MEDIA – The Blue Bell-based owner and operator of a Brookhaven apartment complex are seeking to compel discovery in a lawsuit brought by a Delaware County man, who alleges their negligence led to his mother suffering a fall on their property and caused injuries whose repairs later led to her death.
Gary L. Essaf Jr. (individually and as administrator of the Estate of Kathleen Essaf, deceased) of Broomall first filed suit in the Delaware County Court of Common Pleas on Feb. 4 versus Danella Realty and Management Company, Inc. and Hilltop Condominium Association II, both of Blue Bell.
“On April 27, 2020, the premises at 5200 Hilltop Drive, Apartment I-18 Brookhaven, PA 19015 was owned by plaintiff’s decedent, Kathleen Essaf, and was located in the subject condominium complex. On April 27, 2020, plaintiff’s decedent, Kathleen Essaf, was lawfully traversing a common area of defendant’s property. Specifically, plaintiff was traversing a strip of glass located between Dogwood Lane and Park Lane,” the suit stated.
“At that time, plaintiff was suddenly and without any warning caused to trip/slip and fall due to a dangerous and/or defective condition, which existed of and about the ground, namely a significantly deep hole in the grassy common area of the subject condominium complex, which was concealed by long grass, thereby causing plaintiff’s foot to fall into the hole and causing plaintiff to injure her lower leg and foot, and then fall and impact the ground, causing her to sustain serious and permanent injuries.”
The suit added that the injuries to the decedent were caused as the result of the combined negligence of the defendants, and were not caused by any act or failure to act on the part of the decedent.
“As a result of the aforementioned incident, plaintiff’s decedent was caused to sustain serious and permanent injuries in, on and about her person, including but not limited, to injuries to her foot and ankle which caused her a great deal of embarrassment, humiliation, pain, suffering, agony and inconvenience, which is permanent in nature and character,” per the suit.
“As a result of the aforementioned incident and resulting injuries, plaintiff’s decedent, was caused to suffer serious complications, specifically but not limited to, a pulmonary embolism and death in connection with the required surgery performed on her ankle, in an effort to heat and owe herself of these injuries.”
The defendants filed an answer and new matter in the action on April 23, generally denying the plaintiff’s allegations as “conclusions of law to which no responsive pleading is required”, but otherwise, “all allegations are specifically denied and strict proof thereof is demanded at the time of trial.”
In new matter, a number of affirmative defenses were put forward.
“Plaintiff’s complaint fails to state a claim upon which relief may be granted. Plaintiff’s claims may be barred in whole or in part by the applicable statute of limitations. Plaintiff failed to join an indispensable parties without which this action may not proceed. Plaintiff’s claims are barred and/or limited by the Pennsylvania Comparative Negligence Act and/or the doctrine of contributory negligence,” per the new matter.
“Answering defendants assert a right of set off against any other amounts received by plaintiffs in connection with any claims relating to or arising out of the issues raised in this litigation. Plaintiff’s complaint is barred and/or reduced pursuant to any releases or settlement agreements that plaintiffs have executed or will execute with any person or entity related to arising out of the issued raised in this litigation. Any judgment and/or verdict obtained by plaintiff must be reduced and/or off set by and collateral benefits received by plaintiff. Answering defendants did not act negligently or without regard for others at any time. Answering defendants owed no duty of care to plaintiff and/or plaintiff’s descendant.”
UPDATE
The defendants filed a motion to compel discovery on June 17, arguing that their requests for discovery information had been ignored – and reiterated their request for seeking that very same information within 20 days.
“On April 23, 2021, defendant served interrogatories and request for production of documents (hereinafter ‘discovery requests’) upon plaintiff, Gary L. Essaf Jr., individually and as administrator of the Estate of Kathleen Essaf, deceased. On May 24, 2021, the defendant inquired as to the status of the plaintiff’s discovery responses, which were overdue. On June 11, 2021, a third follow-up via email was sent to opposing counsel inquiring as to the status of the overdue responses,” the motion stated.
“To date, plaintiff has not responded or objected to any of defendant’s discovery demands. The plaintiff has not requested or been granted an extension of time in which to answer the defendant’s discovery requests. Plaintiff has neither filed for nor been granted a protective order with regard to defendant’s discovery demands. Defendant’s discovery demands seek information that is necessary to prepare a defense to the claims asserted by plaintiff and are reasonable in scope and number. Moving defendant has attempted, in good faith to resolve this dispute without Court intervention.”
For counts of negligence, survival and wrongful death, the plaintiff is seeking, jointly and/or severally, damages in excess of $50,000 and in excess of the prevailing limits of arbitration, plus interest, costs and delay damages and a trial by jury.
The plaintiff is represented by Justin M. Bernstein of Kenneth R. Schuster & Associates, in Media.
The defendants are represented by Andrew L. Riemenschneider and Justin P. Lindsey of the Law Offices of Andrew L. Riemenschneider, in North Wales.
Delaware County Court of Common Pleas case CV-2021-001358
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com