance Co., 313 Pa. Super. 60,459 A.2d 409 (1983). 14. It has long been held that a mere defect in the property is insufficient to impose liability upon the owner or possessor of that property. In Bosack v. Pittsburgh Railways Co., 410 Pa. 558, 189 A.2d 877 (1963), the Supreme Court stated: Time and again, our Court has held that an elevation, a depression or an irregularity on a street or highway may be so trivial that courts, as a matter of law, are bound to hold that there was no negligence in permitting such a depression or irregularity to exist. (Emphasis added). 15. The standard that has been established for determining triviality is "that a paving defect is trivial when 'it would be completely unreasonable, impractical and unjustifiable' to -4- hold a defendant liable for its existence." Gosha v. City of Philadelphia, 7 Phila. 302,313 (1982) citing Bosack, supra at 880. 16. The rationale for this rule was expressed by the Supreme Court in German v. City ofMcKeesDort, 137 Pa.Super. 41, 8A.2d 437,440-41 (1939). In German, a case which involved a I Y2 inch vertical rise in a sidewalk that was found to be a trivial defect, the Superior Court noted that a defect must be "so large and unusual as to appear dangerous to the ordinary pedestrian and to an everyday passerby." The Court further cautioned against placing liability on common and unusual sidewalk imperfections. See German at 441. Further, the Court stated: [T]he law does not require that sidewalks shall be as free of defects, imperfections, irregularities, unevenness, etc. as the floors of buildings. A reasonably safe condition is all that is necessary. Our climate, with its rain and snow, freezing and melting, frost and thaw, with their effects on exposed surfaces, including sidewalks, makes impossible the perfection of evenness to be expected inside buildings and covered places. (Ernphasis added). 17. In Cline v. Statler, 34 Pa. D. & C.4th 289 (Adams Co. 1997), afJ'd 726 A.2d 1073 (Pa.Super. 1998), plaintifftripped and fell on a rise in the sidewalk between two joint sections. The court granted summary judgment, holding that a two or three inch difference in sidewalk level between joints or divisions is only a trivial defect. The court reasoned that there were no holes or breaks in the concrete and that other than the fact that the two sections did not meet on precisely the same plane, the sidewalk was in good condition. 18. Other examples of elevations, depressions and irregularities, upon which our courts have held no liability could be predicated include: Foster v. Westview Borough, 328 Pa.368, 195 A. 893 (1937) (uneven, rough, unpaved step between curb and sidewalk two feet wide and 2" to 4" lower than sidewalk level); Harrison v. Pittsburgh, 353 Pa.22, 44 A.2d 273 (1945) (manhole cover which projected 2" above surrounding sidewalk); Magennis v. Pittsburgh, -5- . 352 Pa.147, 42 A.2d 449 (1945) (hole 1 7/8" below level of pavement and 12" x 15" square, an area termed by the Supreme Court as a "defect that was little more than a break in the surface of the street paving;") Bosack, supra (cobblestone sunk 1 Y2 "to 2"); Bullick v. Scranton, 224 Pa. Super. 173,302 A.2d 849 (1973) (upholding court's judgment notwithstanding the verdict where in finding that hole in street three feet long, one inch wide and one-half inch deep is trivial). 19. As noted above, in the Complaint, Plaintiffs allege her injuries were a result of the "irregular, uncaulked and raised sidewalk joist that had been allowed by the Defendant to be an inch deep, an inch wide and approximately 1/2 inch raised above the preceding sidewalk..." See Exhibit A, '117. 20. At her deposition, Plaintiff testified the accident happened in front of the Corvel Corporation entrance. She testified that she had walked over the area in which she fell at least twice a day for the last couple of years preceding the accident, excluding holidays and vacation, because it was her place of employment. (Relevant portions of Plaintiff, Linda McCleary's notes of testimony are attached hereto as Exhibit "D," see pp. 6-9). 21. Despite Plaintiff s discovery responses in which she states she never noticed the crack before her fall ( Plaintiffs Answers to Defendant's Discovery are attached hereto as Exhibit "E" (See Exhibit E, question 12), she testified that she was aware of the condition of the sidewalk. See Exhibit D, p. 9 Specifically, she testified as follows: Q: For those couple of years before the accident, did you notice any problem with the sidewalk? A: No. Q: For those couple of years before the accident, did you notice any problem with the sidewalk? -6- A: I saw the gaps used to walk around the building, and there were a lot of them that looked like that. I just would be careful. Q: Okay. In other words, the gaps, the joints between the concrete? A: Right, some of them were missing. It was like a rubber substance, some have more, some have less. Q: The joint that was involved in the accident, was that one that had - - I don't know if you said, rubber substance or something like that in it? A: As I recall, r don't believe. If there is any, it's very little. Doesn't cover the gap. Q: Did you notice that condition prior to your accident? A: Probably during the winter because we had - - it was slippery a lot, and I think I might have noticed it then or during my walks around the building. Q: All right. So I want to make sure that I understand what you are saymg. Let me just in my own mind ask the question again so I understand it better. Prior to your accident, did you take particular notice of the condition of that joint? A: I would say it was noticeable. Q: In what way? What did you notice about it I guess would be better to say? A: There was that rubber stuff. It's sort of black or brown. It wasn't like many other spaces. Q: Prior to the accident, having noticed that, did you consciously try to avoid walking over that coming in contact with that joint with your feet? A: r have a very large gait, more so than usual. It seemed like normal. I would just walk in, didn't pay that much -7- attention because I was either, you know, coming in thinking about what I was going to do at work, or when I was leaving, getting in the car traveling home and doing what I had to do. So my rnind wasn't always on - - except in the wintertime, it was very icy, we would have trouble. See Exhibit D, p. 9. 22. The property manager of the complex, Tana Dyer, testified that she has never received a cornplaint about the sidewalk in that location. Relevant portions of the deposition of Tana Dyer are attached hereto as Exhibit "F." (Exhibit F, p. 13.) Further, she had walked over the location prior to the time of the accident. When asked if she recalled anything about the sidewalk and how it was configured or constructed, she replied, "no, it looks like a regular sidewalk to me." See Exhibit F, p. 12. 23. Ms. Dyer did conduct an investigation of the sidewalk and noted that it looked like a normal expansion joint. See Exhibit F, p. 19. She describes a normal expansion joint as "a gap, an opening that is put between concrete slabs. It can have a wooden divider I guess you would call it, or some sort of soft material to allow for expansion and contraction of the concrete. Without it, the concrete rises and breaks up." See Exhibit F, p. 19. 24. She was not aware if the material was supposed to be even with the sidewalk, but did not that in "every sidewalk I have seen is sunken, it settles with age." See Exhibit F, p. 22. Further, she notes that she does not believe that one side of the gap was higher than the other "without going over there an getting on [her] knees and looking." See Exhibit F, p. 25. 25. Further, the branch manager of Corvel, Doug Tierney, testified that in the year prior to Plaintiffs accident, he did not notice any problems in the area where Plaintiff fell nor did anyone voice any complaints about the area. (Relevant portions of the deposition of Doug Tierney are attached hereto as Exhibit "G." (Exhibit G, p. 7). -8- 26. Further, it is respectfully submitted that Plaintiff is not fully certain that she fell on the sidewalk. When asked at her deposition if she knew what caused her to fall, Plaintiff responded "I must have tripped on the sidewalk." (See Exhibit D, p. 13) (emphasis added). When asked if she was sure, she responded "There was nothing else there. And I am healthy, I don't you know fall." (See Exhibit D, p. 13). 27. Finally, at the depositions of the above-noted individuals, each looked at photographs which were marked as McCleary Exhibit 1. The photograph clearly demonstrates that the "defect" upon which Plaintiff fell is nothing more than a common gap between slabs of concrete. As demonstrated in the picture, these are common gaps which are found in sidewalks and walkways. A copy of the photograph marked McCleary Exhibit 1 is attached hereto as Exhibit "H." 28. Clearly, if the Superior and Supreme Courts have held that the above described "defects" were not actionable as a matter of law, than any "defect" found in the photographs and described in the deposition testimony, is likewise not actionable given the very negligible size and character of the condition. As demonstrated in the photograph, it is respectfully suggested that the concrete walkway does not pose an unreasonable risk to pedestrians. To the contrary, the sidewalk is clearly in good and passable condition.. To the extent any elevation exists resulting from the crack in the concrete which Plaintiff has identified as a "defect," it is so negligible that it must be found that Defendants acted reasonably in letting it exist. Bromberg v. Gegoski, 410 Pa. 320, 189 A. 2d 176 (1963). 29. In light of the photograph, the deposition testimony and the well-settled case law noted above, it is respectfully suggested the concrete walkway was in good condition and did not -9- contain a "defect." Therefore, Defendants respectfully request this Honorable Court enter summary judgment in their favor and against Plaintiffs. WHEREFORE, Defendants Lancaster Development Company and High General Corporation respectfully request this Honorable Court grant their Motion for Summary Judgment and dismiss Plaintiffs Complaint with prejudice. b. Plaintiff has failed to prove that Defendants had notice of a dangerous condition. 30. To the extent that the Court finds this is an actual "defect," it is clear that Plaintiff has failed to provide any evidence that Defendant had notice of the condition. 31. The mere existence of a harmful condition in a public place is not, in and of itself, evidence of a breach of the proprietor's duty of care, nor does it raise a presumption of negligence. To the contrary, the plaintiff must introduce evidence establishing that the Defendants knew, or in the exercise of reasonable care, should have known of the existence of the dangerous condition. Miller v. Schilt and Company. Inc. 594 A.2d 1324 (Pa. Super 1991). 32. In the absence of actual notice, Plaintiff must prove that the Defendants had constructive notice. Moultrey v. Great A & P Tea Co, 422 A.2d 593 (Pa. Super. 1980). Considerations for constructive notice include, the number of persons using the premises, the frequency of such use, the nature of the defect and its location on the premises. Stais v. Sears. Roebuck & Co. 102 A.2d 204 (1954), ajJ'd. 106 A.2d 216 (1954). 33. As noted above, Ms. Dyer indicated that she had never received a complaint about that area of the sidewalk. See Exhibit F, p. 19. Further, Mr. Tierney testified that in the year prior to Plaintiffs accident, he did not notice any problems in the area where Plaintifffell nor did anyone voice any complaints about the area. See Exhibit G, p. 7. -10- 34. It is respectfully asserted that Plaintiff has not submitted any evidence to prove that the Defendants knew or should have known that a "defect" existed on the sidewalk. There has been no testimony that the Defendants, or an employee of the Defendants, was notified of a problem with the area. Nor is there any evidence that the Defendants had constructive notice of a danger. WHEREFORE, Defendants Lancaster Development Company and High General Corporation respectfully request this Honorable Court grant their Motion for Summary Judgment and dismiss Plaintiffs Complaint with prejudice. Respectfully Submitted, Date: LP 1'.-;) 06 ~post & Schell, P.C. By:~ 0-fJJ-- C PI/- ~ Gregory S. Hirtzel, Esquire Attorney for Defendants -11- CERTIFICATE OF SERVICE I, Gregory S. Hirtzel, Esquire do hereby certify that I caused a true and correct copy of the foregoing document(s) to be served upon the following designated person(s) by placing the same in the United States Mail, First Class Delivery, on the date set forth below. Richard A. Sadlock, Esquire ANGINO & Rovner, P.C. 4503 North Front Street Harrisburg, P A 17110 POST & SCHELL, P.C. DATE:~ BY: ~ GREGORY S. HIRTZEL, ES Attorney 1.D. No. 56027 'ian/ZO-ZOO' '01 :40pm From- T-S8Z P.004/011 F-Z18 . ~../. .',.-- ; TNDA 1. McCLEARY and JOSEPH D. {cCLEARY, her husband, Plaintiffs : rn THE COURT OF COMMON PLEAS . CUMBERLAND COUNTY, PA "0/. : NO. ();;t - .3~ <2> : CIVIL ACrrON - LAW c~u'll ~~ .ANCASTER DEVELOPMENT OMP ANY and mGH GENERAL ORPORATION, : JURYTRlALDEMANDED Defendants NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following ages, you must take action within twenty (20) days after this Complain.t and Notice are seIVed. by leling a written appearance personally or by attorney and filing in writing with the Court your defenses r objections to the claims set furth against you. You are warned that if you fail to do so !he case may roeeed without you and jUdgment may be entered against you by the Court without further notice for any oney claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose oney or prop"11y or other rights impoctant to you. YOU SHOULD TAKE nus PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT VE LA W'YER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET ORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAl. HELP. Cumberland County Bar Association :z Liberty Al'euue Carlisle, PA 17013 1-800-990-9108 ill E ~ E ,8 ~ E 00 "i! HIGH INDUSTRIES. tNC. 7 -~;n:\,;il~ \'r"": ,. - ..' ._ 1:", \ u ._- -~l IiI . 'I: I 320G2 :i. -_.j;; TRU~ COPY FROM F.tECORD I. TlIlIIIrifony wllllr..of. I 001'6 u!lio Sfi my hand -~~~!*, f>a. ~ ~ D ~~1jen TT/b~.~ ~~~~~~JTJ ~1.1TI-I,""l_fT","_ ~i~~T. ?~~r-~T._onH . ~ant20-2004 . ~1 :40pm From- 1-582 P.005/011 F-2TS .-./ .'"-" INDA I. McCLEARY and JOSEPH D. !cCLEARY. herhusbanlj, Plaintiffs : IN THE COURT OF coMMON PLEAS : CUMBERLAND COUNTY. PA v. : NO. AN CASTER DEVELOPMENT OMPANY and HIGH GENERAL ORPORATION, : CIVIL ACTION - LAW : JURYTRIALDBMANDED Defi,ndants NOTICE Lc Hanna demanded a ousted en [a corti. Si ousted quire defenders de estas demandas elCpuestas n las paginas sugnuientes, usted tiene viente (20) dias de plazo a1 panir de la fecha de Ia demanda y 1a n(1tificacion. Usted debe presentar una apanencia cscrita 0 en persona 0 por abogado y archivar en Is corte en forma escrita $US defensas 0 s~s objeciones a Ias demandas en contra de !lU persona. Sea avisado ~ue si lISted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previa aviso , . notificacion y por cualquier qucja 0 alivio que eS pedido en la peticion de demanda. Usted puede perder , ineto a sus propiedades 0 olras derechos importantes para usted. nEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. 51 NO TIENE 130GADO 0 SI NO TIENE EL DINERO SUFlCIENTE DE PAGAR TAL SERVICIO, VA Y A EN 'ERSONA 0 LLAME POR TELEPFONO A LA OFICINA CUY A DIRECCION SI! ENCUENTRA ESCRlTA ABArO PARA A VERIGUAR DONDE SE POEDE CONSEQUIR ASISTENCIA LEGAL. Cumberland County Bar Associ...tion 2 Liberty Avenue Carlisle, P A 17013 1-800-990-9108 '! -., ". .,. .ti\!r~'!; 3 iGfJ2 I' . . I" ,; ---....JL;:;..' . .~,,~. ~ Il/ga'd 5~~V06~L1~ ~1.lll-f.,"")_nW:J CT.~T ~~~~_~T_~ . Janl20-2004 ',01 :400m From- T-582 P.008/0l1 F-2T8 ...y ~' LINDA I. McCLEARY and JOSEPH D. McCLEARY, her husband, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLANDCOUNTY.PA v. : NO. LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION, : CNIL ACTION - LAW : JURY TRIAL DEMANDED Defendant.' COMPLAINT 1. Plaintiffs Linda and Joseph McCleary are wife and husband, adult individuals and citizens of the Commonwealth of Pennsylvania residing in Newville, Cumberland County, Pennsylvania. 2. Defendant Lancaster Development Company is a Pennsylvania limited parmership that does business in Cumberland County, PelUlsylvania. 3. Defendant High General Corporation is a PClUlSylvania Corporation which does business in Cumberland County, P=sylvania. 4. It is believed and therefore averred that Defendant High General Corporation is the registered general panner of Defendant Lancaster Development Company, 5. It is believed and therefore averred that Defendanl Lancaster Developmenl Company andlor Defendant High General Corporation owns property in Cumberland County localed at 5010 Ritter Road in the Rossrnoyne Industrial Park in Lower Allen Township which includes sidewalks, and further that either or both DefendillJt are responsible for the maintenance, inspection, and safety of those sidewalks. 6. The {acts and occurrences hereinafter related took place on or about August 28, 2000, al approximately I :30 p.m. <>n the sidewall< located in front of the entrance to 5010 Ritter I "..nU/JDIBSn T1:./CW\"..-t hCT17~h"J.V 1 t:;wtt",n'"'l-I1H'=l ~,:~, c00c-~t-~b Jan120-2004 ~Ol:4lpm From- T-582 P.OOT/Oll F-2T8 ../ Road. AI that time and place, 1.inda McCleary was lawfully walking on the sidewalk in the direction to the enttance of SOlO Ritter Road. 7. At that time and place, Plaintiff Linda McCleary tripped and fell o~er the irregular, uncaulked and raised sidewalk joint that had been allowed by the Defendant to be an inch deep, an inch wide and approximately Y, inch raised above the preceding sidewalk thereby creating a non-obvious tripping hazard. 8. Defendants Lancaater Development Company and High General Corporation, which are in the business of leasing property in the Rossmo)llle Industrial Park, owed Plaintiff Linda McCleary, a business invitee on tlte premises, a duty to inspect, maintain, repair andior wam, about the tripping hazard located at SOlO Ritter Road and they tailed to do so. 9. The aforementioned fall and all of the injuries and damages as set forth hereinafter sustained by Plaintiffs are the direct and proximate result of the negligent, careless, wanton and reckless manner in which Defendants Lancaster Development Company and High General Corporation constrUcted, ll13intained, repaired, warned, andio! inspected its property at SO 10 Riller Road as follows: a) failing to properly constrUct the sidewalk so as to permit the sidewalk to have a level walking surface; b) failing to properly inspect the propeny to discover the non-obvious and dangerous condition created by the irregular sidewalk; c) failing to make repairs to the sidewalk to make it safe for persons such as Plaintiff Linda McCleary to lravel upon; d) failing to properly post warnings, barricades, signs, or other means of protecting business invitees such as Plaintiff Linda McCleary; :!46:%31.I/JDIB."B 2 11/~e'd 5~~v05~~1~ SWI~1:)-(JH3 vl:cl c00c-~1~n~ 'Janl20-2004 '01 :41pm From- T-582 P.008/0l1 F-2T8 --/ -,.. e) failing to take other action and other precautions that a reasonably prudent property owner w(.uld U1ke under the circumstances for the protection of persons such as Plaintiff Linda McCleary; and t) failing to properly maintain the sidewalk by allowing there to be a raised joint creating a haz.ar1i to people such as Plaintiff Linda McCleary. CLAIM! LINDA McCLEARY v. LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION 10. Paragraphs 1 through 9 oflhis Complaint are incorporated herein by reference. I L As a direct and proximale result of the negligence of the Defendants as more fully articulaled above, Plaintiff Linda ,\fcCleary sustained painful and severe injuries which include, but are not limited to. injuries to her left hand, thUlUb, wrisl and shoulder. 12. By reason of the afilresaid injuries sustained by Plaintiff Linda McCleary, she was forced 10 incur liability for medica! treatment, surgery, medications, hospitalizations, and other similar miscellaneous expenses in an effort to restore herself to health, and claim is made thercfor. 13. Because of the nature of her inj1JriC$, Plaintiff Linda McCleary has been advised, and therefore avers that she may he forced 10 incur similar expenses in the future, and claim is made therefor. 14. As a result of the aforementioned injuries, Plaintiff Linda McCleary has undergone and in the future may undergo physical an<1 mental pain and suffering, inconvenience in carrying out her daily activities, loss of life's pleasures and enjoymenl, and claim is made therefor. uaZ32.I/JDf9Sa 3 TT~~Q'~ h~~~~~~)T} c::;w l" I-fl:1-CIH3 V~:G~ ~00G-~l-~n~ . J.n~20-2004 . 01 :42pm From- T-5SZ P.009/011 F-ZTS -../ ---. 15. As a result of the aforementioned injuries, Plaintiff Linda McCleary has been and in the future may be subjected to humiliation and embarrassment, and claim is made therefor. 16. As a result of the aforementioned injuries, Plaintiff Linda McCleary continues to be plagued by persistent pain and limitation, and therefore avers that her injuries may be of a permanent nature causing residual problems for the remainder of her lifetime, and claim is made therefor. 17. As a result of the- aforesaid injuries, Plaintiff Linda McCleary has sustained scamng, which will result in permanent disD.g1lreIIlenl, and claim is made therefor. 18. As a result ofh",. injuries, Plaintiff Linda McCleary has sustained wage loss and a diminution in her earning power and capacity, and claim is made therefor. WHEREFORE, Plaintiff Joseph McCleary demands judgment against Defendants in an amount in excess of Twenty-Five Thousand Dollars ($25,000) e1(clusive of interest 3l1d cost and in excess of any jurisdictional amount requiring compulsory arbitration. CLAIM II JOSEPH M~CLEARY v. LANCASTER DEVELOPMENT COMPANY and fiG" GENERAL CORPORATION 19. Paragraphs 1 through 9 and Claim I oflhis Complaint are incorporated herein by reference. 20. As a result of the af-orementioned injuries sl1lllained by his wife. Plaintiff Unda McCleary, Plaintiff Joseph McCleary has been and may in the future be deprived of the care, companionship, consortium. and society of his wife, all of which will be to his great detriment, and claim is made therefor. :48J31.1/JDtI5SB 4 ~T/~'~ ~~~~~~~JTJ . . J.J-20-2004' 01:42pm From- I .-' . : T-582 p.OI0/011 F-2T8 ~ . ~ WHEREFORE, plaintiff Linda McCleary demands judgment against Defendants in an amount in excess of Twenty-Five Thousand Dollars ($25,000) exclusive of interest and cost and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully submitted, ANGINO & ROVNER, P.C. \ lwt!-~( James DeCinti, Esquire I.D. No. 77421 4503 N. Front Street Harrisburg, P A 1711 0 (7l7) 238-6791 Attorney for Plaintiffs Dale: 'if' '.'/-. "'/ ~,~ 10 .. l<S'.Jl.IIIDIBSR 5 11/~I'd 6>-~~6rLtL SW!t:n:)-QH3 ?~:~, 2002-L'-~~ . JantZO-Z004 . 01 :43pm From- I i",'ld ,'OWl T-58Z P.Oll/011 F-ZT8 ~ .. ~.-. VEIDFlCATION We. JOSEPH D. McCLEARY and LINDA I. McCLEARY, verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information or belief. I understand that this Verification is made subject to the provisions of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities r\ ~ 1#(-~ jgSEPH D. McCLEARY ~'" J ..~~& L A 1 McCLEARY d DATED:I{1-->! ()V .1/TT'd 6~~~06EL.L Sw II::rD-GH3 ST'~T ~00~-~T-nn~ .' POST & SCHELL, P.C. BY: JOHN R. CANAVAN 1.D. #:84728 240 GRAND VIEW AVENUE CAMP HILL, PA 17011 (717) 731-1970 LINDA I. McCLEARY and JOSEPH D. McCLEARY Plaintiff, v. LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION Defendants. .,;+" (j5L/ / 1/9371 fJ ATTORNEYS FOR DEFENDANTS LANCASTER DEVELOPMENT COMP ANY AND HIGH GENERAL CORPORATION COURT OF COMMON PLEAS CUMBERLAND COUNTY P ''--- .<::'~. JURY TRIAL DEMANDED NO: 02-3523 CIVIL TERM NOTICE TO PLEAD TO: Plaintiffs: S-/~ ::'t -<.. "'" <.-;:J ~ ." rTt = N --.I o ., -t ::r:..., rnp -0121 -o~ 0..,(.:....) -,., - 7)::3 ,~O rr-n :-'" ::-.D -< --.I You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. POST & SCHELL, P By: John. avan, Esquire Identi 1 ation No: 84728 Attorneys for Defendants Lancaster Developrnent Company and High General Corporation POST & SCHELL, P.C. BY: JOHN R. CANAVAN 1.D. #:84728 240 GRANDVIEW AVENUE CAMPHILL,PA 17011 (717) 731-1970 ATTORNEYS FOR DEFENDANTS LANCASTER DEVELOPMENT COMPANY AND HIGH GENERAL CORPORATION COURT OF COMMON PLEAS CUMBERLAND COUNTY LINDA 1. McCLEARY and JOSEPH D. McCLEARY JURY TRIAL DEMANDED Plaintiff, NO: 02-3523 CIVIL TERM v. LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION Defendants. ANSWER AND NEW MATTER OF DEFENDANTS LANCASTER DEVELOPMENT COMPANY AND HIGH GENERAL CORPORATION TO PLAINTIFFS' COMPLAINT Defendants Lancaster Development Company ("LDC") and High General Corporation ("HGC") (collectively "Defendants"), by and through their attorneys, Post & Schell, P.C., hereby file this Answer and New Matter to Plaintiffs' Complaint as follows: I. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part; denied in part. It is admitted that LDC is the owner of the property described in the corresponding allegation. All remaining allegations are denied -2- pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure and as conclusions of law. 6. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions oflaw. 7. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions oflaw. 8. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions oflaw. 9. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, the allegations are denied as conclusions oflaw. CLAIM I 10. Defendants incorporate by reference their answers to paragraph 1 through 9 as if set forth at length herein. -3- 11. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions oflaw. 12. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions oflaw. 13. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions oflaw. 14. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions oflaw. 15. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the -4- truth of the allegations and, accordingly, all such allegations are denied. Any remammg allegations are denied as conclusions oflaw. 16. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions oflaw. 17. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions oflaw. 18. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions of law. WHEREFORE, Defendants Lancaster Development Company and High General Corporation respectfully request that this Honorable Court enter Judgment in their favor and against Plaintiffs. CLAIM II 19. Defendants incorporate by reference their answers to paragraph 1 through 18 as if set forth at length herein. -5- 20. Denied. The allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions oflaw. WHEREFORE, Defendants Lancaster Development Cornpany and High General Corporation respectfully request that this Honorable Court enter Judgment in their favor and against Plaintiffs. NEW MATTER 21. Plaintiffs rnay have failed to state a claim upon which relief can be granted. 22. Plaintiffs' claims may be barred by the statute oflimitations. 23. Plaintiffs' claims may be barred or lirnited by the affirmative defense of consent. 24. Plaintiffs' claims may be barred or limited by the doctrines of waiver and/or release. 25. Plaintiffs' claims may be barred or limited because Defendants rnay not have had actual and/or constructive possession of the property at issue. 26. Plaintiffs' claims may be barred or limited because the Plaintiff-Wife assumed the risk of the occurrences alleged in her Complaint. 27. Plaintiffs' damages, if any, may have been caused by a pre-existing condition which was not caused by any action and/or omission of Defendants. 28. Plaintiffs' damages, if any, may have been caused by her own comparative and/or contributory negligence or that of her agents. 29. Plaintiffs claims may be barred by the doctrine of estoppel. -6- WHEREFORE, Defendants Lancaster Developrnent Company and High General Corporation respectfully request that this Honorable Court enter Judgment in their favor and against Plaintiffs. John R. C Identificati Attorneys for Defendants Lancaster Development Company and High General Corporation -8- v EKlI<ll:AUUN I, Tholm S R. Esposito, Vice President and Treasurer for Rig). Industries, Inc., do hereby swear and afl.'im, that the facts and matters set forth in the foregoini doouments are and correct to the best of n.y knowledge, information, and belief. The undenigned understands that the statements madt: therein. are made subject to the penalties of 18 ?a C.S. ~4904 relating to unsworn falsifici Ltion to authorities. ~~ , DATE: Thomas R. Esposito Vice President aud Treasurer High Industries, Inc. .' . I ANGINO & ROVNER, P.c. 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 E-mail jdecinti@angino-rovner.com 5'1 IJI'~1 ~ ? Attorneys for Plaintiffs: Linda L aod Joseph D. McCleary LINDA 1. McCLEARY and JOSEPH D. McCLEARY, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LA W v. NO. 02-3523 Civil Term LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION, JURY TRIAL DEMANDED Defendants PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT LANCASTER DEVELOPMENT COMPANY AND HIGH GENERAL CORPORATION 21. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs have failed to state a claim upon which relief can be granted. Strict proof of this defense is demanded at the time of trial. 22, The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' claims are barred by the applicable statute oflimitations. On the contrary, Plaintiffs claims are timely filed. Strict proof of this defense is demanded at the time of trial. 23. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' claims are in any way barred or limited by the affirmative defense of consent. Strict proof of this defense is demanded at the time of trial. 24. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' claims are barred and/or limited by the doctrines of waiver and/or release. Strict proof of this defense is dernanded at the time of trial. 25. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' claims are barred and/or limited because Defendants may not have had actual and/or constructive possession of the property at issue. Strict proof of this defense is demanded at the time of trial. 26. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied. By way of further response, pursuant to Pa. R.C.P. 1030(b), no further response is required. 27. The allegation contained in this paragraph is a conclusion offact and oflaw to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' damages were caused by any pre-existing condition which was not cause by any action or omission ofthe Defendants. On the contrary, Defendants are responsible for Plaintiffs injuries. Strict proof of this defense is demanded at the time of trial. 28. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' damages were caused by comparative and/or contributory negligence on the part of the Plaintiffs. By way of further response, pursuant to Pa. R.C.P. I 030(b), no further response is required. 29. The allegation contained in this paragraph is a conclusion of fact and oflaw to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that the 273348J\JD\MAR doctrine of estoppel has any relevancy to this case. Strict proof of this defense is demanded at the time of trial. 30. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs are not entitled to recover as a matter of law and/or equity. Strict proof of this defense is demanded at the time of trial. 31. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Defendants were not responsible for the condition that caused Plaintiffs injuries and damages. Strict proof of this defense is demanded at the time of trial. 32. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs claims' are barred and/or limited by the doctrines of res judicata and/or collateral estoppel. By way of further response, these doctrines have no relevance to this case. Strict proof of this defense is dernanded at the time of trial. 33. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' claims are limited or barred by the doctrine of spoliation. Strict proof of this defense is demanded at the time of trial. 34. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' damages were caused as stated in this paragraphs. Strict proof of this defense is demanded at the time of trial. 273348.1 \JD\MAR t 35. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' damages were the result of actions, omissions, and/or breaches of obligations of third parties over whom Defendant had no responsibility and/or for whom Defendants are not liable. On the contrary, Defendants and Defendants alone acted in this negligent manner and are liable to the Plaintiffs. Strict proof of this defense is demanded at the time of trial. 36. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs have failed to rnitigate their damages. Strict proof of this defense is demanded at the time of trial. 37. The allegation contained in this paragraph is a conclusion offact and oflaw to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that the acts and/or omissions of the Defendants were not the proximate cause of Plaintiffs damages. Strict proof of this defense is demanded at the time of trial. 38. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs have failed to join any necessary parties. Strict proof of this defense is demanded at the time of trial. 39. See, response to '1125 above. 40. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that Plaintiffs' damages are not recoverable under applicable law. Strict proof of this defense is dernanded at the time of trial. 273348.1\JD\MAR 41. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that the perils or dangers of which Plaintiff complained were open and obvious and known to Plaintiff. Strict proof of this defense is demanded at the time of trial. 42. The allegation contained in this paragraph is a conclusion of fact and of law to which no response is required. To the extent that a response is deemed required, it is hereby specifically denied that any claim against the Answering Defendants are barred by the Worker's Compensation Law. Strict proof of this defense is demanded at the time of trial. WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter judgment in their favor and against the Defendants. Respectfully submitted, ANG 0 & ROVNER, P.C. J~ll/ Date: ~(l L ( elf James DeCinti, Esquire 1.D. No. 77421 4503 N. Front Street Harrisburg, P A 17110 (717) 238-6791 Attorney for Plaintiff 273348.1 \JD\MAR ~t;,.;::, COMMONWEALTH OF PENNSYL VANIA SS. COUNTY OF DAUPHIN I, JAMES DECINTI, ESQUIRE, being du1y sworn according to law, deposes and states that I am counsel for Plaintiffs, that I am authorized to rnake this Affidavit on behalf of said Plaintiffs, and that the facts set forth are true and correct to the best of my knowledge, information and belief. ~.~mne J:tllles DeCinti, Esquire Sworn to and subscribed before me this I frh day of March, 2004. /l1i~~Jl D -~Ln()1\ jlj Notary Public My Commission Expires: MEGAN A NOIARJA1 SEAL SElINSGRO~E1:O~' ~g~~n PUBliC MY COMMISSION EXPiRES MAY ~ogffo~ 273348.IVD\MAR CERTIFICATE OF SERVICE I, Arkie Y Simmers, an employee of Angino & Rovner, P.C., hereby certify that a true and correct copy of the foregoing was served via United States first-class mail, postage prepaid, upon the following: John R. Canavan, Esquire Post & Schell PC 240 Grandview Avenue Camp Hill, PA 17011 O.Ib,.. 11. ~L......p"h.I Arkie V. Simmers Dated: 3/ H/ 04 273348.1\JD\MAR Multi-Page 1M LINDA 11 MCCLEARY 'mVEMBER 30, 2004 Page 6 I Q Now, the -- according to the documentation, it 2 happened -- the accident happened in front of the Corve1 3 Corporation entrance, is that correct? 4 A Yes, sir. 5 Q Okay. Now, I have some photographs that were 6 taken a couple years after the accident But as far as I 7 understand the entrance is in the same condition. 8 Can you show me -- strike that I understand ! 9 that you had, and we can go over the details, tripped over a , 10 cement joint? 11 A Uh-huh. 12 Q Is that correct? 13 A Yes. 14 Q Okay. Can you show me in any of these 15 photographs which joint that would have been, whichever 16 photograph would best show it There are other ones here if 17 they don't show it well. 18 MR. SADLOCK, Go through them alt 19 THE WITNESS, The one right in front of our door 20 on the right of the post, this joint here. (Indicating.) 21 BY MR. GREGO, 22 Q So looking at the door, the one going across? 23 A Yes. 24 Q Okay. 25 A The one going across. This is of the other side Page 7 I of the office building. 2 Q All right Thank you. 3 Okay. 4 MR. SADLOCK, When you say the door, [ believe in 5 the picture it -- that's number 109 on the door? 6 THE WITNESS, 108. 7 MR. SADLOCK, 108, I am sorry. 8 BY MR. GREGO, 9 Q 108 Corvel Corporation facing the door, the one 10 right in front of you? 11 A Yes. 12 Q Okay. Okay. 13 Now, prior to the accident, what would be your 14 work schedule? 15 A Eight to 4:30. J 6 Q And does Corvel or did Corvel at that time occupy 17 just the first floor of that building? 18 A Right, just one small. Now it has expanded to 19 both of those doors there. 20 Q But at the time, it was just that particular 21 door? 22 A Right 23 Q All right And where was your work space within 24 the confines of that office? 25 A You walked into the reception -- well, I have had 'age 6 - Page 9 Page 8 1 a couple. It was still you walked into the reception area, 2 then you made a right-hand turn. I don't remember if I had 3 moved from far left comer -- no, it was -- you walk in, make 4 a right, go past all of the xerox machines and long table, 5 then my space was right to the right in front of you. It's 6 still there. 7 Q I am sorry. 8 Were you the secretary to a particular individual 9 or individuals? 10 A Right 11 Q Who would that have been? 12 A Ron Birchfield was the vocational consultant, and 13 I had a couple nurses. I -- Karen Updegraff, Tana, and 14 whoever else needed help. 15 Q Okay. What was the business of Corvel 16 Corporation at the time? 17 A It's a managed care company. 18 Q All right Now, the entrance -- and would this 19 be the front of the building? 20 A Yes. 21 Q Okay. The entrance in the front of tbe building, 22 would that be the entrance that you went in on a daily basis 23 and came out on a daily basis? 24 A Yes. 25 Q Would you park generally in the parking lot on Page 9 1 that side of the building? 2 A Yes. 3 Q And except for vacations and holidays, things 4 like that, this would have been an area that you walked over 5 at least twice a day for a couple of years before the 6 accident? 7 A Right 8 Q For the couple of years before the accident that 9 you worked there, had the condition of the sidewalk to your 10 knowledge changed at all? II A No, I wouldn't think so. 12 Q In those couple of years before the accident, did 13 you have any problems walking on the sidewalk? 14 A No. IS Q For those couple of years before the accident, 16 did you notice any problem with the sidewalk? 17 A [saw the gaps, used to walk around the building, 18 and there were a lot of them that looked like that I just 19 would bc careful. 20 Q Okay. In other words, the gaps, the joints 21 between the concrete? 22 A Right, some of them were missing. II was like a 23 rubber substance, some have more, some have less. 24 Q The joint that was involved in the accidenl, was 25 that one that had -- I don't know if you said, rubber HUGHES ALBRIGHT FOLTZ NATALE 717-540-02201717-393-5101 Multi-Page 1>< Page 10 1 substance or something like that in it? 2 A As I recall, I don't believe. If there is any, 3 it's very little. Doesn't cover the gap. 4 Q Did you notice that condition prior to your 5 accident? 6 A Probably during the winter because we had .- it 7 was slippery a lot, and I think I might have noticed it then 8 or during my walks around the building. 9 Q All right So I want to make sure that I to understand what you are saying. II Let me just in my own mind ask the question again 12 so I understand it better. 13 Prior to your accident, did you take particular 14 notice of the condition of that joint? 15 A I would say it was noticeable. 16 Q In wbat way? What did you notice about it I 17 guess would be better to say? 18 A There was that rubber stuff It's sort of black J9 or brown. It wasn't like many other spaces. 20 Q Prior to the accident, having noticed that, did 21 you consciously try to avoid walking over that coming in 22 contact with (hat joint with your feet? 23 A I have a very large gait, more so than usual. It 24 seemed like nonnaL I would just walk in, didn't pay that 25 much attention because I was either, you know, coming in Page II 1 thinking about what I was going to do at work, or when I was 2 leaving, getting in the car traveling home and doing what I 3 had to do. So my mind wasn't always on -- except in the 4 wintertime, it was very icy, we would have trouble. 5 Q Okay. 6 A Bul on a bright regular day, I would just, like I 7 said, my mind would be on what I was going to do once I 8 walked in that door. So I was -- because I was very work 9 conscious. to Q So you were walking in, walking out other than II when it was wintery out? 12 A Yes. 13 Q You didn't have a problem? 14 A No. IS Q Al any other time? 16 A No. 17 Q Let's talk about the day of the accident Doyou 18 remember what the weather conditions were that day? 19 A It was the week before labor day, so it was a 20 beautiful day, blue sky 21 Q Okay. All right 22 And did the h when did the accident happen? 23 A As I was coming back from lunch. 24 Q Where did you go to lunch that day? 25 A I didn't I had carried my own lunch and ran an LINDA I. MCCLEARY NOVEMBER 30, 2004 Page 12 I errand to the Dollar General Store. I bought something and 2 drove back. 3 Q Okay. So did you eat lunch like outside or 4 something? 5 A On my desk 6 Q Okay. All right So you walked -- did you walk 7 out the front door to get into your car to run the errand? 8 A Uh-huh. 9 Q Is that correct? 10 A Yes. 11 Q And then you are on your way back into the office 12 when the accident happened? 13 A Yes. 14 Q Okay. When you left the building to run an IS errand, did you walk over the joint that was ultimately 16 involved in the accident? 17 A I must have, yes. 18 Q Did you have any problem at that point? 19 A No. 20 Q So you come back Where did you park when you 21 got back to the building? 22 A I usually parked facing the next building 23 opposite the door, because we saved the parking right in 24 front of the building for visitors, nurses, counselors. I 25 was facing on Parkwood North I guess. Page 13 I Q But it wasn't very far from the door? 2 A No. 3 Q Okay. 4 A No. 5 Q So tell me in the direction that you walked and 6 what happened in the accident 7 A I guess I got out of the car, grabbed my purse, 8 and went to walk to the door. 9 I remember having my arm already out to grab it, 10 and down I went, just like that, a few inches .- when I II looked up, I was within a few inches of that glass door. 12 Q Do you know what caused you to fall? 13 A I must have tripped on the sidewalk. 14 Q Are you sure about that? 15 A There was nothing else there. And I am healthy, 16 I don't, you know, fall. I don't do -- you know, I didn't -- 17 wasn't drinking. I went to the Dollar Store. I don't drink 18 as a matter of fact, so.... 19 Q I understand. 20 A Just... 21 Q Go ahead. I am sorry. 22 A Just next thing I knew, I was laying flat on my 23 stomach. I had this arm to stop. (Indicating) I had my 24 purse and keys I guess were still in my hand. And-- 25 Q Your left arm? HUGHES ALBRIGHT FOLTZ NATALE 717-540-02201717-393-5101 Page 10 - Page 13 5!..((1I0;"I'~:"Q . f" ;f ( ANGINa & ROVNER, P.c. 4503 North Front Street Harrisburg, PAl 7110-1708 (717) 238-6791 FAX (717) 238-5610 E-mail jdecinti@angino-rovner.com Attorneys for Plaintiffs: Linda & Joseph McCleary LINDA 1. McCLEARY and JOSEPH E. McCLEARY, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, P A CIVIL ACTION - LAW v. NO. 02-3523 Civil Term LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION, JURY TRIAL DEMANDED Defendants PLAINTIFFS' ANSWERS TO INTERROGATORIES OF DEFENDANTS' LANCASTER DEVELOPMENT COMPANY AND HIGH GENERAL CORPORTATION AND NOW comes Plaintiffs, Linda and Joseph McCleary, by and through their attorney, James DeCinti, Esquire, and Angino & Rovner, P.C., and responds to the Interrogatories of Defendants Lancaster Developmental Company and High General Corporation, as follows: 1. Please state:. a. Your full name; b. Any other names you have used or been known by; c. Your date and place of birth; d. Your marital status at the time of the incident or occurrence; e. Your present marital status; f Names, ages, and addresses of your children and other dependents; g. Your present home address and previous addresses for the past ten (10) years; and, h. Your Social Security number. ANSWER: a) Linda I. McCleary 271608.1\A YS\A VS b) Linda I. Locke c) 02/24/47; East Chicago, Indiana d) Married e) Married 1) N/A g) 136 Springfield Road, Newville, PA 17241 h) 310-52-3362 271608.11A VSIA vs 2. Have you ever slipped or fallen in this or any other place prior to this occasion in which you sustained injury? If so, please state the a. Where the fall or falls occurred: b. The date that the fall or falls occurred: c. The alleged cause of the fall or falls; d. Whether or not you made a claim; e. Whether or not you filed a lawsuit; and f. The Court and court term and number of that lawsuit. ANSWER: 1 have never sustained any injury in a fall. 271608.tIAYSIA YS 3. Have you ever suffered from or received treatment for any of the following: a. Double vision; b. Blurred vision; c. Instability of balance; d. Infection or disease of the inner ear; e. Vertigo; f. Dizzy spells; g. Fainting spells; h. Epilepsy; I. Apoplexy; J. Paralysis; k. High blood pressure; 1. Diabetes; m. Muscle disorder, or n. Brain or nervous disorder. ANSWER: No. 4. If any answers to the previous Interrogatories are in the affirmative, for each please state: a. A description of the disorder; b. The date of your last attack prior to the incident; c. The name and address of each medical practitioner who cxamined you or treated you for the disorder; d. The description of the treatment you received and medications prescribed by doctors; and e. Whether you were under treatment at the time ofthe alleged incident ANSWER: N/ A. 5. Did you consume any drugs or medication within 24 hours of the incident. If so, for each substance state: a. The name of the medication or drug; b. The dosage of each and the number of dosage; c. The time that you took each dose; d. A description of the condition which requires such medication or drug; e. The description of any effect that you experienced from taking the drugs and medication; and f. The name and address of the person who prescribed it. ANSWER: a) Lipitor b) 20mg * 1 c) 9 p.m. - 08/27/00 d) Hereditary high cholesterol e) None 1) Joseph Pion, D.O. Graham Medical Clinic 100 South High Street Newville, PA 17241 6. Did you consume any alcoholic beverages on the date ofthe incident prior to the incident? If so, state: a. The type of beverage consumed; b. The number of each and the size of each; c. The place where drink was consumed; and d. The length of time between your last drink and the incident. ANSWER: No. 7. Describe in detail the shoes that you were wearing at the time of the alleged incident, stating: what material were the heels of the outer shoes made of; the height of the heels of such shoes; whether you are still in the possession of said shoes, and the approximate age of the shoes. ANSWER: Butterflies, canvas casual, rubber ribbed flat sole. Can be purchased at K-Mart, etc. Yes, I still have them. At the time ofthe accident, the shoes were about 2 years old. Only wore in the summertime to match outfits. 8. If you were carrying anything at the time ofthe incident, please state: a. Its description; b. Its size, including the shape, length, width and weight c. Whether your vision was in any way obstructed by any such item and, if the extension of the obstruction was in your vision; d. Which hand or hands were being used to carry the items. ANSWER: a) Pursue; b) 5" * 8" strap over the shoulder and weighed a couple of pounds; c) No; and d) The pursue has a shoulder strap which I always wear on the right shoulder. Hands were empty. , 9. Have you ever worn or needed glasses? If so, please state whether you were wearing glasses at the time of the accident and if not, the reason that you were not wearing them. ANSWER: Yes, I have been wearing glasses since I was 9 yrs. old. , 10. Describe the way you fell, including the parts of your body that made contact with any other parts of or objects on or near the Defendant's alleged property. ANSWER: I was walking up the sidewalk from the parking lot. As I was getting ready to reach the door I tripped landing with my left hand and arm straight out. I was trying to break my fall. I was holding my shoulder bag against me with my right hand and I landed flat on my body front. \ 11. How often have you traveled on the location of the alleged occurrence? ANSWER: Traveled on the area everyday for about two years. , 12. If you alleged that the occurrence resulted in whole or in part from a defective condition involving the premises referred to in the Complaint, please state the following: a. Describe the alleged defective condition in complete detail; b. State how long, to your knowledge, the alleged defective condition had existed prior to the alleged occurrence; and c. State whether or not you have ever observed or otherwise become aware of the alleged defective condition prior to your alleged occurrence. ANSWER: a) I tripped on crack between the cement blocks of the sidewalk; b) Never noticed it before fall; and c) Did not notice defect. \ 13. Please list the names and addresses of all physicians and other health care providers, including your family doctor, who examined and/or treated Plaintifffor five (5) years preceding the date of the subject incident. ANSWER: Joseph Pion, D.O. Graham Medical Clinic 100 South High Street Newville, PA 17241 \ 14. Please state whether or not prior to the date of the incident described in your Complaint if any Plaintiff had any disabilities or physical impairments. If so, please state: a. The nature and extent ofthe disability and impairment; b. The length of time you had this disability and/or impairment; c. The effect the disability or impairment had on your daily activities; and d. The effect which the physical disability or impairment had on your ability to walk. ANSWER: None. , 15. Please list the names and addresses of all hospitals, physicians and other health care providers, including your family doctor, who examined and/or treated Plaintiff for injuries sustained from alleged incident and subsequent to the date of the alleged incident. ANSWER: See attached photocopies of Plaintiff, Linda McCleary's, medical records attached to the Defense Request for Production of Documents. By way of further response, Plaintiff, Linda McCleary, treated with the following physicians: 1) Joseph Pion, D.O. Graham Medical Clinic 100 South High Street Newville, PA 17241 2) Dr. Connelly Procare Cameron Street, Harrisburg, PA 3) Apple A Day 1 Healthsouth Carlisle Pike, Carlisle, P A 4) Dr. Robert Maurer Ortho. Surgeons of Central PA November Drive, Camp Hill, PA 5) Dr. Hauck Mechanicsburg, PA 6) Dr. Naidu Hand & Upper Extremity Inst. Fredricksen Outpatient Center Mechanicsburg, PA 7) Dr. Cash ( I.M.E. ) Harrisburg, PA 8) Carlisle Regional Medical Center Carlisle, P A 9) Pinnacle P.T. 1 Work Hardening Fredricksen Outpatient Center Mechanicsburg, PA 10) Susquehanna Valley Surgery Center Harrisburg, P A \ 16. If future hospitalization and/or medical care and treatment is recommended or contemplated for Plaintiff, please state the name of the physician recommending the future care, treatment or hospitalization and the nature of the recommended or contemplated future care. ANSWER: See attached photocopies of medical records attached to the Defendants Request for Production of Docnments. \ 17. In Plaintiff's Complaint, Plaintiff alleges to have received and suffered physical injuries as a result of the alleged occurrence. As to each such injury, please: a. Describe any such physical injury; b. State the parts of your body so afflicted; c. Indicate the severity of such injury; d. Indicate how long each lasted; and e. Describe how such injuries occurred. ANSWER: See response to Interrogatory #16. \ 18. When, where and by whom were you last examined or given medical attention for the injuries which serve as the basis ofthis Complaint. ANSWER: Last examined on 02/10/04 by Dr. Naidu at the Hand & Upper Extremity Inst. , 19. Please state in detail all activities (leisure and work-related) and hobbies which you could perform prior to this incident, but are unable to perform as a direct result of this accident? ANSWER: Typing, filing, carrying files to close in boxes, answering phone with left hand and using right hand to take message or use computer, carrying copier paper, opening mail, sort/count bills, opening/closing file drawers, driving with left hand, putting on pantyhose, putting on tennis shoes/boots to tie bow, bathing or swimming, playing accordion, making Christmas Polish cookies, cooking everyday, getting dressed and grooming, working in gardens, making animal balloons, crochetinglmaking crafts, cleaning house, shoveling snow, mowing lawn, pushing grocery cart, opening & closing doors to house or car, rearranging furniture, wearing gloves, reading newspaper/magazines, ironing on ironing board, zipperslbuttons, clapping and holding hands, playing pinball, fishing, getting onloff motorcycle, getting up off floor/chair, riding a bike, and picking-up a baby. \ 20. Please describe in complete detail your employment and occupation at the time of the alleged incident, stating: a. The name arid address of your employer orland your immediate supervisor; b. Your job description and title; c. Your duties and responsibilities; d. The date of hire; e. Work hours, including time for breaks and/or lunches; f. Length oftime Plaintiff worked at 5010 Ritter Road location as described in Plaintiffs Complaint; g. Date of termination, if applicable; h. All training you have had for your occupation; and I. The exact weekly, monthly or annual wage or rate of pay being received from your employer. ANSWER: a) CorVel Corp. 5010 Ritter Road, Ste. 108, Mechanicsburg, PA 17055 Supervisor: Mrs. Brenda Fulton; b) Secretary PC, typing, dictation, answering phone, filing, coping, prepare test packets, prepare closed files for storage, research, mail, sort/count EOBs; c) Same as above in timely fashion; d) May 1998; e) 8:00 a.m. - 4:30 p.m.; 1) 27 months; g) N/A; h) 35 years experience as secretary; and i) $11.25 per hr. \ 21. If the Plaintiff is alleging a wage loss claim as a result of the alleged occurrence, please state the dates inclusive when the Plaintiff was unable to work due to the injuries resulting from the alleged occurrence; and the total amount of earnings the Plaintiff lost as a result of the alleged occurrence. ANSWER: I had the accident on Monday, 8/28/00, about 1:30 p.m., coming back from lunch. Could not move left arm and hand. I missed the rest of the week and used vacation and sick time not knowing the severity ofthe fall. P.T. and x-rays was used to mend shonlder for 3 mos. Boss let me go to P.T. as often as needed. I usually worked through lunch hour to make up time. 1 st Surgery 1/2001 - off work 6 wks. - w.e. paid 2nd Surgery 1/2002 - off 3 months I lost 3 months of seniority - w.e. paid 3rd Surgery 1/2003 - off initially 4th Surgery 7/24/03 - off rest of 2003 and still not baek to work - w.c. paying Only monies lost I am interested in is my 401K employer match. While off, I did not contribute into the 401K and employer did not match. My share was about $20.00 per pay twice a month. \ 22. Ifthe Plaintiff is claiming damages in the form oflost earning capacity as a result of the alleged occurrence, please set forth the factual basis of this claim. ANSWER: Plaintiff still remains off of work and is not sure when she will return to work as the employer has not asked her to come back yet. By way of further response, the Plaintiff continues to have problems with her left hand, therefore, she will most likely have a lost earning capacity because her left hand will never be the same and will cause her continued work loss, seniority loss, 401(k) contribntion losses, and she may never get back to full duty work. , 23. With respect to each of the three (3) years preceding the accident through the year 2002, state your yearly gross income as reported on your U. S. Income Tax Retum and your yearly net income as reported on your U. S. Income Tax Return. ANSWER: See attached copies of U.S. Income Tax Returns attached to the Defendants Request for Production of Documents. By way of further response, Plaintiff, Linda McCleary, reported the following income amounts for the following years: 1998 - $20,153.00 1999 - $21,246.00 2000 - $24,822.00 2001 - $28,265.00 2002 - $20,518.00 2003 - $ 1,770.00 , 24. Other than the incident described in your Complaint, has any Plaintiff ever made a claim for any benefits, damages, or recovery of any monies or funds against any person, firm, or corporation, or against any insurance company as a result of personal injuries or as a result of any physical conditions? If so, state: a. The injury or condition for which such claim was made; b. The name and address of the person, firm or corporation to whom or against whom it was made; C. The date it was made; and d. The nature and amount of any payment received. ANSWER: None. , 25. Has any Plaintiff ever suffered any injuries in any accident or incident during the ten (10) year period prior to the incident referred to in the Complaint. If so, state for each injury or accident: a. The date and place of such injury; b. A detailed description of all the injuries you received; c. The names and addresses of any hospitals rendering treatment; d. The names and addresses of all physicians, surgeons, osteopaths, chiropractors, or other medical practitioner rendering treatment; e. The nature and extent of recovery and, if any permanent disability was suffered, the nature and extent of the permanent disability; and f If you were compensated in any manner for any such injury, state the names and addresses of each and every person or organization paying such compensation and the amount thereof. ANSWER: No. , 26. State the name and address of each person who claims or who the answering party or anyone on the answering party's behalf knows or believes to have: a. Been an eyewitness to the incident alleged in Plaintiffs Complaint; b. Been within sight or hearing of the incident alleged in the Plaintiffs' Complaint; c. Firsthand knowledge of the facts and circumstances of the incident alleged in the Plaintiff s Complaint or of the events leading up to it or following it; d. Investigated the incident alleged in Plaintiff s Complaint; and e. Knowledge of any relevant facts concerning the incident alleged in Plaintiffs Complaint. ANSWER: a) N/A; b) N/A; c) Brenda Fulton, Supervisor CorVel Corp.; d) Nobody to PlaintifPs knowledge; and e) Doug Tnrney, Business Manager CorVel Corp. , 27. If you, or someone not an expert subject to Pa.R.C.P. No. 4003.5, conducted any investigations of the incident, identify: a. Each person, and the employer of each person, who conducted any investigation(s); and b. All notes, reports, or other documents prepared during or as a result of the investigation(s) and the persons who have custody thereof. ANSWER: No other than attorney work product. " 28. If you know of anyone that has given any statement, in any form, regarding, in anyway relating to, or concerning the incident alleged in Plaintiff s Complaint please state: a. The name and address of each person having any information concerning or knowledge of each such statement; b. The name and address of each person to whom such statement was made; c. The date each such statement was made; d. The form of each statement, i.e., written, oral, by recording device, or to a stenographer; e. The name and address of each person presently having custody of such statement or any notes or writings pertaining thereto; and f. The substance of each such statement or basis of the claimed privilege, if any, against disclosure of the substance of each statement. ANSWER: Plaintiffs are not in possession of any statements at this time. The response to this Interrogatory will be seasonably supplemented when and if any statements are received. , 29. State the name and address of each person who claims or whom the answering party or anyone acting on the answering party's behalf knows or believes saw or heard the Defendant or any of its agents, servants, or employees make any statement(s), in any form, regarding, in anyway relating to or concerning the incident alleged in the Plaintiffs Complaint. Supply the following information with respect to each such statement: a. The name and address of each person having any information concerning or knowledge of such statement(s) having been made; b. The name and address of each person making such statement(s); c. The name and address of each person in whose presence any such statement( s) were made; d. The date and place such statement(s) were made; e. The form of each such statement, whether written, oral by recording device, or to a stenographer; f. Whether such statement(s), if written, were signed, and the number ofpages thereof; g. The name and address of each person presently having custody of such statement(s) or any notes or writing pertaining thereto; and h. Has the answering party or anyone on the answering party's behalf obtained statements, in any form, from any person(s) who claims to be able to testify to such statement( s) having been made? If so, state: (i) The name and address of each person from whom any such statements were taken; (ii) The date upon which such statement( s) were taken; (iii) The name and address of the person(s) who took such statements; (iv) The name and address of the person(s) having custody of such statement( s); and (v) Whether such statement( s) were written, oral, by recording device, or by court reporter, or stenographer. ANSWER: See response to Interrogatory #28. .. 30. Does the answering party or anyone on the answering party's behalfhave or know of any photographs, motion pictures, maps, drawings, diagrams, measurements, surveys, or other descriptions regarding, in anyway relating to or concerning the incident alleged in Plaintiffs Complaint, including, without limitation, any photographs made of the Plaintiff or the premises upon which she allegedly fell? If so, as each such item, state: a. The nature of same; b. Its specific subject matter; c. The date same was made or taken; d. The name and address of the person making or taking same; e. What same purports to show, illustrate, or represent; and, f. The name and address of each person having custody. ANSWER: See attached color copies of photographs depicting the shoes that Plaintiff was wearing on the date of the accident and photographs depicting the sidewalk in qnestion. '. 31. Identify each person you intend to call as a non-expert witness at the trial of this case, and for each person identified, state your relationship with the witness and the substance of the facts to which the witness is expected to testify. ANSWER: Plaintiffs have not yet determined who will be called as witnesses at trial. When discovery is completed and such a designation has been made, Plaintiff will seasonably supplement the answer to this interrogatory. '. 32. Has the answering party or anyone acting on its behalf retained any expert witness who is expected to testify at the trial of this case? If so, state: a. The name and address, occupation or profession, and the area(s) of expertise and/or discipline(s) of such expert; b. The substance of the facts to which each such expert is expected to testify; c. The opinion(s) held by each such expert to which helshe will testify; and d. The grounds of each opinion( s) to which each expert will testify. ANSWER: Plaintiffs have not yet determined who will be called as expert witnesses at trial. Plaintiffs may call any of the several treating physicians of Linda McCleary. When discovery is completed and such a designation has been made, Plaintiffs will seasonably supplement the answer to this interrogatory. " 33. Identify all evidence that you intend to use at the trial of this matter and state whether they will be used during the liability or damages portions of the trial. ANSWER: Plaintiffs have not yet determined the evidence to be used at trial. When discovery is completed and such a designation has been made, Plaintiffs will seasonably supplement the answer to this interrogatory. " 34. Has the answering party ever been involved in any other legal action, either as a defendant or as a plaintiff which has not heretofore been listed in Answers to these Interrogatories? If so, state: a. The date and place each such action was filed, giving the name of the Court, the name of the other party or parties involved, the number of such action, and the names of the attomey( s) representing each party; b. The nature of each claim; and c. The result of each such action, ifthere was an appeal, the result of the appeal, and if such case was reported, the name, volume number, and page citation of such report. ANSWER: No. '. 35. If you filed a Worker's Compensation, please state: a. The name and address of whom you filed such a claim; b. The date of filing such a claim; and c. The claim number. ANSWER: I did not file the claim. My boss, Doug Turney, filed the claim. a) Travelers Insurance; b) 08/28/00 (?); and c) 145-CB-B0K2341-E , 36. If you are alleging that you are entitled to damages for any medical expenses arising out of the care and treatment that was rendered to you for the alleged incident: a. Kindly enter the names of the medical care providers who rendered these services in Column A of the accompanying Chart. b. Kindly enter the total amount of charges for each medical care provider in Column B of the accompanying Chart. c. Request for Production of Documents: Kindly attach copies of all medical billslinvoices for the treatment rendered due to the injuries alleged in the Complaint and reflecting the amounts claimed in Column B. ANSWER: Plaintiff's medical bills were paid by workers' compensation, therefore, they will have a right to a subrogation lien. See attached photocopies of medical bills attached to Defendants Request for Production of Documents. By way of further response, Plaintiff objects to having to fill out the medical bill chart. Defense Counsel has been supplied with billing information and are capable of compiling their own medical bill chart. 37. Did the Plaintiff possess medical insurance (e.g. accident and health insurance, Blue Cross and Blue Shield, Pennsylvania Department of Public Welfare or Medicaid...) which paid any portion of Plaintiffs alleged medical expenses? a. Ifso, kindly state the name of the insurer(s), the addressees), and the policy number(s) for the medical insurance which paid any portion of Plaintiffs alleged medical expenses. b. Kindly enter the total amount of the medical expenses for each provider that was paid by Plaintiffs insurance carrier in Column C ofthe accompanying Chart. e. Request for Production of Documents: Kindly attach copies of any receipts showing amounts paid by Plaintiffs medical insurer and reflecting the amounts paid in Column C. ANSWER: See response to Interrogatory #36. 38. Were any of Plaintiffs medical expenses "written off or forgiven or otherwise not owed by reason of a contract or agreement between the medical care provider and Plaintiffs medical insurer, as a compromise of a bill between the medical care provider and the Plaintiff or for any other reason? a. Kindly enter, in Column D of the accompanying Chart, the amount of the medical expenses that were "written off or forgiven or otherwise not owed by , reason of a contract between the health care provider and Plaintiffs medical insurer, as a compromise of a bill between the medical care provider and the Plaintiff or for any other reason. ANSWER: See response to Interrogatory #36. '. 39. Were or are any of Plaintiffs medical expenses persona1\y owed or owing by Plaintiff or her representatives and, therefore, not paid by Plaintiffs insurance carrier and/or written off, forgiven or otherwise not owed with respect to any medical care provided by Defendant(s) and/or any other medical care providers who provided care for which Plaintiff is claiming damages? a. Kindly enter, in Column B of the accompanying Chart, the amount of the medical expenses that were or are personally owed by Plaintiff or her representatives and, therefore, not paid by Plaintiffs insurance carrier and/or written off, forgiven or otherwise not owed with respect to any medical care provided by Defendant(s) and/or any other medical care providers who provided care for which Plaintiff is claiming damages. A B C D B Medical care Total medical Amount of medical Amounts "written Amounts paid or provider charges for each charges paid by off', forgiven or owed by Plaintiff or medical care Plaintiffs insurance otherwise not owed representatives provider personally (i.e. not paid by insurance and not written oft) ANSWER: See response to Interrogatory #36. D", ~~"<~(}\ ANGINO & ROVNER, P.c. ~Df 1.D. No. 77421 4503 North Front Street Harrisburg, PAl 711 0 (717) 238-6791 Attorney for Plaintiffs '. VERIFICATION We, Linda McCleary and Joseph McCleary, verify that the facts set forth in the foregoing ANSWERS TO INTERROGATORIES PROPOUNDED BY DEFENDANTS LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION are true and correct to the best of our knowledge, information or belief. I understand that this Verification is made subject to the provisions of 18 Pa. C.S. 94904, relating to unsworn falsification to authorities. ~~~~(ft .' L DA I. McCLEARY 7 DATED: c2 -/9- t> f ^. ~~ t 'We~~ os PH E. McCLEARY , CERTIFICATE OF SERVICE I, Arkie V. Simmers, Jr., an employee of Angino & Rovner, P.C. hereby certify that a true and correct copy of the foregoing PLAINTIFFS' ANSWERS TO INTERROGATORIES OF DEFENDANTS LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION was served via United States first-class mail, postage prepaid, upon the following: John R. Canavan, Esquire Post & Schell, P.C. 240 Grandview Avenue Camp Hill, PA 17011 Counsel for the Defendants Dated: ~/;;,<: /n't ~~..lI. ~AlIo",IV'~ Arkie V. Simmers, Jr. '. SX~l~\ t F ~ 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 1 come out of our suite, turn to my left and pass 121, 122, 2 123. 3 Now, and this picture does show a cement pole, is Q 4 that correct? A Q Yes, there is a column. That's out from the building, is that correct? A Yes. Q Again, photos don't -- these don't show great depth perception. What I am getting at, you can walk between that pole and the building? A Q Yes. When you made your loop, is that the path that you would take, close to the building on the sidewalk as it followed the building? A My only consistency is my inconsistency. Some days I would -- some days I walked in the parking lot, some days I walk on the sidewalk. Q Do you recall in the months leading up to the accident August of 2000 actually stepping up on the curb and walking in that path directly toward building -- Suite 108? A I can't say for certain, but I probably done it a couple times. Q And at any time, did you notice anything about the sidewalk and how it was configured or constructed? A No, looks like a regular sidewalk to me. .. 13 1 Q At any time prior to August 28, 2000, had you 2 received any complaints about sidewalk leading into suite 3 108? 4 5 6 7 8 9 10 A Q A Q A Q A No complaints at all. Now, you are -- again, your title is property -- Manager. Manager? Yes. How many employees, if any, are under you? I -- at one point in time, we had one maintenance 11 indi vidual. 12 Q And that yourself and that one maintenance 13 individual was responsible for this entire complex? 14 A And the regional manager, and we had a second. 15 Q Okay. Who is the regional manager at that time? 16 17 18 19 20 21 22 A Q A Q A Q A Robin Zellers. Robin Zellers? Yes, correct. Was Ms. Zellers He. Was Mr. Zellers also physically located in 119? Yes. 23 Q And the secretary also in 119? 24 A Yes. And the maintenance person was in the 25 utility room right next to 119. ~ 19 1 A No, I haven't. 2 Q Did you then after -- after you learned of the 3 lawsuit go to Suite 108 and conduct an inspection of the 4 site? 5 6 7 A Ed and I both walked on the sidewalk. Ed being Ed Hoover? Ed Hoover, yes. Q A 8 Q Did anyone make any notations or notes regarding 9 that inspection? 10 A No. It looks like a normal expansion joint. 11 Q When you say a normal expansion joint, what do 12 you mean? 13 A An expansion joint is a gap, an opening that is 14 put between concrete slabs. It can have a wooden divider I 15 guess you would call it, or some sort of soft material to 16 allow for expansion and contraction of the concrete. 17 Without it, the concrete rises and breaks up. 18 MR. SADLOCK: Mark that's her Exhibit 1. 19 (Photograph produced and marked Exhibit Number 20 1.) 21 BY MR. SADLOCK: 22 Q Some of the paperwork that's been filed on behalf 23 of the defendants in the case Lancaster Development and High 24 General Corporation have went signed by Thomas Esposito. He 25 indicates he's a vice-president and treasurer for High . .. 1 2 3 4 5 6 7 8 9 10 11 12 22 as your Exhibit No.1. Take a look at that real quick. I will represent to you that that is a close-up photograph of the sidewalk leading into 108. Okay? A Okay. Q It does show, does it not, that there is a mark or material in between the two portions of the cement sidewalk, is that correct? A Yes. Q A Q A Do you know what that material is? No, I don't. And Probably some type of caulk, but I can't say that 13 for certain. 14 15 16 17 18 19 20 21 22 23 24 25 Q And from your understanding being the property manager, is that material to be level with the two pieces of the sidewalk, or should it be sunken.as it is sunken there? A That r don't know. Every sidewalk I have seen is sunken, it settles with age. Q Prior to August of 2000, was there ever any inspection made for this settlement, to see if there was a problem with the settlement, to take corrective action for the set'tlement? MR. GREGO: Object to the form. You can answer. THE WITNESS: I don't know. I have no idea. BY MR. SADLOCK: , ~ 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 25 the parking lot. Q All right. Then where the gap is, is even higher than the other portion of the sidewalk that's closest to the street? MR. GREGO: Do you understand? THE WITNESS: No, I don't. BY MR. SADLOCK: Q Well, again, in looking at the two portions, the portions of the sidewalk separated by the gap, what I am asking is, is there a lip then on the other side of the gap as you are approaching the doorway to 108? MR. GREGO: Object to the form. THE WITNESS: You mean one side is higher than the other? BY MR. SADLOCK: Q Yes. A I don't think so. I honestly don't know without going over there and getting on my knees and looking. MR. SADLOCK: Three. (Photographs produced and marked Exhibit Number 3. ) BY MR. SADLOCK: Q I am showing you what we have marked as your Exhibit No.3. If you again, it's the same portions of the ----------- ~~hlb{f f -- ~ - DOUGLAS TIERNEY NOVEMBER 30, 2004 Multi-PageTM I or what she fell over or anything like that? 2 A No, no. 3 Q Just that she had fallen? 4 A No, not at all. 5 Q Did she at any time describe the mechanics of her 6 falling to you? 7 A No, no. S Q Did you -. were you made aware of the mechanics 9 of ber fall, what she's alleging that caused -- what caused 10 her to fa!l? 11 A The first time I realized it was when somebody 12 came out and took pictures of the area. 13 I -- that was the first time that I was aware of 14 anything other than the workers' comp claim because she was 15 in the course and scope of employment, and so that -- I was 16 well aWare of the workers' comp claim. 17 Q Now, we had some pictures marked during her 18 deposition earlier today. 19 A Okay. 20 Q Exhibits 1, 2 and 3. She marked wilh an X the 21 area that she claimed that she tripped over. Is that the 22 position that you referred to when somebody came out and 23 took pictures? 24 A Yep, yep. b Q Okay. Let's go back for a moment. Do you know I Page 7 1 Tana Dyer? 2 A Oh, yes, she's my landlord or lhe representative 3 from my landlord. 4 Q Now, if there is problems with your leased 5 premises, do you call Ms. Dyer, make her aware of those 6 problems? 7 A Yes, I do. 8 Q Okay. For the year or so before this accident of 9 August of 2000, did you voice any complaints to the landlord 10 or notice any problems in or about the area where she fell? 11 A I didn't notice anything, so nobody complained to l2 me, so I didn't call anybody about anything. 13 Q Okay. Has -- for the four plus years since that '4 accident, has there been any complaints made to the landlord 5 by you or anybody in your office 10 your knowledge? 6 A About? 7 Q About that area? 8 A No. Only, you know, like in the wintertime, snow 9 removal issues have come up. Nobody has had any accidents o or fallen or mentioned anything, but being from a safety and 1 claims background, I like to see things -- in fact, I bought 2 salt to, you know, mostly get this area in the parking lot J below there, So I have talked to her about snow removal. I I have done things in the wintertime to make things safer. 5 Q Okay. 1ge 6 - Page 9 Page 6 Page 8 1 A But that's because of the ice and snow out here 2 in the parking lot. 3 Q Outside of any ice or snow or snow removal 4 concerns in good weather conditions, have there been any 5 problems with the sidewalks that you have been made aware of 6 that you have told the landlord about? 7 A No. 8 Q Okay. Do you know of anyone other than Ms. 9 McCleary having any problems walking along the sidewalk in 10 good weather? II A No. 12 Q If there was a problem, would you call Tana Dyer 13 and tell her about it? 14 A Absolutely. 15 Q Now, have you been kept abreast of Linda 16 McCleary's attempts to return to work at Carvel? 17 A Yes. 18 Q What were the circumstances surrounding her last 19 attempt to get back to work to the best of your 20 recollection? 21 A She's been released to return to work. And there 22 is one restriction that I can remember, and that is she's 23 not allowed. to continuously type, as I recall. 24 Q Has she in fact returned to work at Corvel? 25 A No. Page 9 1 Q Why not? 2 A We had -- as I mentioned before, we had four 3 people working when Linda was there. And due lD changes in 4 the way we do business and somewhat what I think is a down 5 turn in the market, we have less work than we did when she 6 worked there; in fact, since she's left, our receptionist 7 has resigned and we didn't replace her. S Q So her -- it sounds like there is not a job 9 available for her at your facility at the present time? 10 A At the present time. 11 Q Are there any other routes into the building 12 other than the main entrance? 13 A No, that front. 14 Q To your office, I am sorry? 15 A No, that's our front door. We have -- you can 16 see the other door here which is Suite 107 which we also 17 lease, then the same size suite again is down on the right 18 side which is 109, but we always use that door. 19 There are ways of walking up this similar type 20 sidewalk from the parking lot to I guess it's 106 and then 21 to 109 where we also lease, but we always use that front 22 door. The other doors are locked, I don't want to say 23 permanently, but -- 24 Q You are looking at Exhibit 3? 25 A Right. HUGHES ALBRIGHT FOLTZ NATALE 717-540-02201717-393-5101 -- Cxh\Bl+ J-J- ~ - ~ - *. - , - .-' ~::'.;:.\ c;-:> c.n ,- c ~ "" c:> o ." ~-n rnF -,om - ,] .~-) ~tJ <~~J~ Zj{"n ., -:!:;~ {;':.) c,,) '1J U~l .-<: v PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritteu and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. ______w_____~________________..________________________---..-------------------..-..-------------------------------.----- CAPTION OF CASE (entire caption must be stated infull) Vincent H. Gettel and Shirley Ann Gettel (Plaintiff) vs. Ronald B. Clippinger (Defendant) No. 2003 3'):;>3 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): plaintiffs' preliminary objections to deF~nrlant'~ counterclaim 2. Identify counsel who will argue cases: (a) for plaintiff: Joseph A. Macalu~o. P.". Box R1. "rr~tnwn, p~ 17244 (Name and Address) (b) for defendant: Marcus A. McKniqht, III, 60 West Pomfret Street, (Name and Address) Carlisle. PA 17013 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Au ust 24 2005 ~/14/ Macaluso. ID* 38262 Date ,Tune 30. :;>00') P.O. Box 83. Orrstown. PA 17244 Attorney!or Plaintiffs ~,:.1 ~t ......;..J.. _~. "\.1 -;' _. -~ '. ., ':-1 J" '",'-''';'' 1:' , -lo -J,~ __. .. '. ':1.'('(' (") ..,€ -00:: Ii'"HL ! -.,z: '):,' . -ZC CJ? ,~~~ ~C. ZCJ $;:: ~ " "" "'" "'" cJ' ~ (..,) o '"" :::s: (..,) .- N a;J ~ ~-n ~f::, g~ 7~ ~ ~ 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. POST & SCHELL, P.C. BY: GREGORY S. HIRTZEL 1.D. #56027 POST & SCHELL, P.C. 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, P A 17605-0248 (717) 291-4532 ATTORNEYS FOR DEFENDANTS HIGH GENERAL CORPORATION and LANCASTER DEVELOPMENT COMPANY Plaintiffs, COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED NO: 02-3523 CIVIL TERM LINDA 1. McCLEARY and JOSEPH D. McCLEARY v. LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION Defendants. L State matter to be argued (i.e. plaintiff's motion for new trial; defendant's demurrer to complaint, etc.): Defendants' Motion for Summary Judgment 2. Identify counsel who will argue case: (a) for plaintiff: Richard A. Sadlock, Esquire Address: ANGINO & Rovner, P.C. 4503 North Front Street Harrisburg, P A 17 J1 0 (b) for defendant: Gregory S. Hirtzel, Esquire Address: POST & SCHELL, P.C., 1857 William Penn Way P. O. Box 10248 Lancaster, P A 17605-0248 3. I will notify all parties in writing within two days that this case has been listed for argument 4. Argument Court Date: August 24, 2005 ~(M'J).- t p-<? gnature ~ C' H, f~t { Print y na e - Gregory . HIrtzel Attomeys for: Lancaster Development Company And High General Corporation Date: 7 J2DjO(' I . -2- ., '!'I'~' .-' (~~ ;:r, (~ (.-... \ r-..i 'rv ~. '"""',,!!,'F. :::':':->C.,:"...,"_ .'... ..,.., C') 41 ::?~. r<'cr. _-;l,I(.J 'C~). (~) :':.1 ~Jl"', ,--!(~S. --"--"i" :::::2\ :(':0, '.....:... cf} -- -' '. POST & SCHELL, P.e. BY: GREGORY S, HIRTZEL LD, #56027 POST & SCHELL, p,e. 1857 WILLIAM PENN WAY P.O, BOX 10248 LANCASTER, PA 17605-0248 (717) 291-4532 ATTORNEYS FOR DEFENDANTS HIGH GENERAL CORPORATION and LANCASTER DEVELOPMENT COMPANY Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRL\L DEMANDED NO: 02-3523 CIVIL TERM LINDA L McCLEARY and JOSEPH D, McCLEARY v, LANCASTER DEVELOPMENT COMPANY and HIGH GENERAL CORPORATION Defendants, CERTIFICATE OF SERVICE I, Gregory S, Hirtzel, Esquire do hereby certify that I caused a true and correct copy of Defendants' Praecipe Listing Case for Argument to be served upon the following designated person(s) by placing the same in the United States Mail, First Class Delivery, on the date set forth below. Richard A. Sadlock, Esquire ANGINO & Rovner, P.e. 4503 North Front Street Harrisburg, P A 17110 POST & SCHELL, P.C. BY: ~^ -:> DATE: 7 J:;LLR IDr::; / ' GREGORY S, HIlUZEL, ESQUIR Attorney 1.0, No, 56027 c:> J'"'.' C) c:? G:;1 -~i u\ ::~'~ \..". u , - -c' :::r;, - t;? 0 - -