HomeMy WebLinkAbout96-04853
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HBLBN B~ETZ and I
ROBBRT BABTZ, I
plaintiffs I
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TRl~O FOOD SYSTBMS, INC. and I
HBP ~SSOCIATBS, I
D,fendants I
IN THB COURT OF COMMON PLB~S
CUMBBRLAllD COUNTY, PBNNSYLV~NI~
NO. 96-4853
CIVIL ~CTION - LAW
CIVIL TBRM
PLAINTIFFS' PETJ;TION TO~.xtQ!i
AND NOW, oomes Helen and Robert Baet~, plaintiffs in the
above oaptioned aotion, by their oounsel, Hersohel Look Esquire,
pursuant to Rule 1033 of the pennsylvania Rules of civil
Prooedure, and files the within Petition to Amend caption, the
nature of which is as followSI
BACKGROUND
1. On september 30, 1994, plaintiff Helen Baet~,
(hereinafter, Baet:!:"), fell while at the Bonan~a Restaurant salad
bar in Carlisle, pennsylvania, in the prooess suffering
signifioant injury. The fall was thp. result of certain
unattended grease left on the floor near the salad bar.
2. On october 13, 1994, Joseph Meckwood (hereinafter,
"Meokwood"), Senor Claims Specialist for Royal Insurance,
oontacted Baet:!: by letter, asking that she execute various
medioal authori:!:ations. The letter from Meckwood identified the
insured ae Triad Food Systems (See Exhibit "A" appended to this
petition, copy of said correspondence).
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3. On October 31, 1994, Meckwood again wrote to Baetz,
this time identifying the insured as Bonanza (See Exhibit "B"
appended to this Petition, ~opy of said correspondence) .
4. Meckwood wrote letters, dated March 27, 19951 May 25,
19951 June 27 19951 August lB, 19951 October 25, 1995, and
November 15, 1995 (See Exhibit "CO appended to this Petition,
oopy of said letters) to Bastz's attorney, identifying the
insured on four occasions as Bonanza and twioe as Triad Food
Systems.
5. Following the breakdown of settlement negotiations,
Baetz filed her Complaint on August 3D, 1996, naming Triad Food
Systems, Inc. and HBP Associates, as Defendants. HSP was named a
party Defendant since this entity owned the premises where the
injury occurred. Triad Food System was similarly named based
upon Royal Insurance Company's identification of Triad and
Bonanza as interchangeable. Service of the Baetz Complaint was
effected at the Bonanza Restaurant where the head waitress
accepted service on behalf of HSP and Triad Food Servicee.
6. In New Matter subsequently filed by Defendants, the
following factual averments were madel
26. Triad was not an owner of the premiees where
Plaintiff allegedly fall nor was it an operator of said
premises.
27. Although HBP owned the real estate in question,
HSP was not in possession or control of the premise at
the time of the alleged accident.
(See Exhibit "0" appended to this Petition, copy
of quoted portions of New Matter) .
7. Significantly, Defendants' New Matter failed to
identify the poseessor of the premises at the time of the
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accident.
B. Plaintiffs were relegated to initiating discovery to
ascertain the identity of the possessor of the premises at the
time of the accident. On March 10, 1997, b6th Interrogatories
and a Request for production of Documents were served upon
counsel to Defendants.
9. Defendants did not answer the requested discovery until
the end of July, 1997. While copies of Triad'e and HSP's
governing documents were furnished, other documents repreeented
to be included (comprising franchise agreements, other contracts
and agreements and witness statements) were not included in the
discovery furnished.
10. The Answers to Interrogatories, however, were
illuminating (See Exhibit "E" appended to this Petition, copy of
said Answers). The Answers to Interrogatories Hl and H4 included
the following informationt the owner of the building and land
was said to be HBP Associates. purportedly, it was leased to and
operated by Carlisle steakhouse, Inc. (Interrogatories Hl an H3).
Triad Food Services, Inc., identified by the insurance company ae
the insured, was reported as only owning real estate at 39 N. 4th
street, Gettyeburg, P.A 17325 (Interrogatory H4).
11. Said Interrogatories further identified Triad's Board
of Directors and stockholders as followst
Officers
Wayne D. Hill, president
John C. Berg, Treasurer
Wayne R. paret
(Interrogatory H5)
l?tockholden
Wayne & Sue Hill
John & Jolene Berg
Wayne & Mary paret
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12. Said Interrogatories also identified the partners of
Hap Associates as followel
John c. Berg, Manager partner
Wayne D. lIill
Wayne R. paret
(Interrogatory #6)
13. Documents on file at the corporation Bureau in
Harrisburg identify the incorporatore of Carliele steakhouse,
Inc. as the followingl
Wayne D. Hill
John c. Berg
Wayne R. paret
14. Despite representing that Carliele steakhouse, Inc. was
the posseesor and operator of the premisas where the accident
occurred, and notwithstanding the representation that ~riad Food
Service only functioned as the owner of certain Gettysburg real
estate, the Bonanza comment card for customer input was addressed
to ~riad Food Systems, Inc. c/o John Berg (see Exhibit "G
appended to this Petition).
1U'PLIC~ION OF LAW
15. It ie clear that lIBP Associates, ~riad Food Services,
Inc. and Cadisle steakhouse, Inc. were all the same party.
while the corporations were separately incorporated, it is
evident that the corporate form was disregarded. Any effort to
disguise these entities in order to avoid liability is readily
transparent. ~he respective corporate veils may be pierced.
16. Rule 1033 of the pennsylvania Rulea of Civil procedure
provideD I
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YERIFICATION
The unde~signed, Herschel Lock Esquire, does hereby state that
he is familiar with the factual matters outlined in the foregoing
Petition to Amend Caption and that any such factual statements are
true and correct to the best of his knowledge, information and
beliefs. He understands that any false statements are subject to the
penalties prescribed at 18 Pa. C.S. section 4904, relating to unsworn
falsification to authorities.
DATEDl SeDt,mber 25. 1997
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HERSCHEL LOCK, ESQUIRE
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B. "DOCtlMENT" means writings of any kind, whether hand-
written, typed, word-processed, or printed and includes
memoranda, polices, direetives, oorrespondence, computer disos,
note., employee manuals, regulations, and rules. This word also
refers to policies concerning maintenance of the salad-bar
inoluding clean-up of butter and salad-dressing from the floor.
C. "!DENTIFY. when referring to an individuals shall
denote the full name/ present or last known business address,
present of last kncwn home address, telephone number ~f known,
employer, and job title at the time of the injury giY~ng rise to
this a cause of action. When referring to a document or writing,
the word, . ~dentify. shall include the type of writing or
document; subject matter covered; the date it was written; to
whom it was directed; the present location of the dcc~~ent or
writing and the person possessing custody over it. When relating
to an o~al communication, state the manner in which it was
oommunicated (e.g./ at a staff meeting, during a telephone
conversation, or person to person); where it was con~unicated; on
whose behalf it was stated; and the names of the individual
making the communication and their titles.
You are to furnish your answers in writing in the spaces
provided. !f the amount of room furnished is insufficient, you
may use supplemental sheets to complete your answer. Each
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1. Please identify the possessors of the land in which the
Bonanza Restaurant is located at 909 Walnut Bottom Road,
Carli.le, Cumberland County, Pennsylvania.
Th. own.r of. the bulldlng and land 1. HBP A"oclat... It wa. lea'drl to and
op.rated by Carll.le Steakhou.e, Inc.
, 2. please identify the owners of the land em whioh' tn'
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Bonanza Restaurant is located at 909 Walnut Bottom Road,
Carli.le, pennsylvania.
,
S~~ ,andwer to Interrogatory 1.
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TRlAo FOOD SYS
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tt}tsburg, PA T 7325
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HELEN BAETZ and I
ROBERT BAETZ, I
Plaintiffs I
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vs. I
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TRIAD FOOD SYSTEMS, INC. and I
HBP ASSOCIATES, I
Defendant I
IN THE COURT OF COMMON PL~AS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
CIVIL TERM
CIVIL ACTION - LAW
COMPLAINT
1. Plaintiffs Helen Baetz and Robert Baetz, husband and
wife, are adult individuals residing at 220 Sunset Drive,
Carlisle, Cumberland County, Pennsylvania 17013-2129.
2. Defendants are Triad Food Systems, Inc. and HBP
Associates, the owners and operators of the Bonanza Restaurant
and premises located at 909 Walnut Bottom Road, Carlisle,
Cumberland County, Pennsylvania.
3. On September 30, 1994, while a patron at a Bonanza
Restaurant in or near Carlisle, Pennsylvania, owned and operated
by Defendants, Plaintiff Helen Baetz (hereinafter, "Mrs. Baetz"),
was preparing to approach the salad bar.
4. A triangula~ sign warning of a wet floor at or near the
salad bar was posted; however, the soap and water mopping of the
tile floor thereat had left grease from the salad bar untouched.
5. Plaintiff Mrs. Baetz was wearing rubber-soled loafers
and slipped on the grease, landing on the tile floor.
6. As Plaintiff Mrs. Baetz landed on the floor, she could
feel the grease on the floor, and her skid left clear marks
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through the grease.
7. Falling on her right hip, Plaintiff Mrs. Baetz suffered
a oontusion and fraoture of the right iliac bone.
8. This fracture aggravated pre-existing advanced
degenerative joint disease of the left hip of Plaintiff Mrs.
Baetz, as a result of her having to ambulate in an unnatural
manner in the months after her injury which, in turn, resulted in
exoessive weight on her left leg.
9. Two weeks after the fall, an MRI of the right hip
revealed an unusual abnormality involving the right iliao crest
and the adjacent muscles, internal and external, to the iliac
crest.
10. The aforesaid abnormality was due to the trauma
resulting from her fall, and a healing fracture with surrounding
hematoma.
11. Plaintiff Mre. Baetz had excruciating pain when bearing
weight on her right leg and was unable to sustain weight on it.
12. Solely as a consequence of the carelessness,
recklessness and negligence of Defendants and through no fault or
negligence of her own, Plaintiff sustained severe persistent and
painful injuries, the loss of life's pleasure, past and future
medical bills, emotional distress and lost wages and benefits.
13. Because of the strain on her prior-injured left hip,
directly a result of this fall, Plaintiff Mrs. Baetz will require
future surgery.
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COUNT I
BBLBN BARTZ v. TRIAD FOOD SYSTBMB, INC.
14. PAragraphs 1-13 are incorporated by reference, as if
fully set forth in their entirety.
15. Defendant Triad Food System was the possessor of the
land in question and had a duty to maintain its premises in a
reasonably safe condition for the oontemplated use of the publio
invitee, Plaintiff Helen Baetz.
16. Defendant Triad Food Systems failed to maintain its
premises in such a reasonably safe condition or to adequately
warn of the .grease on the floor.
17. As a result of Defendant Triad Food System's
carelessness, recklessness and negligence as detailed above, it
is liable to Plaintiff Mrs. Baetz in an amount exceeding the
jurisdictional sum under which compu190ry arbitration is
required.
COUNT II
BBLBN BAETZ v. BBP ASSOCIATBS
18. Paragraphs 1-13 are incorporated by reference, as if
fully set forth in their entirety.
19. Defendant HBP Associates is, upon information and
belief, a partnership which owns the real estate in question and
leases it to Triad Food Systems/ Inc.
20. As such, it owed the same duty to Plaintiff Helen Baetz
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4.-11. Denied. Af'terreasonable investigation, Defendants are without knowledge
or inl'onnalion sufficienl 10 form a belief as 10 Ihe INlh 01' these allegations and proof Ihereol'
is demanded,
12, Uenled. It is denied thai Defendants were negligent, As to Ihe balance of the
allegations ot' this paragraph, after reasonable investigation, Det'endants are without knowledge
or int'omlation sut'l1c1ent to form a belicl' as to the lruth of these allcgatlons and proof thereof
is demanded,
13. Denied, Al'ter reasonable investigation. Dcfendants are without knowledge or
information sut'l1cientto I'oml a bcliel' as to the truth 01' thcse allegations and proot' thereof is
demanded.
Count I
Plalntlrf v. Tl'lad Food Systems. Inc.
14. The answers to Paragraphs 1 through 13 above are incorporated herein by
reference hereto.
IS. Denied. It is denied Ih;\t Triad was the possessor ot' the land in question or had
any duties with respect to the Bonanza Reslaurant. As to the balance ot' the allegations ot' this
paragraph, they represent conclusions ot' law to which no reply is required.
16. Denied pursuant to Pa, R.C,P, 1029.
17. Denied. This allegation represents a conclusion of law to which no reply is
required.
Count II
Plaintiff v. HOP AS80Clates
2
18. The answers to Paragraphs I through 17 above are incorporated herein by
reference thereto.
19. AlImilledln part and denied in part. It Is admllled that HDP is a partnership and
Ihat HOP owned the real estate In question. 11 is denledlhatlhe real estate Is leased to Triad.
20, Denied. These allegations represc!/lI conclusions of law 10 which no reply Is
required ,
21. Denied. These allegations represent conclusions of law to which no reply Is
required.
Count III
Plaintiff v. Defen4an.tl
22. The answers to Paragraphs I through 21 above are Incorporated herein by
reference thereto.
23. Denied, After reasonable Investigation, Defendants are without knowledge or
infonnation sufficient to fonn a belief as to the truth of these allegations and proof thereof is
demanded.
24, Denied. It is denied that the Defendants were negligent. As to the balance of the
allegations of this paragraph, after reasonable Investigation, Defendants are without knowledge
or Infonnatlon sufficient to fonn a belief as to the truth of these allegations and proof thereof
is demanded.
2S. Denied. This allegation represents a conclusion of law to which no reply is
requ ired,
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CERTIFICATE OF SERVICE
,
I, JEFPREY B. RETrIG, ESQUIRE, hcreby certify that 1 have served a troe and correct
copy of the foregoing Answer With New Matter on the following person(s) by placlna same In
the United States mail, postage prepaid, on the 21st day of October, 1996:
Herschel Lock, Esquire
3107 North Front Street
HarriSburg, PA 17110
THOMAS, THOMAS" HAFER
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HELEN BAETZ and I
ROBERT BAETZ, I
Plaintiffs I
I
VS. I
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TRIAD FOOD SYSTEMS, INC. and I
HBP ASSOCIATES, I
Defendant I
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-4853
CIVIL TERM
CIVIL ACTION - LAW
PLAINTIPFS' ANSWER TO DBFBNDANTS' NBW MATTER
AND NOW, come Plaintiffs, Helen and Robert Baetz, by their
oounsel, Herschel LOCK, E~quire, and file the within Answer to
the New Matter of Defendants, representing aR followsl
26. Denied. Upon information and belief, as pleaded at
Paragraph 2 of the Complaint, Triad Food System, Inc. and HBP
Associates, are the owners and oper.ators of the Bonanza
Restaurant and premises located at 909 Walnut Bottom Road,
Carlisle, Cumberland County, Pennsylvania.
27. Denied. After reasonable investigation, Plaintiffs
lack sufficient knowledge or information to form a belief as to
whether HBP was in possession or control of the premises at the
time of the alleged accident and, accordingly, deny the same.
Strict proof, if relevant, is demanded at time of trial.
28. Denied. The Defendants take Plaintiff, Helen Baetz, as
they find her and whether there were any pro-existing condition
is irrelevant as a matter of law. In addition, the use of the
word "may" renders the Defendants' allegation too speculative to
answer. The alleged damages were as a proximate result of the
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possessor of the land's negligent failure to maintain its
premises in a reasonably safe condition for the intended use of
the publio invitee.
29. Denied for the reasons more fully stated in answer to
Paragraph 28 above.
30. Denied. Plaintiff acted in a careful and non-negligent
manner. By way of further answer, there were no signs warning
the Plaintiff of a greasy floor resulting from salad dressing or
food which had spilled and was not properly removed by
Defendants.
31. Denied. The allegation contained at Paragraph 31 of
Defendants' New Matter. represent a conclusion of law to which no
responsive pleading is required under the Pennsylvania Rules of
Civil Procedure.
32. Denied. The allegation oontained at Paragrnph 32 of
Defendants' New Matter is speculative, fails to allege who the
negligent third party was, and is so indefinite as to preolude an
answer by Plaintiffs.
WHEREFORE, it is requested that judgment be entered in
favor of Plaintiffs and against the Defendants above-named.
DATED I fl/.IJ'I t
~..ctfUl.1Y submitted,
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HERSCHEL LOCK, ESQUIRE
ATTORNEY FOR PLAINTIFFS
3107 North Front Street
Harrisburg, PA 17110
(717) 238-6661
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HELEN BAETZ and I
ROBERT BAETZ, I
plaintiffs-Petitioners I
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VS. I
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TRIAD FOOD SYSTEMS, INC. and I
HBP ASSOCIATES, I
Defendants-Re.pondents I
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-4853
CIVIL ACTION - LAW
CIVIL TERM
PLAINTIFFS' MOTION TO MAKE RULE ABSOLUTE
AND NOW, comes Petitioners, Plaintiffs Helen Baetz and
Robert Baetz, by and through their counsel, Herschel Look,
Esquire, and file their Petition to Make Rule Absolute as
follows, to witl
1. Petitioners, Helen Baetz and Robert Baetz, are
Plaintiffs in the above referenced civil action.
2. Respondent herein, Triad FOQd Systems, Inc. and HBP
Associates, are Defendants in the above referenced civil action.
3. On September 25, 1997, Petitioners filed their Petition
and Rule to Show Cause why they should not be allowed to amend
the caption of their Complaint filed previously.
4. On September 29, 1997/ your Honorable Court signed the
Rule to Show Cause attached, said Rule returnable within twenty
days of service (see Exhibit "A" attached hereto).
5. On September 30, 1997, Petitioners sent Defendants by
regular mail the aforesaid Rule and Petition upon the Respondents
herein (see Exhibit "B" attached hereto) and, to date, even
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