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HomeMy WebLinkAbout94-05804 .' '-tt ,~ ...,.1/ :\/), ,~ j ~ o 00 to ,. , , f, \' , , : " i" "j' , ,I," " ., , 1 , " ,Ii , \ " , ! , , ,., , \ I \.(l o~' - ,~ .' '" ~ " .,' " \, " II " " '\ ,. . , I: .' ),., ': MARIE HUGHES AND ELMER HUGHES, HER HUSBAND, Plaint! ffs '30 IN THF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JOHN E. SE I BERT t1d/b/a CUMBERLAND WINDOW FASHIONS, Defendant CIVIL ACTION - LAW NO, 94-5804 CIVIL TERM PRETRIAL C.QNFERENC.E At a pretriol conference held August 28, 1996, before Edgor B. Boyley, Judge, pre:;ent for the plaintiffS rias Karl J. JonuzzL Esquire, and for the Defendant, David L, Schwalm, Esquire. TimothY A. Shollenberger wJ.lI represent plaintiffs at trial. On February 8, 1994, plaintiff, Marie Hughes, who is in her fifties, fell on 0 sidewalk in front of defendant's store at 427 Bridge Street, New Cumberland. Plolnt! ff maintains that it hod stopped snowing, but that issue is in dispute. Defendant had not token any steps to clear the snow from the sidewalk, ,Plaintiff suffered on injury to her left knee for which she hod surgery, There is 0 possibility that she will need 0 knee replacement in the future. She seeks general damages, medical expenses and 0 small amoLlnt of lost wages. There is no claim for loss of earnIng copacity, Defendant denies liability, Trial counsel sholl present to the trial Judge at the beginning of the trial Q succinct brief on the issues of liotl1l1j. , Est lmated tl.me of Uial. one- and 0 hol f days. ..~., . ....__._.n_ . ErJgar B. ~l€Y.J, Timothy A. ShollentJerger, F..squil"e t For Plalntlf fs Dov Id l.. Scrlwalm, ESC/l.Iirp. For DefemJont lprs " '.," ~ N r:: <" u_. ii. ~il I~ :c . '~3 oo;t 1 I':.', . , 0"1 i~ (L C: N ~.. ~ ,,'J rL '~ ,'I .... ~1! ~ ..0 a en " L\ Mari. Hugh.. and .l..r Hugh.., Her Hu.band, In the Court of C~n 'l.a. Cumb.rland County, 'a, Plaintiffs v. No. 9.-580. Civil Action - Law John ., Seib.rt t/d/b/a Cumberland Window pa.hion., Defendant Jury Trial Demand.d PRS-TRIAL M.MORANDUM AND NOW come the Plaintiffs, Marie Hughas and Elmer Hughes, Her Husband, by and through their attorneys, LAW OFFICES OF TIMOTHY A. SHOLLENBERGER, and do respectfully file the following Pre-Trial Memorandum: I, BASIC PACTS AS TO LIABILITY This loss occurred in the late morning of February 8, 1994, when Plaintiff, Marie Hughes, fell on the sidewalk in front of the Defendant's store, located at 427 Bridge Street, New Cumberland, Pa. The Plaintiff slipped and fell on ice that was covered by a few inches of fallen snow. There is conflicting testimony as to whether it was still snowing at the time of the Plaintiff's fall. The Plaintiff contends that at the time of the fall. the sidewalks in the immediate area of 427 Bridge Stl'eet were clear of. ice and snow. The Defendant admits that no steps were taken to clear the ice and snow from the aid...l_, in front of the Defendant's store prior to the Plaintifl'. ' fall. I d '\(1 \'1"4\1 1;\'1 '",',"."1 f .Hi,t ,'xl-- a tear a" '<"iI",' ;,1:"." lateral meniscus of her left knee, which required, i',.iJC . , ,i,'itj;!iY surgery perEormed by Thomas H. Malitr;, M.D. oti;ii:'!l The Plaint L f f also suf fered an aggravation C).tnlj~ , ",",~Pf I:' ,i~ t (;;,:)" 'j'::I,{ ,i;nll' ,::/:~~ "'j' 'l'il. '.';,'!;'.1i;: ,; :~f;li As a l.L_.IASIC PACTS AS TO DAJU.O.S result of her fall, Plaintiff suffered the arthroscopic May 4, 1994. L^'" l..)'PlCBS 1;)1' TlMOrHl A. 'HOlL,N.,1lO1II ]~l\J LINGLRS'f(lWN Ih.IAQ . Pl.l 80X ~1"" . ~1.~"RllillllRU, P.~ 17hJn.lJ1..., tlI7).nt.ll00 . M.I( 17111l1......HJ a pre-existing degenerative condition of her left knee. The Plaintiff's treating physician, Dr. Malin, has opined that the prognosis for Ms. Hughes' left knee is guarded due to the increased risk of further arthritic change and exacerbations from increased activity. He expects that she will require medication from time to time, possibly injections and/or physical therapy. Dr. Matlin further believes that the Claimant will suffer intermittent pain and swelling. It is his hope to be able to treat this conservatively, however, he does leave open the possibility that she may need repeat arthroscopic surgery. At the time of the fall, the Plaintiff was working two jobs: full time, with CIa, Inc. and part-time with the Pennsylvania Higher Education Assistance Agency (PHEAAl. Following the surgery, the Plaintiff had a period of disability lasting approximately eight days, during which she was unable to work. She was paid for the time she missed from CIa, Inc. but not for the time she missed from her part time work with PHEAA. III, PRINCIPAL ISSUES or LIABILITY AND DAMAG'I A. At the time of the Plaintiff's fall, did the Defendant owe a duty to the Plaintiff to have the sidewalk in front of the Defendant's premises at 427 Bridge Street free and clear of snow and ice? B. Does compliance with the Local Sidewalk Ordinance relieve Defendant of liability for this fall? C. Was the Plaintiff's lateral meniscus teal' and resultant surgery causally related to the fall in question? IV, ISSU.S AS TO TH. ADMISSIBILITY or T.STlMOHY . .W.~.l~ None Plaintiff is aware of. ~.~ss.s TO B. CALL.D 1. Marie Hughes. 2 LAW UPPIC!S OP 'r1MOTHY A. !HOlLlN...osa IIW) LINULESrUWN R~)A[l . PO iOX eo"!,., . ~1^"R.18BURrJ, PA 11IiJlt.O~," (711IlJof.l100 . MX 11111 Ht.IUll 2. Elmer Hughes. 3, Thomas H. Malin, M.D. (by video deposition) . 4. W. Kenneth Achenbach (as on cross) . Witnesses identified but not called by the Defendant. Any person whose testimony is or may become necessary to authenticate or provide foundational testimony regarding any exhibit (e.g. witness to verify accuracy of photograph, ql~alify documents, business records, ate.). Any person whose testimony is or may become 'necessary as a rebuttal witness. VI , JXHIBITS 1. Photo of the scene. 2. Local climatological data (monthly summary, February, 1994). 3. Charts showing weather observations at three hour intervals for February, 1994. 4. Hourly precipitation charts for FebrualY, 1994. 5. Exhibit summarizing wage loss. 6. Medical expense summary with supporting medical bills. 7. Medical treatment summary. 8. MRI films of Plaintiff's left knee taken March 2&. 1994 and February 6, 1996. 9. Curriculum Vitae of Dr. Malin. 10. Transcript of deposition of Dr. Malin. 11. Video of deposition of Dr. Malin. All exhibits used in the deposition of Dr. Malin. All medical records as may be necessary to prove history, fact of treatment, or which is reasonably relied upon by Dr.. Malin in forming his opinions. VII. CUllR.NT STATUS 0' UTTLmMDrr NWiGOTIATINI. The Defendant has offered Ten Thousand Dollars ($10,000.00) to settle thLs case. I"laintiff i.s eeeJdng 3 l.AW lip"lcas l.1P llMO'JHY A, SHOlLlN.IIlllI. JlW,l UNUlH:-;TOWN RI..'I'\O . Po. ROX 6\.1"1..' . HARRIHBlJRG. PA 11h)ft.iJ~""t t1111114-1700 . P:.~X (HlIll.."W2 MARIB HUGHES and ELMER HUGHBS, her husband, Plaintiffs : IN THE COURT OF COMMON PLBAS CUMBERLAND COUNTY, PBNNSYLVANIA v. NO. 5804 CIVIL 1994 TERM JOHN E, SIE8ERT and W, KENNETH ACHENBACH t/d/b/a CUMBERLAND WINDOW FASHIONS, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED PR.-TR%AL KKNO~OM O. n..ENDANTS %. STATDIIIN'1' O. BAB%C .ACTS AS TO L%AB%L%TY On Febl'uary 8, 1994, W. Kenneth and Shirley Achenbach were the owners of the premises located at 427 Bridge Street in New CUmberland. Cumberland Window Fashions, a partnership between W. Kenneth Achenbach and John E. Seibel't, occupied a portion of the premises and paid rent to the owners. DUl'ing that particularly severe winter, Cumberland Window Fashions kept the sidewalk op6n through the efforts of Mr. Achenbach and employees, the custodian at the adjacent chul'ch who had a snow blower, or neighborhood boys coming through the neighborhood. On the evening prior to this incident, the sidewalk was open fol' pedestrian use. On the morning of Febl'uary 8, 1994, snow began to fall during the early morning hours and continued in various degr... of intensity throughout the morning. Shortly befol'e noon, Plaintiff Marie Hughes entered the building and indicated to an employ.. that .he had fallen on the sidewalk outside. At that time, the employ.. indicated that It was still snowin9. II. "'-ze PAeora AS TO I)....al'l.a See Plaintiffs' Pre-Trial Memorandum III. ..ZImZPL. I.atm. OP LZAIIILZ'l'Y AIm naua.... 1. Whether Defendants exercised reasonable care in maintaining the sidewalk in light of the continuing snowfall. 2, Whether Defendants had actual or constructive notice of a dangerous condition eXisting on the sidewalk. 3, If Defendants were negligent, whether that negligence was a substantial cause of the Plaintiffs' injuri~s and damages, 4, Whether Plaintiff Marie Hughes exel'cised reasonable care for her own safety under the circumstances. 5. If not, whether her failure to exercise reasonable care was a substantial factor in bringing about Plaintiffs' injuries and damages. IV. IUIaI.a.ay O. L.caL zaaUlls ..a.aIlllIJllJ anuU,IBZLZ'l'Y OP "'ZDBlmW None at this time. V. 1f:rTIIII.... TO .. l"ULIID 1. Lisa Woratyla 2. W. Kenneth AChenbach 3, Dr. Jason Litton " ..2.. '. I,j', :.' ,j,; "I'tt~;~~I~;t~J1~: v:t. --!.!'1'8 1, Photograph. of the scene, 2. Local climatological data (monthly summary, February, 1994) . 3. Chart showing weathel' observations at three hour intervals for February 1994. 4. Plaintiffs' medical records vn. ~D'l' STATUS O. SIT'l'L--- HliQO'1'U'l'!OKS Defendants have offel'ed $10.000.00 to settle this case" Plaintiffs' demand is $40,000.00. Respectfully submitted, ("- .~.--"1 Dav L. Sc wa m, Esqu re Attorneys for Defendants 305 North Front Street P,O. Box 999 Harrisburg, PA 17108-0999 "~.. DATIDI et ~d'la '...3... 4. At all times relevant hereto, Defendants were in control of the premises located at 427 Bridge Street, New Cumberland, Cumberland County, Pennsylvania. It is believed and therefore averred that Defendants leased said property from W. Kenneth Achenbach and Shil'ley Achenbach. 5. At t.he aforementioned time and place, the sidewalk in front of Defendants' business located at 427 Bridge Street, New Cumberland, Cumberland County, Pennsylvania, was covered with packed snow and ice. The sidewalk was in the very same condition at 8:30 a.m. on the above-mentioned date when crossed by Plaintiff, MARIE HUGHES. 6. At the above mentioned time and place, Plaintiff was again walking along said sidewalk in front of Defendants' business when she slipped and fell on the packed ice and snow. 7. The Defendants, JOHN E. SIEBERT, t/d/b/a CUMBERLAND WINDOW FASHIONS, made no effort to remove the ice and snow from the sidewalk in front of the premises they controlled in an effort to make said sidewalk safe. COUNT I MARl. HUOH.S v. JOHN .. SI.B.RT t/d/b/a C~IMB.RLAIm WINDON J'ASHIONS 8. Paragraphs 1 - 7 of the Plaintiffs' Complaint are made a part hereof and incorporated by reference herein .. if set forth in full. 9. The aforesaid incident and resulting injury of t~. 4 U\WllflPlt a...,)!" 'f1MOTH'Y A. !iHOLLINaIRGllt lli!tlllNc ;lijST\ J\lo'N Ih IMl . I'll At)~ nO~,,'1 . H^RRISI~lllh i. 1'_'\ Illl)I'I.0'1", Iii i\ ! 1+ \'100 . p,"~ 17111 ~ !.f. Ii~ I ! Plaintiff, MARIE HUGHES, was caused as a direct and proximate result of the negligence, carelessnese and recklessness of Defendants, JOHN E. SIEBERT t/d/b/a CUMBERLAND WINDOW FASHIONS, which consisted of: a. By failing to remove the packed ice and snow which accl~mulated on the sidewalk in front of Defendants' business; b. In failing to place salt, cinders or take any other steps to alleviate the obvious dangerous condition of the above mentioned sidewalk; c. In allowing the snow on the above l'eferenced sidewalk to become packed and hardened, forming hills and ridges and making the obvious dangerous condition of said sidewalk even more dangerous; d. In failing to discover the dangerous condition of said sidewalk which would have been discovered by the exercise of reasonable care. 10. The aforeaaid incident was caused solely and exclusively by the wrongful and liability producing conduct of the Defendants, JOHN E. SIEBERT t/d/b/a CUMBERLAND WINDOW FASHIONS, as set forth above and was due in no manner whatsoever to any act or failure to act on the part ot the Plaintiff, MARIE HUGHES. 11. As a result of the above descl'ibed fall, Plaintiff, MARIE HUGHES, sustained serious and permanent injuries, including but not limited to: a. Tear of the lateral meniscus of the left knee; b. Tear about the midportion and posterior ~I'nl" " 5 L."W lWPlll!~\W "IMOTH'Y A. ~tlOLL.NIIROIR 11t~ll LlNt.II.H~-rU"'N RUr\tl . Pll ~JX rl\.l~", . HAR.R./....IU 'Illi, 1'.'\ 1710n,lJ1+i (11 If 21", ilL\:' ' iT,,",,\; dl7\2\.414212 c. Fraying of the medial meniscus; d. Aggravation of arthritis of the lateral femoral condyle and tibia plateau; e, Sever shock to the nerves and nervous system; and, f. Extreme mental and physical anguish, 12, As a furthel' result of the wrongful and liability producing conduct of the Defendants herein, Plaintiff, MARIE HUGHES, has been obliged to expend various and diverse sums of money for medicine and medical care and treatment in and about an effort to cure herself of the ills and injuries she has suffered, and has also been required to expend sums of money to cure herself of the ills and injuries she has suffered and will be obliged to do so in the future to hel' great detriment and loss. 13. As a further result of the wrongful and liability producing conduct of the Defendants herein, Plaintiff, MARIE HUGHES, has suffered a loss of her earnings and earning capacity and has or may continue to suffer such loss and depreciation for an indefinite time into the future. 14. As a further result of the wrongful and liability producing conduct of the Defendants, Plaintiff, MARIE HUGHES, has undergone great physical pain and mental anguish, as well as embarrassment and humiliation and will continue to endure the same for an indefinite time 1nt~ the future to her great detriment and loss. 15. As a fur.ther result of the wrongful and 6 LA\\- I. \~Fll E:, I.l~ TIMOTH.. A. ~.10LLIN8"'(':IR 1,'411.' I.rNtjlli.''TllWN Ihir\n . Ill' 1\1.':( tH)~,,1 . H,"I\ItI~Rtlp,I;, ['A IllvI'H.l1...' l i 17l ~ I.. I ~L\' . ~," '( \ fin :, I.. "21; producing conduct of the Defendants herein, Plaintiff, MARIE HUGHES, has been extremely inconvenienced and unable to attend to her life's daily activities, as well as having beeu deprived of life's pleasures and will continue to suffer same for an indefinite time into the future to her grea.t detriment and loss. 16. As a further result of the wrongful and liability producing conduct of the Defendants here, Plaintiff, MARIE HUGHES, has suffered other expenses and losses. WHEREFORE, the Plaintiff, MARIE HUGHES, demands judgment against the Defendants, JOHN E. SIEBERT t/d/b/a CUMBERLAND WINDOW FASHIONS, for an amount in excess of Twenty Five Thousand ($25,000) Dollars and in excess of the amount requiring compulsory arbitration. COUN'l' II I~R ROGHIS v, JOHN I. BIIBII~ t/d/b/a CUMBIRLAND WINDOW PABB B 17. Paragraphs 1 - 16 of the Plaintiffs' Complaint are made a part herec)f and incorporated by reference herein.. \' if set forth in full. 18. As a further result of the injur,ies sustained by, ,'" his wife, Plaintiff, ELMER HUGHES, has been and will be deprived of the assistance, companionship, consortium and society of his wife, all of which has been and will be to, his great damage and loss. WHEREFORE, the Plaintiff, ELMER HUGHES, demands 7 1,,"'\'41 \ l~FII F..~ (Ill 'rll\.iO'fU'Y A. "HonINllllti.. l-'lU LI/'fl iUhrl \W~ }h 1,'ll . III 1 I~l P( tll"\.f1 . HMtflH'iI\I'Rll, 1',\ l.'li.\rh)~"~ (,'I!l ~ lot 17l'l.' . 11,",,'( (71:1 :1'H~!2 , , " " i!; C'\J r= - It ., y:: ~ :';J",r.' .: ).~J ',- '.:'~i: ;;;,;c (");:;, C' <:1\ ':~:?~) r:. l.l.. (\/ ,.... , ..:,.") ~. .' (:;! i7JrJJ ~ /.;..: ,)Q;" 4: ~ 0.0 " : ;::) 0', () , , MARIE HUGHES and ELMER HUGHES, her husband, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO, 94 5804 CIVIL TERM JOHN E. SEIBERT and W. KENNETH ACHENBACH t/d/b/a CUMBERLAND WINDOW FASHIONS, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED PRE-TRIAL MEMORANDUM OF DEFENDANTS I. ITAT.KE"T OP BASIC PACTS AS TO LIABILITY On February 8, 1994, W, Kenneth and Shirley Achenbach were the owners of the premises located at 427 Bridge Street in New Cumberland, Cumberland Window Fashions, a partnership between W, Kenneth Achenbach and John E, Seibert, occupied a portion of the premises and paid rent to the owners. During that particularly severe wintel', Cumberland Window Fashions kept the sidewalk open through the efforts of Mr. Achenbach and employees, the custodian at the adjacent church who had a snow blower, or neighborhood boys coming through the neighborhood. On the evening prior to this incident, the sidewalk was open for pedestrian use. On the mOl'ning of F'ebruary 8, 1994, snow began to fall during the early morning hours and continued in val'ious degrees of intensity thl'oughout the morning. Shortly before noon, Plaintiff Marie Hughes entered the building and indicated to an employee that .he had fallen on tho sidewalk outside. At that time, the employ.. indicated that it was still snowing. XI. BUIQ .ACT. A8 '1'0 DAllAG.8 S.. Plaintiffs' Pre-Trial Memorandum III. 'RI.CIPL. I.,U.. O. LIABILITY AND DAMAOES 1. Whether Defendants exercised reasonable care in maintaining the sidewalk in light of the continuing snowfall. 2, Whether Defendants had actual or constructive notice of a dangerous condition existing on the sidewalk, 3. If Defendants were negligent, whether that negligence was a substantial cause of the Plaintiffs' injuries and damages, 4, Whether Plaintiff Marie Hughes exercised reasonable care for her own safety under the circumstances. 5, If not, whether hel' failure to elcercise reasonable care was a substantial factor in bringing about Plaintiffs' injuries and damages, IV. .UKNARY O. LIOAL I.8UI. REGARDING ADMISSIBILITY OF IVIDI.C. Since Defendants have not yet seen Plaintiffs' exhibits sUlIlllIarizing wage loss, medical bills and treatment, Defendants reserv~ the right to object to the admissibility of such exhibit.. V. WIT...8.. TO BI CALLID 1. Lisa Woratyla 2. W, Kenneth AChenbach 3, Shirley AChenbaCh -2- - -v ,~u MARIE HUGHES and ELMER HUGHES, Her Husband, plaintiffs IN THE qOURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA v. NO. 94 5804 CIVIL TERM JOHN E. SIEBERT, t/d/b/a CUMBERLAND WINDOW FASHIONS, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED PRB-TRIAL MDORANDUH AND NOW COME the Plaintiffs, Marie Hughes and Elmer Hughes, Her Husband, by and through their attorneys, LAW OFFICES OF TIMOTHY A. SHOLLENBERGER, and do respectfully file the following Pre-Trial Memorandum: I, BASIC PACTS AS TO LIABILITY This loss occurred in the late morning of February 8, 1994, when Plaintiff, Marie Hughes, fell on the sidewalk in front of the Defendant'S store, located at 427 Bridge Stl'eet, New Cumberland, Pa. The Plaintiff slipped and fell on ice that was covered by a few inches of fallen snow. Thel'e is conflicting testimony as to whether it was still snowing at the time of the Plaintiff's fall. The Plaintiff contends that at the time of her fall, the sidewalks in the immediate area of 427 Bridge Street were clear of ice and snow. The Defendant admits that no steps were taken to clear the ice and snow from the sidewalk in front of the Defendant'S store prior to the plaintiff'. fall. 1 LAW O'''C!S I,)" TIMOTHl A. SItOUINeaIClI. IIUlJ LINGL&~n.1WN I\l)A[l . P(l. Ik'1X MJ141 . ~1~Jt.RI~IUllll, M 11hlft.0141 17171 n4>\100 . P.\X i117111+tUIJ II. BASIC n.CTS AS TO D.AllA.O.S As a result of her fall, Plaintiff suffered a tear of the lateral meniscus of her left knee, which requil'ed arthroscopic sUl'gery performed by Thomas H. Malin, M.D. on May 4, 1994. The Plaintiff also suffered an aggravation of a pre-existing degenerative condition of her left knee. The Plaintiff's treating physician, Dr. Malin, has opined that the prognosis for Ms. Hughes' left knee is guarded due to the increased risk of further arthritic change and exacerbations from increased activity. He expects that she will require medication from time to time, possibly injections and/or physical therapy. Dr. Malin further believes that the Claimant will suffer intermittent pain and swelling. It is his hope to be able to treat this conservatively, however, he does leave open the possibility that she may need repeat arthroscopic surgery. At the time of the fall, the Plaintiff was wOl'king two jobs: full time, with CIS, Inc. and part-time with the Pennsylvania Higher Education Assistance Agency (PHEAA). Following the surgery, the Plaintiff had a period of disability lasting approximately eight days, during which she was unable to work. She was paid for the time she missed form CIS, Inc. but not for the time she missed fl'om her part time work with PHEAA. III, PRINCIPAL ISSU.S OP LIAB:ILITY AND D.AllA.G.S A. At the time of rhe Plaintiff's fall, did the Defenda~t owe a duty to the Plaintiff to have the sidewalk in front of the Defendant's premises at 427 Bridge Stl'eet free and clear of snow and ice? B. Does compliance with the Local Sidewalk Ol'dinance relieve Defendant of liability for this fall? C. Was the Plaintiff's lateral meniscus tear and resultant surgery causally related to the fall in que.tion? 2 lAW(lPIfIl'lI~ \.11' llll101HY ,. 'HOUIN.lllOl. !lUll LINLllS..Hl'lWN Rt,l,~n . f\1 Rl1}4 1'10'1"1 . H,",AflIHRI.'IlU. P.-" 11lUI\.lJ141 11171 H',170t) . '~)(1711fH414!IJ IV. ISIUlI AS TO TaB ADMIISI.ILI~ O. TBSTIMONY . BXXI.ITS None Plaintiff is aware of. V. WITtmSSBS TO .B CALLBD 1. Marie Hughes. 2. Elmel' Hughes. 3. Lisa Woratyla. 4, Thomas H. Malin, M.D. (by video deposition), 5. W. Kenneth Achenbach (as on cross). Witnesses identified but not called by the Defendant. Any person whose testimony is or may become necessary to authenticate or provide foundational testimony regarding any exhibit (e.g. witness to verify accuracy of photograph, qualify documents, business records, etc.). Any person whose testimony is or may become necessary as a rebuttal witness. VI, BXHIBITS 10. 11. Any history, 1. Photo of the scene. 2. Local Climatological data (monthly summary, February, 1994). 3. Charts showing weather observations at three hour intervals for February, 1994. 4. Houl'ly precipitation charts for February, 1994. 5. Exhibit summarizing wage loss. 6. Medical expense summary with support medical bills. 7. Medical treatment summary. 8. MRI film of Plaintiff's left knee taken 3/28/94. 9 . Curriculum Vitae of Dr. Malin. All exhibits used in the deposition of Dr. Malin. Transcript of deposition of Dr. Malin. Video of deposition of Dr. Malin. medical records as may be necessary to prove fact of treatment, or which is reasonably relied 3 Lt\W l.WPtClf.~ UP 1lOf01'HY ". 1HOlLlNllIlOU IIWI LINULUSTllWN RL.lAP . PO 8t.1~ ^O'l.n . H.-\RRIHRURl\ P_" IJliJn.o"l." 11171 Hf.llOO . M'l( 17111 H.It!.ll ;'-'-,1, . ..,,, ,( I~I"\"""'''''''' "'i'N'I"L,J/\!,'ljI/,,;,J,l,r,::; ; upon by Dr, Malin in fOl'ming his opinions. vn. CURRDT STATUS or S.TTLmmNT nOOTIATrON8 The Defendant has offered Ten Thousand Dollars ($10,000.00) to settle this case. Plaintiff is seeking Forty Thousand Dollars ($40,000,00). Respectfully submitted, LAW OFFICES OF TIMOTHY A. SHOLLENBERGER By: ~ o enberger I.D. No. 34343 bated: February 22, 1996 , , 'I, I ". 4 ~AW O"'US 0' lllllOnl1 II. SIIOLLlNtlllll.. l~lO h1N,ILBST'1WN ROAD ' Po. 1I11~ tIIl!41 ' IIAIIIIISIILlII1J, PA 1110..0141 tHllll4.ll00 . ,...~ 11111l14.0m 0' ,\ '0 " , MARII HUGHIS and ILMIR HUGHIS, her husband, plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO, 94 5804 CIVIL TERM JOHN I. SIIBIRT, t/d/b/. CUMBERLAND WINDOW FASHIONS, CIVIL ACTION - LAW Datendants JURY TRIAL DEMANDED pOlcnl I'OR InRY 01' APPIlARUCI TO: Lawrence E. Welker, Prothonotary Pl.ase enter the appearance of David L, Schwalm, Esquire, of the law firlll of Tholllas, Thomas' Hafer on behalf of Defendants John I. Siebart, t/d/b/a Cumberland Window Fashions in the above matter, DATID' 1~\'\4'\ r~THOMAS' THOMAS' HAFER B \ - . Dav L. Se valm Esquire Attorneys for Defendants John E, Siebel't t/d/b/a Cumbel'land Window Fashions 305 NOl'th Front Street P.O, Box 999 HarriSburg, PA 17108-0999 , " MAIII HUGH_ and ILM. HUGH_, liar HUlband, PlalntlHI v. IN THI COURT 0' COMMON PLIIAI CUM'.LAND COUNTY.PINNIYLVANIA NO. ...5104 CIVIL T" CIVIL ACTION. LAW JOHN" ".IRT. tld/b/a CUM..LAND WINDOW 'ASHIONI JURY TRIAL DIMANDID Def.ndantl AND NOW, Defendants John E. Siebert, tld/b/a Cumberland Window Fashions, by their attorneys, Thomas, Thomas & Hafer, file this Answer and New Matter to Plaintiffs' Complaint as follows: 1. It Is admitted that Plaintiffs are who they say they are. 2. Denied as stated. By way of answer, the correct spelling of Defendant's name Is John E. Seibert. In addition, Defendant Seibert Is only one partner In Cumberland Window Fashions. 3. Denied pursuant to Pa.R.C.P. 10291el. 4. Denied as stated. Although It Is admitted that Defendant Cumberland Window FaShions was In control of a portion of said premises, Defendants specifically deny that they contrOlled the entire premises. 5. Denied pursuant to Pa.R.C.P. 10291el. 6. Denied pursuant to Pa.R.C.P. 10291el. ,. Denied pursuant to Pa.R.C.P. 1029(81. 2 I." , 8. By way Of answer, Defendants Incorporate herein by reference the averments and denials contained In Paragraphs 1 through 7 Of this Answer and New Matter to Plaintiffs' Complaint. 9. Denied pursuant to Pa.R.C.P. 1029(el. 10. Denied pursuant to Pa.R.C.P. 1029(el. 11. Denied pursuant to Pa.R.C.P. 1029(el. 12. Denied pursuant to Pa.R.C.p. 1029(el. 13. Denied pursuant to Pa.R.C.P. 1029(81. 14. Denied pursuant to Pa.R.C.P. 1029(el. 15. Denied pursuant to Pa.R.C.P. 1029(el. 16. Denied pursuant to Pa.R.C.p. 1029(el. WH.IIPIORI, Defendants JOhn E. Siebert. tld/b/a Cumberland Window Fashions, respectfully reQuest your Honorable Court to dismiss Plaintiffs' complaint without cost or Judgment to them. 17. By way of answer, Defendants Incorporate herein by reference the averments and denials contained In ParagraPhs 1 through 16 Of this Answer and New Matter to Plaintiffs' Complaint. I 18. Denied pursuant to Pa.R.C.P. 1029(el. WHMIIPIORI, Defendants John E. Siebert. t1d/b/a Cumberland Window FaShions, respectfully reQuest your Honorable Court to dismiss Plaintiffs' Complaint without cost or Judgment to them. 19. Plaintiffs' Injuries and damages, which are specifically denied, were not caused by any acts, omiSSions, or breaches of dUty Of Defendants, but were caused, In whole or In part, or were contributed to by the negligence, fault or want of care of Plaintiff Marie Hughes. 20. The contributory negligence of Plaintiff Marie Hughes consisted of the fOllowing: a. She failed to observe the alleged conditions and circumstances; b. She failed to be attentive and watch where she was walking; and c. She failed to exercise reasonable care and caution for her own well being under the circumstances. 21. Plaintiffs' cause of action Is barred In whole or In part, or IS reduced by the Pennsylvania Comparative Negligence Statute, 42 Pa.C.s.A. 17102, et seQ., or by the Doctrine of Comparative Negligence. 22. Plaintiff Marie Hughes assumed the risk of the Injuries alleQtdly sustained by her by reason of her own Intentional conduct. ,Ii 4 23. Plaintiffs' Injuries and damages, which are specifically denied, were not caused by any acts, omissions, or breaches of dUty of Defendants. 24. NO dangerous or unsafe condition existed on the property at the said time. 25. If any dangerous or unsafe condition existed, which Is specifiCally denied, Defendant had no actual or constructive notice of any such condition existing at the said time. 26. If any dangerous or hazardous condition existed, whiCh Is specifiCally denied, Plaintiff Marie Hughes had actual notice or knowledge of such condition. 27. Plaintiff Marie Hughes failed to exercise her last clear chance to avoid the known or reasonably discoverable condition to which she exposed herself. WHIRIIPIORI, Defendants John E. Siebert, tld/b/a cumberland Window Fashions, respectfully reQuest your Honorable Court to dismiss PIalntl'fS' Complaint without cost or judgment to them. THOMAI. THOMAI a HAM ..- .... \ (/~. . \ ") .. '0: .._. . -,.'''' -..---.----.. I L. AL, 105 NORTH PIONT .,...W ".0. lOX HI HARRIIIUIG, PA 1710. all. C717) 2'.714' AnOINIY POI r-....DM'rI Date: \~~"I"~ . ":r C:,., - ;"., , , IP:'.", , 1':.-' .., .., c:.;.:) e. m Poll <<I lliI ..... I !i~~1 .ll "'"' ~ .~ ..... ~ 0 'tl... 'tl .. ~ ~ f= II'" ..... II III .3 ... .,:. <<I ~~ ~ ~ 'tl .. t~ 'tl ; i = ~ II ~ II II ~ ~!O III :3'" Qj ....> =<<1 . Iol.... ... ",",lliI ! ~ 'I CIl .... > gj:' Qj ....1Il ~~llt Q !:-tCll !~....~ :il!cn Ill: r "~li! Cl= III 51 . u . 21 e .. "" 1II III 0 I~M ~m Ill.... ....lot ~~= . > a; ~ ~tl~ iSl o ~ ">u"'"' ,"', . . . .. \. ...."' \ ".>1 "\\1, MARIE HUGHES and ELMER HUGHES, Her Husband, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA v. NO. 94 5804 CIVIL TERM JOHN E. SIEBERT, t/d/b/a CUMBERLAND WINDOW FASHIONS, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWIlR TO NKW MATTIR AND NOW come the Plaintiffs, Marie Hughes and Elmer Hughes, her husband, by and through their attorneys, Law Offices at Timothy A. Shollenberger and Answer the Defendant's New Matter as follows: 19-27. Paragraphs 19 through 27 of the Defendant's New Matter are conclusions of law which require no responsive pleading. By way of further answer, it is specifically denied that the conduct of the Plaintiff, Marie Hughes, was in any way negligent or contributed to the incident and/or damages sustained by the Plaintiff. WHEREFORE, the Plaintiffs, Marie Hughes and Elmer Hughes, her husband, respectfully r~quest your Honorable Court to dismiss Defendant's New Matter. Respectfully submitted, LAW OFFI~OF I I TIMOTHY A. By: / Date: December 15, 1994 ~,..w llfl"LH~ l~fI llMO'TIIl A. 'HO~UN"ItO.ll 1't2L' lINUI.R~rllWN Rll,""rl . 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"'0'0 01 .Q, 1lI'O~ IfI t) <<, 13 Colc: ?1 '0 fJ :rt . /fI III ...., Q,r::1fI 41111 AlJ., ''''J''' ''''J:: p ~ ~ J.,OI Col IfI 0 ., "I , 1',./" ,,/1 " . . . ..' .....'.,'.... 11", Oo_n...-:; _ ,~.. ."1.. -'" "'...."., . . il'I,i," ":~" .\.r:.JfHt; \,1 ... .. Hal'ie Hughe. and 11.er Hughe., Her Hu.band, Plaintiffs In the Court of C~n .1e.. Cumberland County, 'enna. v. No. 94-5804 Civil Action - L.w John I. Seibert t/d/b/a Cumberland Window ra.hion., Defendant Jury Tri.l Demanded StiDulatiQn to ~nd CftMnlaint 1. The Parties to this action hereby stipulate and agree that the caption of the Plaintiffs' Complaint should be amended to read as follows: Marie Hughe. and Blmer Hughe., Her Hu.band, Plaintiffs v. John B. Seibert and W. W. Kenneth Achenbach t/d/b/a Cumberland Window ra.hion., Defendants 2. Paragraph 2. of the Plaintiffs' Complaint shall be amended to read: 2. The Defendants, John .. Seibert and W. Kenneth Achenbacb t/d/b/a cu.berland WiDdow ra.hion., are a partnership located at 3400 Derry Street, Harrisburg, Dauphin County, Pennsylvania. The Defendants also operate Cumberland Window ra.hion. at 427 Bridge Street, New Cumberland, CUmberland County, Pennsylvania. 3. In all p,ar-agraphs making reference to "Defendap..ts," it shall be understood to refer to -Job .~ Seibert and W. Kenneth Achenbach t/d/b/a Cu.berland Wi~ ra.hion..- 4. In all sue/ading paragraphs specif\cally making reference to -John .. Seibert t/d/b/a Cuaberland WiDdow ra.hion., - it shall be amended to read: -John I. leiMat and W. Kenneth Aohenbach t/d/b/a Cuaberlan~ Window .a.hion..- l-\W 1,'flflllE.'; \)11 f1MO'rtn t\. 'HOLUNIIJlCiIlR. 1,1~11I.JNl ,UISTt lW"J 1111,\1.) . I'll nll~ ou'i.f'l . H.-\~IlI"'AlItI, 1'_'\ IlIUI'!,u.,.., (11;\ ~l.! PIlt) . 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