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the Plaintiff has neither responded to counsel's letters nor has
she called to advise of her whereabouts;
;
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E, Counsel has waited, hoping Plaintiff would initiate contact
with him;
F, Counsel is unable to advance Plaintiffs case, and is filing
concurrently witl! this Motion response, a Motion for leave to
withdraw as counsel.
WHEREFORE, Plaintiff requests that an Order be issued denying Defendant's
Motion for Sanctions,
MORGAN & MORGAN, P,C,
DATED: October --1-.1995
By ~~~
ScOt~. organ;'Es ire
Attorneys for Plaintiff
S. At all times material hereto, Defendant owned, possessed and/or controlled
the subject McDonald's restaurant and its premises at the above address.
6. On November 26, 1993 at approximately 9:00 p.m., the minor Plaintiff
was caused to slip and fall on a foreign substance that was on the exterior flooring area
around lhe dining tables of the subject restaurant.
7. At all times material hereto, Defendant had knowledge or should have had
knowledge of the existence of the dangerous foreign substance that caused minor Plaintiff to
fall.
8. As a result of her fall, minor Plaintiff suffered severe and disabling
injuries.
9. The aforesaid accident was due to the negligence of Defendant, including:
A. Failing to keep the floor area free and clear of dangerous
substances;
B. Failing to warn persons such as Plaintiffs of an
unreasonable risk of harm from foreign substances on the floor area;
C. Failing to have in place or employ adequate procedures
and policies to detect and clean dangerous foreign substances from
the dining floor areas of the restaurant;
D. Allowing the dangerous foreign substance to remain
on the floor and cause Plaintiff's injuries.
COUNT I
MICHELLE BOOKER v. DEFENDANT
10. Plaintiff incorporates herein by reference the allegations of paragraphs 1
through 9 as if fully set forth at length.
11. As a result of the accident, minor Plaintiff suffered severe injuries and
damages, including but not limited to, injuries to her nerves, bones, muscles, joints and
fascia, pain and suffering, mental and emotional distress, some or all of which are continuing
in nature.
12. As a further result of her injuries, minor Plaintiff suffered the loss of
enjoyment of life's pleasures and has incurred and will continue to incur bills for medical
care and treatment, rehabilitation and therapy.
WHEREFORE, Plaintiff demands judgment against Defendant in an amount in
excess of $25,000.00, exclusive of interest, costs and delay damages.
COUNT 11
ETHEL BOOKER. INDIVIDUALLY. v. DEFENDANT
13. Plaintiff incorporates herein by reference the allegations of paragraphs 1
through 9 as if fully set forth at length.
14. As a result of the accident, Plaintiff incurred and will continue to incur
bills for minor-Plaintiff's medical care and treatment, rehabilitation and therapy.
"
4. On or about November 26. 1993, Plaintiffs were lawfully on the
Defendant's restauram premises and were business invitees.
5. At all times material hereto, Defendant owned, possessed and/or controlled
the subject McDonald's restaurant and its premises at the above address.
6. On November 26, 1993 at approximately 9:00 p.m., the minor Plaintiff
was caused to slip and fall on a foreign substance that was on the exterior flooring area
around the dining tables of the subject restaurant.
7. At all times material hereto, Defendant had kn0wledge or should have had
knowledge of the existence of the dangerous foreign substance that caused minor Plaintiff to
fall.
8. As a result of her fall, minor Plaintiff suffered severe and disabling
injuries.
9. The aforesaid accident was due to the negligence of Defendant, including:
A. Failing to keep the floor area free and clear of dangerous
substances;
B. Failing to warn persons such as Plaintiffs of an
unreasonable risk of harm from foreign substances on the floor area;
C. Failing to have in place or employ adequate procedures
and policies to detect and clean dangerous foreign substances from
the dining floor areas of the restaurant;
D. Allowing the dangerous foreign substance to remain
on the floor and cause Plaintiff's injuries.
COUNT I
MICHELLE BOOKER v. DEFENDANT
10. Plaintiff incorporates herein by reference the allegations of paragraphs 1
through 9 as if fully set forth at length.
11. As a result of the accident, minor Plaintiff suffered severe injuries and
damages, including but not limited to, injuries to her nerves, bones, muscles, joints and
fascia, pain and suffering, mental and emotional distress, some or all of which are continuing
in nature.
12. As a further result of her injuries, minor Plaintiff suffered the loss of
enjoyment of life's pleasures and has incurred and will continue to incur bills for medical
care and treatment, rehabilitation and therapy.
WHEREFORE, Plaintiff demands judgment against Defendant in an amount in
excess of $25,000.00, exclusive of interest, costs and delay damages.
COUNT II
ETHEL BOOKER, INDIVIDUALLY. v. DEFENDANT
13. Plaintiff incorporates herein by reference the allegations of paragraphs 1
through 9 as if fully set forth at length.
14. As a result of the accident, Plaintiff incurred and will continue to incur
bills for minor-Plaintiff's medical care and treatment, rehabilitation and therapy.
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5. Admitted.
6. Denied. After reasonable investigation, Defendant is
without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in paragraph 6 of
Plaintiff's Complaint and same are denied and otrict proof thereof
demanded.
7. Denied. It is denied that at all times material hereto,
Defendant had knowledge or should have had knowledge of the
existence of the dangerous foreign substance that oaused minor
Plaintiff to fall.
On the contrary, it is averred that despite knowledge on
the part of plaintiff, Ethel Booker, as to the existence of an
alleged dangerous foreign substance on the exterior flooring area
of the restaurant, Plaintiff failed to advise Defendant of the
existence of same. Moreover, it is further averred that at all
times relevant, Defendant acted carefully, lawfully, properly and
prudently, including but not limited to conducting regular periodic
inspections of its premises.
B. Denied. After reasonable investigation, Defendant is
without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in Paragraph B of
Plaintiff's complaint and same are denied and strict proof thereof
demanded.
9. Denied. It is denied that the aforesaid accident was due
to the negligence of Defendant, including:
5
A. Failing to keep the floor area free and clear of
dangerous substances;
B. Failing to warn persons such as plaintiffs of an
unreasonable risk of harm from foreign substances on the floor
area;
C. Failing to have in place or employ adequate
procedures and policies to detect and clean dangerous foreign
substances from the dining floor areas of the restaurant;
D. Allowing the dangerous foreign substance to remain
on the floor and cause Plaintiff's injuries.
On the contrary, it is averred that despite knowledge on
the part of Plaintiff, Ethel Booker, as to the existence of an
alleged dangerous foreign substance on the exterior flooring area
of the restaurant, Plaintiff failed to advise Defendant of the
existence of same. Moreover, it is further averred that at all
times relevant, Defendant acted carefully, lawfully, properly and
prudently, including but not 1 imi ted to conducting regular periodic
inspections of its premises.
COUNT I
MICHELLE BOOKER v. DEPENDANT
10. Defendant incorporates herein by reference, as if fully
set forth at length, its answers to Paragraphs 1 through 9 of
Plaintiff'a Complaint as hereinabove set forth.
6
11. Denied. After reasonable investigation, Defendant is
without knowledge or information sueficient to form a belief as to
the truth of the allegations set forth in Paragraph 11 of
Plaintiff's complaint and same are denied and strict proof thereof
demanded.
12. Denied. After reasonable investigation, Defendant is
without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth in paragraph 12 of
plaintiff's Complaint and same are denied and strict proof thereof
demanded.
WHEREFORE, Defendant demands judgment in its favor and against
the plaintiffs, together with costs of suit.
COUN'l' n:
ETHEL BOOKER. INDIVIDUALLY v. DEPENDANT
13. Defendant incorporates herein by reference, as if fully
set forth at length, its answers to Paragraphs 1 through 12 of
Plaintiff's Complaint as hereinabove set forth.
14. Denied. After reasonable investigation, Defendant is
without knowledge or information sufficient to form a belief as to
the truth of th~ allegations set forth in Paragraph 14 of
Plaintiff's Complaint and same are denied and strict proof thereof
demanded.
WHEREFORE, Defendant demands judgment in its favor and against
the Plaintiff, together with costs of suit.
7
BY WAY or rURTHER ANSWER, DEFENDANT ASSERTS THE POLLOWINGI
NEW MATTER
15. Plaintiffs' complaint fails to state a cause of action
upon which relief can be granted.
16. Plaintiffs' Complaint may be barred by applicable
statutes of limitation.
11. It is believed, and therefore averred, that plaintiff,
Ethel Booker, was aware of the existence of a foreign substance on
the exterior floor of the restaurant which she now claims was
dangerous and despite her awareness:
A. Failed to notify Defendant's agents, servants or
representatives of the existence of the substance;
B. Failed to warn her daughter, minor Plaintiff,
Michelle Booker, of the existence of the substance on the floor
areal
c. Allowing her daughter, minor Plaintiff, Michelle
Booker, to play and/or traverse in the area where she claims a
dangerous foreign substance existed or was allowed to exist;
D. Failing to wipe up or otherwise remove the foreign
substance in the area where her minor daughter was playing or
traversing despite her knowledge of the existence of a substance
which she now claims was dangerous.
E. Failing to remover her daughter, minor Plaintiff,
Michelle Booker, from the area where she claims an alleged
dangerous, foreign substance was allowed to remain; and
B
G. Failing to supervise her daughter, minor plaintiff,
Michelle Booker, as appropriate and necessary under the
circumstances.
lB. The negligence, carelessness and recklessness of the
plaintiff, Ethel Booker, as outlined in paragraph 17 (a-g) above,
was the sole and substantial cause ot any injuries and damages now
claimed in Plaintiffs' Complaint.
19. The claims asserted by Plaintiff, Ethel Booker,
individually, as set forth in Count II of her Complaint, are barred
or diminished bec~use the said Ethel Booker was comparatively or
contributorily negligent, pursuant to the application of the
Pennsylvania Comparative Negligence Act.
20. Plaintiff may have failed to mitigate her damages.
WHEREFORE, Defendant demands judgment in its favor and against
the plaintiff, together with costs of suit.
NEW MATTBR/CROBSCLAIM PURSUANT TO PA.R.C.P. 2252(4)
MCDONALD'S OP CARLISLE. INC. v. ETHEL BOOKER
21. Defendant incorporates herein by reference, as if fully
set forth at length, its answers to Paragraphs 1 through 20 of
Plaintiffs' Complaint as hereinabove set forth.
22. Defendant, by virtue of Pennsylvania Rule of Civil
Procedure 2252(d) hereby joins Plaintiff, Ethel Booker, as an
Additional Defendant because of the negligent, careless and
reckless conduct of Ethel Booker as set forth in Paragraph 17 (a-
g), as hereinabove set forth.
9
.
.
4. On June 20, 1995, counsel for Defendant corresponded with
r.ounsel for the Plaintiff requesting that the discovery responses
be filed. A copy of said correspondence is attached hereto and
marked Exhibit "3" and incorporated herein by reference.
5. On July 3, 1995, Plaintiff's counsel advised that answers
to the discovery request would be forthcoming.
attached hereto and marked Exhibit "4".
That letter is
6. Accurdingly, Additional Defendant's counsel extended an
additional thirty days of time to Plaintiff to respond to said
discovery.
A copy of said letter is dated July 11, 1995 and
attached hereto and marked Exhibit "5".
7. As of this date, Plaintiff has still failed to supply
responses to Defendant's Interrogatories/Request for production of
Documents (Set No.1) .
8. The information solicited is necessary in order to
evaluate the claims advanced by Plaintiff in the Complaint both as
to liability and damages.
WHEREFORE, Defendant is entitled to have this Honorable Court
issue a Rule compelling plaintiff to appear and show cause why such
discovery should not be answered.
GRIFFITH, STRICKLER, LERMAN
~LYMOS & CALKINS
By /(t-k~~ (J. .:::::J
\~OBERT A. LE , ESQUIRE
Attorney for Defendant
Supreme Court I.D. #07490
110 South Northern Way
York, PA 17402
(717) 757-7602
2
CERTIFICATE OF SERVICE
AND NOW, this J~day of 11.(~
A. Lerman, Esquire, a member of the firm of
, 1995, I, Robert
GRIFFITH, STRICKLER,
LERMAN, SOLYMOS & CALKINS, Esquires, hereby certify that I have,
this date, served a copy of the foregoing MOTION OF DEFENDANT,
McDONALDS, TO COMPEL PLAINTIFF TO ANSWER WRITTEN INTERROGATORIES
AND RESPOND TO REQUEST FOR PRODUCTION OF DOC'lMENTS (SET NO.1), by
United States Mail, addressed to the party or attorney of record
as follows:
Scott W. Morgan, Esquire
MORGAN & MORGAN, P.C.
10 South Market Street, Suite 500
Harrisburg, PA 17101
GRIFFITH, STRICKLER, LERMAN
OLYMOS & CALKINS
By:
J
OBERT A. LERMAN, ESQUIRE
Attorney for Defendant
Supreme Court I.D, #07490
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
tmc/1H6M Z
Also, pursuant to Pa.R.C.P. Rule 4009, as amended, Plaintiff
is requested to produce for inspection, examination and copying,
at the offices of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS,
110 S, North9rn Way, York, pennsylvania 17402, not later than
thirty (30) days after service of this Request, ,the documents
herein described.
DEFINITION OF TERMS
THESE DEPINITIONB FORM AN INTEGRAL PART OP THE FOLLOWING
INTERROGATORIES I
A. "And" and "Or" means "and/or," and the singular form
shall be deemed to include the plural and vice versa.
B. "Describe" or "Description" when used with reference to
any conversation, communication, statement, meeting, or discussion
or any act, transaction, occurrence, happening, instance, or event,
means to provide the following information:
1. The subject matter and substance of that which took
place;
2. The time, date and place thereof;
3. The identification of each person who participated
therein, or who was a witness thereto; and
4. The identification of each communication or document
which refers thereto or which was prepared or made during the
course thereof or as a consequence thereof.
C. "Documents" shall mean the originals, and all non-
identical copies (whether different from the originals because of
notes made from such copies or otherwise), of all written, printed,
recorded or graphic matter of every kind and description, including
all attachments or addenda annexed thereto, whether inscribed by
hand or mechanical, electronic, microfilm, photographic or other
means, as well as phonic or visual reproductions, in the
possession, custody or control of plaintiff, including by way of
amplification and not limitation: contracts, invoices,
correspondence, notes, drafts, reports, plans, recordings, diaries,
desk calendars, interoffice and interoffice memoranda, memoranda
for file, memoranda of telephone conversations, and minutes of
meetings or conferences.
D. "He" and any other masculine pronoun .includes any
individual, regardless of sex, to whom the interrogatory would
otherwise apply.
E. "Identify," "Identification" or "Identity" means to
provide the following information:
1. When used with reference to a natural person, state
his full name and present or last known business and residence
address, his last known or present business affiliation, and his
position in business affiliation at the time of the transaction,
occurrence, event, happening, or matter in question.
2. When used with reference to any entity other than
a natural person (e.g., corporation, partnership, joint venture or
association), state:
(a) Its full names;
(b) The address of its principal place of business;
and
(c) Its organization form and its purposes, primary
business or activities.
3. When used with reference to an oral communication:
(a) state the place at which and the date on which
such oral communication occurred;
(b) Identify each person making such oral
communication, the person to whom it was made and each other person
who was present (in person or by telephone) when it was made;
(c) state the subject and substance of such oral
communication; and
(d) specify, in accordance with paragraph (b)
below, each document which relates or refers to each such
communication or which was prepared and made during the course
hereof or as a consequence thereof;
F. "Person" means any natural person or any entity other
than a natural person, including, but not limited to, sole
proprietorships, partnerships, corporations, associations, joint
ventures, co-ventures and any other legally recognized entity of
any description whatever, as well as all divisions, departments,
affiliates, SUbsidiaries, or other sub-units of the foregoing
entities.
G. "Specify" when used with reference to a "document," calls
for:
1. The nature of the document (e.g., letter, contract,
chart, memoranda);
2. Its date;
3. Each author (and, in different, each signer)
thereof, and each person to whom the document was distributed;
4. Its subject matter and substance;
5. Its present or last known location or custodian;
6. The disposition of such document if it was but is
no longer in your possession or subject to your control; and
7. Any other information necessary to enable the
custodian to locate the particular document and necessary for use
in a subpoena duces tecum or in a demand for the production of the
documents under Rule 4009 of the pennsylvania Rules of civil
Procedure.
H. "Date" means the exact day, month and year if
ascertainable, or, if not, the best approximation (including the
relatioll of other events).
I. "You" or "your" refers to and shall be construed to mean
the party to whom or to which these discovery requests are
directed, as well as that party's agents, representatives,
including without limitation, that party's counsel, insurance
carriers and insurance agents, as well as investigators hired or
retained by the responding party, its agents, representatives, or
counsel.
PLEASE PRODUCE THE FOLLOWING DOCUMENTS:
16. All photographs in the possession, custody or control of
the Plaintiff, counsel for Plaintiff, or any other person or entity
acting on behalf of the Plaintiff, including any insurers for the
Plaintiff, showing, representing or purporting .to show any
vehicles, locales, instrumentalities, persons, and any and all
other matters related to the subject matters of this litigation.
17. All diagrams, sketches, drawings, plans, measurements,
or blueprints in the possession, custody or control of Plaintiff,
counsel for Plaintiff, or any other person or entity acting on
behalf of said Plaintiff, including any insurer of said Plaintiff,
showing, representing, or purporting to show any of the
instrumentalities, locales, persons or other matters involved in
the incident which forms the basis of Plaintiff's Complaint.
lB. All statements, signed statements, transcripts of
recorded statements or interviews, recorded statements if not
transcribed or any statement of ~ecorded statements if not
transcribed verbatim taken of any parties, persons, or witnesses
as part of an investigation of the happening or cause of the
incident in question, conducted by, or in the possession of
Plaintiff, Plaintiff's attorney, insurers, or anyone else acting
on behalf of the Plaintiff.
3. More than twenty (20) days have elapsed since service of
said Order and Plaintiffs have neither responded to show cause why
they should not be compelled to respond to Defendant's
Interrogatories/Request for production of Documents nor have they
filed answers to said discovery requests,
4. The information solicited in Defendant's
Interrogatories/Request for Production of Documents, set III to
Plaintiff io necessary in order to evaluate the claims advanced by
Plaintiff in the Complaint both as to liability and damages.
5. Defendants have incurred legal expenses in connection
with preparation and filing of its Motion to Compel Plaintiff to
Answer Written Interrogatories and Respond to Request for
production of Documents Set #1 ~Ihich resulted in issuance of the
Order of Court attached hereto as Exhibit "1".
6. In addition, Defendants have been forced to incur
additional legal expenses in the preparation and filing of this
Motion for Sanctions.
WHEREFORE, Defendants request relief and sanctions against
Plaintiff to include:
A. An Order directing Plaintiff to respond to Defendant's
Discovery in a complete and responsive fashion within twenty (20)
days from the date of the Order or suffer additional sanctions,
including dismissal of Plaintiff's Complaint, with prejudice;
B. The issuance of an Order directing Plaintiffs to pay
Defendants legal fees for costs incurred in connection with the
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4. On June 20, 1995, counsel for Defendant corresponded with
counsel for the Plaintiff requesting that the discovery responses be
forwarded. A copy of said correspondence is attached hereto and marked
Exhibit "3" and incorporated herein by reference.
5. On July 3, 1995, Plaintiff's counsel advised that answers to
the discovery requests would be forthcoming. That letter is attached
hereto and marked Exhibit "4" and incorporated herein by reference.
6. Accordingly, Defendant's counsel extended an additional 30
days of time to Plaintiff to respond to said discovery. A copy of said
letter dated July 11, 1995 is attached hereto and marked Exhibit "5" and
incorporated herein by reference.
7. The information solicited in the discovery requests is
necessary in order to evaluate the claims advanced by Plaintiff in the
Complaint, both as to liability and damages.
8. On about August 16, 1995, Defendant filed a Motion to Compel
Plaintiff to Answer Written Interrogatories and Respond to the Request
for production of Documents, Set No.1. A copy of said Motion, exclusive
of its exhibits, is attached hereto, marked Exhibit "6" and incorporated
herein by reference.
9. In response to that Motion, this Honorable Court issued an
Order dated August 22, 1995 directing Plaintiff to show cause why they
should not be compelled to respond to Defendant's Interrogatories/Request
for Production of Documents, returnable within 20 days of service. A
copy of said Order is attached hereto, marked Exhibit "7" and
incorporated herein by reference.
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10, Said Order was duly s~rved upon Scott W. Morgan, Esquire,
counsel of record for Plaintiff, on August 28, 1995, as evidenced by the
copy of the green return receipt card and transmittal letter, copies of
which are attached hereto, marked ZKhibit "8" and incorporated herein by
reference,
11. After the lapse of more than 20 days since service of said
Order, Defendant filed a Motion for Sanctions on or about September 26,
1995 and duly served a copy on Scott W. Morgan, Esquire, counsel for
Plaintiff. A copy of said Motion for Sanctions, exclusive of exhibits,
is attached hereto, marked EKhibit "9" and incorporated herein by
reference.
12. On or about Octol:ler 3, 1995, Plaintiff's counsel, Scott W.
Morgan, Esquire, filed a Motion for Leave to Withdraw as Counsel of
Record for Plaintiff and a Rule to Show Cause was duly issued by this
Court in response to that Motion on October 16, 1995, A copy of said
Rule is attached hereto as EKhibit "10" and incorporated herein by
reference.
13. On or about February 7/ 1996, Scott W. Morgan, Esquire filed
a Motion to Make Rule Absolute and on February 21, 1996, this Honorable
Court granted said MOl:ion and permitted Scott W. Morgan, Esquire and
Morgan & Morgan, P.C, to withdraw as counsel of record for Plaintiffs.
A copy of said Order is attached hereto and marked EKhibit "11" and
incorporated herein by reference,
14. More than 30 days have elapsed since Plaintiff's original
counsel has been permitted to withdraw.
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C. "Documents" shall menn the originals, and all non-
identical copies (whether different from the originals because of
notes made from such copies or otherwise), of all written, printed,
recorded or graphic matter of every kind and description, including
all attachments or addenda annexed thereto, whether inscribed by
hand or mechanical, electronic, microfilm, photographic or other
means, as well as phonic or visual reproductions, in the
possession, custody or control of Plaintiff, including by way of
amplification
and
not
limitation:
contracts,
invoices,
correspondence, notes, drafts, reports, plans, recordings, diaries,
desk calendars, interoffice and interoffice memoranda, memoranda
for file, memoranda of telephone conversations, and minutes of
meetings or conferences.
. D. "He" and any other masculine pronoun includes any
individual, regardless of sex, to whom the interrogatory would
otherwise apply.
E. "Identify," "Identification" or "Identity" means to
provide the following information:
:
1.
When used with reference to a natural person, state
his full name and present or last known business and residence
address, his last known or present business affiliation, and his
position in business affiliation at the time of the transaction,
occurrence, event, happening, or matter in question.
2. When used with reference to any entity other than
a natural person (e.g., corporation, partnership, joint venture or
association), state:
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G. "Specify" when used with reference t'o a "document," calls
for:
1. The nature of the document (e.g., letter, contract,
chart, memoranda);
2. Its date;
3. Each author (and, in different, each signer)
thereof, and each person to whom the document was distributed;
4 . Its subject matter and substance;
5. Its present or last known location or custodian;
6. The disposition of such document if it was but is
no longer in your possession or subject to your control; and
7. Any other information necessary to enable the
custodian to locate the particular document and necessary for use
in a ,subpoena duces tecum or in a demand fpr the production of the
documents under Rule 4009 of the Pennsylvania Rules of civil
Procedure.
H.
"Date" means the exact day,
month and year if
ascertainable, or, if not, the best approximation (including the
relation of other events).
I. "You" or "your" refers to and shall be construed to mean
the party to whom or to which these discovery requests are
directed, as well as that party's agents, representatives,
including without limitation, that party's counsel, insurance
carriers and insurance agents, as well as investigators hired or
retained by the responding party, its agents, representatives, or
counsel.
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2. As to the minor Plaintiff, describe onr on~ all accidents
and/or personal injuries you have suffered "beforo the accident
herein sued upon, giving the date, place, an~ part~es involved in
each such accident.
ANSWER:
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4. As to the minor Plaintiff, state the name~ and addresses
of all doctors whom you have seen or with whom you have consulted
during the ten years preceding the date of. this. accident, the
nature of thc ailment, illness, or other reas~n, for which such
doctor was consulted, and give the approximate dates, designating
each.
1\NSWER:
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PLEASE PRODUCE THE FOLLOWING DOCUMENTS:
16. All photographs in the possession, custody or control of
the Plaintiff, counsel for Plaintiff, or any other person or entity
acting on behalf of the Plaintiff, including any insurers for the
Plaintiff, showing, representing or purporting', to show any
vehicles, locales, instrumentalities, persons, and any and all
other matters related to the subject matters of this litigation.
17. All diagrams, sketches, drawings, plans, measurements,
or blueprints in the possession, custody or control of Plaintiff,
counsel for Plaintiff, or any other person or entity acting on
behalf of said Plaintiff, including any insurer of said Plaintiff,
showing,
representing,
or purporting to show any of the
instrumentalities, locales, persons or other matters involved in
the incident which forms the basis of Plaintiff's Complaint.
18. All statements, signed statements, transcripts of
recorded statements or interviews, recorded statements if not
transcribed or any statement of recorded statements if not
:
transcribed verbatim taken of any parties, persons, or witnesses
as part of an investigation of the happening or cause of the
incident in question, conducted by, or in the possession of
Plaintiff, Plaintiff's attorney, insurers, or anyone else acting
on behalf of the Plaintiff.
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3. More than twenty (20) days have elapsed since service of
said order and Plaintiffs have neither responded to show cause why
they should not be compelled to respond to Defendant's
Interrogatories/Request for production of Documents nor have they
filed answers to said discovery requests.
4.
The
information
solicited
in
,Defendant's
Interrogatories/Request for production of Documents, set III to
Plaintiff is necessary in order to evaluate the claims advanced by
Plaintiff in the Complaint both as to liability and damages.
5. Defendants have incurred legal expenses in connection
with preparation and filing of its Motion to Compel Plaintiff to
Answer Written Interrogatories and Respond to Request for
production of Documents Set III which resulted in issuance of the
Order of Court attached hereto as Exhibit "1".
6, In addition, Defendants have been forced to incur
additional legal expenses in the preparation and filing of this
Motion for Sanctions.
WHEREFORE, Defendants request relief and sanctions against
Plal~~iff to include:
A. An Order directing Plaintiff to respond to Defendant's
Discovery in a complete and responsive fashion within twenty (20)
days from the date of the Order or suffer additional sanctions,
including dismissal of Plaintiff's Complaint, with prejudice;
B. The issuance of an Order directing Plaintiffs to pay
Defendants legal fees for costs incurred in connection with the
2
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V'~':"""""i'ilLTHE 'COURT OF COMMON PLEAS O~' CUMI3ER1,AND COUNT'f, PENNS'fLVANIA
ETHEL BOOKER, Individually,
and as Parent and Guardian of
MICHELLE BOOKER, a Minor,
Plaintiff
civil Action - Law
vs.
No. 94-7144
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KENMAR ENTERPRISES, INC., a/k/a
GOLDEN M CO. t/d/b/a McDONALD'S
Defendant
vs.
ETHEL BOOKER,
Additional Defen~ant
MOTION OF DEIi'ENDANT, MCDONALD'S, TO COMPEL
PLAINTIFF TO ANSWER WRITTEN INTERROGATORIES
AND RESPOND TO REQUEST FOR PRODUCTION OF
DOCUMENTS SET NO. 1 AND/OR MOTION FOR SANCTIONS
AND NOW, comes the Dpfendant Kenmar Enterprises, Inc., a/k/a Golden
'-,
M CO. t/d/b/a McDonald's, by Robert A. Lerman and Griffith, Strickler,
Lerman, Solymos & Calkins and files the following Motion of Defendant,
McDonald's, to Compel Plaintiff to Answer ~lritten Interrogatories and
Respond to Request for Production of Documents Set No. 1 and/or Moticn
for Sanctions, the grounds for which are as follows:
1. On May 4, 1995, Interrogatories/Request for Production of
"
Doeuments were served upon Plaintiff and a copy of the correspondence
serving said discovery is attached hereto and marked Exhibit "1"
incorporated herein by reference.
2. A copy of the Interrogatories/Request for Production of
Documents and Certific~te of Service are attached for the Court's
convenience marked Exhibit "2" and incorporated herein by reference.
3. Answers to 3,] id di3covery were due June 4, 1995.
II DIJIINDANrS o-
f .,IIIT ':':.:.'
.
.
4. On June 20, 1995, counsel for Defendant corresponded with
counsel for the Plaintiff rEquesting that the discovery responses be
forwarded. A copy of said correspondence is attached hereto and marked
Exhibit \\3" and Incorporated herein by reference.
5. On July 3, 1995, Plaintiff's counsel advised that answers to
the discovery requests would be forthcoming. That letter is attached
hereto and marked Exhibit \\4" and incorporated herein by reference.
6. Accordingly, Defendant's counsel extended an additional 30
days of time to Plaintiff to respond to said discovery. A copy of said
letter dated July 11, 1995 is attached hereto and marked Exhibit \\5" and
incorporated herein by reference.
7. The information solicited in the discovery requests is
neces~ary in order to evaluate the claims advanced by Plaintiff in the
Complaint, both as to liaoility and damages.
B. On about August 16, 1995, Defendant filed a Motion to Compel
Plaintiff to Answer Written Interrogatories and Respond to the Request
for Production of Documents, Set No.1. A copy of said Motion, exclusive
of its exhibits, is attached hereto, marked Exhibit \\6" and incorporated
herein by reference.
9. In response to that Motion, this Honorable Court issued an
Order dated August 22, 1995 directing Plaintiff to show cause why they
shoula'not be compelled to respond to Defendant's Interrogatories/Request
for Production of Documents, returnable within 20 days of service. A
copy of said Order is attached hereto, marked Exhibit \\7" and
incorporated herein by reference.
2
.
10. Said Order was duly served upon Scott W. Morgan, Esquire,
counsel of record for Plaintiff, on August 28, 1995, as evidenced by the
c~py of the green return receipt card and transmittal letter, copies of
which are attached hereto, marked Exhibit "B" and incorporated herein by
reference.
11. After the lapse of more than 20 days since service of said
Order, Defendant filed a Motion for Sanctions on or about September 26,
1995 and duly served a copy on Scott W, Morgan, Esquire, counsel for
Plaintiff. A copy of said Motion for Sanctions, exclusive of exhibits,
is attached hereto, marked Exhibit "9" and incorporated herein by
reference.
12. On or about October 3, 1995, Plaintiff's counsel, Scott W.
Morgan, Esquire, filed a Motion for Leave to Withdraw as Counsel of
Record for Plaintiff and 'a Rule to Show Ciiuse was duly issued by' this
Court in response to that Motion on October 16, 1995. A copy of said
Rule is attached hereto as Exhibit "10" and incorporated herein by
reference.
13. On or about February 7, 1996, Scott W. Morgan, Esquire filed
a Motion to Make Rule Absolute and on February 21, 1396, this Honorable
Court granted said Motion and permitted Scott W. Morgan, Esquire and
Morgan & Morgan, P.C. to withdraw as counsel of record for Plaintiffs.
A copy' of said Order is attached hereto and marked Exhibit "11" and
incorporated herein by reference.
14. More than 30 days have elapsed since Plaintiff's original
counsel has been permitted to withdraw.
3