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Home My WebLink About94-04983 , , L, , , I' ) J " , i.'1 . " iP I' I, ~ I ,. .=E \ , " , 3 .,' , ( , , '" J J " r<) 00 <J-.. ~ -:\1' " I.' - " ' , , ~ ;0- it '.:it:: , ,. lol{ ., 0J lD ,..:--., , # '.. " - , .. , ~O " " , ,'" Jl , .. " , " 1 "I; '1 :j! J J ''t ',~ } ~' jJ OJ .. ~ ~ ~'o '0 <t ' ~E ~1 R j.t J I.) 'J 0 1J1 'J '-f) V1 -::r I,) If) I!) rfl It> -:r ;:r r U"> ,f1/<- lD -71' (1 -::U -:t ~ c;i . Commonwealth of Pennsylvania County of Cumberland Michael O. Withers, Administrator of the Estate of Emilie M. Withers, deceasedr Michael O. Withers, individuallYr and Joanna M. Withers, a minor, by her guardian, Michael O. Withers, Court or Gommoll Pleu VI. No. ..m.l99J.-,,49B.l.CiY.il.TWJu._._.__ 19,000 George Fawber, individually and in his proper capacity at the Medicine Shopper 33 E. Simpson St. Mechanicsburg, PA 17055 Serve. George Fawber, Pharm.D. GKF, Inc. 33 E. Simpson St. Mechanicsburg, PA 17055 To n~J;g~_.~~~r,.J.l}gj.y"~Ql!~J.:!Y_M.Q_j.l1.his proper capacity at the Medicine Shappel GKF, Inc. You are hereby notified that t:li.~~.l:._g~_~! !~E~,.MJ!1!!I_~~ ~!"Atq!,. 9.; _ ~m, .E.;~ ~?1;.~. 9J: .~j.).~~. !1,'.. \:Ij..t.J~F~ J_:;!~<!~~.L. ~~c~~l Q. kli€~r.s individuallYr and Joanna M. Withers, a minor, by her guardian l&;'~ntinB 't~e c~~menced an action in mC.l'l.U_&.UQOn"_.L<\w..__mn_______m___.____nm In . __._. $:1 vll.AcllQtL:'.J.w____ .._..__u_.._ against you which you are required to derend or a delault judgment may be entered againl! you, (SEAL) ._._~~~_~J_~~~~..._.....__._.__....... Prothonotary Date ._.se~.6.--------_.m 19.M. '~~ " ,,1/ ,. 1.- .:,{" By .~~ ~i.-.-.-i);p~~~------.-.--------. . ~jB " ~.~..~ ~~ J ~. > t Hi ~;~ ~ .. ~... ~ .S . 0,", ... u ~ j~i~ L]~" ~ ~ ~ D J I ~ v .J '.. j' I< ~ I ~ ~. ~o <') ~ .~'fl~~ ~&; 8 8~ .o;~ ~P<"'" ,. '.. .e,'" I o ~.. 0 ... . N"("1 ~ IE hll ;i! ~ .~... ~... ~ ~ !j,~ ~ ~ ~ ~;3: I' 'f ~ ' <ll f ~,~ i ... ~~~at. . u . !.=R ,'., :r: '!i f. c..i:f "I" ~; t . I P'I ,:,.' In ,I' ',' , ~ ' I - .. , , ' ..~ . .- n.. III ' v" ' ~ ] i ~ I : -!ill f:~ !d Ih~d.. ~i~ I ~ ~ I~IH 1;1 llo llo ~ ~ ~ ! g U :S ::l'" :z ~ = ~ ~ o U ~ ~ ~ :i '" ... ;SlQ~~ .., Sl '" 2i :11 :J ~ 5 ...l , , , , ' , , .. p '~~ ' " . y. . J. 1" , , -!' :1 , 'I 1', .1;11 " I,.) " ) . - .. t I , '~ " , , " ~~~ , , ", " I' 'I , , " , " ", " " " , . " 'OlJ A'H loHlft IIY Il','i'IIIII1J l<l till ~ Wltl"'" Itl ,..'Otoj';l T I I'" I '.(Ifl',",'l ~ltHI ....'!1"'U'IIJ n~~', '",~... ',I!'~I':' I r IlII A .\.UIH.'~I'l' lolA, Ii. ftolltN"" '1'<)1) " !)':JU'-iL^',-, 1'),:;l)l';I/I,'.l {~ Ll'JU'il ,\", rd, '-1/1 !I'l 1ft "'illY CHllln IllAr I'llr Wlrl;HII~ ~ fhlll: AN'} ullHII.C r l;O'" 'II ll'~ '"II.;itiA1. rH,11l Ht Illl:! A'~ J 11)/1. OY i' '" l'" . 11'/ ,\JJlwru Y H. TIll! ddl'ndilllt, Cl'llrgl' 1'1lIvlll'r, I'hnrm. D. l"ommun\c.ltl'd with Dr. Stuilrt l.nrscn, llf l.exlngton, K,'ntul"ky, illld wnrlwd him thnt till' del"edent WilS rel"eivinll tllll mUl"h medimtion. <}. TIll' ddendnnt, Cl'"rgl' 1'1lIvlll'r, I'hilrm. D., continued to nellligently dlNpense prescriptions tll till' del"l'dl'nt, Emilie M. Withers, until Sl'ptemlwr I, 1992. 10. On Sl'ptl'mlll'r h, 1'1'l2, till' dl!l"e.lsed plilintiH, Emilie M, Witlwrs, wns found in fulll"nrdinl" nrn'st. 11. TIll! decedent's deilth occurred on Septemlwr 6, 1<}l}2, from cnrdillc arrest due to nn OVl'rdllSl' of till' pn'scrlption drugs pl'l's<:ribed by [Jr. Stunrt Larson, nnd dispensed by the ddendants herein. 12. As n result of the nels or omissions of the ddendants as mentioned in the abow numLwred I'al'ilgraphs 6, 7, H, and l} Ill'rl'in, Emilie M. Witlwrs, tIll' plaintiff decedent, suffered physical pain and Ilwntal anguish, to the damage of her husbnnd, Mkhal'l 0 Witlll'ni, Iwr !:stnte, nnd Iwr minor child, Joanna May Withers. 13. As n rl'sult of Emilie M. Withers, tlll' plaintiff decedent's, worsened medical and psychological condition, she suffered physical pain and mental anguish to the damage of her husbimd, Michael 0 Witlll'rn, her Estate, and her minor child, JOi1l1na May Withl'rs, 14. As a direel and proximate result of the death of Emilil' M. Withers, her husband, plaintiff, Michael O. Withers, suffered substantial dnmages, including loss of consortium, loss of support, loss of advice, love, services, protection and other bendits, 15, As a direct and proximnte result of the death of Emilie M. Withers, her Estate has incurred funeral and burial expenses. 16. As a direct and proximate result of the death of Emilie M. Withers, as referred to in Paragraph 11 abow, her minor child, Joanna May Withers, suffered substantial damages, including loss of support, loss of advice, love, services, protection and other benefits. 17. As a direct i1l1d proximate result of the death of Emilie M. Withers, her power to earn money was destroyed. J :R ,. - " ~ ';'1'"" 3:: 1,- r. ""'"' I" ,j. ,;,.) ~,l at ~ 4- ":" .~ ..... ,'... ..., h.... ' "> .... I rl,..':" I...., . :1'" , "1, ,'II 1'1'- j.'" I I,') ',. ,jr L .~.'''''' I. ::1_'1.. g; '. r, :.e: .j ,.. , ~ Il- h~1 f!!i I . U~j Il- ~ I:l I 5 ~ g ~ '" ~ E ~ ~ ~ !Ib dl"~ ." , m~ I ~ ~ ~ ~. :s Eo. Id~~ i~1 = ::.l::l" '" Sl '" ~ i~ ~ ~ S :s " , , , ' . . . - .' - . . . . MICHAEL O. WITHERS, ADMINISTRAT.OR OF THE ESTATE OF EMILIE M. WITHERS, individually and JOANNA M. WITHERS, a minor, by her guardian, MICHAEL O. WITHERS, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 1994-4983 CIVIL TERM JURY TRIAL DEMANDED v. GEORGE FAWBER, Individually, and in his proper capacity at THE MEDICINE SHOPPE, GKF, INC. Defendants ANSWER WITH NEW MATTER OF DEFENDANT GEORGE FAWBER, In4ivi4ually, an4 in hi. proper capacity at THE MEDICINE SHOPPE, GKF, INC., to PLAINTIFFS' COMPLAINT NOW COMES, Defendant George Fawber, individually, and in his proper capacity at The Medicine Shoppe, GKF, Inc. (nFawber"), by and through its attorneys, Landis, Black & Schorpp, and answers Plaintiffs Complaint as follows: 1. Defendant Fawber denies the allegations contained in Paragraph 1. of Plaintiffs Complaint. After reasonable investigation, Fawber is without knowledge or information to form a belief as to the truth of said allegations and proof thereof is demanded at trial. In further answer, Fawber denies said allegations pursuant to Pa.R.C.P. 1029(e). 2. Defendant Fawbec denies the allegations contained in Paragraph 2. of Plaintiffs Complaint. After reasonable investigation, Fawber is without knowledge or information to form a belief as to the truth of said allegations and proof thereof is demanded at trial. In further answer, Yawber denies said allegations pursuant to Pa.R.C.P. 1029(e). 3. Defendant Fawber denies the allegations contained in paragraph 3. of plaintiffs Complaint. After reasonable investigation, Fawber is without knowledge or information to fonn a belief as to the truth of said allegations and proof thereof is demanded at trial. In further answer, Fawber denies said allegations pursuant to Pa.R.C.P. 1029(e). 4. It is admitted that Defendant Fawber's pharmacy is located at The Medicine Shoppe, 33 East simpson street, Mechanicsburg, Cumberland county, Pennsylvania, but it is denied that Defendant Fawber is a Pharm.D. 5. Admitted. 6. Defendant Fawber denies the allegations contained in Paragraph 6. of Plaintiffs Complaint. It is specifically denied that Defendant Fawber was in any way negligent under the facts and circumstances of this case. To the contrary, at all times, Defendant Fawber acted in a careful and prudent manner and with regard for the safety of others. Additionally, Defendant Fawber denies said allegations pursuant to Pa.R.C.P. 1029(e). 7. Defendant Fawber denies the allegations contained in Paragraph 7. of Plaintiffs Complaint. Defendant Fawber specifically denies that it failed to meet the proper degree of care and skill expected of reasonably prudent pharmacists. To -2- the contrary, at all times, Defendant Fawber acted in a careful and prudent manner with a high degree of skill and with due regard for the safety of others. In further answer, it is specifically denied that any Bctions or inactions of Defendant Fawber caused or contributed to any losses, injuries or damages complained of by Plaintiff. To the contrary, no action or inaction of Defendant Fawber caused or contributed to any of the alleged clBims of Plaintiff. In further answer, Defendant Fawber is advised and, therefore, avers that the allegations contained in Paragraph 7. are conclusions of law and require no further answer and proof thereof is demanded at trial. In further answer, Defendant Fawber denies said allegations pursuant to Pa.R.C.P. 1029(e). 8. Defendant Fawber denies the allegations contained in Paragraph 8. of Plaintiffs Complaint. Defendant Fawber denies that he is a Pharm.D. Defendant Fawber admits that he received prescription orders from Dr. stuart I,arson and had conversations with Dr. Larson regarding the decedent's medication. Defendant Fawber denies any further allegations pursuant to Pa.R.C.P. 1029 (e) . 9. Defendant Fawber denies the allegations contained in Paragraph 9. of Plaintiffs Complaint. It is specifically denied that Defendant Fawber was in any way negligent under the facts and circumstances of this case. To the contrary, at all times, -3- Defendant Fawber acted in a careful and prudent mannur and with due regard for the safety of others. In further answer, it is specifically denied that any actions or inactions of Defendant Fawber caused or contributed to any losses, injuries or damages complained of by Plaintiff. To the contrary, no action or inaction of Defendant Fawber caused or contributed to any of the alleged claims of Plaintiff. In further answer, Defendant Fawber denies said allegations pursuant to Pa.R.C.P. 1029(e). 10. Defendant Fawber denies the allegations contained in Paragraph 10. of Plaintiffs Complaint. After reasonable investigation, said Defendant Fawber is without knowledge or information to form a belip.f as to the truth of said allegations and proof thereof is demanded at trial. In further answer, Defendant Fawber denies said allegations pursuant to Pa.R.C.P. 1029(e) . 11. Defendant Fawber denies the allegations contained in Paragraph 11. of Plaintiffs Complaint. After reasonable investigation, Defendant Fawber is without knowledge or information to form a belief as to the truth of said allegations and proof thereof is demanded at trial. In further answer, Defendant Fawber denies said allegations pursuant to Pa.R.C.P. 1029(e) . 12. Defendant Fawber denies the allegations contained in Paragraph 12. of Plaintiffs Complaint. The answers to Paragraphs -4- 6., 7., S., and 9. are incorporated by referenced herein. After reasonable investigation, Defendant Fawber is without knowledge or information to form a belief as to the truth of said allegations and proof thereof is demanded at trial. In further answer, Defendant Fawber denies said allegations pursuant to Pa.R.C.P. 1029(e). 13. Defendant Fawber denies the allegations contained in Paragraph 13. of Plaintiffs Complaint. After reasonable investigation, Defendant Fawber is without knowledge or information to form a belief as to the truth of said allegations and proof thereof is demanded at trial. In further answer, Defendant Fawber denies said allegations pursuant to Pa.R.C.P. 1029 (e). 14. Defendant Fawber denies the allegations contained in Paragraph 14. of Plaintiffs Complaint. After reasonable investigation, Defendant Fawber is without knowledge or information to form a belief as to the truth of said allegations and proof thereof is demanded at trial. In further answer, Defendant Fawber denies said allegations pursuant to Pa.R.C.P. 1029(e). 15. Defendant Fawber denies the allegations contained in Paragraph 15. of Plaintiffs Complaint. After reasonable investigation, Defendant Fawber is without knowledge or information to form a belief as to the truth of said allegations -5- and proof thereof is demanded at trial. In further answer, Defendant Fawber denies said allegations pursuant to Pa.R.C.P. 1029(e). 16. Defendant Fawber denies the allegations contained in Paragraph 16. of Plaintiffs Complaint. After reasonable investigation, Defendant Fawber is without knowledge or information to form a belief as to the truth of said allegations and proof thereof is demanded at trial. In further answer, Defendant Fawber denies said allegations pursuant to Pa.R.C.P. 1029 (a) . 17. Defendant Fawber denies the allegations contained in Paragraph 17. of Plaintiffs complaint. After reasonable investigation, Defendant Fawber is without knowledge or information to form a belief as to the truth of said allegations and proof thereof is demanded at trial. In further answer, Defendant Fawber denies said allegations pursuant to Pa.R.C.P. 1029 (e) . 18. Defendant Fawber denies the allegations contained in Paragraph 18. of Plaintiffs Complaint. The answers to Pat'agraphs 1. through 17. are incorporated herein by reference thereto. 19. Defendant Fawber denies the allegations contained in Paragraph 19. of Plaintiffs Complaint. Defendant Fawber is advised and, therefore, avers that the allegations contained in said paragraph are conclusions of law and require no further -6- answer and proof thereof is demanded at trial. In further answer, it is specificallY denied that Defendant Fawber was in any way negligent under the facts and circumstances of this case. On the contrary, at all times, Defendant Fawber acted in a car~ful and prudent manner and with due regard for the safety of others. In further answer, D~fendant Fawber denies said allegations pursuant to Pa.R.C.P. 1029(e). 20.a. Defendant Fawber denies the allegations contained in Paragraph 20,a. of Plaintiffs Complaint. It is specifically denied that Defendant Fawber was in any way negligent under the facts and circumstances of this case. On the contrary, at all times, Defendant Fawber acted in a careful and prudent manner and with due rogard for the safety of others. In further answer, it is denied that any actions or inactions of Defendant Fawber caused or contributed to any losses, injuries or damages complained by Plaintiff. To the contrary, no action or inaction of Defendant Fawber caused or contributed to any of the alleged claims of Plaintiff. In further answer, Defendant Fawber denies said allegations pursuant to Pa.R.C.P. 1029(e). 21. Defendant Fawber denies the allegations contained in Paragraph 21 of Plaintiffs Complaint. It is specifically denied that any actions or inactions of Defendant Fawber caused or contributed to any losses, injuries or damages complained by Plaintiff. To the contrary, no action or inaction of Defendant -7- Fawber oaused or oontributed to any of the alleged olaims of Plaintiff. As to the balance of the averments of Paragraph 21., after reasonable investigation, Defendant Fawber is without knowledge or information suffioient to form a belief as to the truth of said allegations and proof thereof is demanded at trial. In further answer, Defendant Fawber denies said allegations pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendant Fawber demands that Plaintiffs Complaint be dismissed. NEW MATTER 22. All of Plaintiff's alleged injuries and damages are as a direct and proximate result of Plaintiff's own negligence in the manner in which she took her medicationr in taking said medioation without regard to the prescription instruotions for the same; and in a careless and negligent manner, whioh negligent actions or inactions will be further developed during the discovery phase of this case. 23. Allor part of Plaintiff's alleged injuries and damages are barred by operation of the Comparative Negligence Act of the Commonwealth of Pennsylvania. 24. Plaintiff's claims for injuries and damages are barred by operation of the Doctrine of Assumption of Risk in that Plaintiff voluntarily placed herself in a position where she knew or should have known that the activities in which she was -8- MICHAEL O. WITHERS, Adm. ot the Estate ot EMILIE M. WITHERS, indo and JOANNA M. WITHERS, a minor, by her guardian, MICHA~L O. WITHERS, I Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 1994-4983 civil Term vs. GEORGE FAWBER, indo and in his proper capacity at THE MEDICINE SHOPPE, GKF, INC., Defendants and STUART LARSON, M.D., I Additional Defendant JURY TRIAL DEMANDED ..~.Da=~=====~==_====_=__===:====.~_____=======___=~a_...___..... BNTRY or APPBARAHCB TO TBI PROTHONOTARY or 8BRBB COUNTY I Please enter the appearance of KIRK L. WOLGEMUTH, ESQUIRE, STEVENS & LEE, P.C., for STUART LARSON, M.D., additional defendant in the above case, and designate 1.11 North sixth Street, P. O. Box 679, Reading, Berks County, Pennsylvania 19603-0679, as the place with.in the County of Berks, where papers, process and notices may be served. Date: December~, 1995 BTIVBIIB , LIB /' "]/" rl.--v/ L : .J By: ~ - c~- 1;;C{/.!1-"-I.4.,~t Kirk L. Wolgemuth, Esquire Attorney for Stuart Larson, Additional Defendant Atty. I.D. #45792 ----D.----3--...__________.__=a______________=~=u__=_____________ '>- c.n ,. (: " ~: i' .' .. !.f. url r.-J (. 'I., ,) r" , '~~ .. r..... , (.,)1, " ~1 -, . .1 ~ rJ" r- I,'.') j.l. I iLl!, ',. ( 'll! u. ", ... ~ . J " ,.I~ 0 ,- ,,) IJ' (J , .. ~ ~ ~ ij 8 ~ I ~ ; ~ ; ;::st~~: \.. 1 :! ~ Q; i ~ ~ ~ ~ Q ~ ': . I . CBRTI'ICATB 0' SIRVICI I, David L. Schwalm, Esquire, of the law firm of Thomas, Thomas & Hafer, attorneys for Defendants George Fawber, Individually, and in his proper capacity at The Medicine Shoppe, GKF, Inc., do hereby cert ify that on this date I served the foregoing Praecipe for Entry of Appearance, by placing a true and correct copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed tOI William P. Douglas, Esquire Douglas, Douglas & Douglas 27 W. High Street P.O. Box 261 Carlisle, PA 17013 Kirk L. Wolgemuth, Esquire Stevens & Lee, p.e. One Penn Square P.O. Box 1594 Lancaster, PA 17608.1594 \, THOMAS, THOMAS & HAFER DATEDf ~(~l'l7 -- By \ ,S0~._~ David L. Schwalm, Esqu re Attorneys fer Defendants 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 ...., "I .. ". I i.,.. ltJI _:r ( ). , .. i ; fl.. 1 : !~ l ! J ~ I, i fi1- I ,~. , "1 ,.. " . ," ~ ,. ~ j, . J. , , I ~,l .' l"- i ~; ..::i' i.) :i- ~ t; ib b ... CD ~ ~ 0 01 E i ... ~ 01 if z 01 Q Ii " ..; s.. .. 0 ll: Q ., ~ ~ f ~ 0 rr: '" ~ 0 .. ii ~ Z ll: ~ '" c 0 % '" Q ~ " '. . . . CIRTIFICATI OF SIRVICI I, David L. Schwalm, EsquJ.re, of the law firm of Thomas, Thomas &. Hafer, attorneys for Defendants George Fawber, Individually, and in his proper capacity at The Medicine Shoppe, GKF, Inc., do hereby certify that; on this date I served the foregoing Praecipe for Entry of Appearance, by placing a true and correct copy of the same in the Uni ted States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to; William P. Douglas, Esquire Douglas, Douglas &. Douglas 27 W. High Street P.O. Box 261 Carlisle, PA 17013 Kirk L. Wolgemuth, Esquire Stevens &. Lee, P.C. One Penn Square P.O. Box 1594 . Lancaster, PA 17608.1594 DATED; '1/1['7 (-'l'~ THOMAS &. '.. By \ ' " --J5.-- , - h--CiiV d L.' hwalm, Esqu re Attorneys for Defendants 305 North Front Street P.O. Box 999 Harrisburg, PA 17108.0999 FER i.' II.!' I, "! Ii ...i' , , tll, II. ~" ,., J " I' , , , " " d " " L. "':1, .\ r- {',i"1 U '" " .. , I, ... ::s.. ~ ~ I ~ ~ Q ~ ~ ~ l S- E ~ ~ . 8 ~ Ii Ii ... % Ii o Z III o '" r , .. .. .. ~ o .. o .. ~ E if .. 0: ~ .. III ~ 0: C % J . CBRTI'ICATB 0' SIRVIC. I, David L. Schwalm, Esquire, of the law firm of Thomas, Thomas & Hafer, attorneys for Defendants George Fawber, Individually, and in his proper capacity at The Medicine Shoppe, GKF, Inc., do hereby certify that on this date I served the foregoing Praecipe for Withdrawal of Appearance, by placing a true and correct copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: William P. Douglas, Esquire Douglas, Douglas & Douglas 27 W. High Street P . O. Box 26 1 Carlisle, PA 17013 Kirk L. Wolgemuth, Esquire Stevens & Lee, P.C. One Penn Square P.O. Box 1594 Lancaster, PA 17608-1594 ( , l' S, THOMAS .& HAFER [: (' I~, l \.r ,"-, ~t.0L. David L. Schwalm, Esqu re Attorneys for Defendants 305 North Front Street P . O. Box 999 Harrisburg, PA 17108-0999 ___1' DATED: "Iil~ 7 , , ,-II ~ " 1 ," ~" , , ~ , ! I' ~ , " , . I>i I', " ' ,'1 , " l' r" i , fJ" ',J ~- (~ ~ ~ ~ .-:;:= ~ ~ I:i ~~ '" " ~ 0 '" E ~ 'a ~ '" l '" i . .; ~ r .. 0 It . " :> ~ 0 " ~ <II -l! ~ ii .. ~ Z It <II . ~ 0 . ,., Q ~ \' . ~ . \ )J.. 5. The Defendants are in the midst of securing a release from the Plaintiffs in accordance with the said Order of Court. 6. On or about July 29, 1997, counsel for the Additional Defendant had a subpoena delivered at Defendant, George Fawber's business compelling his attendance at a deposition on August 5, 1997, A copy of the subpoena is attached hereto as Exhibit "B." 7. Counael for the Additional Defendant did not prearrange the taking of Mr. Fawber's deposition. B. George Fawber is presently on vacation in Stone Harbor, New Jersey and is not expected to return until on or about August 3, 1997. 9. George Fawber is a pharmacist and cannot on such short notice, find a replacement pharmacist. 10. Should Mr. Fawber be compelled to attend the deposition on August 5, 1997, he will have to close his business thereby denying his customers and patients access to a community pharmacy in Mechanicsburg, Pennsylvania with the attendant loss of revenue. 11. There exists absolutely no basis for the Additional Defendant to take the deposition of George Fawber in this action since the case will be fully and finally settled against Mr. Fawber and the Additional Defendant will be dismissed from this action. 12. It is believed and therefore averred that the purpose for issuing the subpoena was to obtain Mr. Fawber's testimony for use in an action in Lexington, Kentucky which arises out of the same set of circumstances upon which the above-captioned action was commenced. 13. Mr. Fawber was originally named as a Defendant in the Lexington, Kentucky action, however, the trial court in that state dismissed the case against Mr. Fawber. A copy of the said Order of dismissal is attached hereto as Exhibit "C." 14. It is believed and therefore averred that the issuance of a subpoena in this Cumberland County action was improper because it seeks to compel the testimony of the Plaintiff for use in another jurisdiction on the premise that there exists a lawful basis for obtaining Mr. Fawber's testimony in the Cumberland County action. 15. The undersigned counsel for Mr. Fawber is scheduled to attend several other depositions on August 5, 1997, and is unavailable to represent the interests of Mr. Fawber at the time and place set forth in the subpoena compelling his attendance at a deposition. 16. In accordance with Pennsylvania Rule of Civil Procedure Number 4012, the Defendants request the issuance of a Protective Order prohibiting the taking of a deposition by the Additional Defendant in this action on August 5, 1997, and quashing the subpoena compelling Mr. Fawber's attendance on the basis that: A. There exists no basis in the above.captioned action for issuing a subpoena to compel Mr. Fawber to testify in a case in which he has reached a settlement with the Plaintiff and is in the midst of obtaining a release where such settlement and release, upon its execution by the Plaintiffs, discontinuance of this action. B. Compelling Mr. Fawber's attendance at a deposition, will effect the without having prearranged the same with his counsel and on such Dhort notice that it will force him to close his business having only returned from a vacation two days earlier, would cause unreasonable annoyance, embarrassment, oppression, burden and expense to Mr. Fawber. C. The taking of Mr. Fawber's deposition would require the making of an unreasonable investigation by the deponent in a case in which he has just, arrived at a settlement and received court approval from and in a foreign jurisdiction case from which he has been dismissed. WHEREFORE, the Defendants respect.fully request the entry of an Order by this Honorable Court prohibiting the deposition of Mr. George Fawber on August 5, 1997, and quashing the subpoena issued by the Additional Defendant requiring his attendance at the said depositiol". Respectfully submitted, THOMAS, THOMAS S. KArlR By: (~,~-?~~ C'~ Richard C. Seneca, Esquire Supreme Court ID #49807 P.O. Box 999 Harrisburg, PA 17108 (717) 255-7629 Attorneys for Defendant '....Mfch.ae'f"O.:...Wither.s:".Adm1'ills.trato.;:.... ......"fil"'th'e"'co'li'rt"o'rCommo.i\...Pleas..o.j....... of the Estate of Emilie M. Withers, Cumberland County Pennsylvania individually and Joanna M. Withers, a minor, by her guardian Michaei O. Withers Plaintiff 1994 - 4983 Civil Term vs George Fawber, Individually, and In his proper capacity at The Medicine Shoppe, GKF, Inc. Defendant Petition for Partial Settlement Approval Civil Action Law ,....,......,....""",....,.",...........,..........,....,.,...........,......"...,......,....,.....,..".......,...,..."........"............,.."....'1............,'.""1.1.".'."......,.,.".....",............. Order of Court AND NOW, this ,~Si e.... day of ~ 1997, in consideration if the attached petition, the proposed partial settlement of $17,500.00 for the Wrongful Death of Emllie M. Withers, Is approved, and the following distribution is directed: Petitioners $11,666.66 Douglas, Douglas & Douglas $5,833.33 TRUE COPY FROM RECORD In Testimony wile""'. I hire unto 181 W1Y hand iIld t S' ; 0; td rtlsle, Pa. r (j. . 19 't 7 ( ~ I, By the Court, hi ~t...e,l , -~ f~h\ bJ ~ JL\.oI =~ 'S7 12f =~FM ~'EC~I:If'-.r. '.:H:F!=~ t"E:,:1-" ' ';"~~ "':-': ~.,:,~~ ....... F, ~ -"'" ~t?t or ~VPNtA ~-er On't~ ",'~H",..t, :/. WITIIIIIIS, Adm. 01 III~A~. (1t IIMr.:'II' M. WI'l'IlERIJ, indo 0114 ;m"NKA M WITHEM, a .inor, by h... gua~~'~n MICKAI~ O. WtTHE~, 'is. Pla.!.nt:,UII G!OItIJl!: \f,\WR~". indo all~ 1ft his propel' e.1Pillli.t.y at Tnlr Ml:01CINI!: GflOPPE, '.H~r, INC" DefendAnt. -,:) t (,;"01101 rl\l!!IU:p, -, .n* Mlt,Uc:.!.nli Shopp. ----!3 E.I~ 5i~poo~5tr..t, Mechanic.bura. PA. 170S5 .I.. ~OU "" ?nd t:y thoI ~ ~o a:mI to ~w Off!.,:.... of St.....n. II JA., 208 Kor~l\ Th1rd G~'~Mt, su.l.tc 310, Harr}.~~rq, lannaylvon.l.o ~.. . . .(~1ly~ ~ ~,~ ~~~ _ 'l'u...dIlY . Qt lIa&'ruQUr9 . Daupn.!.n county, I'\IrVI8YJ.VWUA, on 1/5/''1 ' P'1.lA No. ~"4-4?MJ Civil Torm I t . SlJllPOENA - Q'c::tod<, !iI. M., ~o testi.fy on ~t of at \ , I .J 0 Addition.l defendant. l.I\ the llOIW>I ,aM, ard ~o ~ UI'Itil ~. 2.. And '=nno; with )'nLl :t'A f~l any ane all ..aear.!.. rCllard.inq J!mj.l.l.e K. W1tn.rl \nQ~u4~n9 ..11 pro8o~ipt~onG wr~tt.n or qivcn to em~l.i~ M. W~ther.. u y-,;" fa.J.J. :0 I1t':cnd or to ~ the ~u c::- ~ ~ by VUI1 111J1:i1lOoeM, :iQU nwy t)oo 'ub~<<t t.o the ...-.ctiona &~thori:re4 Oy ~ 22-4.~ of the PeIIr...yJ.~ ~ I:I~ :.l.v'l.l ;'J:lX:edure. :.,,,,ludillg but not ~tec! to c:o.u, .ttolmW!' EoMlI lIIld .l.D1l:r:-'_soMWlt. ISStZl !,,:~-cr Cl:M't..INk% ~ I'Il.R.C.P. I'tl. ;:~"..2(4) NNC: Kirk L"..WOlcrAmut:h. Esauire - 5'1:."..n. .. ~oal! ~S, III North 6~h stz.et ~. O. BOK 679 R~~inai P~. l~603-0~79 '- n:tDH:M. ~lQ/4"1.~2:1~ --- stJPPn<< ::":(J/If !Ot 45792 I CA't'I1 ~1..!AiC ;/. /4~7 Sui "t the <:O~ thonoe~. \\.~ ,d .I 1 O:L~l.on , '..A ~ ., J.;',.,J' b '/...h'\~:~(~ . ISI GARY D. PAYNE A... JUDGE, f'AYETTE CIRCUIT COURT Iru~E~D DIVISION HAVE SEEN AND AGREED TO; ATTEST nOBEPT M TRUE, CLERK / \ FAYETiE C'HCUlr COURT // / j TO BE fE!fl'EREDi: . _, L,v .._...L.rt:::.'-- Deputy " J \ " """" t."-,,., '-...- -/- .' 1 . HON' A. CUNNINGHAM~. JR. 41 t tis C . George CERTIFICATE Thio is to certify that a true copy of the foregoing has this 2--) day of #J - , 1994 been mailed to the following: Hon. Shirley Allen Cunningham, Jr. 3101 Richmond Road, Suite 304 Lexington, KY 40509 Hon. Michael J, Cox Boehl, Stopher & Graves 444 West Second Street Lexington, KY 40507-1040 Hon. William J. Gallion Gallion, Baker & Bray l67 West Main Street, Suite ~O Lexington, KY 40507-lJ98 Hon. Douglas L. Hoots Landrum & Shouse P.O. Box 951 Lexington, KY 405R8-0951 By:i~~?~.~- . LERK, FAYET CIRCUIT COURT "2- . . ,.. 306\129630. / MICHAEL o. WITHERS, Administralor ot'lhe Estate ot'EMILlE M, WlnIERS, Individually and JOANNA M, WITHERS, a Minor. by her guardian. MICHAEl. o. WITHERS. : IN HIE COURT OF COMMON PLEAS . CUMBERL.AND COUNTY, PENNA. : CIVIL. ACTION. L.AW Plainlitlil, . NO. 1994-4983 CIVIL TERM v GEORGE FAWBER. Individually. and in his proper capadly at THE MEDICINE : JlJR Y TRIAL. DEMANDED SHOPPE, GKF, INC., Defendants, v STUART LARSON, Mil. Additional Delendanl, PRAECIPE TO D1SCONTINllt.: ACnON TO THE PROTHONOT AR Y Please mark the above-captioned action sell led. ended and discontinued, with prejudice. DOUGL.AS. DOUGL.AS & DOUGLAS \,'\1 ()", \. ~ - ,.JJtI . '.:_~_"k,.' .. William P DOUglas'\'SqUire P,O, Box 261 Carlisle. P A 17013.0261 (717) 243-1790 AlIorney lor Plaintil1:~ ..,.. 'n I' (,'. .,,' , , t (', " , (I' I!:' , " , fl' ,I ~... I " f; LL."' v' I' r" j C' c. ~,J " 'I