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Home My WebLink About94-04071 ! \ '" u .:.f: ,4' -- -- .'~ " '. " , , ~ , , , , " , , " , ' " " " \, " I. ';~ i, '11.'. ,," f''h ''),1 ~ "i\ that they contain objections which are being pursued by counsel and have not been resolved, counsel are directed to furnish to the court, at least three days prior to commencement of the trial term, copies of the transcripts o~ the depositions, with the areas of objections being highlighted and with brief memoranda in support of their respected positions on the objections. Plaintiffs have filed a motion in limine seeking to preclude any evidence of a drug/alcohol history and/or treatment of Plaintiff's son at trial, and Defendant's counsel has indicated that he regards the evidence of such history and/or treatment subsequent to the accident in this case as pertaining to the mental condition of Plaintiff Kathleen Zarb. Inasmuch as Plaintiff, Kathleen Zarb, is requesting damages for psychological harm, the Court by separate order of even herewith date will deny Plaintiffs' motion, without prejUdice to Plaintiffs' right to request an offer of proof at trial and renew the objection to such testimony based upon the evidence as it has been received at that time. Plaintiffs have also filed a motion in limine to exclude any evidence as to Peer Review Act 6 or insurance at trial, and Defendant's counsel has indicated that he does not intend to present any such evidence. For this reason by separate Order of Court of even date herewith that motion in limine will be granted, with respect to sattlement nogotintions, Plaintiffs have demanded $100,000.00, and Oefendant has ottered $40,000.00. It does ~ppeur to the Court that there is a reasonable possibility that this coso will be settled. uy the Court, {J.S.y~,; l;;' MARLA WELKER, ESQUlIU: MYCHAK, GECKLE & W ELI< f:1l , I'.L'. 230 South Broad Stroot Eleventh Floor Philadelphia, PA l'.)lo~ For the Plaintitt~ TIMOTHY McMAHON I ESQU [IU: MARSHALL, DENNEHEY, WMUnJl, COLEMAN & GOGGIN 100 Pine street, 4th Floor Harrisburg, PA ~710u-oaoJ Court Administrator " :lkt ,I ,IJ~' ,I It Ii.,., !,i( ~. J: .'1. ,'!,';n( ",t',',,'! ",\, " , , ,",'i , " , '~I Iii,;: ',' '! {i~, i \i' .,'IIJ ",, I.; " ......'.., ",,,,,"p '> ~',,:~ '..' 'j;! ,~ , , , " "', ' : ':--.::,.' :;/,-:,;-JIJ,H,ii, '. '.l." . 1""i"_,.",,\..I'..I,,,...,~.l'Il..:'I"""- "'eo,, , , 'I":J!'W' I'" "I'" ."W'M~';"'I"'" 'r~""'I"'";'" _"",-y,-,,~_,~,,-.,_.-~_l" ",.,.,~., ,.,.Lt,.." ,. . ""',' . ',' !f'" l{"ll.,--..,..t. ,.1' ~ . '.,,- t--t"',..'!!;. -r.' ,.,. '.' 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","'~ "" "'n ,,J, _' " .' .' , ,", " , I , MARLA WELKER, ESQUIRE MYCHAK, GECKLE & WELKER, P.C. 230 South Broad Street Eleventh Floor Philadelphia, PA 19102 For the Plaintiffs (lU~~ "'-..., ~ . ~ (, {2.~ I 't~- L~l TIMOTHY McMAHON, ESQUIRE MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 100 Pine street, 4th Floor Harrisburg, PA 17108-0803 Court Administrator :lkt \' \!;~r;b:~"c" '":",;.',,, i;,"'. . "'.:" "I'Ii":::':', .;,~';;,:,;", ;,:. tl':', ,"\'i .H; '!.'\"'lmWl~'\'\"\i ,fJliijle!d,uJ.,,jI'1 !;trt:~~t) ';\UA',;',tIr:~i<<'lfMj'i'i1i.llj\\t'['\'i" llii._~"Jj~i'~~.\i#j:\~~l>:iW~",:i;i'i,;rAA1WitjVil'.\lJi.t;'1IA'fwtM.~91'l1_' ". ., ,,-,' , -- - - , . ~,W'\N,~~ff';,~f~I'\II\-.lt'-i'1~"II'r"Hl'tT'~rtil.'~1~ittlJt!ft~~~~~~l i, FILEo-omCE ,OF n'r: f.:.'nTl'Gtr1mW , ' , , 98 JUH 2 J F 1'1 3: I 0 , " " , ;1' CUMlii ,"l.,'.,'. 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KATHLEEN ZARB and MICHAEL ZARB, h/w, Plaintif ts IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VB. No. 94-4072 PIERCING PAGODA, INC. t/d/b/a, PIERCING PAGODA and CAPITAL CITY MALL MERCHANTS ASSOCIATION and CROWN AMERICAN CORP., Detendant Civil Action Law . . . . . . . . . . Deposition ot: KATHLEEN ZARB Taken By Defendant piercing Pagoda Date september 7, 1995. 12:03 p.m. Place 132 State street HarriSburg, Pennsylvania , ,\ Betore Kimberly J. True Reporter - Notary Public APPEARANCES: MYCHAK, GECKLE, & WELKER, P.C. By: MARLA WELKER, ESQ. For - Plaintiffs WILSON, ELSER, MOSKOWITZ, EDELMAN, & DICKER By: ROBERT M. CAVALIER, ESQ. For - Defendant Piercing Pagoda WAGMAN, ASHWORTH, KREIDER & WRIGHT By: JEFFREY D. WRIGHT, ESQ. For - Defendant Capital city Mall ALSO PRESENT: MICHAEL ZARB FILIUS /'. MeLlle,IS REI'ORTlNG SERI'Icr "'Im..""", 7''1.2J6.()b2J y",l7J7.8",I-()"U "A 1.1WO-1JJ.4.J27 .~ ,-., 3 1 2 STIPULAT10N 3 It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, filing, and certification are hereby waived; and that all objections, except aa to the form of the question, are reserved to the 4 !S 6 7 8 time of trial. KATHLEEN ZARB, called as a witness, being 9 duly sworn, testified as follows: 10 EXAMINATION 11 BY MR. CAVALIER: 12 13 Mrs. Zarb, my name is Bob Cavalier, and I Q. represent Piercing pagoda in this case. I just 14 want to give you a few initial instructions before 15 we begin so you understand the groundrules we're 16 17 playing by today. One thing is that if I ask you a question and 18 you don't understand it, please let me know, 19 please aGk me to rephrase it or further explain it 20 in some other manner. Because if you answer a 21 question that I ask you, I'm going to assume that 22 you understood what I asked you, and the answer 23 was responsive. 24 Also, since there's a court reporter here, if 25 you could wait until I finish asking you a fILIUS C. M..LUCAS RCI'ORrI.....C. SERVIn Ham.blll'( 717..1.16.061.1 )',lrk 711.84'j~rHJN 1',-\ '.SOO-lJJ-IHJ1 ~ --- Exam./cavalier - Zarb 4 1 question before you begin to give your response, because she can't take us both down at the same 2 3 time. And I'll extend you that same courtesy as 4 well. I won't interrupt you. 5 Also, all responses have to be verbal. They 6 can't be nods of the head or shrugs or ah-huh's or 7 8 uh-huh's because they won't come out properly on the record. Okay? 9 Okay. A. 10 Have you ever had your deposition taken before? Q. 11 A. Never. 12 MR. WRIGHT: Before we go further, I take it 13 Mr. Zarb did not witness the accident and 14 therefore will not be testifying? MS. WELKER: That's correct. 15 16 MR. WRIGHT: Then I have no objection to him 17 being here. 18 MR. CAVALIER: Okay. That's fine. 19 BY MR. CAVALIER: 20 I understand that you're on some medications Q. 21 presently. Maybe you could tell us what they are 22 and what effect, if any, they have on you? 23 Okay. Soma makes me Medications, I'm on Soma. A. 24 feel tired and very drowsy. And I'm on also Methadone. The effect, it helps to relieve the 25 fiLIUS (,,\f,u/eM Rfl'ORrlNG "ruVICC IIllrrl,/lurJ 7'7-2.16-1.161,) Yo,,717.!f.U.,..,,}l PA '-ROO-J,U.lInT 1 A. 2 Q. 3 4 A. !5 6 Q. 7 A. 8 Q. 9 A. 10 Q. 11 12 13 14 15 16 17 18 19 A. 20 Q. 21 22 23 24 25 .-., Exam./Cavalier - Zarb 7 Dr. Cho. Are there any other physicians who prescribe the.e medications you just went through? My blood pressure is Dr. Torchia. tolic acid pill I take. Any other doctors who prescribe those medication.? That and a Right now, no. And Torchia is, T-o-r-c-h-i-a? Yes, it is. It at any time during this deposition today that if you don't understand and/or if you don't recall something or you're not clear, please let me know. I don't want you to guess at any question I ask you. And if you do not recall it, tell me you don't recall it. If you want to give an estimate or an approximation or your best recollection, you can do that, but let us know you're doing that. All right. So if you're not clear, indicate that to me. And it you want to take a break at any time today, let me know that. If you want to talk to your attorney, that's fine. There's no rush. I'm not here to trick you, I'm just here to find out some intormation. fll.lUS (, ,\f<LUC,IS HI:POHTlXC; SI:HVlCl 1I"mfl",r,'( 717-2.16-(62) YMl 717.R-f').641S P,"" '.8Of)-1.J.I."',)17 1 2 3 4 5 6 A. 7 Q. 8 A. 9 Q. 10 A. 11 Q. 12 A. 13 Q. 14 A. 15 Q. 16 A. 17 Q. 18 A. 19 Q. 20 21 A. 22 Q. 23 A. 24 Q. 25 A. ,-., --., Exam./Cavalier - Zarb 8 I just want to get a little bit of background information. And I have received your answers to interrogatories, so I won't go through all the preliminary information you gave me already. Could you tell me your date of birth? 10/27/46. And social security number? 121-36-73 -- I don't recall the last two numbers. That's fine. Where were you born, ma'am? Queens, New York. And where do you currently reside? 5008 Seneca Drive, Mechanicsburg. How long have you lived there? six years. Where did you reside before that? In Fair Lawn. New Jersey. How long did you reside in Fair Lawn, New Jersey? From '76 to '89. And then you moved to Mechanicsburg after Fair Lawn? Yeah. Did you have any education after high school? I had taken some classes years ago. College classes? No. flLlIIS l. M,LlIe,s RfPORT/NG SfR VICE HI'rrlS"U',~ 71'.2.16-061.1 )'IJ'~ 71'1.S4.1.().IJa PA '.800.2.1'),"127 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Q. 2 A. 3 Q. 4 A. 5 Q. 6 A. 7 Q. 8 9 A. Q. A. Q. A. Q. A. Q. A. Q. A. ..-., Exam./Cavalier - Zarb 9 A protessional school? No. It was night school. I take it you graduated high school? Yeah. And where was that? Brooklyn. When was that, ma'am? Did you graduate on time. high school? , 64. And you said you attended some classes after high school. Was that in Brooklyn? No. That was in Queens. You never received any type of degrees or certifications after high school. Is that right? That's right. Those classes that you said you attended after high school, were those in the couple years after high school? Yes. since that time up until the present, has there been any additional night schooling or course. you've attended? No, just through work. What was your first job out of high school? It was for an insurance company. FILIUS r., McLue,IS REPORTING SERVICE Ua"hl'II'7f 7Ii.nfl.061.1 )"1"1c 717.841-""'11 PA 1-80f'J-21J.9.127 20 21 22 23 24 25 1 Q. 2 A. 3 Q. 4 5 A. 6 7 8 Q. 9 A. 10 Q. 11 A. 12 Q. 13 A. 14 Q. 15 A. 16 Q. 17 18 A. 19 Q. A. Q. A. Q. A. -, ,-, Exam./Cavalier - Zarb And that was in the New York area? 10 Manhattan. Do you know the approximate years that you worked there? From when I was a junior in high school until about a month atter I graduated. What was your next job that you recall atter that insurance company in Manhattan? I worked tor Eastman Rodak. And how long did you work tor Eastman Kodak? A few years. I don't remember when I left. Less than five years? Yeah, I believe so. Was that also in the New York area? Manhattan. And what was the next job you recall after Eastman Kodak? More Business Forms. More Business Forms? Right. That's the name ot a company? That's right. It's two words. How long did you work there? Before I got married until I had my first child. I can't -- f/Ul/S" M,Ll/e..lS HfI'OHfI.'1G SEHVICE- "I'm.bll~ 7,1.2.16.0fJ2J tu,A: 717-8.";-6-118 P" '-lIlJO.11).9.127 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Q. 2 A. 3 Q. 4 A. IS Q. A. 6 7 Q. 8 9 A. Q. A. Q. A. Q. A. Q. A. Q. A. r-. Exam./Cavalier - Zarb 11 Was it approximately five years you worked there? No. I believe it was less. What did you do for that company? I was secretary to the district manaqer. What did you do at Eastman Kodak? Typinq, sten, filinq. What was the next job you held after More Busines. Forms? Did you take some time off after you had your first child? Yeah. I worked for General Information Services. Do you have approximate dates when you worked there? I remember I started there when I was 40, and I left there when we moved here. Where is that company located? Fair Lawn. New Jersey. Did you work there until rouqhly 1989? YIJah. And then when you moved to Mechanicsburq, were you employed in 1989? No, I wasn't. What was the first job you held in Mechanicsburq area or since you've lived out here, so let's just say post 1989? Pennsylvania National Insurance. ilL/liS /" Mtl,lIC,IS RF.POR rl.VG SF.RVICF. ".tr",'mr,' ili.llti.lM2.) )',J,4 7Ji.8~j.ft.l18 P..' '.HOO.2U..,Jli 1 Q. 2 3 A. 4 Q. 5 6 A. 7 Q. 8 A. 9 Q. 10 A. 11 Q. 12 13 A. 14 Q. 15 A. lli Q. 17 A. 18 Q. 19 20 21 A. 22 Q. 23 24 25 A. --- Exam./cavalier - Zarb When did you start with them? A couple years after you were livinq out hure? Yeah. ~ow long were you employed by Pennsylvania National In8urance? 12 About a year. What did you do for them? Data entry. They are located in Harrisburg? Correct. Do you recall the names of any of your supervisors or managers while working there? A woman who -- I think her last name was Brown. Any others? Do you recall? No. And you said you worked there for about a year? Approximately, yes. Did you have any jobs after Pennsylvania National? In looking at the records, I see Mark Heckman Home Appraisal. Yeah. Do you recall working for Mark Heckman? The records say for about a month in the fall of 1992. Does that seem right? Um-hum. And then I worked for him again. fiLIUS {, M,WCAS REPORTING SERVIn: 1I111'rl""'r:f717-216-tH.l.J YurA; "7.IJ.J.'S.60411f PA '-800-21).QI17 1 Q. -. ~ 2 A. Exam./Cavalier - Zarb When did you work tor him again? In March at '93, just tor a month. Any other jobs since you've been in the general Mechanicsburg area other than Pennsylvania National Insurance and Mark Heckman Appraisals? 13 3 Q. No. Why did you stop working? This I remember, he tired me because he said I was unable to keep up with the job. That was Mark Heckman? Physically unable. Yes. 4 IS 6 A. How about with Pennsylvania National, why did you leave them? I was ott because ot the tall. And after a few, a number of weeks when I was off, I received a call from Heckman who ottered me a job there. Were you planning on going back to work at 18 Pennsylvania National betore Heckman ottered you 7 Q. 19 the job? 20 A. 8 A. When I was able to. And you went to work tor Heckman approximately a month after the fall. Is that right? I believe it was the very end ot October. You weren't laid off or terminated from 25 Pennsylvania National, were you? 9 10 Q. 11 A. 12 Q. 13 14 A. 15 16 17 Q. 21 Q. 22 23 A. 24 Q. FILIUS (, ,\I,LUCAS REPORrlNG SERVICE Hmo"5bu'l7J1.116./J6lJ )'11" 717.8.U-lWlS P." I.H~l.lJ.qJl'1 1 A. 2 Q. 3 A. 4 Q. 5 A. 6 Q. 7 8 A. 9 Q. 10 A. 11 Q. 12 A. 13 Q. 14 15 16 17 A. 18 Q. 19 A. 20 21 Q. 22 A. 23 Q. 24 A. 25 .-. Exam./Cavalier - Zarb 14 No. You left on your own for another job? Yeah. Mark Heckman, is that a small company? He's a real estate appraiser. Would he be your direct boss or supervisor, whatever you want to call it? No. There was a woman there. Do you remember her name? I remember her first name. What was that? Carolyn. After Hark Heckman let you go because he said you weren't able to physically keep up, you haven't held any employment from that time up until the present? No, I haven't. And can you tell me why that is? Because of severe pain and my doctor's orders that I cannot work. Is that Dr. Cho? Right. Any other doctors tell you that you can't work? My family doctor knows what's going on, but he never said it in that many words. fiLIUS {, M,llle,IS RfI'CIRTI....G SfRVlce IfllmthIlPJ7'i-2J6.0IJ1.1 )'llr' i"~.1I"'l.t..UH "A J-Soo..2.JJ.9117 1 Q. 2 A. 3 Q. 4 A. 5 Q. 6 A. 7 Q. 8 A. 9 Q. 10 11 A. 12 Q. 13 A. 14 Q. 15 16 17 18 A. 19 Q. 20 21 A. 22 Q. 23 24 25 """' Exam./Cavalier - Zarb 17 And how about Daniel, what does he currently do? He's in the coast guard. And Thomas? He's looking for a job. Do any of your children currently live with you? Right now two of them do. That would be Thomas and Michael? Right. From 1992 until the present, did Daniel live at home during those years? Until he went in the coast guard. 00 you know when he went in the coast guard? A couple years ago. Can you tell me your family doctors before you moved to Mechanicsburg? And I can help you a little bit, a doctor in Fair Lawn that your attorney has told us about, Salvatore Infantino? Right. Do you remember that doctor? That was your family doctor when you lived in Fair Lawn? Yeah. That's correct. Do you recall any other family doctors or however you want to describe them, whether family doctors or otherwise, that you treated with while you lived in Fair Lawn? -FII.lUS i, ,\.It:LUCAS ,u{'("~nN(; suu/ln: "M"dtll~ 7'7.!1~-lM1J Yor.ll 717.I4.n-tl.",. 1'.4 ,..'lfHJ.2.1J.IJU7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 Q. 3 A. 4 Q. 5 6 A. 7 Q. 8 A. 9 Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. ~ Exam./Cavalier - Zarb 20 in. Was that related to the hysterectomy? Yes, it was. You also had, I believe the records state, a procedure done to remove a mass? Oh, I forgot all about that. When was that? I had a mass in my breast. That was since I came here. While you lived here? Um-hum. Was it benign, or was it malignant? It was benign. Was that only one occasion that that happened? And I had a fatty tumor on my upper arm on the left arm. And that was removed also. Do you recall the doctor who removed the fatty tumor? Gordon Arnold. Was that benign? Yeah. He removed both of them. How close in time were the two procedures, approximately? I believe they were within a year of each other, within the same year. FlUUS (, M<LUCAS RCPORTlNG SCRI'/CC 1I""."IJII',Il 717-2.16-062,) YllrA 7,7.H.H-ft4'H Po-' '.,IiIIO.JJl.91l7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Q. 2 3 4 A. 5 Q. 6 7 8 A. 9 Q. A. Q. A. Q. A. Q. A. Q. A. Q. ....... Exam./Cavalier - Zarb 21 Do you recall when they occurred? I know you said before I mean, after you moved to this area. Were they before the accident in september of '92? Yell, they were. Prior to the accident in september '92 at the mall. were you ever involved in any other accidents, injuries? No. No car accidents or hurt at work? Oh, before the fall. in May. Of that same year? Yeah. something dropped on the floor, a piece of paper or something, and I went to pick it up. And I came up, and I hit my -- well, you know, I think it was my head, on a computer stand, a printer stand. That was when you were working with pennsylvania National? Right. Did you sustain any injuries in that? Just a sprain. Sprain of what area? My neck. Did you treat at the hospital? I believe your attorney told us you treated at Holy Spirit. fiLIUS & McWC,IS /IU'CIIU/NG SUIV/CE- ".'rrld",r.t 7'7.!.J6.062.J Yo,A 7r;'.H.,'j.t.4114 1',\ '.HOO-1JJ-IH17 10 11 12 13 14 15 16 17 18 1 2 3 A. ~ Exam./Cavalier - Zarb 25 4 5 Q. conditions you told me of, are those the ones that still hurt you today? Yes. The discs in my neck, my lower back, which sends -- yeah, those are the ones. Did you hurt your shoulder in the car accident? No, I did not. How about your knee in the car accident, did you hurt it then? No, I did not. I want to talk to you about the accident in the mall in September of '92. MS. WELKER: If this is a conveniont place to stop, let's take a break now. She really needs to 6 A. take a break. MR. CAVALIER: Anytime you want to take a break, let me know, that's fine. (Recess taken) There's one medicine that I recall now that I 19 forgot. 7 Q. 20 BY MR. CAVALIER: 21 22 23 24 25 8 9 A. Q. A. Q. A. Q. A. Okay. Effexor. E-f-f-e-x-o-r, I think. Can you tell me what that medication is for, that you know of? For depression. f'/UUS I< McLUCtIS RCI'ORTING SCRVlce "d,.",b,,~ 717-116-OI'il1 Y,,,II 7J7./t.J,1.Ulll Pr\ '-lioo.lll.!fJ27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 Q. 3 A. .. Q. 5 6 A. 7 8 Q. 9 A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. .-, Exam./Cavalier - Zarb 26 Does that at feet your ability to focus or recall events? It might. That tries to level out, but -- And where did you qet that medicine? Who prescribed it? Well, that was I went to Dr.. Small, and that'. prescribed by Dr. Cho. Who is Dr. Small? Psychologist. Do you know his full name? I can't recall. Do you know where he's located? In Hechanicsburq on Trindle Road. Trindle? Yeah. I want to talk to you now about the day of the accident. Do you recall the accident at the Capital city Hall? Yes. Do you know when it was? You mean the date? Yeah. September 23rd, '92. Do you know what day of the week that wa.? I cannot recall right now. "'.IUS /. M,LUCAS IlCPlllln.'IC; SCRVlce II",".b",,71].21'H)611 VII'. iJ'1.,'t.n-A4IH ",", ,.HQO..HJ-9JJ7 1 Q. 2 3 A. 4 Q. 5 6 7 A. 8 Q. 9 10 11 A, 12 13 14 Q. 15 A. 16 17 18 Q. 19 20 A. 21 22 Q. 23 24 A. 25 Q. ,......, Exam,/Cavalier - Zarb 28 On the day ot the accident at the mall, were you on any medications at that time? Ju.t my high blood pressure. ot all the medications you've told me about, were you on any ot those be.ide. the high blood pressure bet ore the accidents? No. Were you on any ot those medications that you told me about atter the slip and tall at the mall but betore the auto accident? I was -- oh, what did he give me? I was given a very strong painkiller. I can't remember exactly what other medications after the fall. And before the auto accident? Ye.. I recall one of them was Tylenol with codeine. And there was another one. I cannot remember the name of it. Why were you going to the mall that night? Anything in particular you were looking tor? No. My son wanted to have his ear pierced or repierced. It was pierced once but closed up. Was that the only reason you were going to the mall that night? Yeah, and tor an earring, to look at earrings. For him? 1II.IlIS 1'. MdUC,IS /IEPO/I "''1(; ,\ERV/Cf. "","Jbw~ 1,'7.2JIl.tHiB )'lIt'" 717.H4'S.64,H PA ,.,IUJO.2.lJ.9J17 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 A. 2 3 Q. 4 5 A. 6 7 Q. 8 A. 9 Q. A. Q. A. Q. A. Q. A. Q. A. .~ Exam./Cavalier - Zarb Right. And he sat in the chair, And she was doing whatever they have to do to pierce the ear. 30 So he decided on an earring, and she was going to pierce his ear? Well, he hadn't decided on an earring yet, but he just wanted to get that one part over with. Did you go inside the kiosk with him? No, I did not. On that night, did you ever go inside of the kiosk? No. Did your son purchase an earring that night? No, he didn't. What were you doing while your son was inside getting his ear pierced? At first, I just stood right by the cash register. Then I decided to go over to the other side to look at the earrings. So I walked, and next thing I knew, I was -- I went down, I hit something, and then I was on the ground. Were you carrying anything in your hands, either a bag or a pocketbook or anything at all? That was on my shoulder. What was on your shoulder, pocketbook? That's right. Hl.IUS (., McLUCAS I((I'OR rIi\'G SERVICE IIIU".i""~ 717.2.16./162.1 y",l 7J7.~.n.""J8 P.4 J.IIIk}.2U.II.121 1 A. 2 Q. 3 4 5 A. 6 7 Q. 8 9 A. 10 Q. 11 12 A. 13 Q. 14 A. 15 Q. 16 A. 17 Q. 18 A. 19 20 Q. 21 22 A. 23 Q. 24 A. 25 Q. """ r-, Exam./Cavalier - Zarb No. What were your plans atter the Piercing Pagoda. Betore the accident happened, what did your son and you have planned tor that night? Just to go get his ear repiereed, get something to put in it, and go home. I'm sorry. I might have torgotten. Did you say your son bought an earring or he didn't buy it? He did not. Did your tall occur while he was getting his ear pierced? That's correct. Do you know it he witnessed you tall? The chair was facing the opposite direction. So that would be no, he didn't? Right. Do you know it anyone witnessed your fall? I don't know it the employee there witnessed it. I have no idea. And you don't know of anyone else in the mall, security guards or workers, who witnessed it? No. Had you ever been to that Piercing Pagoda betore? No. Had you been to that mall betore? fiLIUS & M,LUCAS REPORTING SERVICE H~m,hlA" "'7-1.16-061,) )'M!\ 7l1-H41-1i<118 t'A ,./iOO.llJ.llJ17 32 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 A. 2 3 Q. 4 5 A. 6 7 Q. 8 9 A. Q. A. Q. A. Q. A. Q. A. Q. ."""1 ~r Exam./eavalier - Zarb 33 Ye., on one or two occa.ions. I don't go over there. So prior to the accident, only on one or two occasions you remember being at that mall? That's correct. Did you ever give any statements to anybody, an insurance adjuster or an investigator, either handwritten statement, or were you ever interviewed over the phone concerning this incident? I really can't recall. I don't think so. Oh, I gave a statement to Marla. other than your attorney, did you ever give a statement to anyone? They asked me after I fell what happened. Who is "they"? There was a police officer there and one of the e~ergency people. I don't know what he was, because they called an ambulance. And they asked you what happened? Yeah. Do you know if the police officer ever prepared a report? That I do not know. How about the people from the emergency FlUUS c. McLUC,IS REPORTING SERVICE "4rrl.t..,~ "'.1.16.061.1 YI.I,'\ 7,7.8.,i.fH,If PA 1.8fJO..1U.9}21 "'"'"' I"" Exam./Cavalier - Zarb 39 1 (Zarb Deposition Exhibit Number 3 marked for 2 identification.) 3 BY MR. CAVALIER: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 Q. !5 6 7 8 9 A. Q. A. Q. A. Q. A. Q. A. Q. A. Mrs. Zarb, I'm going to ask you to take a look at what we've marked as Defendant's Exhibit 3. And if you could show me on that photo -- maybe before we do that, before you mark it, it you could describe for me what, in your opinion, caused you to tall? This block. And what part of your body contacted the block to cause the fall? My leg. Do you know which leg? My right leg. And what part ot your leg? Well, as much as I can say, it was -- it must have been toward the upper part ot my leg when I was walking, caught it, and I went over. And I smacked my knee. You say the upper par.t ot your leg? Or, you know, my leg -- you're walking Above your knee or below your knee hit that? It was in the area ot my knee. I say -- in the lower area. It was -- how can FILIUS C, ^,cLlIC,IS RCPORTlNG SCRI'ICC H"m~hur.., 7'7-1.J6-04.l.J York 7"."01,)-64'8 I'A '-,"'H).1JJ.rJ.117 1 Q. 2 A. 3 Q. 4 !5 t""'I r" Exam./cavalier - Zarb Of your knee? Yeah. 40 That's fine. I can understand. The lower area of your knee. ~hat's fine. MR. WRIGHT: I can't understand. 6 BY MR. CAVALIER: 7 Q. 8 9 A. 10 11 Q. 12 A. 13 14 15 16 17 18 Q. 19 20 21 A. 22 23 Q. 24 25 Maybe you can explain that a little more, if you could. What part of your body? I was walking, and as you come along here, I did not see this. When you say "this," what are you talking about? I'm talking about, I saw the pole, this block. I was walking, and I went along here. I was going to cut through, and my leg hit here. I'm not sure whether my toot hit it or my upper leg, but I know I hurt. I telt it when I came down, the pain in my knee. Can you mark on that photo, Defendant's Exhibit 3, with an X the part of this block that your body contacted which you believe caused your fall? I believe it was right around here, right around this area. That I first contacted? Yes, that you believe you first contacted whatever part you believe caused your fall. That's what I'm asking. FILIUS C, MeU/CAS RCPORTING SCRVICC Harrlsbllr" 7J7-2J6-061.1 Yorlc 7J7.!f4'i.6-I'" PA. r./j1}f).2.11-9.l27 1 A. 2 3 Q. 4 5 6 7 A. 8 9 Q. 10 A. 11 12 13 Q. 14 15 A. 16 Q. 17 18 A. 19 20 21 A. 22 23 24 25 .".-." Exam./Cavalier - Zarb 44 I tell see where this is, and I wind up over here. Maybe if you can mark it with an X on that photo the area where -- let me finish my question first -- the area where your body first made contact with the ground. Exactly? It's in this area, somewhere in this area. As best you can with an X. (Marking) No, that's up too far. That looks like it's all the way up here. It's not. Someplace-- it was around, right around here. Why don't you make another mark, then, it you say that's up too far? (Marking) But it wasn't right next to this. It wasn't right next to the block? It would be past the block? Yes. MR. CAVALIER: This is off the record. (Discussion held off the record.) When I said this, when you're looking at this piGture, if you're lOOking this way, it doesn't even show the other side of the counter, so it wae right in the middle, just about, or more a little bit toward the front ot the case like that on.. FILIUS C, MeLlIC,IS REPORTING SERVICE IIdm.bll~ 7,i.2J6.fJ61.1 )'flfN 717.1j.,Ij-64I1lI'A 1-800-2.1J-9J17 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 A. 2 3 Q. 4 !5 A. 6 Q. 7 A. 8 Q. 9 A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. ......... "-'- Exam./cavalier - Zarb 49 My right leg. My shoulder, the upper part of my right back. When you say "shoulder," the right shoulder? That's right. And it went partially down my arm, my whole back. Which arm? My right arm. I'm sorry. And you said your whole back? Yeah. I must have come down with force, because I really hurt big time. This is as you're laying on the ground? Yeah. Any particular portion of your back hurt more than the other? The upper -- over the right shoulder, righ~ back here. (Indicating) Upper back? Upper back, right. How about your lower back? That ached. But primarily upper? Yeah. Any other parts of your body? You said your right leg. Can you be more specific? My knee hurt and down my leg into my toot. FlUlIS (, McLUCAS RCPORTlNG SERVICE "4,.""b,,~ "'7.2.16-061,) York 717.I4.n-ft.UIJ "A ""'OO-1U-llJ27 1 Q. 2 A. 3 4 Q. !5 6 A. 7 8 Q. 9 10 A. 11 Q. 12 A. 13 Q. 14 15 16 A. 17 18 19 Q. 20 A. 21 Q. 22 A. 23 24 25 Q. ~ .,-"" Exam./Cavalier - Zarb How about your hip? Well, it ached, but not the pain that was as 50 compared to the others. And you said your right arm. Can you be more specific in your right arm what hurt? My shoulder area, partially down my arm into my elbow. And at that point in time, was there any pain in the lett side of your body? Aching pain. Any specific area? Allover. Is it tair to say that you really had this aching pain allover your body at that point in time? Is that what you're telling me? I had an aching pain, but I knew after I was down that the right side was hurting a lot more than the left side, and that my leg in particular. And then you went to the hospital? Yeah. Do you know who called tor the ambulance? It was, I think, the girl that was in the kiosk. I'm not sure. She called for someone, maybe security. I have no idea who called. How did you get into the ambulance? Were you HUllS C, M,"LlICM REPORTING SERVICE ""rrl..hl/~ 717-216-062.1 '(II'" '117.H.n-IWIH p,", ,.ROf)..lJ.J.tU11 1 2 3 4 5 6 Q. 7 8 A. 9 10 Q. 11 12 A. 13 14 15 Q. 16 17 A. 18 19 Q. 20 21 22 A. 23 24 25 Q. ........ ,~ Exam./cavalier - Zarb 55 the accident. And he said if it wasn't for the fact that Thanksqiving was almost there, he'd put me in the hospital. And then when I came back to him, I was much worse, and that's when h. put mu in. Did he put you in the hospital after the auto accident that you had? Wait a minute. No. He didn't put me in the hospital. That was the auto accident. I'm sorry. So it wasn't until after the auto accident that Dr. Cho said you should go to the hospital? Yeah. He was treating me there. I went throuqh rehabilitation there. I was doing exercises for my leg. You were doing exercises and therapy before the auto accident? Oh, yeah. It was after -- I'm sorry. It was after the auto accident I went in the hospital. Is it your understanding from your treatment with Dr. Cho that it was as a result of the auto accident that you had to go to the hospital? Yeah. He said the auto accident -- was a combination of the auto accident and the shoulder and leg and knee. What did you go in the hospital for at that time, flUlIS {, MeWC45 REI.ORTI....G SERVICE "dmd,ur;y 717.2J6.1J61.l Yo,k 717.,1141-8-IIN p_" J.8()O..1.lJ..Jl1 '""'" ...-', 1 Exam./Cavalier - Zarb But there did come a point in time when that changed in, say, 1993 and 1994? 59 Q. 2 3 A. In 1993, 1. was operated on in October. And at 4 that point, I was doing the exercises tor my shoulder at home instead of doing them there. And 5 6 I'd put what was required on my shoulder. And my knee, when it would act up, then I'd be treated 7 8 tor it. 9 Is it tair to say, and you can correct me it I'm Q. 10 wrong, the treatment you saw with Dr. Cho after 11 the shoulder surgery, the treatment after that was primarily for your neck and back unless you told him your knee was bothering you, your neck or your shoulder was bothering you? 12 13 14 15 A. Yeah. The knee never went away. And the 16 shoulder, it would act up. I thought it was 17 pretty good after the accident, but then it 18 started acting up again. And as recently as last 19 week, I had to have another injection into the shoulder. 20 21 What type of injection? Q. 22 Steroid with novocaine. A. 23 MS. WELKER: Excuse me. You said the 24 shoulder was good after the accident? 25 A. It felt that way for a little while. IIUlIS (, McLlICAS RCI'ORnNG SERV/("E ",''''hb"r:t 717.216.011,) rurAl "7-,lf"'.""18 P.1,.II00.Z 1}.9117 ""'" I~""" 1 2 3 A. 4 5 6 Q. 7 8 A. 9 10 11 12 13 Q. 14 15 16 A. 17 Q. 18 19 A. 20 Q. 21 22 23 A. 24 25 Q. Exam./cavalier - Zarb 62 you got the new job, and then you quit. Is that how No. I got the new job, then I had the automobile accident, and I couldn't work. And I'm still unable to work. Are you unable to work because of the automobile accident? Yeah. Because the automobile accident and also with my shoulder and knee, I cannot -- as I said, I have certain range of motion. I can go up so high and back and pick up something off my arm and carry it or do anything, I can't do that. But you were able to go back to work atter the tall at the mall that you had before the auto accident? Yeah. But atter the auto accident, you could not go back to work? No. Were you ever told by a doctor after the fall at the mall and before the accident, the auto accident, that you could not work? Yeah. After the fall, it was a period of time there I couldn't work. For a brief period of time you couldn't work? -rll.IUS & McLUCAS REPORTING SERVICE IIdrrl,bu,,'( 717.J,l6."61J Yo," 7I'J.S4".6.1J1J P." J-lIIH).2JJ.9.111 1 2 A. 3 Q. 4 A. 5 Q. 6 7 A. 8 Q. 9 10 A. 11 12 13 14 15 Q. 16 17 A. 18 19 20 21 Q. 22 23 A. 24 Q. 25 ......... Exam./Cavalier - Zarb anything like that, were you? 66 Or clubs, no. Just at weddings and social events? Yeah. And the bowling, how trequently would you do that before the accident? About every week. Any other type ot social activities or events that you can't do anymore as ~ result ot the fall? That's what I'm trying to think. Yeah. In the springtime, we used to go tor we'd go in the country, like to a park or to an orchard or something, you know, get fruit, things like that, pick them oft the trees. Can't do that anymore. Do you relate that to both accidents, the auto accident as well as the tall? No. Because it the apples were on the lower part of the tree, I still can't reach it because I can't put my up like that. I can't raise my arm abovo a certain level. Well, how about your neck and back, would that bother you during those activities? Yeah. Truthfully, yes. In this lawsuit that you've brought, ~our husband also has a claim called loss of consortium, and HUllS {, McLUC,IS IlEPORTlNG SlRVICE "I"'ri,hu~ 717.2.16.062.1 'York 7Ji.S.n.M'" P..\ '.o!ltk)..1.J.J.iJ.l27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 A. Q. 3 A. 4 5 6 Q. 7 8 9 A. Q. A. Q. A. Q. ~ ~ Exam./Wright - Zarb 70 Yes. I can -- yes. I'm sorry. You were going to add? I can recall that. But I can't -- I can recall tal ling, going down. I can recall something going into something and making me go over. Taking the time period trom the time your son and you went to the Piercing Pagoda until you were on the floor after the fall, is that whole period of time clear in your mind sitting here today and telling us about it? Yes. But from the time he went in the chair, from the time we got there and he went in the chair, it was very fast. And I waited a couple ot minutes while he was in the chair. And then I started walking. But the events themselves are clear in your mind sitting here today? How I fell, I remember hitting something. I remember going down, hitting my knee, and going down on the floor. That's what I remember. And you clearly remember sticking out your right hand to break your fall? Oh, yes. That I do remember. And you're certain it was your right hand breaking your fall? fiLIUS" ""cLUelS REPORTING SERVICE ",.,,".h~ 7J7.216-fMl,J YI"Jl717.s4."J.UII Pt4 '-BOO-Ul-'.!l? 1 A. 2 Q. 3 4 A. 5 Q. 6 7 8 A. 9 Q. 10 11 A. 12 Q. 13 14 A. 15 Q. 16 17 18 ;1. 19 Q. 20 21 A. 22 Q. 23 24 25 ~ -. Exam./wright - Zarb 71 Yes, it was. And do you recall hitting your right elbow, you said? Yeah, because my arm buckled. And you recall having immediate, and I think you said, severe pain in your right arm and right shoulder at the time of this tall? Yeah. It was like a shock to it. And you're clear that it was right arm and not your left arm that went out to break your fall? I'm absolutely clear. And that it was your riqht arm and not your left arm that had severe pain fOllowing this fall? That's right. And you're clear that it was your right shoulder and not your left shoulder that had severe pain tollowing this incident. Is that right? Correct. And despite the medications and any other problems, that much you're absolutely clear on? Yes, I am. And ~hen you went to report this incident to the people who came up to you, the ambulance people, and when you went to the hospital, I take it the events were still very clear in your mind? ilL/US C. .\I..WC,IS RlPOR fI.'iG SERVICE ".m.bll~ "J-l.1A-nUI t.,,1\ 7J7........h041/t P.4 I.HOO-U).9.Ul 1 A. 2 3 Q. 4 5 6 7 A. 8 9 10 Q. 11 12 13 14 15 A. 16 17 Q. 18 A. 19 Q. 20 A. 21 Q. 22 A. 23 Q. 24 25 !"'"\ Exam./Wright - Zarb 72 They were clear, but I was in a lot of pain, extremely a lot of pain. Do you believe that you were in so much pain that you were unable to tell your health care providers on the night of the incident what was wrong with you? I know I was very foggy because the pain was so much, I really -- it was, at that point, I thought my leg was coming off and my shoulder. Perhaps phrasing it a different way, the night of the incident, did the health care providers examine and treat those portions of your body tnat you had suffered severe pain in at the time of the accident? They took an X-ray. My shoulder, they just looked at it. Your right shoulder they looked at? Right. And my knee. Your right knee? Right. My elbow they didn't look at. Your right elbow? Right. But you're cortain you told them that you hurt the right knee, the right arm, the right shoulder in this fall? FILIUS I, MrLllCAS REPORTING SERVICE IIdrn'''''r:f 7I'1.1.16.061J Ym" 117.114.'1,"'8 PA '.M)O.l.JJ.IJ.1l1 1 A. 2 Q. 3 A. 4 Q. 5 6 A. 7 8 9 Q. 10 A. 11 Q. 12 13 14 15 A. 16 17 Q. 18 19 20 A. 21 22 23 Q. 24 25 """I r, Exam./Wright - Zarb 75 He was working. He was going to pay for it. And you were his transportation? That's right. And you were going to help him select which earring? No. Truthfully, I just wanted to look at those earrings, because I was against the idea from the very start. You just wanted to see what he might be doing? Exactly. Now, you say that as your son sat in that seat inside the Pagoda itself you began to walk around so that you could get a different view of the whole piercing process. Is that right? No. I walked around so I could see the earrings that were in the case. And at that point, the young lady was taking care ot your son's ear, doing whatever preparatory to piercing the thing? I believe so. I wasn't watching. And I don't like needles, and I didn't want to see anything of it. All I knew is, he was sitting in the chair. And you've shown us in the two exhibits what you refer to as a white block, and that's the item you say you fell over? FlUlIS I. ,\lrUICAS RU'ORn'\;G SCRVICC "i1ml"U~ 717.216.1161.J V",l1l7.".".."lt PA '.1fOO.2.lJ.9.1J1 1 a 3 A. 4 Q. 5 6 A. 7 Q. 8 9 10 A. 11 Q. 12 13 14 A. 15 Q. 16 A. 17 Q. 18 19 A. 20 Q. 21 22 A. 23 24 Q. 25 .~ Exam./Wright - Zarb thereafter. Did the body aches 90 away within a couple of days? Yes, they did. And what left, what stayed with you was the knee and the shoulder? The shoulder and the upper part of my back. And again, this is the upper part of the right side of your back and your right shoulder and your right knee? That's correct. Focusing on the right knee, have any doctors told you what's wrong with it, other than reflexive sympathetic dystrophy, RSD? Yes. I was told I had a torn meniscus. Who told you that? Dr. Cho. since Dr. Cho told you that, have you had MRI's ot your right knee? Yes, I have. And who performed those? Strike that. Who interpreted those MRI's? It was the MRI imaging center over on Trindle ROAd in Mechanicsburg. And did Dr. Lonergan review those MRI studies with you? FILIUS C, McLlIC,IS/ILPORTI.'IG SERVICE Harrlsbl",f 717.2.l6.ikS2J York 7J7.",U.6oIJ8 PA '.800-2JJ.9.)21 79 1 2 3 Q. 4 5 6 7 A. 8 9 10 11 Q. 12 13 A. 14 15 Q. 16 17 A. 18 19 Q. 20 21 A. 22 23 24 25 ~ ,..-. Exam./Wright - Zarb 82 because my knee did not hit anything durinq the acc ident . Are you aware that when you tiled the complaint in the auto accident case, you signed a verification on which you swore, just as you swore today, that everything in that complaint was true and correct? I might have. But as I said, my memory comes in and out. And I might have got it mixad up, as I did when I was talking about going into the hospital. And if your memory comes in and out, is your memory in today or out today? I can't tell. It depends on what you ask me what I can recall. So the next time we ask you, we may get a dittprent answer because of the memory problems? No. You will not get a difterent answer. You'll get the same answer. The RSD is due to the fall. What else do you think you may be having a memory problem on today? Today, when you ask me something that happened, you know, someone's name or a certain thing, I remember falling pretty clear. But even Dr. Lonergan said that the RSD was not due to the accident, it was due to the fall. F1l1l1S" M,./I/C,IS RlPORHNG SI.RVICE H",.,.ts"u~ "".216.'~21 "l'''~ 7I7.H",'S.H'S 1',' I.SOr)~lJJ.lJ117 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Q. 2 3 4 5 A. 6 7 8 9 Q. A. Q. A. Q. A. Q. A. Q. ~ -,""""' Exam. /Wr ight - Zarb 83 NoW, focusing on your right shoulder, aftor this fall but before the auto accident, did you have any diagnostic studies done of your right shoulder? I'm trying to think. That I can't recall. TruthfUlly, I can't recall it. But I know it was hurting. I was being treated for it before ~h. fall -- before the accident. And if I represent to you that your records indicate that an MRI was done before the auto accident, does that refresh your recollection? Yes, it does. And now having your recollection refreshed, do you know if the MRI said that there was something wrong with your rotator cuft or nothing wrong with it, before the auto accident? They might have done -- I don't know. To tell you the truth, I can't recall that. And do you recall having an MRI done on your shoulder after the auto accident? Yes. It was a while atter it. And do you recall the results of that MRI? That one showed that I had a problem with the rotator cuff. In fact, it showed that you had a torn rotator f1I./US t, McLlIC,IS REPORTI....G SERVICE "1I",~bll',V i17.11fi-Or,lJ \'ur.lc 717.H"'i.~J1l I'A '-1I00..2.1l-9'17 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 A. 4 5 Q. 6 A. 7 Q. 8 9 A. Q. A. Q. A. Q. A. Q. ,,,",,, Exam./Wright - Zarb that your son gave a statement in connection with this incident. Do you know anything about that? No. I don't recall it at all. And your son didn't actually see what happened, did he? That's right. He was tacing the other way. Now, you also indicated earlier that you gave a statement, although you gave it to your attorney. Not telling me what was in the statement at this point, did you give some sort of handwritten description to your attorney of what happened or a tape recording of what happened? Truthfully, I remember talking to her. I don't remember it I wrote something down or it it was tape recorded. I don't know. Your memory is not clear on that either? No, it's not. Following your incident at the Piercing Pagoda, did you have any bruising on your right shin or calf? I have a scar from it now. I believe there was some bruising, yes. You have a scar from what? A very small scar from the fall. From what part of the fall? HUllS (, .\lcLlIC,IS R[I'ORJ/NG SeRVICE "'Irridt,,~ 717.JJ6.I.I6H VI'" 717.IU1-MI/f I'A '.Il00-Ul.'lJ27 85 1 A. 2 Q. 3 4 A. 5 Q. 6 A. 7 Q. 8 A. 9 Q. 10 A. 11 12 Q. 13 A. 14 Q. 15 16 A. 17 Q. 18 A. 19 20 21 Q. 22 23 24 A. 25 ~ Exam./Wright - Zarb 89 Dr. Cho. And do you have or are you receiving social security disability? NO, not at this time. Have you requested it? Yes, I have. And what was the outcome ot that? It's being -- I'm waiting tor a hearinq. And that's being done through this attorney? No. It's being done through a social security attorney. Have you had any hearinqs on that yet? No, I have not. Who is providing the medical information for the determination of your disability? Dr. Cho. Anybody else? I put down Dr. Lonergan's name, I put down Dr. Foltz's name and Dr. Torchia's name. They will contact him, and they will send the records. Are you saying, then, that as a result ot this incident in september of 1992, you have been permanently disabled from any gainful employment? No, I am not. I'm saying that if I were to work and I had no other injuries from the automobile HUllS (, McLlICAS Rll'ORrlNG SERVICE 1I1,,,,.bll"J iI7.2.l6~'~2.1 Yll,1I7,7.fj4:l.U'S PA j-800-1.J.)-9J17 1 2 3 4 5 Q. ."",, Exam./Wright - Zarb 90 accident, I could work, but I would not be able to dri ve mynlf. I would need somebody to provide transportation. Just so we're clear MS. WELKER: Let's stop just a minute. 6 (Recess taken) 7 BY MR. WRIGHT: 10 11 12 13 14 15 16 17 13 19 20 21 22 23 24 25 8 Q. 9 A. Q. A. Q. A. Q. A. Q. A. Q. A. Hrs. Zarb, we took a little break here. I want to make sure we get things clarified. Can you please tell me the exact nature of your claim in this case tor wage loss? The amounts of money I lost between the time of the fall until I started working again. Anything more? For the wage loss? Yes, ma'am. No. How tall are you? I'm approximately 5-6-1/2. In the automobile accident, did you hurt your right arm? Well, what it was was the pain from my shoulder going down my arm. In the automobile accident? No. Right here. (Indicating) flUIIS C, McWCM REPORTING SERVICE 114m.hl':( 717.2.16-'.162) 'tIn. 717.,'.U-lW1H PA J.Ii~2.1.1.~.1l7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 Q. 3 4 A. 5 6 7 8 9 Q. A. Q. A. Q. - Exam./Wright - Zarb certain things. Is it difficult to lift because of the nerve 92 damage? Ye., because that's into different pain. When I lift my neck, you have to bend your whole body. And when I try t~ lift my back, my lower back, and my neck hurts, which triggers the pain going down my hand. You indicated that some of the things you can't do are lift dishes to put them away, litt laundry in and out ot the washing machine. Right. Can you please tell me how you're able to distinguish between your inability to lift and do those things because of your rotator cuft and your inability to lift and do those things because of your auto accident related neck trauma, back pain, arm nerve damage? Sure. It's a different type of pain that goes down. And it goes down a slightly different area. Like, when I get the pain that goes down my arm from my neck, I can feel it in my neck. I can feel it going down the base of my neck, going across, and golng right here. (Indicating) You're indicating the right elbow. flUlIS (, McLUCAS REPOR riNG SCRVICC H,r",.bw"!{ 7J7-2.16.fHil.1 Yrlrt 711.HoI.'i.""'S P'" '-800.UJ.l).117 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,~ r Exam./Wright - Zarb 1 I can't remember the exact date. And then I A. 2 received treatment in the rehab center over at Dr. 3 Cho's. And the physical therapist told me that the only thing that I really could do for it was to take contrast baths and exercise. And that'. 4 5 6 all that you really can do. So I do that at home. When was the last time you received any medical 7 Q. 8 treatment from any of these people you talked about relating to your RSD? 9 A. Last time I saw Dr. Lonergan. Q. Was that last week, six months ago, a year ago? A. Maybe a year ago. And in that year or so since you saw Dr. Lonergan Q. about your RSD, how has the RSD been? A. It comes, and it goes. At times when it comes, it's very irritable. In fact, the last time I was at Dr. I did, what's his name, Torchia, I have a rash or a redness on my lower part of my leg. And it's going -- and the pain is also going into my foot. And I believe that's from the RSD. Q. Has a doctor told you that he believes that's from the RSD, or is that your diagnosis? A. I told him about it. I said, I'm not sure at this point it is, but that's what, exactly ....hat it feels like, because the pain is still the same as fiLIUS C, McLUCAS REPORTING SERVICE "rlmlt'JI~ 7'f-2,16.062J "",.lI 7J1.U$.64,3 PA '.800-lJ.t-9J17 94 1 2 3 4 Q. 5 A. 6 Q. 7 8 9 A. 10 Q. 11 12 A. 13 14 Q. 15 16 17 18 A. 19 20 21 22 23 Q. 24 25 t""I ,^"""' Exam./Wright - Zarb the RSD pain. And it gets very irritated by clothing because you have a high sensitivity with RBC. And what did he say? It could be. Have there been periods ot time where you haven't had RSD? Yes. It seems to go away, and then it will come back. And these periods where it goes away, on an average, how long do they last? It could last a couple of months, or it could last two weeks. You never know. In the periods where the RSD goes away, did you ever go back to see Dr. Cho or Dr. Lonergan about having some sort of surgical repair of your torn meniscus? No. I haven't talked to him about that because I'm actually afraid. I don't know when it will come back. So I want to see if it's gone for a gr.eat length -- more length ot time, then I definitely will have surgery on my knee. And that would be with Dr. Cho who thinks you have the torn meniscus or Dr. Lonergan who thinks you do not have the torn meniscus? HUllS [, McLlICAS /lEPORTlNG SERVICE ""r"~bilr:lf 717-1J6-IHil,J Vllr.ll1J7.II.H.6.UH P;\ I-HOO.1.)VU17 95 1 A. 2 3 4 5 Q. 6 7 A. 8 Q. 9 10 11 12 13 14 15 16 17 18 A. 19 20 21 22 Q. 23 24 25 ~ ~ Exam./Wright - Zarb 96 I'd have to go again. What Dr. Lonergan want. to do is, aa I said prior to this, is he wants to do exploratory to see what's going on in there, because my knee does swell very badly. And your other knee, your left knee, doesn't swell? No. At least part of your complaint was you're alleging that you've suffered emotional distress as a result of this incident. And before I get into any questions dealing with your psychological care or psychological treatment or psychological history, I'd like to ask you, is it still your intention to make one element of your claim here a claim for the emotional distress that you've suttered as a result or allegedly suffered as a result of this incide~t at the mall? Let me put it this way to you: I really got bad after the car accident, but many injuries that I do have contribute to it. And that's how it stands right now. I just want to make sure I'm clear, because I really don't want to get into this unless it's necessary. But are you still making a claim for the emotional -- some type of emotional harm that HUllS & McLlICAS RCPORTlNG SERVICE ""m.""~ 71'.1.16.ne,u )'u,_ 711."'01.'5.&41" Po" J.3lJO..J.),f.9J17 1 2 3 A. 4 5 6 7 8 9 10 11 ~ r' Exam./Wright - Zarb you've suffered as a result of your fall at the mall in September of 1992? Can I speak to my lawyer tor a minute? MR. WRIGHT: Please. Take as much time as you need on that one. (Recess taken) MR. WRIGHT: I hope I don't have to repeat the question. MS. WELKER: It was whether or not she's proceeding with the emotional distress claim. The answer is, yes. 12 BY MR. WRIGHT: 13 Q. 14 15 A. 16 Q. 17 18 A. Q. 19 A. 20 Q. 21 A. 22 Q. 23 24 25 All right, then. Mrs. Zarb, did you receive treatment tor the emotional distress? Have I received it? Yes, ma'am. I am still receiving it. From whom? Dr. Small. And that's Dr. Kenneth Small? That's correct. And in your treatment with Dr. Small, have you talked about things other than this particular incident as to what may be causing some emotional problems with yourself? fiLIUS & McIUC,IS RLPORTlNG SERVICE Hdm.''',,~ 7J7.2J~-tJ62.J YllrA 7'7-8",1-6418 PA J.SfJO..llJ-9Jl7 97 1 2 A. 3 4 5 Q. 6 7 A. 8 9 Q. 10 A. 11 Q. 12 A. 13 Q. 14 15 16 A. 17 Q. 18 19 20 21 A. 22 Q. 23 A. 24 Q. 25 A. .~ .' Exam./Wright - Zarb 99 emotional trauma from falling in the mall? It's a combination. I still have the pain. It doesn't let up. And it goes right along with the rest of my pain. And he's the one that's prescribing anti-depressants for you? No. He's not the one. He talks to my physician. And between the two of them. And is Dr. Small a psychiatrist or a psychologist? He's a psychologist. So he could not prescribe medication? That's right. And did he tell you that he felt that. you were suffering from post-traumatic stress disorder syndrome? Yes, he did. And did he tell you that t~e post-traumatic stress disorder syndrome related to the trauma of the mall, the trauma of the auto accident, or the trauma of your childhood? Trauma of the automobile accident. Now, how frequently do you see Dr. Small? Every two weeks. And how long have you been seeing him? January, I believe, of '93. HllllS I. McWC,IS RLPOR riNG SERVICE U4rrltbu"R 717.2.)11.062,) Yo,1r 717.841-""'H ,-" J.HOOo,U.l.'.Jl7 1 2 3 A. 4 Q. 5 A. 6 7 Q. 8 9 A. 10 11 12 13 !""'\ r Exam./Wright - Zarb to take the pictures of the Pagoda interviewed 101 anybody? Not that I know of. Did he interview you about what happened? All he did was ask, but I didn't see him write anything down. He didn't have a note pad along with him or a tape recorder? I don't remember. It he used them, I'm not sure. When he started taking his stuff, things, I just stood there, away from him. MR. WRIGHT: That's all I have. Thank you. MR. CAVALIER: I just have one or two. 14 EXAMINATION 15 BY MR. CAVALIER: 16 Q. 17 18 19 20 A. 21 22 23 Q. 24 A. 25 Q. Can I ask you to look at the photo, Defendant's Exhibit 3 and, in particular, the block. The picture of that block in that photo, is that the way that block was at the time of the accident? I'll tell you, honestly, I didn't look at the block that great atter I went over it because I really didn't get back up to look at it. Did you see the block prior to falling? No, I didn't. Was there anything on top of the block? Was there FILIUS C, McLUCAS REPORTING SERVICE "",rl.",,"J n7.1J8-062.J Yl"t 717....,~.MIB PA '.Soo..Ul-9J17 1 2 3 4 A. 5 Q. 6 A. 7 8 Q. 9 10 A. 11 12 13 A. 14 15 16 17 18 19 20 21 22 23 24 25 !""'I r- Exam./Cavalier - ZarD any -- do you recall seeing anything on top of that block, like displays or items or anything like that? 102 No. Is that, no, there wasn't? No. I didn't see the block at all, so I didn't see anything on top of it. No one ever told you there was anything on top of the block, a display or anything like that? No. MR. CAVALIER: That's all I have. I'm don.. Thank you very much. Thank you. (The deposition concluded at 2:35 p.m.) fiLIUS [., McLUCAS REPORTING SERVICE ""mt""~ 1I'1.2,Jc...'HUJ tu,1l: ?'7.tlf!S.HIII PA '-If()O..l.Jj-9.JJ1 ,""'" ,- LAWYER'S NOTEb ~ I d I . I I "=_-=r.:--"-' ~-+_.. ,..:;:-..;.::::;=-=t:.:..=.__ -:..-::::::==..-.:.=:- :';'+':';:';==''t:.-,__~=:C': - PAt. Llo. - - -- - -_. ---." --- -+---_--.~+--- -- =-__n.... ._.___..........___.._ ________m ----- .------. -"--="--:-o-"'_.:,.====-'.-=___-:_-==:o..-:-:..~".::_=:;_.~_'=.=:__."...==.,..= ,If for allowing a jury to hear about a party's child's involvement with alcohol or other drug. An illustrative case involving a party's involv'ement with alcohol or other drugs is Hawthorne v. Dr&vo CorD.. Kevstone Division, 352 Pa. Super. 359, 508 A.2d 298 (1986) . In Hawthorne, the Defendant offered to prove that Plaintiff had smoked two or three marijuana cigarettes with three other persons between 6:00 and 8:00 p.m. and thereafter, at approximately 10:30 p.m. han consumed two or three glasses of draft beer. At 12: 15 a. m. of the following morning, the Plaintiff drove his automobile into a river resulting in fatal injuries to the Plaintiff. The evidence of the decedent's consumpt ion of several glasses of beer at or about 10:30 p.m. and his sharing of two or three marijuana cigarettes between 6:00 and 8:00 p.m. were excluded. The Superior Court stated that unless it could be established that the intoxication rendered the driver unfit to drive at the time of the accident, "the prejudicial impact of the evidence clearly outweighs any probative value that it may have". Hawthorne v. Dravo CorD.. Kevstone Division at p. 303. The Hawthorne case demonstrates the heavy burden placed on any party who intends to introduce evidence concerning al.cohol or drug use by the other party. The Superior Court in Hawthorne fcund that evidence of a plaintiff smoking two or three marijuana cigarettes, followed by drinking two or three glasses of draft beer, all within as little as four hours of an automobile accident, while being relevant, was still not admissible as being unduly prejudicial. Here, plaintiff' 8 . child's use of substances is not even tenuously rp.levant and the prejudice which would attach to Plaintiff, Kathleen Zarb, is so great that the evidence must also be found inadmissible for the same reasons. Perhaps even more importantly, the Defendant, Judith A. Milletics, has failed in any way, shape or form to demonstrate how Plaintiff's son's interaction with drugs, alcohol, and psychological care contributed to Plaintiff's accident and or injuries. Allowing the jury to hear about the inference of Plaintiff, Kathleen Zarb's, child's substance dependency and psychological care would, without questions, unduly influence and prejudice the jury. Therefore, even if that evidence was somehow relevant, the prejudice would clearly be too much to allow a jury to hear. The simple fact of the matter is that the evidence is not at all relevant and in no way would shed any light on how and why the accident happened nor reflect on the injuries sustained by Plaintiff. In short, as mentioned in Hawthorne v. Dravo Core.. Kevstone Division, our Appellate Courts are extremely reluctant to permit a jury to hear about evidence of alcohol or drug use unless there is some independent evidence which will establish that a party's judgment was actually affected by the drugs or alcohol at the precise time in question. In this case, there is , As a result thereof, Plaintiff, Kathleen Zarb, has asserted claims for damagp.s including medical expenses, loss of past and future wages, pain and suffering and loss of life's pleasures. Plaintiff, Michael Zarb has asserted a loss of consortium claim. Defendants strongly dispute Plaintiff's claims and further assert that Plaintiff, Kathleen Zarb was involved in a slip and fall that occurred on September 23, 1992 at the Capital City Mall that resulted in her undergoing an extensive medical treatment program including physical therapy, MRI's, x-rays and a bone scan prior to the motor vehicle accident that is the subject of this action. Plaintiff, Kathleen Zarb, complains of physical injuries including herniated discs, lower back pain, right arm pain, possible RSD, and nerve impingements. Defendant asserts that these physical injuries were not proximately caused by Defendant's conduct and were actually the result of Plaintiff, Kathleen Zarb's slip and fall on Septen~er 23, 1992. Although it is strongly disputed by Defendant, Plaintiff, Kathleen Zarb has further claimed a that her injuries may be permanent in nature. Plaintiff, Kathleen Zarb also alleges that she has a substantial claim for pain and suffering and a wage losa claim, and it is anticipated that she may assert a claim for psychological damages. II. STATEMENT OF PRINCIPAL ISSUES OF LIABILITY AND DAMAGES: Plaintiffs have the burden to prove that Defendant, Judith A. Milletics was negligent in the manner in which she operated 2 , her vehicle on November 20, 1992 such that her conduct proximately caused injury and/or damage to Plaintiffs. Plaintiffs must rurther prove that they have in fact sustained damages as alleged in their Complaint that were indeed caused by Defendant's conduct. It is strongly disputed by Defendant that the physical and/or emotional injuries allegedly sustained by Plaintiffs were proximately caused by the conduct of Defendant. More specifically, Defendant asserts that the injuries of Plaintiff, Kathleen Zarb were sustained by her after she slipped and fell in the Capital City Mallon or about September 23, 1992, and not as a result of the conduct of Defendant. III. I,EGAL ISSUE~ REGARDING ADMISSIBILITY AND OTHER MATTERS: Defendant does not know of any outstanding issues regarding the admissibility of testimony or exhibits at the time of trial. However, Defendant does contest this case as being listed during the Court's May Term, 1998. Defendant, through its counsel, appeared at the Court's call of the May Term Trial List on April 22, 1998. At such time, counsel for Defendant had intended and was prepared to object to the trial listing of this matter on the basis that discovery is incomplete. More particularly, Defendant had subpoenaed additional medical records concerning Plaintiff, Kathleen Zarb, from Holy Spirit Hospital and Hershey Medical Center. Plaintiff, through her counsel, objected to Defendant's records subpoena. Counsel were subsequently able to resolve this dispute. However, as of the time of the submission of this Pre- 3 ~~, .4, '"' ~ , - ~.. ; '.:r- ';:r r- c<') .-{ ..... () 0 0 - ~ ;it \J'1 Q \.I) ..... '-\\ , ~.. , - ~ '""r _I f 0 I.r). ~ ~ ,;.1 !~; . j :1 :r- ,~ r:,} y' t .;:t- V 8 .: f.)" :~: c.J <::::1. .. .1:.. ." ~ ('oJ ., ~ ' . c-..a -, ~ c.S ~ A: ~ 'Cl ~ U '" (h CIl Q) Q) U .>4 ..~~~ .".... .... ..... c:l..... E-<CIl Q) ..s .. ~~ .. iiU l5 j;Q . ol i ~gj'tl ....~ ..... tr ::O..:l '" N<';: ..:l ol Nol . ..... ::M g ~..:lfA VI <::0 CJ"'- > >> ~~ a: ~ ~~: i:l~ Q) w ,;: i= @ffi '" 0 ~ ba.... ,;: .... 5 ::Mol ...,0 .... < (I ... . IAWllHICPi l\.WO'IAK, CECKI.l' 8< wnXIR. PC . II HI Ht)\ )~, J,W \t 1',rll.IIU( 1.'1) "lit! 11 IlHtlADFI PHI!\ 1',' l'lln) ,.I'HI " 9. As a direct and reasonable result of this accident aforementioned, Plaintiff has or may hereafter incur other ! I t inancial expenses or losses which do or may exceed amounts which she may otherwise be entitled to recover. 10. Further, Plaintiff incurred a severe shock to her nerves and nervous system, great physical distress and anguish, all of which may indefinite time in the future. 11. As a direct and resonable result of this accident, pain, and mental continue for an Plaintiff, KATHLEEN ZARB, has Buftered, and may in the future suffer, severe pain and suffering, emotional anguish, loss of use of a bodily function, permanent impairment and/or disfigurement, and continuing losses and damages related to the trauma incurred. 12. Further, Plaintiff has been compelled to expend various sums of money in attempting to alleviate and cure the aforesaid injuries, and was prevented from attending to her usual duties and occupation, and believes that she may in the future be prevented from attending to her usual duties and occupation to his great financial loss. WHEREFORE, Plaintiff demands damages of the Defendants herein in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00), plus costs, delay damages and interest. 16. This accident result solely from the negligence and Ii recklessness of the Defendant herein and was due in no manner whatsoever to any act or failure to act on the part of the Plaintiff. 17. The neg 1 igence and reck lessness of the Defendant, DENNIS MILLETICS, consisted of the following: (a) Failure to properly operate and control his motor vehicle; (b) I " (c) I: (d) i. I I' il II I " (e) Failure to regard the point and position of the other vehicle: Failure to avoid striking the other vehicle; Violation of the Statutes of the Commonwealth of Pennsylvania, as well as the Ordinances of the County of Cumberland, governing the operation of motor vehicles on the streets and highways; Failure to use due care under the circumstances; (f) Being otherwise careless and negligent. 18. As a result of this accident, the Plaintiff, KATHLEEN ZARB, has been or will be obliged to receive and undergo medical attention and care and to incur various expenses for the injuries she has suffered, and she may be obliged to continue to expend such sums or to incur such expenditures for an indefinite time in the future. 19. As a direct and reasonable result of this accident aforementioned, Plaintiff has or may hereafter incur other financial expenses or losses which do or may exceed amounts which she may otherwise be entitled to recover. 20. Further, Plaintiff incun"ed a severe shock nerves and nervous system, gr'oat physical pain, and distress and anguish, all of which may continue indefinite time in the future. 21. As a direct and resonable result of this accident, Plaintiff, KATHLEEN ZARB, has suffered, and may in the future suffer, severe pain and suffering, emotional anguish, loss of use of a bodily function, permanent impairment and/or disfigurement, and continuing losses and damages related to the trauma incurred. to her mental for an 22. Further, Plaintiff has been compelled to expend various sums of money in attempting to alleviate and cure the aforesaid injuries, and was prevented from attending to her usual duties and occupation, and believes that she may in the future be prevented from attending to her usual duties and occupation to his great financial loss. WHEREFORE, Plaintiff demands damages of the Defendants herein in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00), plus costs, delay damages and interest. 18 KATHLEEN and MICHAEL ZARB, : IN THE COURT or COMMON PLEAS or Plaintiff. : CUMBERLAND COUNTY, PENNSYLVANIA : v. I CIVIL ACTION - LAW : JUDITH A. MILLETICS, : Defendant 94-4071 CIVIL TERM ORDER or COURT AND NOW, this 29th day or April, 1998, upon con.ideration of the attached letter from Defendant's counsel, Timothy J. McMahon, Esquire, the pre-trial conference in the above-oaptioned matter scheduled for this date is cancelled. Counsel are advised that the case must be. relisted by counsel for trial in order to appear on the next , trial list. MARLA WELKER, ESQUIRE MYCHAK, GECKLE, WELKER & THIROWAY, P.C. 230 South Broad Street 11th Floor Philadelphia, PA 19102 For the Plaintiffs TIMOTHY J. McMAHON, ESQUIRE MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 100 pine street 4th Floor P.O. Box 803 HarriSburg, PA 17108-0803 For the Defendant . Cu~ ~.G__J._ !5/1/1B Court Administrator lkt FiLED-<JFFICE OF Tf ;:: r~r.t.".c! :OT/RY 98H^,(-1 MIIIIOG CU''''. ,.,.. .. . .11.1'( f~II.:(,'I'I...,I.",I..A).-, fH;~\!\'(~'l't \/.','\1,', ...1\1''''1__1' <, ,I , " . L~. orrICI or GRACI R. SCHUYLER ~TTORHIYI Grace R. sohuyl.r SUPRIXI COURT I.D. NO.1 2'1" 3211 NORTH rRONT STRIIT HARRISBURG, p~ 17110 (717) 231-7204 ~TTORH.Y rORI Defendant. Judith a. and Denni. Milletic. KATHLEEN ZARB and MICHAEL ZARB, wite and husband, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. JUDITH A. MILLETICS and DENNIS MILLETICS Detendant DOCRET NO. 94-4071 Civil Term CERTIFICATB or SERVICB AND NOW, this 3rd day of August , 1994 I, Grace R. Schuyler, Esquire, attorney for Defendants Judith A. Millotic. and Dennis Milletics, affirm that I served the Praecipe for Entry of Appearance by depositing same in the United states Mail, postage prepaid, in Harrisburg, Pennsylvania, addressed to: Marla Welker, Esquire MYCHAR, GECKLE & WERLER, P.C. 230 South Broad Street 11th Floor Philadelphia, PA 19102 re '--"- " L >:.....i.;" , " f "Ii I'. -Ii ,',t' ;1, " , ;,' " 'I, :', ," .,' 1 I' , , , )' ., L , ~..""'_..~, ;)i:'.\ t,';;,p;,;"",,:,"V~I'!r:;~)b-:-';Y;J'},> 'I! L" - ,I: r \\:,,~.,(I.'. 'II'" l~- l. 1(IA" ,. '~!,'. .'-\, . t~"., .. l.,. I, " I'. . ,,' ,"."',, . ,+........ l_.:'1"....,I,-"'f,.!",..!.,.I~_I.....,....'\'!'~I'\ll!''I#...j,.,. JUG I J I(J~ ~ II D. 4If 'SII )r,~IILEI).O.1'C I' THE PH'(HON << l ".~';'.. Rl~HO r.n?rA~Y ., i, ILYft\ ~,. NS1lVA'H,~Hn ,I .1 ,01 ;1 , ' .L................._..'._~., "~....i~r\.-.......'_T.'-~. ~I" i.!-~if :, I r-~-:-.'- ,., ~'"'.....~ ....;...."'.....' "( j" !' " . 'f," '\ " .. ,j.,.., " , " , -....""....... ~~ " 1"'-1 I'" 'i', \ . .. . . ,~ .-~~f~;1~II" , '" . I' , ., I' " \lif~""'lI1"" ;".1 ',L I 'of .' '^,,';(,-' ';,~'" ,"f~"" .' , ,,' '\.'. ~r ~ .' I". Ii' ", t' I' 'il' " . '. I, I: I'" I' " I taw OFrICI or GRACI R. SCHUYLER ATTORNIYI Grace R. schuyler aUPRIM. COURT I.D. NO.1 2616. 3211 NORTH FRONT STRIIT HARRISBURG, pa 17110 (717) 231-7204 aTTORHIY rORI Defendant. Judith a. and Denni. Milletic. KATHLEEN ZARB and MICHAEL ZARB, wife and husband, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. JUDITH A. MILLETICS and DENNIS MILLETICS Defendants DOCKET NO. 94-4071 civil Term PRELIMINARY OBJECTIONS OF DEFENDANTS JUDITH A. MILLETICS AND DENNIS MILLETICS TO PLAINTIFFS' COMPLAINT AND NOW, come Defendants Judith A. Milletics and Dennis Milletics, by and through their attorney, Grace R. Schuyler, Esquire, and aver the following in support of their Preliminary Objections to Plaintiffs' Complaint: 1. The Plaintiffs instituted the above-captioned action by filing a Complaint on July 21, 1994 seeking to recover damages for personal injuries sustained by Plaintiff Kathleen Zarb plus a loss of consortium claim on behalf of Plaintiff Michael Zarb allegedly resulting from an automobile accident that occurred on November 20, 1992. 2. Defendant Judith A. Milletics was operating a motor vehicle at the time of the accident which was owned by Defendant Judith A. Milletics and by Defendant Dennis Milletics. 3. The Plaintiffs' Complaint is impermissibly vague, fails to conform to law or rule of Court and lacks the required specificity pursuant to Pennsylvania Rule of Civil Procedure 1028. COUNT I preliminary Objeotion. in tbe rorm of a Motion to strike or, in the Alternative, for a More specifio Pleadinq 4. In the Plaintiffs' Complaint, various acts of negligence and recklessness on the part of Defendants are alleged. 5. The allegations are set forth in paragraphs ?(d), (e) and (f) of Plaintiffs' Complaint are impermissibly vague, lack the required specificity for a pleading and fail to conform to law and rule of Court in that all of the averments in the aforementioned subparagraphs are vague, catch-all conclusory allegations. These allegations are as follows: 7.(d) Violation of the statutes of the Commonwealth of Pennsylvania as well as the Ordinances of the County of Cumberland, governing the operation of motor vehicles on the streets and highways; (e) Failure to use due care under the circumstances; (f) Being otherwise careless and negligent. 6. The averments in paragraph 17(d), (e) and (f) are identical to those set forth above from paragraph 7(d), (e) and (f) . 7. The averments contained in paragraph 7(d), (e) and (f) and paragraph 17(d), (e) and (f) of the Plaintiffs' Complaint violate the Pennsylvania Supreme Court's requirements as set forth in Connor v. Alleqhanv General Hospital. WHEREFORE, Defendants Judith A. Milletics and Dennis Milletics request that Your Honorable Court strike paragraphs 7(d), (e) and (f) and 17(d), (e) and (f) or, in the alternative, require Plaintiffs to file a more specific pleadinq in regard to those averments. preliminary objeotion. in the rorm of a Demurrer B. In Plaintiffs' Complaint, Dennis Milletics i. named as a Defendant. 9. Tho only averments relating to the alleged involvement of Defendant Dennis Milletics are contained in paragraph 4 and paragraph 14 of the Plaintiffs' Complaint. In thoso paragraphs, it i. alleged that "the Defendant's (sic) automobile was owned by Dennis and Judith A. Milletics." 10. Mere co-ownership of a vehicle, which was involved in an accident, is insufficient to state a causa of action against Defendant Dennis Milletics. 11. The averment alleging co-ownership of the vehicle that Defendant Judith A. Milletics was operating is legally insufticient to state or sustain a cause of action by the Plaintiffs against Defendant Dennis Milletics. WHEREFORE, Defendant Dennis Milletics requests that the Plaintiffs' complaint be dismissed as to him and that judgment be entered in his favor. LAW OFFICE OF GRACE R. SCHUYLER ( .1 ,1 /( ( (/' \.)~ /... l..\ ~r,ce R. Schuyler ,\ Esquire A~torney for Defendants Judith A. Milletics and Dennis Milletics ! '" t,'-, I." '1' ;I, , . I" j q .1 ,~tl'-"fI' -I " ,I I r 'I j' I" J "/~T . ; f '~' I I ' "I I 'I f' I I ' L ~~j;'I{i\"if"'I~Fj";1 ~J I 1,;< \ 1)1', J" '111Ji'I"l,lliI II !ll> i,'.;I~II\:~I1" ) '\111. . i.it, ",' "( '" ~,',',;./1;.""N(.'i'~ "\jJ!,,l~l'i),,JJ.;;:.~i 'J,.~' I I' '~I~jIf~ ' ;,,:i.f;Il, '1'1'1/1 ~ll'~;/~~'~'~"''lt'I.~\ \1'11"": , ' o , ...thot".....' "i..,L~\'l't" r I . ," ,f\""",""llIt"H~t'>~"'<!'J'#rrlr'~l(rl~,~ .1... .~.';......., d I.,.,."U..; Ii , , , " .. 5 2 O I", "1.'" '!N , rh'(' ,/, vi' clJHed ",; r#~'Cf Pf.hh~4.yo c:~Jr~1' ~( '1.lIiI~/jr, ,. I , , '. ,'. " I 'i U " .. . " I',' ,.. "l " -"-,-,,q- , . . ,-, ...7...',..-......,.....,.,.,.. u.,...~,.,,-~<;;,.~4___.d_.....h ;.... I , , JlI ., I' .' ,0 . . I If " " ,~, " . , . . " . '11 , ..~f....rllh"~' . 'I .,~~J~n.....fiI'" o .. "'"":/' _,I., . :"'-'- , , " r II; I,', , , Ii ....... ..-,..,..... "-."'l' ,,' ." I. '. I. . .."....L. '.. ' fHt;I:'~' _u ',' I, \ "," '. .'. . ',." , ,,I -i '" ~J'!:lhi):.t'.I~;li.i.::-;:~.~~t.~:"J.. I :i;\~)~i_~11!~~~!~.~~\((":~\I't'(~ ,.ti~J~jl~'tW~~~~ ................~.j,,~;_...., .....-"........1". '--'-1.-"- ,. .,....~<-", " lUG 5 2 ..1 PIt 'Ill .' ;! "EI, Jft'IC' Qf Tlil , iWft4QIIOTAkl CUHBENl4ND COYMll PENNSVl.iI....'4 , , 1;1 ~*"""J;,/lii't,...llIiWi_.,iP'"""..,...kU.....~I....._~.-_,....~~...'F?_ ~' II , fl''''., " , ~., " ",II ..'-d .,..t-<'...."4'.I'IItWJM,.m~~/.,m" "L ':"11'" I ,'I '\,1, ",11 .,,- , , , I ~ " , , '. t! '. ..' " " I. 'I ", ,'. , ". , , ',"I ,I ,-, . . ~'ilir ."~l<IlIlJJ]~~IU, , " . ~' .' , .. ".iifui,' . f ... , , , ~' 'J .,. - , . . I,l~ ~~:' I," ',' f :', 'I L I , LaW orrICI or GRACI R. SCHUYLER ~TTORNIYI Grace R. schuyler SUPRBKI COURT I.D. NO.1 261" 3211 NORTH FRONT STRSET HaRRISBURG, p~ 17110 (717) 231-7204 aTTORHIY rORI Defendant. Judith ~. and Dennie Killetice KATHLEEN ZARB and MICHAEL ZARB, wife and husband, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. JUDITH A. IULLETICS and DElmI3 HILLE'I'ICS Defendants DOCKET NO. 94-4071 civil Term STIPULATION AND NOW, this '_Jl'f day of (i;, ~J..,r _, 1994, it is I' hereby stipulated and agreed between ~arla Welker, Esquire, counsel for Plaintiffs Kathleen Zarb and Michael Zarb, and Grace R. Schuyler, Esquire, counsel for Defendants Judith A. Milletics and Dennis Milletics, that: 1. In Count I, subparagraphs 7(e) and (f) of Plaintiffs' Complaint are withdrawn with prejudice; 2. Count II: Kathleen Zarb v. Dennis Milletics is withdrawn with prejudice and the action is disoontinued as to Defendant Dennis Milletics; 3. In Count IV: Michael Zarb v. All Defendants, the allegations contained in paragraphs 23 and 24 as to Defendant Dennis Milletics are withdrawn with prejudice and the action is discontinued as to Defendant Dennis Milletics. 4. The caption is amended to remove Defendant Dennis Milletics from the case and hereafter shall be referenced as , Kathleen Zarb and Michael Zarb, wife and husband, Plaintiff. v.. Judith A. Mill.tics, Detendant. rtI J. tJdl. Marla Welker, Es~re MYCHAR, GECKLE , WELKER, P.C. Counsel for Plaintiffs ;'1, ..' f"' , '.il ,lI, 'I, 'I', 'I I 'i, " ,)11' ..' '." " , " " , , ; ,', ,;"::,," ;1 ,<.',:. ,.1)'"., ;,' ;" i... ; I , ;. d' ,.CO ,,j "d,. ',"1'.'. .1..,. ,1J ~.I'II -",hIlt !'.L ., 1 ':.~.I;W< '''~~' :<"~' <"~if' '\I,;"I'~Ji-"~'II'.,~" "",\'-; '.,,' <: p. ,.. '" '. "P 'J.. "~, iiliilJ'.' .'. l' j,' l;ri'~""'I' :i. .' .1j'~1~I,' -"',. 'r '~ll~~-; 'I " , " "',,_ "~'M<."''''_'''':''''''''''.''''''''tlt-l!litt'''I,.t~/rrt~j\,~~"~'''''lfl;l~_~ Sir 6 2 Sl rlt .\It ,.., "OFFIC)l or i "t. ,11t1011(,1A~~ CUI\\\!:H,~NO Cf)'Jlln {JLHtI<;!v.~llll , , , ,I II " '1\ II! ,. , , " " " "; ,It " " i' ,I' " Ii 'I,' ,"jI, " " .. , . . " ",' .~,~:.I-<i...,...".,.,,,,.,fT':" ,," n" ,.,.",.. H_'." 'I ~'_"',h \"'I.\;.",,,,..^,.~)l;.-,..,..,-,,,,,,-"i" H't .' ',,, ,.........."...\I.,lNifli""IBi!'M....""!ja.-ir....,......."'" ..~"tl.......... ""~u"~.~-"r " : . " " . ',' "'" I' i .. -I ! i ,.......,,' ,. < "~ . "\"'~~""C:' , I-. 11' .. .. Ifl':~: , , ' A. Milletics was owned by Donnis and Judi.th A. Milletics and that the front portion of the vehicle operated by Defendant Judith A. Milletics contacted the rear of the Plaintiffs' vehicle. The remaining averments are denied and strict proof is demanded at the time of trial. 5. Defendant Judith A. Milletics is wi,thout knowledge or information sufficient to form a belief as to the truth of the matters averred in paragraph 5 in that the proof is within the exclusive possession and control of the Plaintiffs. Said averments are, therefore, denied and strict proof thereof is demanded at the time of trial. 6. Denied. Any and all averments of negligence and recklessness on the part of Defendant Judith A. Milletics are denied. To the contrary, Defendant Judith A. Milletics acted with due care at all times relevant to this action. 7. Denied. Any and all averments of negligence on the part of Defendant Judith A. Milletics are denied. To the contrary, Defendant Judith A. Milletics acted in a careful and proper manner and with due care at all times relevant to this action. It is further specifically denied that the Defendant Judith A. Milletics: (a) Failed to properly operate and control her motor vehicle; (b) Failed to regard the point and position of the other vehicle; (c) Failed to avoid striking the other vehicle; (d) Violated the statutes of the Commonwealth of Pennsylvania and/or the Ordinances of the County of Cumberland governing the operation of motor vehicles on the streets and highway.; Ce) Withdrawn by stipulation of Counsel; (fl Withdrawn by stipulation of Counsel. 8. Defendant Judith A. Milletics lacks knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph because the necessary information is within the exclusive possession and control of the Plaintiffs. said averments are, therefore, denied and strict proof thereof is demanded at the time of trial. 9. Defendant Judith A. Milletics lacks knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph because the necessary information is within the exclusive possession and control of the Plaintiffs. said averments are, therefore, denied and strict proof thereof is demanded at the time of trial. 10. Defendant Judith A. Milletics lacks knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph because the necessary information is within the exclusive possession and control of the Plaintiffs. said averments are, therefore, denied and strict proof thereof is demanded at the time of trial. 11. Defendant Judith A. Milletics lacks knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph because the necessary information is within the exclusive possession and control of the Plaintiffs. said averments are, therefore, denied and strict o proof thereof is demanded at the time of trial. 12. Defendant Judith A Milletics lacks knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph because the necessary information is within the exclusive possession and control of the Plaintiffs. Said averments are, therefore, denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant Judith A. Milletics requests that Plaintiffs' Complaints be dismissed and that judgment be entered in her favor. COUNT II Kathleen Zarb v. Dennie Milletics 11-22. Count II, in its entirety, has been stricken with prejudice by stipulation of Counsel. No further answer is required. Count IV (ShoUld be Count III) MiChael Zarb v. All Defendants 23. Count IV, which should be identified as Count III, has been amended by stipulation of Counsel in that paragraphs 23 and 24, as they relate to Defendant Dennis Milletics, have been withdrawn with prejudice. By way of further answer, Defendant Judith A. Milletics hereby incorporates by reference paragraphs 1 through 22 inclusive of her answer as though set forth herein at length. 24. As tc Defendant Judith A. Milletics, Defendant Judith A. Milletics lacks knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph because the necessary information is within the exclusive possession and control of the Plaintiffs. Said averments are, therefore, denied and striot proof thereof is demanded at the time of trial. WHEREFORE, Defendant Judith A. Milletics requests that Plaintifts' Complaint be dismissed and that judgment be entered in her favor. HI. ~TTSR 25. To the extent that the Plaintiffs have incurred any injury or damage, which injury or damage is herein expressly denied, said injury or damage was not directly or proximately caused by any act or omission or other con~uct of Defendant. 26. To the extent that the Plaintiffs have incurred any injury or damage, which injury or damage is herein expressly denied, said injury or damage was caused by an intervening or superseding cause. 27. If it is determined that Defendant Judith A. Milletics is liable on the Plaintiffs' cause of action, Defendant Judith A. Milletics avers that the Plaintiffs' recovery should be eliminated or reduced in accordance with the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. section 7102. 28. It is further averred by Defendant Judith A. Milletics that, if the Plaintiffs suffered any injuries and/or damages, they were caused solely and primarily by Plaintiffs' own carelessness, recklessness and negligence. 29. It is further averred that, if the Plaintiffs suffered any injuries and/or damages, they were caused solely And primarily by the carelessness, recklessness and negligence of third parties who are unknown to Defendant Judith A. Milletics and over whom Defendant Judith A. Milletics had no control or riqht of control. 30. Some or all of Plaintiffs' claims may be barred or limited by Plaintiffs' election of the Limited Tort option of their insurance coverage, pursuant to the Pennsylvania Motor Vehicle Financial Responsibilities Law, 75 Pa. C.S.A. section 1701 et seq. 31. Defendant Judith A. Milletics asserts all the defensB., limitations and exclusions under the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. Section 1701 et seq. and avers tho Plaintiffs may not plead, prove, introduce into evidence or recover any benefits paid or payable under the Pennsylvania Motor Vehicle Financial Responsibility Law. 32. The Complaint and each of the counts pleaded against Defendant Judith A. Milletics fails to state a cause of action upon which relief can be granted. 33. It is further averred by Defendant Judith A. Milletics that if the Plaintiff suffered any injuries and/or damaqea, the injuries and/or damages were caused by accidents preceding the November 20, 1992 accident and the Plaintiff is barred from recovering damages from Defendant Judith A. Milletics for injuries and/or alleged losses that were caused by and relate to, directly and/or indirectly, other accidents in which the Plaintiff was involved. ..' " ;1,' '.,'i,' "j " ;'1 c'" , , ;i'" I ~' I'., ._,.~. j" ....."" ,~."_'''.'~''';.i04",,,........-'''''t,''''';r-..-}tJori'~''''''''''''''''''')''-'''~.1....".....,.';j,.....,.,.....tIl'~1IIIlni " .r, 'I " " '" . , 'I . .., ., S" S 2 32PH 'JII Q . Ilf~ a F f", ",:, '1. ~u ,. '" IIION' y "'/;f:nI.A~O cni'rA~~ ,Pi liNn" I'AN,;' II r~ " . ~:i.jr.t-;"Tjfil'~Il~.f..!...---..._' " , , .......,,;.l,,_...'I'~... , '~ ,d "".','''-''.'!' " ., ';'-.,1": , I . l 'lI " , II" " ",I .." \ " " '. ~ 1 "-.-:-~'~~",~1"" , . '. . . , ,:~"J:f;';'~,~.l ,',i,">\ r- II " " . ,. .' " I " fI' " , ,;1 ,1', , .,. ,'. i' W11/J "t'" 'I' .-j I 'Ii"lt 'I't' r,/ r . 1 . .: .. LaW orrICB or GRACB R. SCHUYLER aT~ORHBYI Grace R. Schuyler SUPRBKB COURT I.D. NO.1 26169 3211 NORTH FRONT STREET HARRISBURG, PA 17110 (717) 231-7204 ~T'l'ORHIY rORI Defendant Juditb a. KUletice KATHLEEN ZARB and MICHAEL ZARB, wife and husband, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. JUDITH A. MILLETICS, Defendant DOCKET NO. 94-4071 civil Term CERTIFICATE OF SERVICe AND NOW, this 6th day of September , 1994 I, Grace R. Schuyler, Esquire, attorney for Defendants Judith A. Milletics and Dennis Milletics, affirm that I served the Interrogatories, Set I, addressed to Plaintiffs by depositing same in the United States Mall, postage prepaid, in Harrisburg, Pennsylvania, addressed to: Marla Welker, Esquire MYCHAK, GECKLE & WELKER, P.C. 230 South Broad Street 11th Floor Philadelphia, PA 19102 Esquire I i HYCHAlC, GECKLE , WELKER, P.C. , ; By: Marla Welker ID No. 44069 230 South Broad street ,i 11 th Floor i Philadelphia, PA 19102 '! (215) 735-3326 Attorney for plaintiffs i KATHLEEN ZARB and MICHAEL ZARB : COURT OF COMMON PLEAS : COUNTY OF CUMBERLAND vs. . . i ,I JUDITH A. MILLETICS NO. 94-4071 PLAINTIFF, KATHLEEN ZARB'S, RESPONSE TO NEW HATTER OF DEFENDANT. JUDITH A. HILLE'I'ICS 25. Denied. It is specifically denied that to the extent that the Plaintiffs have incurred any injury or damage, said I injury or damage was not directly or proximately caused by any act or omission or other conduct of Defendant. strict proof is i demanded at trial. 26. Denied. It is specifically denied that to the extent i that the Plaintiffs have incurred any injury or damage, sa.id injury or damage was caused by an intervening or superseding 'I cause. strict proof is demanded at trial. 27. Denied. It is specifically denied that it it is determined that Defendant Judith A. Milletics is liable on tIle Plaintiffs' caused 01' action, Defendant Judi th A. Milletics ,avers that the Plaintiffs' recovery should be eliminated or reduced in accordance with the Pennsylvania comparative Negligence Act, 42 Pa. C.S.A. Section 7102. demanded at trial. strict proot is ,/ 28. Denied. It is specifically denied that it the Plaintitts suttered any injuries and/or damages, they were caused solely and primarily by Plaintiffs' own carelessness, recklessness an'd negligence. strict proot .is demanded at trial. 29. Denied. It is specifically denied that it the ! Plaintiffs suffered any injuries and/or damages, they were ,caused solely and primarily by the carelessness, recklessness ,i and negligence of third parties who are unknown to Defendant Judith A. Milletics and over whom Defendant Judith A. Milletics had no control or right of control, strict proof is demanded at trial. 30. Denied. l't is specifically denied that some or all ot i Plaintiffs' claims may be barred or limi ted by Plaintiffs' election of the Limited Tort option of their insurance coverage, i pursuant to the pennsyl vania Motor Vehicle Financial Responsibilities Law, 74 Pa. C.S.A. section 1701 et seq. strict , proof is demanded at trial. 31. Denied. It is specifically denied that Defendant Judith Milletics asserts all the defenses, limitations and exclusions under the Pennsylvania Motor Vehicle Financial 'Responsibility Law, 75 Pa. C.S.A. section 1701 et sq. It is also specifically denied that the Plaintiffs may r,ot plead, I prove, introduce into evidence or recover any benefits paid or payable under the Pennsylvania Motor Vehicle Financial Responsibility Law. strict proof is demanded at trial. - ,\ " , " II , , : and 32. Denied. It is specifically denied that the complaint each of the counts pleaded against Defendant Judi th A. , Milletics fails to state a cause of action upon which relief can be granted. strict proof is demanded at trial. 33. Denied. It is specifically denied that if the 'Plaintiff suftered any injuries and/or damages, the injuries and/or damages were caused by accidents preceding the November .20, 1992 accident and the Plaintiff is barred from recovering damages from Defendant Judith A. Milletics for injuries and/or 'alleged losses they were caused by and relate to, directly 'and/or indirectly, other accidents in which the Plaintiff was . involved. strict proof is demanded at trial. 34. Denied. It is specifically denied that if the Plaintiff suffered any injuries and/or damages, the injuries and/or damages were caused by accidents after the November 20, 1992 accident and the Plaintiff is barred from recovering damages from Defendant Judith A, Milletics for injuries and/or al.leged losses that were caused by and relate to other accidents . which the Plaintiff had. strict proof is demanded at trial. WHEREFO~E, the PlaintiffS, Kathleen Zarb and Michael Zarb, demand judgment in their favor and against Defendant, Judith A. Milletics. "'YCHAK, GECKLE & WELKER, P.C. By: fil,.t, lV/.{, Marla Welker Attorney for Plaintiffs ~..-._. ., " I' .," ~;t,t~I[,):;r;"-':'~;l!:,~~~,;_i~;i", :.,.;' _' .. _""';;l""L"',:.?,,' --, J)l"L'\1...I._II,..'_,t,i> '; ..." ""_' i'. ,.,'.. _.c,_ '.i '.. .1.. .. _I -'; .Ii ,.' _',r '.-.. ,.. ,'W"~_'ff".J'dil_i; ,_,' _i"~_-I,_"'t"."", ',',' :".; "i:"')' ;"'iii;'?iF,.!..jli ,,~,__"';"-;'~i"" '_1:.-,/.1;",,1" 'i':"~"">" JJJr '. ",' ,,,,..: '\'~"'''' ~T'" i' ,..t,.\ ". ',_ ......'.. .' ,_;.... .. _' '- .." '-,- p" - '" ',i''''-''- .,"~;'f;" " 1iif!I' '\ C' ': ,. ,: ,,' . , , '""",,,,,".'II'\'+"\"""~f'I!.,\~,.r,"'~~..t"~ri;,,,"\lII-'_J~'/ ' . __, ',.. I.~~_n ",,4.1 YHrl1'...-n~ I"'~ l.m.o......",I-,..~....~,j. ' . '."t. I"'''' .~;.."",J~,.... Sep 19 3 17 fH '9~ c'" <,,'JtFICr. Of.', ,L i".iHHQNcr.\~Y CIHHir.l\l t.HO cr",IMlY f' E I;a~ Y ,,_: ,\h ~ A !';! I" , ' , , , ., , , , , " " 1',1. , ,'J~,l"",:,",~ry-~-r-~'''''''''''':'''-:I~'.i -- '''i~-'''''''''''''~',''I_''''''''''''''''''''''I'''.' , I 1 il ,. .-. ~'" 'I' ,~' . . .. "'l'1' .,'" ,1' I;, ~ :~'" '''''''~\:.;.j,. .' " , ., ~t, " , , " .J: . ,~ 1'--1 -,,,,.,.,~_ .r, ., 'I, " " I, , , , " I'; , ' , , , lAurrMaB AND SHILLING aTTORHIYI C. Willi.. shillinq IU.RIMI COURT I.D. NO.1 4"'5 3211 KORTH ~RONT ITRIIT HARRISBURG, PA 17110 (717) 231-7207 aTTOlUilY ~OR I Defendant Judith a. MiUetic. KA'rHLEEN ZARB and MICHAEL ZARB, wife and husband, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. JUDITH A. MILLETICS, Defendant DOCRET NO. 94-4071 Civil Term RESPONSB or DBrINDAHT. JUDITH A. MILLBTICS. TO PLAINTlr~1 ~EOUZST rOR PRODUCTION or DOCUMENTS The Defendant, Judith A. Milletics, by and through her attorneys, Kauffman and Shilling, hereby responds to Plaintiff. Request for Production of Documents as follows: 1. There is no investigation file other than that which has previously been provided to Plaintiffs counselor the records that have been provided by Plaintiffs counsel to Defense counsel. 2. There are no written statements which directly or indirectly relate to this case. 3. There are no photographs or diagrams related to the incident set forth in plaintiffs Complaint. 4. There are no photographs or diagrams of any person, place or thing related to the incident set forth in Plaintiffs Complaint 5. There are no statements of witnesses to this incident. 6. Defense counsel objects to this request for production of document as requesting material outside the scope of discovery. Notwithstanding the above objection, nor waiving said ,.!, ,I'. . " ", ",j i 1 r;,I' , jll I'''' "" ., Ii ,,' .'.'1 " :, II, " . I :tl' 'Ii " ,'-," " " ,; ''l "" , 1fT ',I' , ' '<l~ , .1'\ "1lO"'1"'II"\\I<Il"'4ii'!l\1l!iIJIlI_;~._~ "l"Ml'j Ocr IZ Of J 43 fH '911 (:l/, ',I. ,~'~(fl(!t ","-t II/Uk' I tit' . ,:,,(' 1,,1 r4~t jJ., y" "-U/I ('W " ;,,~Nll ,. :' " , , , " \~.l I, r', r ;1 I t,. ' 1 ' j I,; " I I ! i I' 1,1', ii' IJ i I" ! i , 1 ' ~ ) . , .... ""'~'-~\>'!""-"il'"'' , ' ,~~I~~~'tt_"..."O . '~ .... J' , i\ d '" . , ' . , 't' ,'jtot:;rt. ~ ., " ",,"'- "f 'l'~'1fr1-'" '. ;'.;0 , ',.': ", ;'.\., ,. '-\ .ji' .,J 'r;' 01, I"~ :,;' :,- ,-."'''' \ 0' I I'l'- I , . " ", " I I , " .' '," , , , " ': .I" I' ,'oJ '1>1" ,I', ." 1\-'1 " " " , ,'/ , 1 '. , ~ .\, . ... 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J'iA"l,,_'_'/""_"f,',:r:"!""'.'{), "',';' :',' ;"''c,I,_I. ',--IJ'.IL';!I t"'J',' "", ,..C~rM~,;&\\lM.11: I, )tl~'~~\' ",pll,,;.! :\WII/!il~,!~~lrl/ , .' ,. , ,,' 'Ii ~"_~"""",,,,,,,,,,,,,,,~.;~"'....'.'t'''''1'''~~'''''''''''''''''''''' .. . ",' f> "'.I.n-''''''''''''''f,.,tI~(~'''~IF'l0\t4lJ''II~IJ._.,Jl,.A''JtJ" ',I' I , iI " .OCT 16 2 so PH '9~ " , j- I , , ,iI' " Qf t\ 'iFH;!:, '('UII"n' , ' ',If':W r.\r,~ I "."f, ,',',;) (i:II~H~ PEH"'~YI.~,A.~I~ , , , , p ;i:\ ) . I d. " J'I' "" , " ., ", II )' " , ;i: ,i " l~-i ii:&t~ "',..~\::\~ \;;IC,:,\,lV,.~1; " , .i-:'~\-f!"'{~'!:{t';i'~ i;'i,.\-tP",luf ri ,'.'i,\('~i'lj,-W- ;'/f ,:i~"'~l:;',', '; JY!'\'~ , ':":~I:;..;!\~hP,' t1yltl-/!t.k;"JJ"i!.' t'.--,}/ _;:\~; SI!,III'~~ 1,1f,".'__I.,_I,,\,_.. "'i]"'; ~l,,;Hij':i~~'l , , ,..1l,!if"..r<l:11 )"rril."'}""~{I~{l:i'm; , ' ~ '1 ;Al~l\!lt,j~~"~ I ",h'",.!"\' : fl':,':"t':'"\lj '<'II"r,\~i;l11:' .1 I, ,II " '}'q.I~t r'1\1 .III I ' .~ ~ '11'\1 ')1"'" ">;';I\J. '1 'i ,,', ~ ,,' II J~}\%' 'I":;" '''''/;R 'il"~l, ::;; ,-C:: i;}l~, , ' ',. iil',-!~~;tl'r-,.ir,~~., ','," ::"/';IF!;;'-\.~11 ;,.;f;, ':"ii:"'I'~~~l; ,.,.j,':>~t'(i;l\ i'f, ,". ',,)}Arl ,;;,1\, ':"i'KU2t~ ;,,";+:/;( " '. ",' I': I:"~ , ../.,: ~ ! " ..1." " " , ,) fl" ;\1 " 1'1 " if ) ~ ,I. ': ., , , Tf' . . ....' '.... ~...... .,.,,, . c' , .. " I' I" I' , , . .' r -' 'I, '.'. ~ "T .! .' '~:~;:',I' . \ . , 1/1 "" ~..",""""" . I I,,' .1 ....1" ", " ,j .d_ ,., .."",....l"'...~ "q .......r.'" h,..,JJ.....f ......."I.!lI<',~'i't'Vh..~i .j~rlt*IJ"'f;'~.I"",iiI~lHr 11l1""l.J "I i , , " Dc' 10 2 50 PH '9~ 'I' b. , .' i ,.oi "I:f; , , ," :t, '. I , , ' . 'I~N,:lU.~ " (,I. V I' -"ll ., " P, :, -,",j, '1' IJ .1"r 1 ":l ~ I, ' \ fj , t. l' 'I, .' I,")"'" ,.)" !.I'; ,I' " , , :'i' " Ij;' ,I J " '" !, ;J , ,; I; " ., " ti' .,', ','I '1 :;., , {,I .' " '. )',\[ , ..i !\I ~l\' " 'J , , "-",' ,<,'I, , . ,I '. '... ~ , .. , , , ,I, ,'I , , 'II ''II!' ,~~"Hi '.l;~"-l , ,} 1,1 , , . I"" 'II 'I{' " ,,' J '\' ,. "._.. v."._,.......,...';'""'-..;.....".....\"".~...j....-r," ..' N -" II ..._,.,,_..,..'.......-.+-,)..,,- I .I~'j ~, ~ ".1- :~ ".( ",., .. . 'f . f KYCRaI, GmCILE . WELKER, P.C. By: Marla Welker 10 No. 44069 230 South Broad street i 11th Floor I "Philadelphia, PA 19102 1(215) 735-3326 Attorney for Plaintifta KATHLEEN ZARB and MICHAEL ZARB : COURT OF COMMON PLEAS COUNTY OF CUMBERLAND vs. JUDITH A. MILLETICS NO. 94-4071 ANSWERS 'TO PLAINTIFF'S MOTOR VEHICLE INTERROGATORIES ADDRESSED TO DEFENDA~ JUDITH A. MILLETICS To: Judith A. Milletics, c/o Grace Schuyler, Esquire 3211 North Front street Harr i sburg, PA 1"111 0 PLEASE TAKE NOTICE that you are hereby required, pursuant to Pennsylvania Rules of civil Procedure No. 4001, ~ 'USL., to serve upon the undersigned, within thirty (30) days , after service of this Notice, your Answers in writing under oath to the following Interrogatories. ~hese Interrogatories are to be deemed continuing so as to require further answer from now until the time of trial, without further notice, if you learn further information called . for herein. These Interrogatories are addressed to you as a party to you, your attorney or other representatives. I I , ,I I II I ,I DEFINITIONS AND INSTRUCTIONS (A) Whenever the term "document" is used herein, it includes (whether or not specifically called for) all printed, typewritten, handwritten, graphic or recorded matter, however produced or reproduced and however formal or informal. (B) Whenever you are asked to "identify" a document, the following information should be given as to each document of which you are aware, whether or not you have possession, custody or control thereof: (1) The nature of the document (~, letter, memorandum, computer print-out, minutes, resolution, t~pe recording, etc.); (2) Its date (or if it bears no date, the date when it was prepared); (3) The name, address, employer and position of the signer or signers (or if there is no signer, of the person who prepared it); (4) The name, address, employer and position of the person, if any, to whom the document was sent; (5) If you have possession, custody or control of the document, the location and designation of the place or file in which it is contained, and the name, address and position of the person having custody of the document; 1 (6) If you do not have possession, custody or control of the document, the present location thereof and the name and address of the organization having possession, custody or control thereof, and (7) A brief statement of the subject matter of such document. (C) Whenever you are asked to "identify" an oral communication, the following information should be given as to each oral communication of which you are aware, whether or not you or others were present or participated therein: 11) The means of communication I~, telephone, personal conversation, etc.), (2) Where it took place, (3) Its date, (4) The names, addresses, employers and positions la) of all persons who participated J.n the communication, and Ib) of all other persons who were present during or who overheard that communication1 15) The substance of who said what to whom and the order in which it was said, and (6) Whether that communication or any part thereof is recorded, described or referred to in any document (however informal) and, if so, an identifi- cation of such document in the manner indicated above. ID) If you claim that the subject matter of a document or oral communication is privileged, you need not set forth 2 the brief statement of the subject matter of the document, or the substance of the oral communication called for above. You shall, however, otherwise "identify" such document or oral communication and shall state each ground on which you claim that such document or oral communication is privileged. (E) Whenever you are asked to "identify" a person, the following information should be givenl (1) The name, present address and present employer and position of the person; and (2) Whether the person has given testimony by way of deposition or otherwise in any proceeding related to the present proceeding and/or whether that person has given a statement whether oral, written, or otherwise, and if so, the title and nature of any such proceeding, the date of the testimony, whether you have a copy of the transcript thereof, the name of the person to whom the statement was given, where the statement is presently located if written or othorwise transcribed, and the present location of such transcript or statement if not in your possession. (F) The term "you" shall be deemed to mean and refer to the party to whom these Interrogatories have been propounded for answer and shall also be deemed to refer to, ~ut shall not be limited to, your attorneys, consultants, sureties, indemnitors, insurers, investigators, and any 3 1~~, ~t the tlme of the lnc1dent referred to 1n the Complalnt, dld 10U have a valld 11cense to operate a motor vehlcle? If so. state: (a) State 1ssulng. (h) The explratlon date. (c) The number of such 11cense, and (d) Whether there were &nl restr1ctlons of sald 11cense. and. lf so. the nature of the restr1ct1on. ANSWER: a. Pennsylvania b. 3/31/96 c. 16 582 430 d. COrrective lenses required " " " , " I , " 18. vehicle end auu Give the name and addreaa of the owner of the operated by you et the time of thi. accident, the make, model and year of eeid vehicle. ANSW,ER'1 . Dennis and Judith Milletics 19 Circle Drive Camp Hill, Pennsylvania 1990 Chevrolet Cavelier t9. What dietance aeparated the vehicle you were operatinl from the vehicle which the ,plaintiff waa opeutinl when you firat aaw it immediately before thia accident? ANSWER I '10 to 20 feet. I am not sure, cannot rementJer exactly how fer away it Wf1!I. I , , " 'I, '1;,('1 "I , "1 /. i, , ':, "fRi:N"l1 "ff"" ," r./"iN'" ('" '.'_', ".",'" ,. ,,' I" :' i \;I::.!i;:;,:.'-,' r " I,.' . 't! .. . ",1 . ,',i, ']', -'", " , ',~ " . . - ,'__I ,i ._~. J . ',..~I'..<'J!- \:!. : 'j."'" If . " .r"_'.. . .' ,-1. . i . f:," I ..j i 1\ I'. ,'t',' "_'. .. , I ','itlt'.,!I',,':. :"'/", ',;f"'~i_.t'I"'/'iI"""""'~"'i,"'i'\\Y,',jli'\!I"""H~,,);,.,il"I~,"II'.\;!,i"" ",' 1,'ifr'I.H',Y:t~J/;',;u;Jrrll;~\I--Ijr:l'! . -,,;'- _,'..'i.,' .'- "'''-;'f'';:'~' ;'t,.:-,I n'ri.~bl":'II":""'t'i ." ',Ju,H.lI.-' . ' " ,.' I!lf'lil "" " "',,,!' . , " , "",., ,. ., . , "I t .n........;I.........,,_~., _......._""I.._n.'r...I__"'~"lI'f'l,~~I..."'\!'..,~'i~~ t'''rl!l''~'I'f'- , I o.;u""J - .... I !, , .. "~h""\""-"'" _,;.j~""'Ull_'_-<ofMI "~I Oc, 16 ,', 11' PH .", " f', Ev ,ill' }I Of Till'" . OfflOE ", I;uu~dl ';OTIIOHOT ;It p NN~~t~l;'~N~~r " ','1 .,.'::1" '..~ '!" Ii J " f #,' ;11-; "',1 j.;, , fir' I. , I, n'" r " .,. . 1".4 , ' v , , ' ';) '1", . ""1' ..".,.~.,."... , "..'."fl....' ;;.;...".,.....l-rt'<Ui~....'9"...~ II- ': '! . , . '~, '. " , , . ." .' . ,.,....". . ':'I""i~' II" .1;.',\" . , , , ,j '" ':M~~';<:~{ AND NOW, W115tb day of .JUIle, 19915, I, Tim.J. Harrinpoa, .Jr., Eaquire, aUorDl)' few certain cletendant(.) aftirm &hat INrved &he attached Notice of Chap 01 Mdreu by depoeitine aame in &he United State.t Mail, pOltare prepaid, in HuritbW'l, PelllUlylvania. addre.ued to: Marla Welker, E.quire MYCHAK, GECKLE " WELKER, P.C. 230 Sou&h Broad Street 11&h Floor Philadelphia, PA 19102 Izj;~ Tim .J. Harrio . Jr., E Supreme Court . ,No.: 2 3211 North Front Street HlU'I'iaburr. PA 17110 (717) 231.7209 , ' " t,li ,I' ~", 'J',d, 'r'.Ii~l!jt~iL~H i" '__ J ,,',', iii, ,'" ,J, '" ,j' 1,'1", ,", '\' ',b" ',;j.,' , , ,,' ""I" ' . . ;:".I\fi'Y,'~c.wt!.; ~(~~~If'Ni~"! r,:r,1 l:t/li}!;}',fJt~,~~~ij,N,'iJ" ' -. '" " 'I, , .. .,. , ,. i" I," , '1., ','... 1'- ' ,,~ " . . !~ ~. \,.. ~ '/, '. .~ " ~ ." .,' " ." " I'" - OF rUD.OFACE illF p:n!llf'NOTNlY III' ,I 96 FrO 2 I Pill~1 30 , " , ," CUMe,d III ;,) C..l!i~ I Y 1:i:NNSYLVt'NL!., , , , ' " , M '';; ... ."" " ,,( .' ".. , I ,.. ., '" '. "~: ,t,':; ;':: "f' " , I I >I t;.,l " , . , 1',', t',r';>: "1 1"rJ :),r,' ,,, ,~!1:M~ ;pi ''','i '" , ' ',,(_ 'i, , , "I ::"1 "1 , " , , " ;{ , " " i, " r: ," '; "i' ;r Ii',' . , " , ,. " " \ ,;;1 , '<' '1\ "1 , , I,," . , 'I.->r,'i, .,. -c-"*l,~",.,-,->",.-t......'t.'H"":'''- .,,-...~_. .' , " "',,' iii. . " .' " I. '.. , , . . - t,', '"". ~ ',,.......,. ~,',l< , , " ;,'i'i'i!I;\i'.;lr, '-; ,i,:' ',l~!,;i;i :,:i::i~~ .i:':NI.,: '~~I 1;:"1,_1'''.'''-'',01',, !'::-'T\H}!~i ,jf {!l ':;i :~';Iri, l..Jt . "'/':I':,L,-/,;,'~~'i'(.iI'r ';tl', d /',lJ::.tJ,h..; "I, ~." /"" ~,p I L~ , '"~ it\\, "!;.Ij~r I" l' I' ~ '" " I {'" ,; { ~l./j,' ' ,,(:.t'~,ll. /,', 'rtf,l I ,~ ~.'''~\' jl",lj fl., . - I i'Jr-I~ 'f)~'r'r )1 '(':"rJlllhl' ~11J:1 } 1 I, '(I ;,,',: fe,!, rl ~}' I(L,~t!\ Jr.~,d?,~ , "II)' ~Jl ,1;,,\ ",: i ':'/1:." "i~~l , '\' ,\),111,17 'fl t" ,'1',1;[;\'(:. 1/,1: jl~,';jf,~;'~~)\~i i' 'i,L;~'~');n\'''~ y,; ';,li,I,:;;,),~:~ r~,\~ ',', ",I"'.'II\",Ll 'Ii'''!'' I'" ;,'.1- "~-~' 1),1 t'~, 1;(;,' ,,-: _',r;,",~,t "I' '!',": " "I" ~11 -'::"'1" .;); ':,,( ';J>~:;,~"ll;'~; ',~i" ,,'.' ;:;rll!ih~lll 11:.' .,q:"',,j-:l~ ,}.'",,]~ ':' ,});,J.:;;'d,'t~:,i/f;~ i!): ',~::'" '>,',' :~~,~f,1Ji1I;1 '(~( tl!r;,)," :!:~I"r/~\,~ ,.,' :"~\r~,i: ,\',:I'.fJf,d.t)~l ",;::'; 'I,u \:~l,\'~~t ' f ~ ',: I", ,'", "t ,;;'lJ,,,, J I", l'Ii;!;] JI (.""I,~.I'l,~.; ;; flY ",,",I,,'!"wjr'll: \ ,I, ,M1wl"ri '. ~"'('~)\',!l'i\i,i~~iltl ,'~}_, '111" i'" :.i:i!i'lJ:!II '" ,) 'hi'" i~ p.~. '.;; ',::'1),~~~:j ')'1'" J'. ;,"I~I'; / L"'l~"I. ',' i"'- ",Til'IY'\ , "j ,"'j', ~,<t I ,,'.,f.!. J"'I,'.{lJ1'I,!1. ;I'-";'rlt'~f,r, 1'1.i!-\:.:1:..~\~~4~ ':, I.': "'(,';:~\: ",-"'1'.1,. ';:,\i\i:,:__.ii'!IA:~ '.'-'Hi"r:: \"iH 'I,,)',;', ,j ":jj ,{','I' " 1,.-.;. l,;,::",:"" f. '1:,;,("'-' ,:'! ,', . , 'I. ., , I( ., '.' LAW omclS O. HARRINGTON, KAUFFMAN A SHILLING AtTORNEYI C. WWIa. SIIWID, SI1PRJ:ME COURT LD. NO.1 46995 3211 NORTH FRONT STREET HARRISBURG, PA 17110 (717) 231.7207 A TfORNEY .0Rl DefeDdaDt Judltb A. Mlllede. KATHLEEN ZARD and MICHAEL ZARD, wife and hulbuld, Plaintiff I IN THE COURT OF COMMON PLEAS OF CUMBERLANDCOUNTY.PENNSYLVAJaA JUDITH A, MlLLETlCS, Defendlllt DOCKET NO, 94-4071 Civil Term VI, CERTIFICATE OF SERVICE AND NOW, thil .1Q1b.. dlY of February, 1996, I, C, William Shilling, Esquire, attorney for Defendantl Judith A, Milletics and Dennis Milletics, affirm that I served the Notice of Depoaition directed to Plaintiffs by depositing same in the United States Mail, postage prepaid. in Harrisbura. Pennsylvania, addressed to: Marla Welker, Esquire MYCHAK, GECKLE & WELKER, P,C, 230 South Broad Street 11th Floor Philadelphia, PA 19102 C, William Shilling, E Supreme Court 1,0, 699S Attorney for Judith A, Milletics "J,I,,', 1,._ 1 "",,,OoJ" " , , 1,!1 I , , III II"'" . , , '. ,.,.....,.....;.....,;~,..........._l. ALFD-OFFlCE " OF T).'r: 1"""'I",ln':'lT/'~Y " "\ . _"~I ), 1\ 97 Jllt!:'2 PH 2~ 21 , .Ii',; , " , CLJMt;,:.i 'j J ':)~I 1,\...ul~'I'{ ", , ,,1' PENNGY~/^,W\ I, '. I, , , 1,';' ;,1 " ." III " I' , , " ". I " ,I " , i. " i' , , , I ., , " . .,-r--",..,..__;..._.......................;'~~--"~'."...I.~,;...,-r~....wf>iUlo'-",U.._f,'~-'-~~' ..". ., ,l.,~,. . 'I ,. " ,. T~VI."", I :- ; "'~"-'-'";; ,t,.." .# ....~.r ." I _~\'> ,I",' ,\j_; 1',:lf'f;" "I .~ I,' I , .... ", " . -i'I"!' , ~,t!',-:" ' II, ": "~..~Jl\'l~r'...:"'\f'"i.i;~: 'i', ,:' i_;:\~; ,\l-j::t!'j .'" - t,j" ::1),';'_ "'. t, . fltu'nplf tl)R CO~m.mA'fIOl'i The Defendant, ludith A MeUltica . by and throop her counsel, Harrinaton, KaumnIII and ShilIina. petitions thI. Court pursuant to Pa, R.C,P, 213(.) for an orderofconsoUdatlon and in IUpport represent. u follow.: I , That your petitioner i. the Defendlllt in the sbove-captiuned action for the recovery of personal injuries alleged to have been suffered by the Plaintiffin. motor vehicle a<<ident. 2, The Plaintiffs in both actions above are the same individuals, 3, The motor vehicle accident, which is the subject of the case against ludith A Milletics, occurred on or about November 20, 1992, on the Carlisle Pike in the Township of Hampden, County of Cumberland, Commonwealth ofPeMsylvani., 4, There is presently pending in the Court of Common Pleas for Cumberlllld County at Term and No, 94-4072 an action by the same Plaintiffs against Piercing Pagoda, Inc, tldIbI. Piercing Pagoda and Capital City Mall Merchants Association IIld Crown American Corp" defendants, for injuries alleged to have been received u a result of a trip IIld fall. at the Capital City Mall on September 23, 1992, S, In both cases, the negligence of the parties IIld question of damages is the basic issue IIld its detennination will resolve the right to recover monies by the Plaintiffs in each action for the alleged bodily injuries, 6, Based upon the actions that have been broupt in each case for the injuries alleged to have been received in each cue, it is difficulty to ascertain which injuries are alleged to have " , J ii' " .... ',_il. . .~, '.~'.' '.". '_" " "",' , r j 1 1 r " , , , ';'I;,~t ',i;AJ~ii~i.:~:J;~~J;i\Iiil\.i4I;iif'A.':~.. 'tl.',~'"~:IJ'I!: .M1,,,,'lJ.,).' " , , . ".- ..,......~;<""."',.I.'" ...1.1........'''''1...,81. , , Cl '" eU?D--oFFlCE . rill r:r:r:i:'('iI'JTN1\' 97t1AY 2;3' P;i ,:tIllS CU~'i"! ,',' " P€NN$yL~~'7J/j~ I Y . 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"y f\,)-,l[_{,~ _';, .~} _:'fi,,/~:::~.__~':g~I;J,:,i~ '" ,,,.,J ,,'.1;1/ i '_:i~::~_~,i.\~;~W:':'ii,'SfJ '1"""lfi\,-"LI1; ,;. : JJ-:'i'i~ji':bl,\i~,~ '" 1"'-''1',,',~n;I~:';I~:'-~!\~" "i ().,":;r~"1,',~"7_ I'. ,',-{ },\'j'\i ,>; " ::";'Jni.;;;tl!~t!.- " '\' ':(l;;!}~ ':I:I';:~~~ j ij1J.r~'j\ III tt~, \ " ; I ,,"'<I'IJ~~: ~ i'j 'rt '1(1~<;~~ (,I,.<t.l, ii;,;~ 1"'-" '\', c ~I'-\P,~ " ':-:,.:;,/{:lr'_)i~~f~ "'i:.:.;.l,-t,ht:,~ ,.".,\.'.-1""1" ,l',f"'ir-,'.t_1L~~ ";"",\;ft!:!'I\:~' :,[';\', 'T;:1;:'-:'_/?"~~\~~ ",l}};;l!t~ll~l ,"I':I:'_'''J::;jilDl :'r_,'."--'?J~~~~~~ '; ,.:,,,,'~ I\''-~ I" --;'1'.:;'.1 '!, .. \t;,:~) ',,~.l'" '-rVI-i' ,>>',' """'!hl ,'..i;"1 . ::,:':::?I(} " , '" i' O(l...'~I'U.j l ~h"c'l,. q"l-lyo'lJ....., WILSON, BLSla, MOSKOWITZ, BDBLMAN . DICKBR BY: Keith E. Johnston, Esquire Identification No. 27692 The Curtis Center e Suite 830 East Independence Square West Philadelphia, PA 19106 (215) 627-6900 Attorney for Defendant Piercing Pagoda,Inc. t/d/b/a Piercing Pagoda KATHLBBN ZARB and MICHAEL ZARB, wife and husband, Plaintiffs, COURT OF COMMON PLEAS CUMBERLAND COUN':'Y, PENNSYLVANIA DOCKET NO. 94-4071 ~ Ci vil Term v. JUDITH A. MILLETXCS, Defendant KATHLEEN ZARB and MICHAEL ZARB, wife and husband, Plaintiffs, COURT OF COMMON PLEAS CUMBERLAND COUNT':.", PENNSYLVANIA v. PIERCING PAGODA, INC. t/d/b/a PIERCING PAGODA and CAPITAL CITY MALL MERCHANTS ASSOCIATIONS and CROWN AMERICAN CORP. , DOCKET NO. 94-4072 Defendants. AHS"R or DBrBNDANT PIBaCING PAGODA, INC. t/4/b/a PI.aCING PAGODA TO JUDITH A. MILL.TICS' PBTITION rOR CONSOLIDATION 1. Admitted. 2. Admitted. 3. Admitted upon information and belief. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER . THE CURTIS CENTER . SUITE 830 EAST INDEPENDENCE SQUARE WEST . PHILADELPfUA, PA 19106 PHONE: (215) 627.6900 . FAX: (215) 627,2665 '. , \'\1' " 'ii"; /' i I.~l~\. Ii , \.If , ' , I I " 'Ii't" .,' "-. ' :\.:i;:~J;I~llilili~~I:;~,I~J~~~~k~~(;i~~;,:~fl'fI1f.i.~1~\I,\,i"i ..~"r .... ' '.....,..,- " I ,1.," , Al((}{IFf!Cf1 (IF nir rr,r111:0NhTAflY , q7 .JUIl 2J MIIOI ~9 CUMI3F.t{l,\ ',U \ 'OUNlY PENN3ILV/i~',\ , . " ,,' . 'I, " " ~~ ~ .~ ("j I.. ." " N "i 11(' , ) ~,~ " ',. t,., "'0. , ).'1 I~ ' j ~ '. ~i u.. , ) ~j , , ' - ~' o.tl ;:n ,. - L~ !' ..~ ....;\ ' ~. ,'U u. . ,)1, k =:- ,';!' , j b ~ a~ ~~ 5i 7.h ! J I d r. ." "' $0 . "' 0'" c ,^ e~b~ ,< ~~~,~ ~ i 'J ... <> ~~~~ ~~ ~ ~. ,~ ~~6 ~ IJ: ~~ ~ ,^ ... ~ - - !1. ,; ud ~ ~ ~. r, x 'Z d 8<<d ~ ~ 8 88 r; t; ~ ~ -, . ~~f 1 ~<( ~ 7. I.IJ rJ r:- : = ~"" ~ - <= ~ 6 [ 0(. r' ~ ~ - ~I ~~ r:i.... 'r. :I_I =8 "aE~ o it z - ~ 8: I o ." I- r Z I'" ,... ~ = . ij ~ "' ~;; 5~' B Sc;o rr. I- c.. :<.:l ~.- :i 'P. ~ '" ~i <.:lo f ~~ ~ ~~ ~: ~ ~ ... ." I "' 'n ~~ t: '{. << .. '" ~! .. $ u "'.. ~e " ~.. ~ . . ~ ~ KATHLEEN ZARB and MICHAEL ZARB, wite and husband, Plaintitts I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA I I CIVIL ACTION - LAW I NO.1 94-4071 I I I vs. JUDITH A. MILLETICS, Defendants . . . . . KATHLEEN ZARB and MICHAEL ZARB, wite and husband, Plaintitfs IN THE COURT OF COMMON PLEAS OF CUMBERlAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NO.1 94-4072 ~G ()lc~ PIERCING PAGODA, INC., T/O/B/A as PIERCING PAGODA; CAPITAL CITY MALL MERCHANTS ASSOCIATION; and CROWN AMERICAN CORPORATION, Defendants ANSWER OF DEFENDANT CROWN AMERICAN CORPORATION'S TO JUDITH A. MILLETICS' PETITION FOR CONSOLIDATION 1. Admitted. 2. Admitted. 3. Admitted upon information and belief. 4. Admitted in part and denied in part. It is admitted that the negligence of the parties and the amount of damages are issues in both cases. It is denied, however, that there is sufficient identity of all issues so as to warrant consolidation. To the contrary, each case will have its own separate circumstances on the issue of liability including, but not . .. limited to, assumption ot the risk under the particular circumstances, the absence ot duty in the tall down case and Plaintitt's own comparative negligence, the evidence ot which would vary greatly between the two cases. By way of further denial, it is Plaintitt's obligation in each case to provide through competent testimony a delineation as to which of the claimed injuries were supposedly caused by which occurrence. If Plaintiff does not provide that evidence, then she has failed to state a claim upon which relief can be granted and her suit will be dismissed. If Plaintiff does provide that testimony, then there is no risk of inconsistent verdicts. 6. Denied for the reasons set forth in paragraph 5 above. 7. Deni.ad for the reasons set forth in paragraph 5 above. 8. Dellied for the reasons set forth in paragraph 5 above. 9. Admitted. WHEREFORE, Defendant Crown American Corporation requests that the Petition for Consolidation be denied. WAGMAN, ASHWORTH, KREIDER & WRIGHT corp. Box 1522 41495 .' KATHLBBN ZARB and MICHAEL ZARB, wife and hu.band, Plaintiff. v. JUDITH A. MILLETlCS, Defendant KATHLEEN ZARB and MICHAEL ZARB, wife and hu.band, Plaintiffs v. PIERCING PAGODA, INC. t/d/b/a PIERCING PAGODA and CAPITAL CITY MALL MERCHANTS ASSOCIATIONS and CROWN AMERICAN CORP., Defendants I IN THE COURT OF COMMON PLBAS OF I CUMBERLAND COUNTY, PENNSYLVANIA I I I ./ I CIVIL ACTION - LAW I I I NO. 94-4071 CIVIL TERM * * * * I I I I I I I I I I I I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 94-4072 CIVIL TERM AND NOW, thie l' ~ day of June, 1997, upon oonsideration of the Petition for Consolidation filed on behalf of Judith A. Milletios, and of the answers filed on behalf of Crown American Corporation and Pieroing Pagoda, Inc., the Petition for Consolidation ie DENIED. Marla Welker, Eeq. lIth Floor 230 South Broad Street Philadelphia, PA 19102 Attorney for Plaintiff BY THE J '>- \1j , tl~ r.; ., I' ~j t \ , u(' , , , j ~-\ , .' 2~!j ....: .' . .. , n ;,; Ct C",/ [,;' -' " .j I: ,. , d.L . I . II.. ,~"': ;, () ..., ( ) , , l5 ~ ! l5 ~ ! u ~ ~ ~a:lf:;; gri!:~ ~U!~ g.e~; ~ w ~ i!r; , , . ( lAW flfll<f', MVCHAK, Gr:CKJ..I'.. WEl.KER & TIIIROWAV, Poc. - II III HIll)~ ) lI! '" lllrH 111I.1 J,\ll~lIUII PHil AIiH PHII\ 1',\ I'Hlll 'II'M' !,,:.':'), ~:,l:"',-' i'::;~\~!~ '''I' _I,' '~.t.. " ,j" ",~ ~ Jjl;j , L .;h_'" '" vt{. !I , ,;~5j"F'fitL I j; , ~~~'-'-i':i~~I'!:' .'f' q., ,', -.".t_ ," ,', .'! \ ,_ t'i~~\'li';U ,',.' ,.t, ;',',,-1'. '.In;'. .. , " ,---..-.,......,-.-,. I ..'"",'.\,.-.---.".."". ,I; n. FILEO-<lITICE OF.'ri' F 1'l'"rHl)t I'lT/.R'{ (', ';1 I,1' " : li'\~I\'i ' , 'Ii:m~ C'/~t ;:'1 ,10 " /'1 :.1~ 'it,_;!!l" ,-")' ,1",~/ . ';ii:!/::;" t.!',.~,;jJ1.~'i:r~ - ,I (,!:J;\VJIAtr, :.- ,( l'i' l"l~ fr , i.X!ltil , ,("I...JI'\~I?' 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" , ' , , I ,"\', \'q' :",;' 'I, " :1 , , 1'1 , I " .. . . IT;~ " , . ""1 " " .,t ~, ;~'i!~~' II Ii '. , " : MYCHAJt, aSClCLI, WZLKlR r. THIROWAY ! I By I Marla Welker I ID No. 44069 ! 230 South Broad Street !, 11th Floor , Philadelphia, PA 19102 (215) 735-3326 Attorney for Plaintiff " " , KATHLEEN ZARB and MICHAEL ZARB, wife and husband. Plaint iffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 94-4071 CIVIL TERM JUDITH A. MILLETICS. Defendant II ! I PLAINTIPP'S OBJECTIONS TO SUBPOENAS PURSUANT TO RULE 4009.24(bl The Plaintiffs, Kathleen Zarb and Michael Zarb, w/h, I: objects to the proposed subpoena that are attached to objections for the following reasons: 1. Defendant has requested records that have not been these ; identified. Ii , 2. Defendant has requested all medical records, including I but not limited to psychiatric, gynecological, and communicable . diseases. The request should be limit.ed to injuries or ailments ,of the type claim"d by Plaintif:: t.o hwe occ:urred as a result of I this accident. 3. Defendant has failed to offer or provide exact copies of all subpoenaed documents at reasonable cost as provided by 42 Pa.C.S.A. at Rule 4009.23(bl. On the contrary, Defendants have , requested payments be made to Medical Legal Reproduction, Inc., which are not only far in excess of reasonable costs, but which are also far in excess of the costs which Defendant is paying to Medical Legal Reproductions, Inc. for the same records. 4. Defense Counsel is already in possession of all of the records, which were previously subpoenaed in another case. THEREFORE, J?laintiff hereby objects to Defendant's J?roposed I subpoena and prays thJ,s Honorable Court to Strike Defendant's lJ?roposed Subpoena(s) pursuant to Rule 4009.24(b). I Respectfully Submitted, HYCHAK aECKLE WELKER. THIROWAY, P.C. , BYI ! /f'l,v& I./.)/L Marla Welker Attorney for J?laintiffs , , II , " I ',to. \ .',,', . '. . I,' . 't'. \~,. < I, I,. ~ '. \ ,1','/_"/1 , ll':"",.'i' " ,:' ~ , ,.....'..; \ '. " :,:';'<;:;::'\r::.\ . "1. '",'''' ' '-' ',1, '. :.,),'." .. '\'1 :'~. '!,'''It',.,: \ ,," ".t. "," . " ::.: ' 'j, " ",I " '~ :'1 ~ ,:"" \!' ' :;):;~':>~;;f.;;:.',~'.... "'.. l~I~~;'i;'I';";' ,.to 1 , 'l. ,.~,.>.. ,. . '1 ,', .\l" <"'I,\\~ ...\f,~ "."",:- ......ft':.~, . r.:~' '\ ,.. { \' ""I ,I ~ " ""-"';"'1.,'1""'" . .(.'. I"f'tl)'t,' ',11/.'; "I' '., ,,<,/ . ,. '~I '. "'" ~. .,," :.~ ,l, ",;' , I.' ~I ,.~ '.~ ," -, . :' ""~,lt\/r":I"t"~~"'-i' .'," I '.'t/;';:!":'~'~" '/1",~'.:1'V' ',' ' , " 'I' '.' .', '; . '~l . h j~. ~:~~~~.\;i:~;i;;: \; i'.::,. t,{:.'2:c'1I'i'k"t~~.,~I!ll':~, ,'., I !;'.~.~fJ,."~~~'l;,?~~"",.t.; }.'. '" ,';- I '~'t,~, 1" ", '" ' 't.' ','., .' ~;(, . '.' "': ~.~; ,', '., ' ' ~ ': L 11:' ",. ~ 'J~ ~. . 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',. ;~'.' 1.;1, , ~l:~... .....j' .:,~.; f' I, 'J" < ':..'1. '/ \..., .. . '.,<:;\0':' , , ',' ":." '. "..,'14" ',,'. ,".' . ',I "I. ' . I " I . "',,. ,,,'~., ...: ..\' ,,", ,\ '~'" (... .,,\ J, . , r.. \ \ .. ..)1; ',"'It 1 ',_".:~._;I~ .' 1,1': f ( I', . .. . I nil' ,} ,'t, :': "."" "':";' d.', / ,.,.,1,. . .,..,'.;" " :"....',J r,' /.. ie' ,:,'..: "".. ", ~,' .'"""....' ,,~, , . '~". I ..... .. . ': .." ,', l' ..t ;fi .....t.'.r: <t ~ H~ i! '" ci5 H iE ~ " , 'i' '.;"'. . '.' "', .. ~, ' ,;1. '0' ,," ,; " ,..... , .... .." .' .' ~ . ,,' ,.. . ~ . r . ' " i:',.'\" .. ',. ,'" ' , ',' ::i'.,' ...',,;-.:'. :,i..'....:' ..,;'."-,',<< ','" / ,'- :~ I", . : I \,.~' I"" i>;, I. '. 'I.... .... I,', ""'...', 't ,~,""... '\_. ::; ,','.' '; ~~.;.~, ':.~~\~i~.:~'~', .{ ':'~":',~;,~ .\.t~~~'~\'~1\::':';""\:!;1:::SS~i~ f'.; ~~. ~< ..J ,\(~, I.,:t--t 'ri,' )';"'~:,:: .'~;~ .;.{.-'(~:',.~ ~;', 't~:'t,~t.I.I'; ~ . ;':";:::":" ( '.:~ "'~":,", "I..,.., ~:: .:.' "'""\'::;:".';;1(:"'~ :'i~;<::( :~,"'~:I;>,.',. 1./,.;.-,..1 ~'11'-\~ <, \' ,l" ...."t.'...,..l.'ll~'~..\...~~ :~ .'i..,:;,... '. ",.- ::';'Yl:>;'\,.'}.:;:;:::i:~( ..' '. ,.',.'. MYCHAX, GECKLB, WELKER & THIROWAY BYI Marla Welker ID No. 44069 230 South Broad Street 11th Floor Philadelphia, PA 19102 i (215) 735-3326 I Attorney for Plaintiff : KATHLEEN ZARB an3 MICHAEL ZARB, wife and husband, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANlA vs, NO. 94-4071 CIVIL TERM JUDITH A. MILLETICS, and Defendant CERTIFICATE OF SERVICE I, Mat'la Welker, Esquire, of MYCHAK, GECKLE WELKER & THIROWAY, P,C., attorney for Plaintiff, duly certify that on this date, I served the within Plaintiffs Objections to Defendant's Propo8ed Subpoena upon the person and in the manner indicated below, which service satisfies the requirements of the Rules of Civil Procedure, a true and correct copy of the same in the United States mail, postage prepaid at Philadelphia, Pennsylvania and addressed to: Timothy McMahon, Esqui re MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGIN 100 pine Str~et . Harrisburg, PA 17144 (Attorney for Defendant) Respectfully Submitted, MYCHAK GECKLE WELKER & THIROWAY, P.C. By: }nj~ r)L~ Marla Welker Attorney for Plaintiffs DATED: 4J.!-/YJ ';!" ..t, " I:: ,.II' " ""i,'pl'.': , ,j' 'I, " ~'" ' {I ". \', ,ql , " " ,'I" " " " " " " , , , ,";,,:, :.' ':: ".";'.'1.' :"., ,'!' ,',' ' ,,, ".,)....;:i,::,:" i .. . ,Ii. ',to' ::i" i ";J~K\'1,4~,';l,y\lli,!.IJ"L,J'~':""'i.J!'\YI'J.,")" \,,,,,(,);~t.l'A,."'" ,(':', ' i~:.,.J'."ffli',...,.~~M",~if;;~i"'Il!I'I1IlIllIiI,,,\~\,",,:,:\il;"I'f'~~II~~{"~"'"'' " ., I.:J. ' ,1,1,.;, ALEO-crACE (J; 11:~ rr:o l1,J()t ,OTtlRY qB H',R 30 PI! ~l 05 CUMEbll.,NJ C.CUtHY fEN~tYi~II,i ';'1\ '" , , ,,' ,,' , " , " , , ' .,..,j..'....""MWU..lrloMl..". , ' .. ......;,..."...,.,.......1t"".....w;'-,.. ' .,' , .- Tt ... ...:".,....'!fl''';~~.,........"_.,,..L , "\' ".--1_-.....- , ..' ',', I I. !+"..........w,._"..,..- " I' \ , ' , 'l" ., , " ;""""'~'" ,I ~ '", " . i " , e, '1.' t1, .; , , '. iI' . ',,"" " '.'.., "'lr:',~' ,I" ., ,; '~i~'\~' "; , I,::, I'- \, i; ~ ",'1 " '1'1 , MYCHAK, OECKLE, , WELKER, P.C. BYI Marla J. Welker ID No. 44069 230 South Broad street 11 th Floor Philadelphia, PA 19102 (215) 735-3326 KATHLEEN ZARB and MICHAEL ZARB COURT OF COMMON PLEAS COUNTY OF CUMBERLAND Attorney for Plaintiffs vs. JUDITH A. MILLETICS NO. 94-4071 CERTIFIg~ OF SERYl~~ I, Marla J. Welker, Esquire, of the law firm pf MYCHAK, GECKLE, & WELKER, P.C, attorney for Plaintiffs, Kathleen Zarb and Michael Zarb, do hereby certify that on this date I am serving a copy of the foregoing document upon the person and in the manner indicated below, which service satisfies the requirements of ttle Pennsylvania Rules of civil Procedure, by placing a true and correct copy of same in the united States prepaid, at philadelphia, mail, first class, pOf,taqe Pennsylvania, addressed to: I II II I i i I Timothy J. McMahon, Esquire MARSHALL, DENNEHY, WARNER, COLEMAN, & GOGGIN 100 pine street, 4th Floor P.O. Box all3 Harrlsburq, PA 17108-0803 MYCHAK, GECKLE, , WELKER, P.C. By: )11,)." G"hl;____ -----~,---- Marla J. Welk('r Attorney for Plaintitts DATED: 5/13/98 if '), '.I' " ~.j, ',\ . ;'i~~4j 'I' ", ,~' . 'H ','I ",,' " ,I, , " , "; .. , " , " .,,' A.l~~~ :9FFICt: OF t,+ ,'i.l "'li"!':OT,11?Y ,9~N"Y20 I'I! 11~7 Cu,I')! !i(" .' ''''''I ""'''- u)lN/y . FI.: I!{\!S~I.';?.'F:; " "., r.; ," " ',;'i , II, , ," ., " I' _'I.......--.-'~~.:-';'_..~'"' ~"''''-''tf-'''''''~'.- " "'","''' , ... 1, .....~....fHW,."17.. I I I P, ~l .. , -. , -. . , ... . " ',\';'/":-; Ii' .'. TI ., . " '. I' , Ilrrrllnf " . i' I'" rr''''-:-:''~'-'''''''',''''l :~1 , , ."" , .. " . , . . 'tI '" ., , " '~'1 . .') MYCHAK OECKLE & WELKER, P.C. By: Marla Welker, Esquire Identification No.: 44069 230 South Broad Street Eleventh Floor Philadelphia, PA 19102 (2151 735-3326 Attorney for Plaintiffs KATHLEEN ZARB and MICHAEL ZARB COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. JUDITH A. MILLETICS NO.: 94-4071 PLAINTIFF'S RBQUlSTBD POINTS FOR GBNBRAL INSTRUCTIONS DUJl.ING TRIAL , , 2. The Plaintiff establish the Defendant's must negligence by the greater weight of the evidence. He may do so by circumstantial evidence, that is, by proving facts and circumstances from which negligence may be reasonably inferred. You may infer that the harm suffered by the Plaintiff was caused by negligence of the Defendant if you find the following al three factors to have been present: bl cl That the incident here involved is of a kind which ordinarily does not occur in the absence of negligence. In this connection, you may consider the general knowledge of the community, the evidence of the parties, or expert testimony. That other responsible causes, including the conduct of the Plaintiff and third persons have been sufficiently eliminated by the evidence. But is not necessary that the Plaintiff exclude all other possible causes for her injuries. Evidence that is more likely than not that of Plaintiff's injuries were caused by the Defendant's negligence is sufficient to permit the inference. In this connection, if you find that the Defendant had exclusive control (or, shared control) of the instrumentality here involved at the time when the negligence claim would have occurred, you may determine that such other causes have been sufficiently eliminated. That the negligence claim is within the scope of the Defendant's duty to the Plaintiff. I I Although the Defendant is not required to offer an I explanation of the occurrence of the accident, if he does so, it , ,! is for you to weigh that explanation in relation to all the evidence to determine whether negligence by the defendant may be reasonably inferred. If the Defendant chooses to remain silent, it is for you to determine whether or not you will infer that the Plaintiff was negligent for the happening of the accident under the circumstances developed by the evidence. Pa. SSJI (CIV) 5.08. 4. You will recall that Dr. Jungho J'ay Cho gave testimony of his qualifications as a medical expert. A witness who has special knowledge, skill, experience, training or education in a particular science, profeseion or occupation may give his opinion as an expert as to any matter in which he is skilled. In determining thd weight to be given to his opinion, you should consider the qualifications and reliability of the expert and the reasons given. You are not bound by an expert's opinion merely because he is an expert; you may accept it or reject it, as in the case of other witnesses. Give it or reject it, as in the case of other witnesses. Give it the weight, if any, to which you deem it Pa. SSJI (CIV) 5.30. I entitled. 6. In resolving any conflict that may exist in the testimony of expert witnesses, you are entitled to weight the opinion of one expert against that of another. In doing this, you should consider the relative qualifications and reliability of the expert witnesses as well as the reasons for each opinion and the facts and other matters upon which it was based. Pa. SSJI (CIV) 5.33. , " 1. In civil cases such as this one, the Plaintiff has the burden of proving those contentions which entitle him to relief. When a party has the burden of proof on a particular issue, his contention on that issue must be established by a fair preponderance of the evidence. The evidence establishes a contention by a fair preponderance of evidence if you are not persuaded that it is more probably accuratp. and true than not. To put it another way, think, if you will, of an ordinary balanced scale, I side of the scale, place with a pan on each side. On thl:! one all of the evidence favorable to the Plaintiff; onto the other, place all of the evidence favorable to the Defendant. If, after considering the comparable weight of the evidence, you feel that the scales tip, ever so slightly, or to the slightest degree, in favor of the Plaintiff, your verdict must be for the Plaintiff. If the scales tip in favor of the Defendant, or are equally balanced, your verdict must be I for the Defendant. I II the following propositions: that the Defendant was negligent and I that the negligence was a substantial factor in bringing about I I the accident. , i In this case, the Plaintiff has the burden of proving If, after considering all of the evidence, you feel persuaded that these propositions are more probably true than i I not, your verdict must be for the Plaint iff. Otherwise, your I verdict must be for the Defendant. Pa. SSJI (CIV) 5.50. I 2. Negligence is the doing of an act which a reasonably prudent person would not do under the same or similar circumstances, or the failure to do an act which a reasonably prudent person would do under the same or similar circumstances. Lanni vs. pennsvlvania Railroad. 371 Pa. 106, 110, 88 A.2d 887. 3. Ordinary care is the care a reasonably careful person would use under the circumstances presented in this case. It is the duty of every person to use ordinary care not only for his own safety and the protection of his property, but also to avoid injury to others. What constitutes ordinary care varies according to the particular circumstances and conditions existing then and thee. The amount of care required by the law must be in keeping with the degree of danger involved. Pa. SSJI (ClV) 3.02. 4. Reckless conduct is intentional acting or failing to a~t in complete (reckless) disregard of a risk of harm to others which is known or should be known to be highly probable and with a conscious indifference to the consequences. Reckless conduct is (also) acting or failing to act when existing danger is actually known and with an awareness that harm is reasonably certain to result. Pa. SSJI (CIV) 3.17. RESPECTFULLY SUBMITTED~ MYCHAK GECKLE & WELKER, P.C. 1/)',' I': ,ill I ,. Q MARLA WELKER, ESQUIRE Attorney for Plaintiffs , ' , , ~ ~ lll. i ~"'.. ti::~~ elH~ ~ ~ 8"~ ~ ti if!: ---,10-........ ~ '. ,:' LAW OFFLCES MVCHAK. GECKLE, WELKER & THIROWAV, p.c. lint FlOOR, ]~O S()UHt UROAI) STRFH P~lIIAj)Fl.PHIA IJA I'HO] 4190 . 2. The plaintiff is entitled to be compensated for the amount of earnings that she has lost up to the time of the trial as a result of her injuries. This amount is the difference between what she probably could have earned but for the harm and any less sum which she actually earned in any employment. Pa. SSJI (CIV) 6.01(cl. , ' 9. The plaintiff's spouse is entitled to be compensated for the loss of the injured party's services to him and the loss of companionship of his spouse. Pa. SSJI (CIV) 6.0l(L). . , .'jl;". .1'" , " , l!5 ~ i l!5 ~ ~ i: I~,! iri~~~ iU!~ ri '~ '; -- , ' . lAWOFFlUS MYCHAK, GECKLE, WELKER & TH1ROWAY, p.c. 11 nl FIIK,R.ll1lS11llTH HRO,'IlSTRHT PHIIAllfl PHIA, PA 1910141"'" MYCHAK GECKLE & WELKER, P.C. By: Marla Welker, Esquire Identification No.1 44069 230 South Broad Street Eleventh Floor Philadelphia, PA 19102 (215) 735-3326 Attorney tor Plaintifts KATHLEEN ZARB and MICHAEL ZARB COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. JUDITH A. MILLETICS NO.: 94-4071 PLAINTIFPS' RBQUlSTID POINTS FOR CHAROE ON DAKAOIS RIOARDINO AGGRAVATION OP A PRI-IXISTINO CONDITION , , 1. Plaintiff is entitled to recover damages for all injuries which the defendant's negligence was a substantial factor in producing. The defendant's negligence need not be the sole cause of the injuries; other causes may have contributed to producing the final result. The fact that some other factor may have been a contributing cause of any injury does not relieve a defendant of liability, unless you find that such other cause would have produced the injury complained of independently of Defendant's negligence. Pa. SSJl (Civ) 6.30. 3. A wrongdoer is liable for all direct and proximate consequences of his actions. If you find that defendant conduct was negligent and that their negligence was a substantial factor in bringing about plaintiff's harm, then defendant is responsible for all the consequences both foreseen and unforeseen, no matter how remote those consequences are, which follow in a natural sequence of events. Brown v. Tinnenv, 280 Pa. Super. 512, 421 A.2d 839 (1980). ~ ~ ! ~ i g ~ ~ ,- If) '>. iJ; jrl. eo: f:.: .. , - tl!1 ,'\l ,"'..,.. , ,. '.I'_1l 1"1", , . '..' ~\" , I>.. I I ....'~ (')1 I , r," r... :"'J) I ' '~;. ,.", '.. l.i-l . i ,fiIJ:' , ,. ;:;') Ii.!.. I. .:- ( '7''') ~- , , ~ I~h ~ D ~ ~~;:~~ ~U!; c..,~i ~ lAW (lfFIOS MVCHAK. GECKlE, WEl.KER & THIROWAV. P.c. llrHFIJ)r}R.l1Il"IH),I~jftl((MI)"TR~~T PHII/\UHI'HIt\, PA IIJlOJ .t!IHl evidence would be that of their own expert's testimony on the treatment and cost of treatment for plaintiff's injuries. Therefore, references to peer review and Act 6 should be precluded from evidence at trial. RESPECTFULLY SUBMlTTEDI MYCHAK GECKLE & WELKER, P.C. f'i "."" ';,' MARLA WELKER, ESQUIRE Attorney for Plaintiffs MYCHAK GECKLE & WELKER, P,C. i By: MARI,A WELKER, ESQUIRE Identification No.: 44069 230 South Brvad Street Eleventh Floor Philadelphia, PA 19102 (215) 735-3326 Attorney for Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. NO. t 94-4071 MEMORANDUM OP LAW IN SUPPORT OP PLAINTIPPS' MOTION IN LIMINB The Plaintiff in the within action is Kathleen Zarb who was involved in a motor vehicle accident on November 20, 1992. As a result of the injuries sustained in the above-referenced matter, plaintiff was required to seek the care and attention of a psychologist for the treatment of her injuries. This I psychologist had previously treated her son for problems that I. II her son was having as a result of some substance abuse problems. II Defense counsel has or attempted to color the trial deposition I' of Plaintiff's expert psychologist by raising issues of I 1 I ~'laintiff' s son's previous dependencies. Plaintiff contends i that this evidence should be precluded from trial for the reason I that the prejudicial effect far outweighs the probative value of I, such evidence. ! I The Courts of the Commonweal th of Pennsylvania have long II recognized that extreme care must be taken before allowing a I I jury to hear about a party's involvement with alcohol or other I I drugs. There should be greater care or more concern in I extending the same consideration and extreme care to be taken Ii for allowing a jury to hear about a party/s child's involvement with alcohol or other drug. An illustrative case involving a party's involvement with alcohol or other drugs is Hawthorne v. Dravo CorD.. Kevstone Division, 352 Pa. Super. 359, 508 A.2d 298 (1986) . In Hawthorne, the Defendant offered to prove that Plaintiff had smoked two or three marijuana cigarettes with three other persons between 6:00 and 8:00 p.m. and thereafter, , at approximately 10:30 p.m. had consumed two or three glasses of draft beer. At 12:15 a.m. of the following morning, the Plaintiff drove his automobile into a river resulting in fatal I injuries to the Plaintiff. I i I The evidence of the decedent / s consumption of several I glasses of beer at or about 10:30 p.m. and his sharing of two or I three marijuana cigarettes between 6:00 and 8:00 p.m. were excluded. The Superior Court stated that unless it could be established that the intoxication rendered the driver unfit to drive at the time of the accident, "the prejudicial impact of the evidence clearly outweighs any probative value that it may have". Hawthorne v. Dravo CorD.. Kevstone DiviB~ at p. 303. The Hawthorne case demonstrates the heavy burden placed on any party who intends to introduce evidence concerning alcohol or drug use by the other party. The Superior Court in Hawthorne found that evidence of a plaintiff smoking two or three marijuana cigarettes, followed by drinking two or three glasses of draft beer, all within as little as four hours of an automobile accident, while being relevant, was still not admissible as being unduly prejudicial. Here, plaintiff's child's use of substances is not even tenuously relevant and the prejudice which would attach to Plaintiff, Kathleen Zarb, is so great that the evidence must also be found inadmissible for the same reasons. Perhaps even more importantly, the Defendant, Judith A. Milletics, has failed in any way, shape or form to demonstrate how Plaintiff's son's interaction with drugs, alcohol, and psychological care contributed to Plaintiff's accident and or injuries. Allowing the jury to hear about the inference of Plaintiff, Kathleen Zarb's, child's substance dependency and psychological care would, without questions, unduly influence and prejudice the jury. Therefore, even if that evidence was somehow relevant, the prej udice would clearly be too much to allow a jury to hear. The simple fact of the matter is that the evidence is not at all relevant and in no way would shed any light on how and why the accident happened nor reflect on the injuries sustained by Plaintiff. In short, as mentioned in Hawthorne v. Dravo Core.. Kevstone Division, our Appellate Courts are extremely reluctant to permit a jury to hear about evidence of alcohol or drug use unless there is some independent evidence which will establish that a party's judgment was actually affected by the drugs or I, alcohol at the precise time in question. I In this case, there is no such evidence. RESPECTFULLY SUBMITTED I MYCHAK GECKLE & WELKER, P.C. .',' .'/.! MARIA WELKER, ESQUIRE Attorney for Plaintiffs "1 " " , .. . " , r. "~ , iT , f.;) ~ '"I 1..--" , ,) , <'J , .. , I , , .'j , , . i(l. , " (," i . C)' l) ~ ~ i ~ ~ ~ a:; I~!~ g~~~~ ~U!~ ~..~~ S , ' ",,' ~ . l.A W OffiCES MVCHAK, GECKLE, WELKER & TH1ROWAY, p.c. . 11TH FlOOR.l.'" '''LITH KRlJAI>STRHT PHIlAIlELPHIA, PA 191OJ.410J0 . , MYCHAX GZCKLI , WILKER, P.C. By: Marla J. Welker Attorneys at Law Identification No. I 44069 230 South Broad Street 11th Floor Philadelphia, PA 19102 (215) 735-3326 Attorney for Plaintiffs .--- KATHLBBN AND MICHAEL ZARB Plaintiffs COURT or COMMON PLEAS CUMBERLAND COUNTY,PA I I JUDITH MILLETICS Defendant I VB. CIVIL ACTION - LAW NO. 94-4071 JURY TRIAL DEMANDED ORDER TO SETTLE. DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-captioned matter SETTLED, I DISCONTINUED and ENDED. MVCHAX aECKLE , WILKER, P.C. By: ) ,;;/ YlI,..14 IJ.i.JV-...-. Marla Welk~r, ESQUIRE Attorney for Plaintiff DATED: MYCHAK OECKI,E & WELKER, P. C . By: Marla Welker, Esquire Identification No.1 44069 !230 South Broad Street I: Eleventh Floor i,Philadelphia, PA 19102 '(215) 735-3326 Attorney for Plaintiff KATHLEEN ZARB and MICHAEL ZARB COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. JUDITH A. MILLETICS NO.: 94-4071 PLAINTIFFS' PRI-TRIAL MEMORANDUM I INTERESTED COUNSEL: ,[ Marla Welker, Esquire MYCHAK GECKLE & WELKER, 230 South Broad Street 11th Floor Philadelphia, PA 19102 (215) 735-3326 Attorney for Plaintiffs Timothy McMahon, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 100 Pine Street 4th Floor P.O. Box 803 Harrisburg, PA 17108-0803 (717) 232-9323 Attorney for Defendant P.C. i,~,~,~i,r 0'''';1< I'),' " , '~E,O<f'loIt I . PACTS On the 20th day of No'rember, 1992, the Plaintiff, Kathleen i Zarb, was a passenger in a motor vehicle which was travelling i Westbound on Carlisle Pike, in the Township of Hampden, County , ! of Cumberlar.d, Commonwealth of Pennsylvania. Traffic was stopped from the red traffic signal at St. John's Road to the point of the accident, and while stopped in traffic the Plaintiff's motor vehicle was struck from behind by the Defendant, Judith A. Milletics, which then caused a chain Custodian of Records Cumberland Orthopaedic Associates, LTD. 99 November Drive Camp Hill, PA 17011-5097 Custodian of Records Harrisburg Hospital 111 South Front Street Harrisburg, PA 17101-2099 Custodian of Records Seidle Memorial Hospital 120 South Filbert Street Mechanicsburg, PA 17055-6591 Custodian of Records Rehab Medicine Associates, P.C. Trindle Rehab Center 5124 E. Trindle Road Mechanicsburg, PA 17055 Custodian of Records Dr. Kenneth G. Small, ph.D and Associates 410 East Main Street Mechanicsburg, PA 17055-6515 Custodian of Records Magnetic Imaging Center 4665 Trindle Road Mechanicsburg, PA 17055 Custodian of Records Hampden Township Ambulance Association 230 South Sporting Hill Road Mechanicsburg, PA 17055-3097 Custodian of Records Holy Spir~t Hospital 503 North 21st Street Camp Hill, PA 17011-2288 Custodian of Records Holy Spirit X-Ray Associates, Inc. 4930 Ritter Road Mechanicsburg, PA 17055 Custodian of Records Community Physicians, Inc. 3327 Market Street Camp Hill, PA 17001 9. Dr. Jay Jungho Cho, M.D., Video Tape Deposition Rehab Medicine Associates, P.C. Trindle Rehab Center 5124 E. Trindle Road Mechanicsburg, PA 17055 10. Dr. Kenneth G. Small, Ph.D, Video Tape Deposition Dr. Kenneth G. Small, Ph.D and Associates 410 East Main Street Mechanicsburg, PA 17055-6515 11. Custodian of Records Magnetic Imaging Center 4665 Trindle Road Mechanicsburg, PA 17055 12. Custodian of Records Hampden Township Ambulance Association 230 South Sporting Hill Road Mechanicsburg, PA 17055-3097 13. Custodian of Records Holy Spirit Hospital 503 North 21st Street Camp Hill, PA 17011-2288 14. Custodian of Records Holy Spirit X-Ray Associates, Inc. 4930 Ritter Road Mechanicsburg, PA 17055 15. Custodian of Records Community Physicians, Inc. 3327 Market Street Camp Hill, PA 17001 16. Custodian of Records Thomas R. Hobbs, M.D. Internal Medicine 101 south Market Street Mechanicsburg, PA 17055 17. Custodian of Records America's Pharmacy P.O. Box 10490 6109 Willowmere Drive Des Moines, Iowa 50306-0490 Ii 18. Custodian of Records The A.Z. Ritzman Associates Rossmoyne Office 4930 Ritter Road Mechanicsburg, PA 17055 VII. A STATIIMINT OF SITTLININT NlOOTIATIONS TO DATI, INCLUDING THI PLAINTIFFS' MOST RICINT DIIMAND AND THI DIFINDANT'S MOST RICINT OPFIR Plaintiff has demanded the policy limits of $100,000.00. Defendant has offered nothing. VIII. ALL LEGAL ISSUES OR OTHIR QUISTIONS WHICH COUNSIL REASONABLY ANTICIPATIS WILL ARIS! DURING THI SIL!CTION or THI JURY OR DURING TRIAL Whether or not the Defendant is liable under the negligence theory for causing a rearend motor vehicle collision and if so, the extent of liability? Whether the injuries suffered by plaintiff were I substantially caused by the motor vehicle accident of November 20, 1992? IX. PLAINTIFFS' CONTENTION AS TO INJURIES AND SPECIAL DAMAGIS As a result of the aforesaid accident, the Plaintiff, Kathleen Zarb, suffered injuries including, without limitation, multiple herniated discs at level C4-5, C5, C6, C7, bulging discs at L4 - 5 and lateral disc protusion at L3 -4. right arm pain, lower back pain, possible RSD, depression, aggravation of a preexisting neck and shoulder injury, nerve impingements, and required extensive physical therapy to alleviate said injuries, ! including several inpatient hospitalizations. also required tens, and steroid injections. The Plaintiff As a further result of the aforesaid accident, Plaintiff, Kathleen Zarb, has been prevented form pursuing her employment and work which has caused her to sustain significant wage loss. Solely, by the reason of the carelessness and negligence of Defendants, and in consideration of the injuries suffered by his wife, Plaintiff, Kathleen Zarb, Plaintiff, Michael Zarb, has a consortium claim for past, and future deprivation of the services, companionship, care, comfort, and society of his wife, Kathleen Zarb. A. GENERAL DAMAGES 1. Pain and suffering, past, present and future. 2. Loss of life's plp.asures. 3. Residual disability. 4. Emotional distress. 5. Wage loss. 6. Consortium claims for spouse. 7. Delay damages as per Rule 238, as defined by the Courts. THIS LIST OF DAMAGIS MAY BI SUPPLIMINTBD PRIOR TO TRIAL. X. LIST OF BXHIBITS TO BE USED AT TRIAL 1. Accident report. 2. Curriculum vitae of: a) Dr. Kenneth G. Small, Ph.D b) Jay Jungho Cho, M.D. 3. Medical records and reports from all medical care providers. 4. Video-taped deposition of: a) Dr. Kenneth G. Small, Ph.D b) Jay Jungho Cho, M.D. 5. Wage loss chart. 6. Pictures of vehicle damage. CIRTIrICATI OF SKRVICI I, MARLA WELKER, ESQUIRE, of the law firm of MYCHAK, GECKLE & WELKER, P.C attorney for Plaintiffs, Kathleen Zarb and Michael Zarb, do hereby certify that on this date I am serving a copy of the foregoing document upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by placing a true and correct copy of same in the United States mail, first class, postage prepaid, at Philadelphia, Pennsylvania, addressed to: Court Administrator's Office Court of Common Pleas Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Timothy McMahon, Esquire Marshall, Oennehey, Warner, Coleman & Goggin 100 pine Street 4th Floor P.O. Box 803 Harrisburg, PA 17108-0803 MYCHAK GECKLE & WELKER, P.C. ) r~"j.n Cvt~L_____ MARLA WELKER, ESQUIRE Attorney for Plaintiffs DATED: JUNE 10, 1998