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HomeMy WebLinkAbout94-04971 " , I I I' I " . ~ .!l ~ ;t: c J " " d I 1,[ -? I , <v r J ~" .1 I I , '1 / I ,/ /,/ , I " I, j I, ,; " I I - I I c:- I I I C)- I ::r " "I III Ii 'I . I I I, , '. 'I 'F If" " I' ;~ . ! ! ~ !l ~ ;t: c J ,I , I' , " , , Ii 'il -? <v I f'\ , , I , , '11 , , \ '~ " , \, ji I . " i'll" I", j J 'I,) " , , " - c:- C)- ::r I' I w RODGER L. BOLLINGER AND MARY L. BOLLINGER, HUSBAND AND WIFE, Plaintiff. 21 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PENN HARRIS COMPANY, A PENNSYLVANIA CORPORATION, t/d/b/a RADISSON PENN HARRIS HOTEL AND CONVENTION I CENTER, I CIVIL ACTION - LAW Defendant NO. 94-4971 CIVIL TERM IN REI PRETRIAL CONFERENC~ At a pretrial conference held Wednesday, June 19, 1996, before the Honorable Harold E. Sheely, President Judge, present for the Plaintiffs was Edward E. Guido, Esquire. Trial counsel for the Defendant will be Zygmunt R. Bialkowski, Jr., Esquire, however, he was not available for the pretrial conference and appearing on his behalf was Michael T. Savitsky, Esquire. This is a jury trial which shOUld take no longer than one and one-half days to complete. Mr. Guido will be available the entire week except for his involvement in the Maldet case. Mr. Bialkowski will be available from Tuesday on except for his involvement in the Maldet case. The facts in this case are similar to those involving the Maldet case. Mr. Bollinger on October 23rd, 1993, was also attending the state convention for the Disabled American Veterans at the premises of the Defendant in Wormleysburg. The Defendant had set up a stage for the head tablo of which Plaintiff was a part, and during thti course of the meeting the pretrial memorandum of the plaintiff indicate. that the Plaintiff fell from his chair and the reason for the 'fall was that either one or more of the chair legs went through a hole in the stage which had been covered by the carpet. Plaintiff returned to Pittsburgh and was treated there by his treating physician, Dr. Thomas, and Dr. Thomas's deposition will b~ read at the trial. The pretrial conference indicates that there has been approximately $12,000.00 in medical expenses incurred up to date. I would ask that the parties agree to a stipulation so that the medical bills may be admissible at trial without calling any witnesses. The other damages are non-economic damages. Again the Plaintiff wishes to introduce pictures Showing the hole in the carpet where the Plaintiff fell, and I will make a separate rUling on the admissibility of those photographs. Liability has been admitted by the Defendant in this case, and, therefore, Plaintiff will only be calling three witnesses at trial as part of their direct testimony, and they will be Mr. and Mrs. Bollinger and Dr. Thomas. The Defendant will only be calling one witness at trial, and that will be Dr. David C. Baker, and Dr. Baker will ... <1\ ~ Ct. L! ~' I,; r,: " .. ' t l-;l~: N , 1~5 . f' :ro: ):.1' fj:'" t:.. , 'j 6~L ',';:. >-1 N ,!r!~ fi!" , " !'lrE r ::.} .;2 I). lr' :'1.j () (JI I..) I' , , I, !I r - DAVID C. BAKER, M.D., F.A-C.S. BELVEDERE MEDICAL CENTER 8!0 Walnut Bottom Road CarUsle, PA 17013 (717) 243-9010 lo.rd Certified 1n OrthopatdlC 6ur9.ry~ ~.mb.r ~.rlc.n ACldemy of Qrthop.ediC Burl.on. May 28, 1996 Bialkowski &; Savitsky 1006 Pittston Avenuc P.O. Box 1216 Scranlon, PA 18S01.1216 RE: Rodger L. Bollingcr Dcar Sir: This cxamination was pcrfonncd on May I, 1996 at thc request of Bialkowski & Savitsky at my officc on 8S0 Walnut Bottom Road, Carlislc, PA 17013, mSTORY-A.5..RELATED BY PATIENT: Thc paticnlslatcs hc was at the HOlcl Penn Hanis in October 1993 for thc mid ycar mccting of The Disabled Amcrican Vclerans when he had an accident on a raised platfonn type stage whcre thc chair th.\t hc was on had onc Icg go through a holc in the floor and thc chair flattened. The patient slates in his own words that hc fclt okay at thai timc and he was ablc 10 drivc home. He slates 2-3 days laler he developed pain and slatcs thai he couldn't get out of bed. REVIEW OF SYMPTQM[; This patient complains of two components to his pain. Fint, he has pain radiatint into thc thoracolumbar junction around the right flank. This has been persistent since the accident and a considcrsble source of pain. He also complains of inlcnnittent pain betwcen thc shouldcr bladcs and thc upper thoracic region which he localizes 10 the midline, Hc also complains of pain in the ccrvical spine. Minimal, if any, wcakncss in the upper extremities is noled by the patient. Paresthesias in the dennatomal distribution arc nol a conslanl complaint, although hc said he did have that somc time, Mr, Bolinger also has chronic complaints of right leg pain which he slated in his own words was from previous injuries and surgeries 10 his lumbar spine. PAST MEDICALl::Illi1.9.RY; The patient has not worked since 1972. He apparently had an L3 fracture while in Ihe service and a subsequenl herniated nucleus pulposus in 1972. He had multiple spine sW'gcries since that time, including fusions, repeal disceclomies, He has been disabled since either 1972 or 1973 and cwrently rcceives a V A pension, Pag02 RE: Rodger Bollinger X.RA YS & EV AL.'.!ATIONS TO D.uE.; The patient has had a thoradc MRI which is negative. He has h4d EMG's of tho upper extremities which were IIlso negative. He has also had an MRJ of the cerviclll spine which shows a congenital fusion of C2.C3. He did have a mild centrlll disc protrualon at C7.TI. His lumbar MRI showed chronic changes of disc degeneration at1.4-L5 as well as U.S 1. Acquired stonosis was present at the U.L5 level, but was mild to moderate. The old fracture. of 1.3 was IIlso noted. A very small, almost unnoticeable, disc protruaion was seen at L2.1.3. No frank herniations were detected. The patientlllso had a bone scan which showed increased uptake in the left knee, lateral joint line. The uptake of the isotope throughout the cervical, thoracic and lumbar spines was nonna!. ~ The patient wlllks with a cane, favoring his right leg. He states he has l18ed the cane for many yem since his last back operation, Visibly there arc no abnonnalities to the cervical, thoracic or lumbar spines, other than multiple incisions of his lumbar spine, both midline and right and left paraspinous incisions, Examination of the cervical spine reveals approximately 75-80% of nonnal motion in the cervical spine which is appropriate for age, He has no focal weakness in the C4, C5, C6, CX7, C8, or Tl nCIVe root distributions and no reflex asymmetry in the upper extremity reflexes. There is some tenderness to palpation at the T5- T6 level in the paraspinous muscles, but no frank mll8cle spasm is detected in the cervical or thoracic region, The lhoracic spine is not tender to percll8sion, Some pain is ellicited on plllpation at the right flank in lhe right subcostal region. The patient h4d a well healed cholecystectomy scar, ? The lumbar spine showed marked loss of motion in all planes, but neurologically he was surprisingly good with no thigh or calf atrophy. Reflex was diminished, both L4 and S 1 bilaterally. There is no evidence of long track signs such as spasticity or hyperreflexia. IMPRESSION.; Other than the x.rays and MRI of the lumbar spine, which showed diffuse degenerative changes as well as post surgical changes, the EMG and bone scan as well as the cervical and thoracic MRJ's were remarkably unremarkable,_The upper thoracic and lower cervical symptoms are not explained by these studi,es , or examination., Many centr31disc protriiSlons are 3symiitoiil!.lj~'Ji~~ItjL\ffiiiQilil1~Jo-say whelher this disc .JIl'~ioll,E~~\!!T.c:d.as,_~Eesultor._II!~_accid~J\.toris aJlasymptomatic protruaion (as occun"iD-lS%Of11i:C- population). It is safe to say that he definitely does not have radicular problems from this nor should he likely develop radicular problems from this and lherefore this is not a surgical lesion, With res,pl:.ctto the right flank paill, an anatomic source for this pain was not obvious. A lower thoracic - '_.__._-...--~._...__....-----'-- -..----..-. .....-.. .. herniated disc could cause this. These are rare and, according to the MRI of the cervical spine, is not present in Mr. Bollinger's case, It is possible that he could have some nonradicular radiating pain from the thoracolumbar junction as the result of this area being more susceptible to stress given the previous fll8ion, 1l,,i,s..OIlso, P9ssible that the pain clinic assessment of myofasciitis based on a tender myofascial nodule is contributing to his pain, I do not think that myofascial pain syndrome is trauma related, however. aoDGIR L. IOLLINGI. and NARY L. IOLLINGIR, buaband and wUe, IN TBI COURT O. COKNON .LI.. CUKBlaLAMD COUHTY, 'ImrSYLVMXA 'laiDtifr. va. 'I" BARRIS COKPMY, a 'ennaylvania corporation, t/d/b/a RADISSON Plmr BARRI8 BOTIL , COHVIHTION CIHTIR, Defendant NO. '.-4'71 - CIVIL TIRK CIVIL ACTION - LAW JURY TRIAL DIMANDID CIRTI.ICATI O. 81RVICB I, ZYGMUNT R. BIALKOWSKI, JR., ESQUIRE, hereby certify that I served a true and correct copy of 'RlTRIAL KIKORAHDUK O. DI.INDUT, .1.. BARRI8 COKPMY, a Pennaylvania corporation, t/d/b/a RADI880N PI" BARRI8 BOTIL , COHVINTION CINTIR on counsel for Plaintiffs via U.S. First Class Mail under date of June , 1996, as follows: Attorney Idward I. Guido 8aidis, GuidO, 8huff , Kaaland Attorneys for Plaintiffs 26 Weet Hiqb 8treet carlisle, 'A 17013 Reapeotfully aUbmitted, BIALKOWSKI' 8AVITSKY, ..C. , ' I( / i " :,' IFi'l', ~Y UNT R. BIALKOIl ~ rney for Der. . rat .loor, 'NU ildinq 1006 Pittston Avenue soranton, 'A 18505 (717) 343-.... Attorney I.D. Humber 1..31 JR., Isg. " " , .ii Page 2 RE: Rodger Bollinger X.RAYS~VALUATIONS I.9J)ATE: The patient hu had a thoracic MRl which is negative. He hu hAd EMG's of the upper extremities which were also negative, He hu also had an lvlRI of the cervical spine which shows a congenital fusion of C2-C3. He did have a mild central disc prolrUsion at C7- T1. His lumbar MRI showed chronic changes of disc degeneration at L4.LS l\lI wellu LS-S 1. Acquired stenosis wu present at the L4.LS level, but wu mild to moderate. 111e old fracture of L3 wu also noted. A vCl)' small, almost UMoticeable, disc protrusion was seen at 1.2-L3. No frank herniations were detected, 1he patient also had a bone scan which showed increased uptake in the left knee, lateral joint line. The uptake of the isotope throughout the cen.ical , thoracic MId lumbar spines was nonru1l, EXAMINA TIO.N; 111e patient walks with a cane, favoring his right leg. He stales he has used the cane for many years since his last back operation. Visibly there arc no abnonnalities to the cervical, thoracic or lumbar spines, other than multiple incisions of his lumbar spine, both midline and right and left paraspinous incisions. Examination of the cerviclll spine reveals approximately 7S-80% of nonru1l motion in the cervical spine which is appropriatc for age. He has no focal weakness in the C4, CS, C6, CX7, C8, or Tl nClVe root distributions and no reflex asymmetry in the upper extremity reflexes, There is some tenderness to palpation at the 1'S.1'6 level in the paraspinous muscles, but no frank muscle spasm is detected in the cervical or thoracic region. The thoracic spine is not tender to percussion, Some pain is ellicited on palpation at the right flank in the right subcostal region, TIle patient hAd a well healed cholecystectomy scar, ? The Iwnbar spine showed marked loss of motion in all planes, but neurologically he was surprisingly good with no thigh or calf atrophy. Reflex was diminished, both L4 and Sl bilaterally, There is no evidence of long track signs such as spasticity or hyperreflexia, IMPRESSION: Other than the x-rays and MRI of the Iwnbar spine, which showed diffu!le degenerative changes as well as post surgical changes, the EMG and bone scan as well as the cervical and thoracic MRI's were remarkably unrcnwkable,~The upper thoracic and lower cervical symptoms arc not explained by these s~es, or examination._r-Aany central disc protruSions are asymptomatic ana-insJ!1!P.9ssib~-riisay'whct1ier this disc -prQ..~ion o~l!!!.!li~ aUr~~L~ihe:acc~~~~iOr is ail-asymptomatic prolrUsion (as occuii1n~% of lhe- population). It is safe to say that he definitely docs not have radicular problems from this nor should he likely develop radicular problems from this and therefore this is not a surgical lesion. With resDe.~.to the right flank paill, an anatomic source for this..pain was nol obvious. A lower thoracic herniated disc could cause'this, -'fi!esc-arc-rarc'ani according to the MRI of the cervical spine, is not present in Mr. Bollinger's case, It is possible that he could have some nonradicular radiating pain from the thoracolwnbar jWlction as the result of this area being more slL~ccptible to slJess given the previous fusion. lU~__a1S()_P9Ssi"le,!il:l.t,_th_e pain clinic assessment of myofasciitis based on a tender myofascial nodule is contributing 10 his pain. 1 do not ihiitk!hie myofasci~,~.a.!n syndrome is lJauma related, however. " , :' . . RODGER L. BOLLINGER and MARY L. BOLLINGER, husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 94- CIVIL TERM CIVIL ACTION - LAW PENN HARRIS COMPANY, a Pennsylvania Corporation, t/d/b/a RADISSON PENN HARRIS HOTEL & CONVENTION CENTER, Defendant JURY TRIAL DEMANDED COMPLAINT AND NOW, comes Plaintiffs, Rodger L. Bollinger and Mary L. Bollinger, through their attorneys, SAlOIS, GUIDO, SHUFF & MASLAND, and aver the following causes of action: COUNT I 1. Plaintiffs are Rodger L. Bollinger and Mary L. Bollinger, husband and wife, adult individuals who currently reside at 202 East Union Road, Cheswick, Allegheny County, Pennsylvania 15024. 2. Defendant Penn Harris Company is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, trading and doing business as Radisson Penn Harris Hotel & Convention Center, with its principal place of business located at Route 11/15 and Erford Road" Camp Hill, Cumberland County, Pennsylvania l70l1. SAJDIS, GUIDO. SHUFF & 3. Th~ events hereafter complained of occurred on or about MASLAND 26W,HlahSI,"' October 23,1993, at approximately 10:30 a.m., at Defendant's Carll.le, PA premises, located at Route 11/15 and Erford Road, Camp Hill, Cumberland County, Pennsylvania. 2 SAlOIS. GUIDO, SHUFF " MASLAND 26 W. HI.h Site" C.,II.Jr, PA 4. At said time and place the Defendant was in the business of owning and operating a hotel and convention center. 5. At said time, the Defendant had been contracted to provide accommodations for the Fall Executive meeting of the Disabled American Veterans Department of Pennsylvania. 6. At said time and place, Plaintiff Rodger L. Bollinger was a guest at Defendant's establishment and attending the aforesaid Fall Executive meeting. 7. The accommodations provided by Penn Harris for the said Executive Meeting included, inter alia, a stage consisting of two (2) sets of 4' x 8' risers placed togother. 8. The stage was set up with two podiums and numerous chairs. 9. During the course of said meeting, the chair of Plaintiff Rodger L. Bollinger fell through a hole in the stage causing him the serious and severe injuries and damages hereinafter sst forth. lO. The holes referred to in paragraph 8 and 9 above were concealed by carpeting covering the stage. 11. Plaintiff Rodger L. Bollinger'S injuries and damages set forth herein were the direct and proximate result of the negligence of Penn Harris, its agents, servants and employees, then and there occurring. l2. Defendant, its agents, servants and employees, were negligent generally and in the following particulars: 3 SAJDlS, GUIDO, SHUFF " MASLAND 26 W, Hlrh Slr<el C"II.I"PA (a) In failing to provide safe accommodations for Plaintiff Rodger L. Bollinger while he was a guest and/or business invitee; (b) In failing to properly erect ~nd/or maintain said stage; (c) In feiling to warn Plaintiff Rodger L. Bollinger of the dangerous condition of the stage which it knew or should have known existed; (d) In failing to properly inspect the stage before allowing it to be used; (e) In concealing the dangerous condition from Plaintiff Rodger L. Bollinger. 13. As a direct and proximate result of the negligence of Defendant, its agents, servants and employees then and there occurring, Plaintiff Rodger L. Bollinger sustained the following serious and severe injuries, some or all of which may be permanent: (a) Injuries and damages in and about the middle and upper back; (b) Aggravation of a previous injury to his lower back; (C) Emotional trauma; (d) Shock and injuries to the nerves and nervous system. l4. As a result of the injuries aforesaid, Rodger L. Bollinger has been damaged as follows: 4 SAlOIS. GUIDO, SHUFF '" MASLAND 26 W, HISh Sine' C"U.le, PA (a) He has suffered and will continue to suffer great pain, inconvenience, embarrassment, humiliation, ditlcomfort, distress and mental anguish; (b) He has been and will be required to expend large sums of money for surgical and medical attention; (c) He has been and will be deprived of his ability to enjoy tho pleasures of life. WHEREFORE, Rodger L. Bollinger demands judgment against Penn H~rris in an amount in excess of $25,000.00. demanded. A jury trial is COUNT I I 15. The allegations of paragraph 1 through 14 above are incorporated herein by reference. 16. As a direct and proximate result of the negligence of Defendant as set forth above, Plaintiff Mary L. Bollinger has lost and will continue to lose the consortium, society, comforts and assistance of her husband, Plaintiff Rodger L. Bollinger. l'iHEREFORE, Plaintiff Mary L. Bollinger, demands judgment against Defendant in an amount in excess of $25,000.00. A jury trial is demanded. Date: 5i'hr/('i4 Respectfully submitted, SAIDIS: .~~.';~UFF & MASLANO By: 4'-7"'-""~~ Edward E. Guido, Esquire Supreme Ct. I.O. * 21206 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiffs 5 ~ ;l) - "" ,,1 " ,J ~ ~::::. p i' ~ ~~ '" ~ J \, iii .. . ~ ~ ''1 ". ... .." , " "'='" ~ FE ", ,~ 1''' e.; >. "I- I..,!"; '.r ,:: .~.,' " .' " " Informallon sufficient to form a belief as to the truth of the allegallons contained in paragraph 3 of the Plaintiffs' Complaint and the said allegallons are, therefore, deemed denied and placed In Issue, Strict proof thereof is demanded at the trial of this case. 4. Admitted. 5. Denied as alleged, On the contrary, at the time alleged the Defendant had a contractual relationship with the Disabled American Veterans to provide certain arrangements to the Disable American Veterans in accordance with the terms and condillons of the contractual understanding of the Defendant and the Disabled American Veterans. 6. After reasonable investigation the Defendant Is without knowledge or Information sufficient to form a belief as to the truth of the allegations contained In paragraph 6 of the Plaintiffs' Complaint and the said allegations are, therefore, deemed denied and placed in issue. Strict proof thereof is demanded at the trial of this case. 7. Denied as alleged, On the contrary, the Defendant provided to the Disabled American Veterans, In accordance with Its Agreement, a stage consisting of five sets of six feet by eight feet risers placed together, 8. Denied as alleged. On the contrary, the stage was set up with one podium and approximately twelve chairs, 9. After reasonable investigation the Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 9 of the Plaintiffs' Complaint and the said allegations are, therefore, deemed 3 denied and placed in issue. Strict proof thereof is demanded at the trial of this case. By way of further answer, the allegations contained In paragraphs 9 through 12 Inclusive of the Plaintiffs' Complaint contain conclusions of fact and of law to which no response Is required under the Pennsylvania Rules of Civil Procedure and they are, therefore, deemed denied and placed In issue. Strict proof thereof Is demanded at the trial In this case. 10. The allegations contained In paragraph 10 are specifically denied as alleged. It is admitted that the stage was carpeted, The remaining allegations contained in paragraph 10 of the Plaintiffs' Complaint contain conclusions of fact and of law to which no response is required under the Pennsylvania Rules of Civil Procedure and they are, therefore, deemed denied and placed In Issue. Strict proof thereof Is demanded at the trial of this case. 11. After reasonable Investigation the Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 11 of the Plaintiffs' Complaint and the said allegations are, therefore, deemed denied and placed in Issue. Strict proof thereof is demanded at the trial of this casE', 12. Insofar as the allegations contained In paragraph 12 of the Plaintiffs' Complaint, and its subparts, aver, infer or allege that the Defendant knew of any dangerous condition of the stage they are specifically denied. It Is further specifically denied that the Defendant concealed any dangerous condition of the stage of which it was aware as the Defendant was not aware of any dangerous condition of the stage. The remaining 4 allegations contained In paragraph 12 of the Plaintiffs' Complaint, and Its subparts, contain conclusions of fact and of law to which no response Is required under the Pennsylvania Rules of Civil Procedure and they are, therefore, deemed denied and placed In Issue. Strict proof thereof is demanded at the trial In this case. 13.14. After reasonable investigation the Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained In paragraph 13 and 14 Inclusive of the Plaintiffs' Complaint and the said allegations are, therefore, deemed denied and placed In issue, Strict proof thereof Is demanded at the trial of this case. By way of further answer reference is made to the proceeding paragraphs of this Answer which are incorporated herein by reference as fully as though the same were here set forth at length. NEW MATTER By way of further answer the Defendant avers the folloWing New Matter: 14a. If the accident occurred as alleged, the condition complained of did not create a reasonably foreseeable risk proximate to the injuries. 14b. Plaintiff's injuries, as alleged, were cause,j by other persons or parties which were intervening, superseding causes of Plaintiff's alleged injuries, 14c. The causal negligence of the Plaintiff was greater than any negligence on the part of the Defendant. Therefore, 42 Pa, C.S, 97102 is a bar to Plaintiff's recovery. In the alternative, the Defendant avers that any recovery arising from this cause of action 5 must be diminished In accordance with the Pennsylvania Comparative Negligence Act. 14d. The Plaintiffs' claims and any rights to recover against the Defendant are barred In whole or In part by the applicable Statutes of Limitations, other similar Statutes, contractual provisions and other fundamental principles of law Including estoppel, waiver and laches. 14e. The Plaintiff knowingly and voluntarily exposed himself to the hazards complained of, and said conduct constitutes an assumption of the risk and bars Plaintiffs' claims against the Defendant. 14f. Plaintiff's Complaint fails to state a cause of action upon which relief can be granted. 14g. To the extent Plaintiff or any party avers or attempts to apply the provisions of Pa. R. c.P. No. 238 against this Defendant, it Is averred that said rule Is unconstitutional under the Federal and State Constitutions, 14h. In the event that the Plaintiff has already or in the future enters Into any settlement with, or executes any release of any present or future Defendant or Additional Defendant or any non-party, Plaintiff's claims against this Defendant are reduced by t.he greater of (a) the amount of consideration or payment received or to be received by Plaintiff, or (b) the proportion at!! or pro-rata share of liability of the sellled or released party or non. party as determined pursuant to the dpplicable compardtlve negligence statute. 141. All actions taken by the Defendant with respect to the Plaintiff were 6 proper, lawful, correct and In full accord with all applicable statutes, regulations, customs, laws and usages. WHEREFORE, the Defendant demands Judgment In Its favor. COUNT II 15. In answer to paragraph 15 of the Plaintiffs' Complaint reference is made to paragraphs 1 through 14 Inclusive of this Answer which are Incorporated herein by reference as fully as though the same were here set forth at length. 16. After reasonable investigation the Defendant is without knowledge or Information sufficient to form a belief as to the truth of the allegations contained in paragraph 16 of the Plaintiffs' Complaint and the said allegations are, therefore, deemed denied and placed In Issue, Strict proof thereof is demanded at the trial of this case. By way of further answer reference is made to the proceeding paragraphs of this Answer which are incorporated herein by reference as fully as though the same were here set forth at length. NEW MATTER By way of further answer the Defendant avers the following New Maller: 16a. If the accident occurred as alleged, the condition complained of did not create a reasonably foreseeable risk proximate to the injuries, 16b. Plaintiff's injuries, as alleged, were caused by other persons or parties which were intervening, superseding causes of Plaintiff's alleged Injuries. 7 16c. The causal negligence of the Plaintiff was greater than any negligence on the part of the Defendant. Therefore, 42 Pol. C.S. 57102 Is a bar to Plaintiff's recovery. In the alternative, the Defendant avers that .my recovery arising from this cause of action must be diminished In accordance with the Pennsylvania Comparative Negligence Act. 16d. The Plaintiffs' claims and any rights to recover against the Defendant are barred In whole or in part by the applicable Statutes of limitations, other similar Statutes, contractual provisions and other fundamental principles of law including estoppel, waiver and laches, 16e. The Plaintiff knowingly and voluntarily exposed himself to the hazards complained of, and said conduct constitutes an assumption of the risk and bars Plaintiffs' claims against the Defendant. 161. Plaintiff's Complaint fails to state a cause of action upon which relief can be granted. 16g. To the extent Plaintiff or any party avers or aUempts to apply the provisions of Pol. R. c.p, No, 238 against this Defendant, it is averred that said rule is unconstitutional under the Federal and State Constitutions, 16h. In the event that the Plaintiff has already or in the future enters into any selllement with, or executes any release of any present or future Defendant or Additional Defendant or any non-party, Plaintiff's claims against this Defendant are reduced by the greater of (a) the amount of consider,ltion or payment received or to be received by Plaintiff, 8 or (b) the proportionate or pro-rata share of liability of the sallied or released party or non- party as determined pursuant to the applicable comparative negligence statute. 161. All actions taken by the Defendant with respect to the Plaintiff were proper, lawful, correct and In full accord with all applicable statutes, regulations, customs, laws and usages. WHEREFORE, the Defendant demands judgment In Its favor. Respectfully Submitted, BIALKOWSKI 8< SAVIT T R. BIALKO KI, JR., ESQUIRE rneys for Defenda t First Floor, PNU Bull n 1006-1016 Pittston A ue Scranton, Pennsylvania 18505 (717) 343-9988 Attorney 1.0. No. 19431 9 RODGER L. BOLLING~R and MARY L. BOLLINGER, husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 94-4971 CIVIL TERM CIVIL ACTION - LAW PENN HARRIS COMPANY, a Pennsylvania Corporation, t/d/b/a RAD!SSON PENN HARRIS HOTEL & CONVENTION CENTER, Defendant JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER AND NOW, comes Rodger L. Bollinger and Mary L. Bollinger by and through their attorneys, Saidis, Guido, Shuff & Masland, and reply to Defendant's New Matter as follows: l4a. Denied. The averments contained therein are conclusions of law to which no response is necessary. l4b. Denied. The averments contained therein are conclusions of law to which no response is necessary. By way of further answer, it is denied that Plaintiff's injuries were caused by any persons or parties other than Defendant and/or its agents and employees. 14c. Denied. The averments contained ther.ein are conclusions of law to which no response is necessary. 14d. Denied. The averments contained therein are conclusions of law to which no response is necessary. SAlOIS, GUIDO, l4e. Denied. The averments contained therein are SHUFF & MASLAND conclusions of law to which no response is necessary. 26 W. HI&h SUUI l4f. Denied. The averments contained therein Carll,le, PA are conclusions of law to which no response is necessary. 14g. Denied. The averments contained therein are conclusions of law to which no response is necessary. l:R '1-;"... .. ':of ~~, ::r.:: '" '. 1./._- ., ..t. lJ'> '" ,'.". ..... ("') ...., ',' ~ " '.-" => q; -. 'J , , ~ :'4,. or. .. - .. " ...: , ,., \11, , , '. 'j' ~ '..l " , ., , \/'1 <I. .... ,.,., ~ ;), '-" , I'" t"'") " J.,II ',> ... '. .., => , , -, " ..... N ~, ~ f>~ - ,., f: .. ~ll!": (;j ~~ : .i <~ 'j nd ~; .1 ~{ ..~-. ! 'I :.:~.! f ;-'..., 1- '/_~ J ~! "J I!:'::: ....:,'.1 , ,JnJ u. I.J,J fe: L._ ~,\.! r..l.., I', I." ~5' C (1', (-../ , ' , , , , II, 'J , , PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritt<m and sul:Jnitted in duplicate) ro 'lllE PIV1lICWl'AAY Of' ctJolBERlJU'V COlJm'Y PleB6e list the following easel (Check one) X) for JURY trial at the next term of civil court. for trial without a jury. -----------------------.------------------ CAPTION Of' CASE (entire caption IlUst be stated in full) (check one) Rodger L. Bollinger and Mary L. Bollinger, husband and wife, (X Civil Action - Law Appeal from Arbitration (other) (Plaint iff) vs. Penn Harris Company, Pennsylvania corporation, t/d/b/a Radisson Penn Harris Hotel & Convention Center, The trial list will be called on 6/11 /96 and (Defendant) Trials comnence on 7/8/96 Pretrials will be held on 6!lCJ!CJ6 (Briefs are due 5 days before pretrials.) vs. (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 4CJ71 Civil 19 CJ4 Indicate the attorney who will try case for the party who files this praecipel Edward E. Guido. Esauire. 26 West Hiqh Street. Carlisle. PA 17013 Indicate trial counsel for other parties if known I zygmunt R. Bialkowski. Jr.. Esquire. 1006-1016 Pittston Ave.. P.O. Box 1216. Scranton. PA 18501-1216 This case is ready for trial. -Q~ Signed. DatP.1 5/7 (.,~ II' . , , . . ; 'I I .'} '. l I . , r 'I' I . I, , " I' II " , , , , ".. , "J 'I J.lJ..........# t ". j If '..";i " 'I' , , I Thomas E. Chelflns, Esq. COURT AOMINISTRATOR "" _ 'fQ71 C,~~l ~.......... ~Ii"~'~~: -J ., ""..." "'~ ; 0 J 2 , PU ~".n 11 S 1119 U, $, l'OnrAGE ONE COURTHOUSE SQUARE CARLISLE, PA 17013 \~ V ~ ~ \\J ,\.13\/ ~~ ~~-- ~ I~ Zygmunt R. Bialkowski, Jr., Esq. 1006-1016 Pittston Avenue Scranton, PA 18505 erALOOb 17011~007 LN 05/10lQb FHlTURN TO /lI!NDI!R NO FORWARD ORDI!R ON ~rLI! UNAeLI! TO ~ORWARD RI!TURN TO ~I!NDI!R 111...11...,.11..11,.11...11...11.,.11.".,.11I1.,.11...11...1 .' ...', .' " " " . .. , I , . , i ,...\ "0 . o ' 11. RODGER L. BOLLINGER AND MARY IN THE COURT OF COMMON PLEAS OF L. BOLLINGER, HUSBAND & WIFE CUMBERLAND COUNTY, PENNSYLVANIA V NO. 94.4971 CIVIL TERM PENN HARRIS COMPANY, PA CORPORATION, TIDIBIA RADISSON PENN HARRIS HOTEL AND CONVENTION CENTER ORDER OF COURT AND NOW, April 22, 1996, by agreement of counsel, the above. captioned matter Is hereby continued from the MAY, 1996 Trial Term. Counsel Is dlrflCted to rellst the case when ready. By the Court, Edward E. Guido, Esq. For the Plaintiff Zygmunt R. Bialkowski, Jr., Esq. For the Defendant Court Administrator :br