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Home My WebLink About97-06428 '1! ~I '.'d '~, ,,~', i,I~' ~;~ .: , ;i' ,( ;11 II I, '! ;, , ;! , ;" " " ;' " !i , I !i , " ii , " " il ~ , I ,., , "J I , , " " , , " , " 'I!' " ,i' il " I ;'1, I, , I I, , I' , 'I " I' ;! I' ij I, " ,! " " " , " " .,j' " , , "I , , " 'Il i'! " , , , I.' " " VB. I IN THE COURT OF COMMON PLEAS I CUMBERLAND COUNTY, PENNSYLVANIA I I I CIVIL ACTION - LAW I I DOCKET NO. q./. t. ~JY (~;.P'7~L", I I JURY TRIAL DEMANDBD COMPLAINT KARRA L. HOOVBR, a minor, by KA~HY HOOVER, her guardian, Plaintiff, MALT-O-MEAL COMJ?ANY, a Minnesota oorporation, Defendant. AND NOW, comes Karra L. Hoover, a minor, by Kathy Hoover, her guardian, by and through her attorneys, Gates & Associates, P.C., and makes the following complaint! 1. Karra L. Hoover (hereinafter "plaintiff") is a female minor. 2. Kathy Hoover is Plaintiff I s natural mother and guardian. 3. At all times relevant hereto, Plaintiff and Kathy Hoover resided together at 734 Erford Road, Camp Hill, Cumberland County, Pennsylvania 17011. 4. Malt-o-Meal Company (hereinafter "Defendant") is a Minnesota corporation with its registered address at 80 South 8th Street, Suite 2600, Minneapolis, Minnesota 55402-2297. 5. At all times relevant hereto, Defendant manufactured, packaged and distributed breakfast cereals for retail sale. 6. Defendant I s breakfast cereals are intended for human consumption. 7. At all times relevant hereto, Defendant was doing business in pennsylvania. B. On or about October 15, 1996, Kathy Hoover purchased a U-ounce plastic bag of Defendant's ('Ioney and Nut Toasty O's Cereal at the Giant ['ood Store located at 700 Camp Hill Shopping Plaza, Camp Hill, Cumberland County, Pennoylvania. 9. In the morning of November 7, 1996" Plaintiff opened the bag of cereal, poured some of the cereal into a clean bowl and added millt. 10. Plaintiff believes and therefore avers that the cereal bag had been sealed while under Defendant's control. 11. Plaintiff believes and therefore avers that the cereal bag had not been previously punctured or otherwise opened since leaving Defendant's control. 12. After eating approximately half the bowl of cereal, Plaintiff discovered that the cereal in the bowl was infested with living worm-like organisms. 13. Plaintiff then cried out and began vomiting. 14. The cereal remaining in the bag was also infested with the same type of organisms found in Plaintiff's bowl of cereal. 15. Plaintiff believes and therefore avers that the organisms discovered in the cereal were Indian meal moth ,larvae. 16. Plaintiff believes and therefore avers that the manufacture, inspection, packaging and distribution of the cereal were solely within Defendant's control and knowledge. 17.' Plaintiff believes and therefore avers that the organisms were present in the cereal when it left Defendant's control. 2 COUN'!' I NEGLIGENCB lB. paragraphs 1 through 17 of this Complaint are incorporated herein by reference. 19. Defendant owed to plaintiff, as a consumer of its cereal, a duty to exercise reasonable care in seeing that its cereal was wholesome and free from harmful, organisms and impurities. 20. plaintiff believes and therefore avers that organisms such as those she discovered in Defendant's product are not ordinarily present in breakfast cereal absent negligence by the manufacturer, inspector, packager and/or distributer of. the cereal. 21. Defendant was negligent in that it caused or allowed the aforesaid organisms to be present in the cereal eaten by Plaintiff. 22. As a direct, proximate and foreseeable result of Defendant's negligence, plaintiff became violently ill and suffered severe emotional dist.ress which produced physical manifestations and required medical treatment. 23. Plaintiff's severe emotional distress continues to the present. WHEREFORE, Plaintif f respectfully demands judgment against Defendant for damages in an amount exceeding the threshold for compulsory arbitration under local rules, together with such other relief as the Court deems appropriate. 3 COUNT IX aReACH QljlMPLIBD WARRANTY 24. Paragraphs 1 through 23 of this Complaint are incorporated herein by reference. 25. Defendant impliedly warranted to Plaintiff, as the consumer of its cereal, that the food was wholesome and fit far human consumption. 26. Def.endant breached the implied warranty in that the presence of the aforesaid organisms rendered its cereal unwholesome and unfit for human consumption. 27. As a direct, proximate and foreseeable result of Defendant I s breach of implied warranty, Plaintiff suffered physical harm and severe emotional distress as described hereinabove. WHBRBFORe, Plaintiff respectfUlly demands judgment against Defendant for damages in an amount exceeding the threshold for compulsory arbitration under local rules, together with such other relief as the Court deems appropriate. COUNT II I STRICT LIABILITY 28. Paragraphs 1 through 27 of this Complaint are incorporated herein by reference. 29. The presence of the aforesaid organisms in Defendant's cereal was not anticipated by Plaintiff or consumers generally. 30. The presence of the aforesaid organisms rendered Def endant' s cereal def ecti ve and unreasonably dangerous to consumers. 4 IN TilE COllRT OF COflMON PLEAS CU~lIImlLANIl COUNTY, I'Jr.NNSYINAN 'A (j) I'" in .~!lr!T (J ' 1 " I' (TNfl 'J'lI!-" : f.l :.: :\: ~ ~ KAllliA L. HOOVER, II minor., by KATHY HOOVER, her. gunrdillll, I'lnintiff (.IJ. _ i l;' :.1 '1',11' ,,' , " WlLT-O-HEAL COHPANY, n HiIlneaotn Corporation, Defcndlll1t 'l{')_~a/,I~ 5: C8 ;0/.1. ~.- z?1i't'.1.;;;t- 05;;~/Gi?r. 4 va. COHPLAINT ti .y') ,5"ys--s e;-It 5i47~ LAW OFFIC~S OF GATES & -ASSOCIATES; P~C. 1013 MUMMA ROAD, ~UITE 100, LEMOYNE, PENNSYLVANIA 170.3 ~ " ,/,-".. .-.: ." ,. I, " "Itl," , 1 ~, - ..." t ,-- r-'. t" 'I ~ I .. I. '/ '.. .. ':1' , " , I I, '" .:',' I ~ f", . I I' ~':J I' " Ill"" 1.1;: l'u , ,.. (ill 'Ii" I_I.~ .., ....'" I I l, " , :1, '. 'i.: . "n 'I " 1.;\ " , II I, " I IN 'rilE COUIlT OF COMMON PLF.AS CUMllEIlLi\ND COUNTY, PI~NS'iVLANIA DOCKET NO, 97-6428 Fir, r r..Gi'IG!: cr II ' . r 'j/;'HY ('n I' " II "I ;... ,,' ... hi II n3 KARRA L, HOOVER, u minor, by I<Nl'IlY HOOVER, her gllurdiun, Plaintiff t\;tl~' 1':.,'1 ;'tr' /'.,d:\ .11.\', VB. MALT-O-MEAL, u Minnesota Corpora tion. Defendant. REPLY TO NEW MATTER LAW OFFICES OF GATES & -ASSOCIATES, P.C. = ,- IOl3MUMMA AOAO, 5UITE 100, LEMOYNE, PENN5YLVANIA 170.? ...~: '.""'''''-. "-', .\r;...........::.--;':.';K I \ 16, Denied as stated, It Is admitted that the Defendant manufactures, Inspects, packages and dlstrlbutasto retailers fourteen-ounce plastic bags containing Honey & Nut Toastee O's cereal. Defendant denies that It controls the distribution of the product after It leaves Defendant's possession, 17, Denied. Defendant denies that the alleged organisms were present In the cereal when It left Defendant's possession, Count I ~ealla6nce 18, The answers to Paragraphs 1 through 17 above are Incorporated herein by reference thereto. 19, Denied as a conclusion of law, 20. Denied as stated, This allegation represents a conclusion of law, In further answer, organisms such as those alleged by Plaintiff can be present In breakfast cereal In the absence of negligence by the manufacturer, Inspector, packager andlor distributor of the cereal. 21. Denit:d. It Is denied that Defendant was negligent as alleged. 22, Denied, It Is denied that Defendant was negligent. As to the balance of. the aliegatlons of this paragraph, after reasonable Investigation, Defendant Is without knowledge or information sufficient to form a belief as to the truth of these allegations and proof thereof Is demanded, 23, Denied. After reasonable investigation. Defendant Is without knowledge or Information sufficient to form a belief as to the truth of these allegations and proof 3 thereof Is demanded. WHEREFORE, Defendant requests that Count I of Plaintiffs Complaint be dismissed without cost to It. Count II Breach of Implied Warranty 24, The answers to Paragraphs 1 through 23 above are Incorporated herein by reference thereto, 25,-26. Denied. These allegations represent conclusions of law to which no reply Is required. 27, Denied, It Is denied that Defendant breached any Implied warranty, As to the balance of the allegations of this paragraph, after reasonable Investigation, Defendant Is without knowledge or Information sufficient to form a belief as to the truth of these allegations and proof thereof Is demanded, WHEREFORE. Defendant requests that Count II of Plaintiffs Complaint be dismissed without cost to it. Count III Strict L1abllltv 28. The answers to Paragraphs 1 through 27 above are Incorporated herein by reference thereto. 29, Denied as stated. . If the allegations of Plaintiffs Complaint are true that there were organisms In Plaintiffs cereal, Defendant acknowledges that such a condition is not generally anticipated by consumers, 4 j,', 1',/: ; IT rn CJl",~!~ 1'1' 'I .rl,:':';' Inri (: J.~ I', .' r',U ,. , I, I " I I , ;1 d 'I .'1 " ,],1 I , ','I ,'1 I' .,1.' -I'! , 1,1,1; I, ',1; " , I 'J~oma8. 'J~oma8 & X/er 71110""9' al .Em'" 305 NOATH 'AONT STREEY P,O, lOX 988 NARRIUURG, ~A,11I08 ci> ! I ,II iJi P" "'",.,"'.';',,,,,_. '.;-"',.. A'_- ,. IN TIlE COUR'!: OF CO~ION PLEAS CUMBERLAND COUNTY, PENNS'iLVANIA DOCKET NO. 97-6428 Y I ED I ~ '~I ("!:!(f :/,'1'1 I) ; r . , I: ~ l~ KARRA L. HOOVER, a minor, by I'.ATlrl HOOVER I her guardian, Plaintiff \ "".....',.. w,I,1 1'[- ~ II ""'I \/1 "'I' < .i'I',..JII..Jf\j'd\ I, " VB. MALT-o-MEAL COMPANY, a MinneBota Corporation, Defendant AFFIDAVIT OF SERVICE , '1 "-, " LAW OFFIC~5 OF GATES &- ASSOCIATES, P.C. . q 1~13 MUMMAnOAD, SUITE 100, LEMOYNE, PENNSYLVANIA 1700 " .-.'~ :';;';"--"~;"'?"-- ~ -..-..... "-.r-"__.~:::;:-,.;~; ':~ " 1') .." r'1 , _,I 'f! . ;1 I , : , " .i:-:1 ') .' I ,.\1 C..) jic') 'h 'I' , "11 \'\ ,wI} ,I !7) r,) '/" , ) .. "~ : \' ','~) ':~I .'. OJ .<; , , Distributionl Mark m. Ilalbrunor., ~:tlq. OATES ,& ASSOCIATES I P.c. 1013 MUJllmi~ r~olld, Suite IOO Lemoyn!),' FA 17043 (Attornoys for PLlI4ntlrr) , .raffray U. Hettig, ~:tlq\llro 'I'HOMMI, 'maMAS & llAP'mH 305 North pront Street P.O. Bo>\ !:l99 Harrisburg, I?A 17101 ' (Attorneys for nofendant) " , , N ~ C'I !SI 'oj (;)~ :t': t;,.l:? "- q~ III ~(."') 'j~ ' ' UJ ;:.) ...: (1\ , , a, 2 Vl~~i^WlN~d ll~!r'-"I I"'~r\'''t.'::r):l!no f'.U'l ,I,). ... i '\ I ......,~' 'j ; GGI(,1 ~IJ 9\ :JIIV 66 , \" d" I J(' ^~vlO: .::~~:'; t~\';;H,;, .~I~'." ;"..J :iOWO-aim: " .'\..... H. Dl!Jl!ndanl. IH roady, wllllnq and ablo to pay tho H<ltl.!"!Il1onl, 1111111 upon UIlH Courl.' II ,lpprovill of I.ho sol:tlCllllcmt. 'J. Ily ,I wr Il.l.on ConI. I nqonl. 1.'lH) Aq rO(lIl1ont dil tod Novombor 'I, 11)')6, K,lrra I,. Iloovor ilnd Kathy lIoovor n!l.alnocl I.lIe Law flnll of GaU!s I; AHHoclilt.clH, P.C. to prosoclIl.o Liils acl.lon on their bohalL 10. 'I'hl! ConUnqiml. Fcw Aqroolllont provldos t.hat flft.y porcent (50'~) of tho qross seLUolllont procoods shal. L bo paid to Gatos & AHsoclat.oll, P.C. aH 1 (!'J<1I fnml for tholr sorvlcos In this action. 11. 'I'ho contln<jont I"eo Aqreell\ont furthor provldos th!lt Gates & Assoe[ il tOB, P. C. Hhil L I bo re 1mbu rsed for ilny ilnd a Ll Bums exp"mdod by thc!llI In I.hc proBecuUon o[ this action. .12. AU.achod hereto i1S [,:xhiblts nAn ilnd nBn, respectively, and incorporated heroin by roforenco arB tho Consonts of Karra L. Hoover ilnd Kill.hy Iloover to' tho Hottlemont and distribution proposed horoln. WHEREFORE, PlalntlU respecl,[ully roquosts that the Court enter an order approvlnq tho settloll1ent o[ this action [or the sum of 'l'wo'l'housand Five lIundred and 00/100 DolLars ($2,500,00) and direct In(] that the settlement: procoeds be! distributed as follows: (1) Ono '['housilnd ~'wo Hundred Fifty and 00/100 ($1,250.00) shall bo distributed 1.0 the law flrm o[ Gates & AssocLatos, P.C. as legal loos pursuant 1.0 tho a[orosaid Contingent: Fee Agreementl (/.) 'l'wo nundrc)d ilnd 00/100 Dollars ($/.00.00) shall be distrlbul:ed 1.0 the Law Ilrll1 of Gatos & Associates, P.C., pursuant to the i1lor<!silld Cont, i nqcnl. (,'Q() Aq roemQnt as re i.mbursement for /. ~: , 'l::) ~ ..:J I" ...' , 1,1 '. ,J..( tl ~ ~i ('oJ 1,.1 ~) (, ,~ , 1" '_./ ~,~ I,',' ~ .... '0,.. . I, I,",l;:-.:J "'\<, '1'_.' ,,' :/1) (",I, . 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