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Home My WebLink About03-0419 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KATHY G. PEACHEY and BARRY L. PEACHEY 11 Matthew Court Carlisle, P A 17013 Plaintiffs vs. NO. 03. '1lf CIVIL W AL-MART STORES, INC. 6520 Carlisle Pike Mechanicsburg, P A 17055 W AL-MART STORES, INC. 702 S.W. Eighth Street Bentonville, AR 72716 Defendants PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY, Please issue a writ of summons upon the above captioned Defendant. Thank you for your prompt attention to this matter. Respectfully submitted Date: (- 2..8'-~..> ~ ~ ~ ~ ~ \:)) i '\, '- C\J ~ W ~ ~ ~ ~ & "^ \ "Dl',; nil!' Z:;-' ~( ~;c; ./.-- /---, >=c:~ .cC "" =< P0 (') a ~ w ~ (J Tl "'r~ :;;t;; l'.) m -IJ :"J ,> ~CJ -< Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS KATHY G. PEACHEY AND BARRY L PEACHEY 11 MATTHEW COURT CARLISLE, P A 17013 Plaintiff Court of Common Pleas Vs. W AL-MART STORES, INC 6520 CARLISLE PIKE MECHANICSBURG, P A 17055 No. 03-419 CIVIL TERM W AL-MART STORES, INC 702 S. W. EIGHTH ST. BENTONVILLE, AR 72716 Defendant In CivilAction-Law To WAL-MART STORES, INC, 6520 CARLISLE PIKE, MECHANICSBURG, PA 17013 W AL-MART STORES, INC. 702 S.W. EIGHTH ST, BENTONVILLE, AR 72716 You are hereby notified that KATHY G. PEACHEY AND BARRY L. PEACHEY the Plaintiff has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) CURTIS R. LONG Prothonotary Date JANUARY 28, 2003 By ~;M~ ?/~k W ' Deputy Attorney: Name: JOSEPH D. BUCKLEY, ESQ. Address: 1237 HOLLY PIKE CARLISLE, P A 17013 Attorney for: Plaintiff Telephone: 717-249-2448 Supreme Court 1D No. 38444 W AL.335 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KATHY G. PEACHEY and BARRY L. PEACHEY 11 Matthew Court Carlisle, P A 17013 CIVIL DIVISION No. 03-419 JURY TRIAL DEMANDED Plaintiffs, vs. PRAECIPE FOR APPEARANCE W AL-MART STORES, INe., 6520 Carlisle Pike Mechanicsburg, P A 17055 Filed on behalf of Defendant Wal-Mart Stores, Inc. W AL-MART STORES, INe. 702 S.W. Eighth Street Bentonville, AR 72716 Counsel of Record for this Party: John A. Burgess, Esquire Pa. I.D. #89216 Defendant. Sharon M. Menchyk, Esquire Pa. I.D. #85559 DELL, MOSER, LANE & LOUGHNEY, LLC Firm #753 437 Grant Street 1300 Frick Building Pittsburgh, PA 15219 Phone: (412) 471-1180 Fax: (412) 471-9012 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KATHY G. PEACHY and BARRY L. PEACHEY 11 Matthew Court Carlisle, PA 17013 CIVIL DIVISION No. 03-419 Plaintiffs, JURY TRIAL DEMANDED Vs. W AL-MART STORES, INe., 6520 Carlisle Pike Mechanicsburg, P A 17055 W AL-MART STORES, INe. 702 S.W. Eighth Street Bentonville, AR 72716 Defendant. PRAECIPE FOR APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Dell, Moser, Lane & Loughney, LLC, John A. Burgess, Esquire and Sharon M. Menchyk, Esquire on behalf of Wal-Mart Stores, Inc. with regard to the above-captioned matter. Respectfully submitted, DELL. MOSER, LANE & LOUGHNEY, LLC By: CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofWal-Mart Stores, Inc.'s Praecipe for Appearance has been served by U.S. Mail, postage prepaid, this ~daY of fi.j/a.4f ,2003, upoo all counsel of record as follows: Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, P A 17013 Counsel for Plaintiffs -C' .;" rTl :':~ _:r. C/) _.r- r.:: ;'. ;;:: S: C) ~,; c:) (".1 -'1 r1l 1':"1 r'-.' (~ ~ --.,.--. :~ -,-'.... ,.-.,..-. .......~ Ul ~-_ W AL.335 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KATHY G. PEACHEY and BARRY L. PEACHEY 11 Matthew Court Carlisle, P A 17013 CIVIL DIVISION No. 03-419 JURY TRIAL DEMANDED Plaintiffs, vs. PRAECIPE FOR RULE TO FILE A COMPLAINT WAL-MART STORES, INe., 6520 Carlisle Pike Mechanicsburg, P A 17055 Filed on behalf of Defendant Wal-Mart Stores, Inc. W AL-MART STORES, INe. 702 S.W. Eighth Street Bentonville, AR 72716 Counsel of Record for this Party: Defendant. John A. Burgess, Esquire Pa. J.D. #89216 Sharon M. Menchyk, Esquire Pa. I.D. #85559 DELL, MOSER, LANE & LOUGHNEY, LLC Firm #753 437 Grant Street 1300 Frick Building Pittsburgh,PA 15219 Phone: (412) 471-1180 Fax: (412) 471-9012 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA KATHY G. PEACHY and BARRY L. PEACHEY 11 Matthew Court Carlisle, P A 17013 CIVIL DIVISION No. 03-419 Plaintiffs, JURY TRIAL DEMANDED Vs. W AL-MART STORES, INC., 6520 Carlisle Pike Mechanicsburg, P A 17055 W AL-MART STORES, INe. 702 S.W. Eighth Street Bentonville, AR 72716 Defendant. PRAECIPE FOR RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Please enter a Rule upon the Plaintiffs to file a Complaint within twenty (20) days of service hereof. JURY TRIAL DEMANDED Respectfully submitted, DELL, MOSER, LANE & LOUGHNEY, LLC ~/ J hn A~ Burgess, Esqu' ttomeys for Wa1-Matt Stores, Inc. February 20. 2003. A Rule to File a Canplaint is issued. ~ (14$;:;') ~ Prothonotary ~ .. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofWal-Mart Stores, Inc.'s Praecipe for Rule to File a ,~ Complaint has been served by U.S. Mail, postage prepaid, this lL day of Fi:.I~ 2003, upon all counsel of record as follows: Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, P A 17013 Counsel for Plaintiffs -r) ~. r-,'~ .. ;~:::" c;C; ~~: c ;~ );.. o s; ". -- f:::; Cd -,., "0 ',:j ;,) c::. ::--~ _.!".a (/1 ~] SHERIFF'S RETURN - REGULAR CASE NO: 2003-00419 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PEACHEY KATHY G ET AL VS WAL-MART STORES INC ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon WAL-MART STORES INC the DEFENDANT , at 1655:00 HOURS, on the 29th day of January ,2003 at 6520 CARLISLE PIKE MECHANICSBURG, PA 17055 by handing to ERIC RIFENBERRICK, ASSISTANT MANAGER, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 6.21 .00 10.00 .00 34.21 .~~~ R. 'Thomas Kline ' me this 1~ day of 02/07/2003 JOSEPH D BU~.. Y By: .. , Deputy Sworn and Subscribed to before IVULU1-; 2utJ :3 A. D . C ~~I Q fM~;Ph~ # I Prothonotary I SHERIFF'S RETURN - U.S. CERTIFIED MAIL CASE NO: 2003-00419 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND PEACHEY KATHY G ET AL VS. WAL-MART STORES INC ET AL R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT ,WAL-MART STORES INC by United States Certified Mail postage prepaid, on the 29th day of January ,2003 at 0000:00 HOURS, at 702 S W EIGHTH ST BENTONVILLE, AR 72716 , a true and attested copy of the attached WRIT OF SUMMONS Together with The returned receipt card was signed by KAY JONES 02/03/2003 on Additional Comments: Sheriff's Costs: Docketing Cert Mail Affidavit Surcharge 6.00 4.42 .00 10.00 .00 20.42 County Paid by JOSEPH D BUCKLEY on 02/07/2003 . Sworn ~d subscribed to before me this 1 . day of ~ r2Im.3 A.D. (-}:h 0 rn1;fl~ ~~ ~othonotary , cP e 0 Q) Q) .!!! a. . ~ g. E~...:;jlll E 0...Q)0 o 'w.r. >- Q) g~~.9:S . <i .~ ~ "12 (5 ~ C'i ~ III 3 -5 -E -oQ)"'Q)lllQ) C .~ -0 .r..o 0. lllGi16-Q)Q) No-oE-Sg ,.="i~~.9g. g (/)OQ)...."O~ E'.5E~luc ~\ll~o~e ~a:5~:C-; ~~~1U~:5 EEc-Sgg 8~itg~o . . "" . \.0 g .~ H+JN tJ)r- (/)~o::. (I).j... < ~ ~ ~ +J -.-I (I) 1 tJ)~~ ~ +J .-.-1 ~ M ~ E CIl ::E: tJ) 0 u I +J ': ~g ~ CIl (f) '6 c: <\I .C- o ,,; ~ ~ 0. ai o CIl "' II: ~ E ~ :l 0.... .lj~ 1 u. g ~ C'- i:' Q) "(0 "(6.~ CIl~'i~ ~ 0.-0- ~~~~ ~ .~~-i'~g ~ <.) II: E:: 1i; 8l-a00 ~ o ci U 000 '" ~- ;-..-....."'~.... ... "' ~ o .~ U 0'\ rl q< , C") o -i '" '" co o i N o ,;, '" '" '" ~ cO cO ..D cO 0. 'Qj ~ II: c: 5 4i II: <.) 'i E o o ("- r't Cl r't 1 IT" Cl Cl Cl Cl r't U1 ru ..- o o C\l Vi ::l ~ r't o Cl ("- ,... ,... IX) C') E o u. c/) 0... N W AL.335 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KATHY G. PEACHEY and BARRY L. PEACHEY 11 Matthew Court Carlisle, P A 17013 CNIL DNISION No. 03-419 JURY TRIAL DEMANDED Plaintiffs, vs. RULE TO FILE A COMPLAINT AND AFFIDAVIT OF SERVICE W AL-MART STORES, INC., 6520 Carlisle Pike Mechanicsburg, P A 17055 Filed on behallf of Defendant Wa1-Mart Stores, Inc. WAL-MART STORES, INC. 702 S.W. Eighth Street Bentonville, AR 72716 Counsel of Record for this Party: Defendant. John A. Burgess, Esquire Pa. I.D. #89216 Sharon M. Menchyk, Esquire Pa. I.D. #85559 DELL, MOSER, LANE & LOUGHNEY, LLC Firm #753 437 Grant Street 1300 Frick Building Pittsburgh, PA 15219 Phone: (412) 471-1180 Fax: (412) 471-9012 File No.: Wa1.335 AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA ) ) SS: COUNTY OF ALLEGHENY ) Before me, the undersigned authority, a Notary Public in and for said Commonwealth and County, personally appeared, John A. Burgess, Esquire, counsel for Wal-Mart Stores, Inc., Defendant in Civil Action No. 03-419 of the Court of Common Pleas of Cumberland County, who being dully sworn according to law, deposes and says a copy of the Rule to File Complaint was served on counsel for Plaintiff, Joseph F. Buckley, Esquire, 1237 Holly Pike, Carlisle, PA 17013, via U.S. Mail, certified postage pre-paid, on March 6, 2003, 2003. A copy of the signed return receipt is attached hereto as Exhibit "A". A. Burgess, Esquire el for Wal-Mart Stores, Inc.. Sworn to and subscribed before me this \ '\ day of '\'\.~ ,2003. .~~~ \~ Notary Public Notarial Seal Linda A. Curtis, Notary Public PHtsburgh, AllfJqheny County My C0mmiss'cn b:,Jlres AUD. 27, 2004 Msrnbei", ?~;nnsyL-';':'1Ji~i3 jj,..s.30(i~jCi1 ot NOtdi'iDS "1><:1111 L10,11 .f.:,y/' ..,-' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KATHY G. PEACHY and BARRY L. PEACHEY 11 Matthew Court Carlisle, P A 17013 CNIL DIVISION No. 03-419 t.' Plaintiffs, JURY TRIAL DEMANDED Vs. W AL-MART STORES, INe., 6520 Carlisle Pike Mechanicsburg, P A 17055 W AL-MART STORES, INe. 702 S.W. Eighth Street Bentonville, AR 72716 Defendant. PRAECIPE FOR RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Please enter a Rule upon the Plaintiffs to file a Complaint within twenty (20) days of service hereof. JURY TRIAL DEMANDED Respectfully submitted, DELL, MOSER, LANE & LOUGHNEY, LLC TRUE COpy FROM RECORD 1ft Testimony whereof. I here unto set my t'.aAd ~. m~~~.Pa. '-- _ QU _~~ Februm:y 20, 2003, A Rule to File a Canplaint is issued. SENDER: COMPLETE THIS SECTION . Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. . Print your name and address on the r.everse so that we can return the card to you. . Attach this card to the back of the mail piece, or on the front if space permits. 1. Article Addressed to: x ~~ D. Is delivery address different from item 1? If YES. enter delivery address below: Joseph D. Buckley, Esq. 1237 Holly Pike Carlisle, PA 17013 3. Service Type 6a Certified Mail D Registered D Insured Mail , , D Agent D Addressee Dyes DNo D Express Mail ~ Return Receipt for Merchandise D C.O.D. 4. Restricted Delivery? (Exlra Fee) 2. Article Number (Transfer from service label) PS Form 3811, March 2001 2DL2 hL9L 5DDD DED2 2DDL . '. --'-Domestic Return Receipt EXHIBIT I A Dyes 102595-01-M-142' CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofWal-Mart Stores, lnc.'s Rule to File a Complaint and Affidavit of Service has been served by U.S. Mail, postage prepaid, this '7 ~y of JI~/'L {/ ,2003, upon all counsel of record as follows: Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, P A 17013 Counsel for Plaintiffs o c ~-._- ,1.' ~.1>, i -"'- .:.:;~;- G:=:' ~;i_ Z )> !'.) -,~t ......, -( ( J'> C" C... ~ r'~ '. ~~ "1 -.:: --;:-, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KATHY G. PEACHEY and BARRY L. PEACHEY 11 Matthew Court Carlisle, P A 17013 Plaintiffs vs. NO. 03-0419 CIVIL WAL-MART STORES, INC. 6520 Carlisle Pike Mechanicsburg, P A 17055 WAL-MART STORES, INC. 702 S.W. Eighth Street Bentonville, AR 72716 Defendants JURY TRIAL DEMANDED IMPORT ANT NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty days (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, P A 17013 (171) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KATHY G. PEACHEY and BARRY L. PEACHEY 11 Matthew Court Carlisle, P A 17013 Plaintiffs vs. NO. 03-0419 CIVIL W AL-MART STORES, INC. 6520 Carlisle Pike Mechanicsburg, P A 17055 WAL-MART STORES, INC. 702 S.W. Eighth Street Bentonville, AR 72716 Defendants JURY TRIAL DEMANDED COMPLAINT AND NOW, this I ~ay of September, 2003 comes Plaintiffs, by and through their attorney, Joseph D. Buckley and complains of Defendants as follows: Negligence- Failure to Properly Maintain ParkingIWalking Area 1. Kathy G. Peachey ("Mrs. Peachey') and Barry L. Peachey ("Mr. Peachey"), wife and husband, are adult Pennsylvania residents cUlTently residing at 11 Mathew Drive, Carlisle, Cumberland County, PA 17013. 2. Defendants Wal-Mart Stores, Inc. is a Delaware corporation with numerous retail locations one of which is located in Cumberland County at 6520 Carlisle Pike, Mechanicsburg, PA 17055. 3. At all times relevant to this complaint Defendants owned and/or operated a retail establishment in Cumberland County and said store was open to the public. 4. At all times relevant to this complaint Defendants were responsible for the condition of the parking lot used and maintainedl for the benefit of Wal-Mart customers. 5. On February 2, 2001 at approximately 6:30 P.M. Kathy Peachey ("Mrs. Peachey") arrived at the Wal-Mart store located on the Carlisle Pike, Mechanicsburg, P A for the purpose of purchasing consumer items. 6. Mrs. Peachey parked her 1999 Ford Explorer in the Wal-Mart customer parking lot, the lot designated by Wal-Mart for its customer and the lot maintained by Wal-Mart for its customers. 7. After purchasing a few items in the Wal-Mart store, Mrs. Peachey exited the Wal- Mart store at approximately 6:50 P.M. and proceeded with her bag of items in hand to her parked motor vehicle. 8. All customers of the Wal-Mart store must traverse the parking lot to reach their individual vehicles as Wal-Mart Stores does not maintain any designated walk- ways or side-walks to the hundreds of parking spaces in the parking lot maintained for Wal-Mart customers. 9. Defendants had and have a duty to maintain the parking and walking area used by its customers in a condition free and clear from all obstacles and potentially harmful conditions which may reasonably be expected to cause injury to Wal- Mart customers who leave the Wal-Mart Store and walk through the parking area to customer vehicles. 10. As Mrs. Peachey approached her vehicle with bag in hand, and due to the build up of ice and ridges in and on the parking area near her parked vehicle, she slipped and fell. 11. Mrs. Peachey's fall was caused by Defendants' failure to properly maintain its parking and walking area from the accumulation of ice and ridges; from allowing ice and snow to be piled in areas which after melting occurred during daylight hours would transform the melted snow and water back into ice in the evening; and from Defendants' failure to provide and disperse anti-skid material on the areas known to be used as walkways and parking areas by Wal-Mart customers. 12. As a result of the fall caused by Defendants' negligence in properly maintaining its parking area, Mrs. Peachey suffered a broken pelvis. 13. As a result of the fall caused by Defendants' negligent act or acts, Mrs. Peachey was unable to work for a period of two months. 14. As a result of the fall caused by Defendants' negligent act or acts, Mrs. Peachey had to use a walker and later a cane to move about. 15. As a result of the fall caused by Defendants' negligent act or acts, Mrs. Peachey has had to in the past since the accident endure intensifying pain in her hip and lower back and the mental stress associated with sUo~h pain. 16. As a result of the fall caused by Defendants' negligent act or acts, Mrs. Peachey has been unable to perform certain functions in her daily life both at work and at home. 17. Mrs. Peachey has incurred medical bills not in excess of twenty-five thousand dollars ($25,000.00). 18. Mrs. Peachey will incur future medical bills not in l:xcess of twenty-five thousand dollars ($25,000.00). 19. Mrs. Peachey has suffered lost wages not III excess of twenty-five thousand dollars ($25,000.00). 20. Mrs. Peachey will suffer future lost wages in excess of twenty-five thousand dollars ($25,000.00). 21. Mrs. Peachey has suffered pain and mental anguish in excess of twenty-five thousand dollars ($25,000.00). 22. Mrs. Peachey will suffer future pain and mental anguish in excess of twenty-five thousand dollars ($25,000.00). 23. Mrs. Peachey has suffered loss of enjoyment in life in an amount in excess of twenty-five thousand dollars ($25,000.00). 24. Mrs. Peachey will suffer future loss of enjoyment in life in an amount in excess of twenty-five thousand dollars ($25,000.00). Loss of Consortium 25. Paragraphs 1-24 are incorporated by reference as though they were more fully set forth herein 26. Due to Mrs. Peachey's severe and continuing injuries, her husband Mr. Peachey had and has to live without the physical help of Mrs. Peachey and without the love and affection between a wife and her husband. 27. Mr. Peachey has and will suffered a loss of consortium in an amount not in excess of twenty- five thousand dollars. WHEREFORE, Plaintiffs pray that this Honorable Court enter a judgment in their favor as against Defendants in an amount in excess of twenty-five thousand dollars, together with interest and the costs associated with this action. tfully submitted h D. Buck Attorney ofthe ID # 38444 1237 Holly Pike Carlisle, PA 17013 (717) 249-2448 VERIFICATION We, Kathy G. Peachey and Barry L. Peachey, the Plaintiffs in this action, verify that we have read the foregoing Complaint and to the best of our individual knowledge, information and beliefthe statements made therein are true and correct. I understand that the statement made herein are subject to the provisions and penalties of .18 Pa. C.S. Section 4904 relating to unsworn falsifications 1:0 authorities. Date: 9-..10:.. o.J kl~ 1.. (- ~\ACHEY CERTIFICATE OF SERVICE I, Joseph D. Buckley, hereby certify that a true and correct copy of the forgong Complaint was duly served on the following persons by first class United States mail at the following address: John A. Burgess, Esquire Dell, Moser, Lane & Loughney, LLC 1200 Frick Building 437 Grant Street Pittsburgh, PA 15219-6002 Date: SttJ. if, ZOO} (") ,c~ -c' r~~ rni i '7 zr C/l .~ -~. r:: \-~ ;::;: ~~ ;c: :.(1 n 'T1 :/) q .J '" l-~ ~~ .WAL.335 IN THE CdURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA KATHY G. PEACHEIY and BARRY L. PEACHEY II Matthew Court I Carlisle, P A 17013 I P"""tit VS. I I WAL-MART STORE, INe., 6520 Carlisle Pike Mechanicsburg, PAl CIVIL DIVISION No. 03-419 JURY TRIAL DEMANDED ANSWER AND NEW MATTER W AL-MART STORE ,INC. 702 S.W. Eighth Stree Bentonville, AR 7271 Filed on behalf of Defendant Wal-Mart Stores, Inc. Counsel of Record for this Party: TO: KATHY G, PEACH YandBARRYL. PEACHEY John A. Burg,ess, Esquire Pa. J.D. #89216 t. Sharon M. M,enchyk, Esquire Pa. J.D. #85559 Yon are hereby notified to lIe a written response to the enclosed ANSWER AND EW MATTER within (20) days from service hereof 0 a defanlt judgment may be tered against you. DELL, MOSER, LANE & LOUGHNEY, LLC Firm #753 437 Grant Street 1300 Frick Building Pittsburgh, PA 15219 Phone: (412) 471-1180 Fax: (412) 471-9012 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA KATHY G. PEACHBY' and BARRY L. PEACHEY 11 Matthew Court Carlisle, PA 17013 CIVIL DIVISION No. 03-419 Plainti~s, JURY TRIAL DEMANDED Vs. WAL-MART STORE, INC., 6520 Carlisle Pike Mechanicsburg, PA I 055 WAL-MART STORE, INC. 702 S.W. Eighth Stree BentonviIIe, AR 7271 ANSWER AND NEW MATTER , AND NOW, fmes Wal-Mart Stores, Inc., by and through its attorneys Dell, Moser, Lane & Loughney, L~C and John A. Burgess, and files the within Answer and New Matter to Plaintiffs' Complaint. 1. t admits the allegations contained in Paragraph I of Plaintiffs' Complaint. 2. Defend t admits the allegations contained in Paragraph 2 of Plaintiffs' Complaint. 3. Defend t admits the allegations contained III Paragraph 3 of Plaintiffs' Complaint. .WAL.JJ5 4. The allegations contained in Paragraph 4 of Plaintiffs' Complaint are conclusions of law to which no response is required. To the extent a response is required, Defendant denies the allegations contai$ed in Paragraph 4 of Plaintiffs' Complaint in accordance with Pa. RC.P. I 1029(e). 5. Defendjant admits the allegations contained in Paragraph 5 of Plaintiffs' Complaint. ! 6. The all~gations contained in Paragraph 6 of Plaintiffs' Complaint are admitted in part and denied in p . Defendant admits that Mrs. Peachy parked her 1999 Ford Explorer in the Wal-Mart Customer arking lot, the lot designated by Wal-Mart for its customers. Further responding, Defendan denies the remaining portions of Paragraph 6 of Plaintiffs' Complaint in accordance with Pa. R C.P. 1029(e). 7. Defend t admits the allegations contained III Paragraph 7 of Plaintiffs' Complaint. 8. The all gations contained in Paragraph 8 of Plaintiffs' Complaint are admitted in part and denied in part Defendant admits that the customers of the Wal-Mart store must traverse the parking lot to reac their individual vehicles. Responding further, Defendant denies that it does not maintain any esignated walkways or sidewalks to the parking spaces in the parking lot. Defendant denies the remaining portions of the Paragraph 8 of Plaintiffs' Complaint in accordance with Pa. R .P. 1029(e). 9. The all ations contained in Paragraph 9 of Plaintiffs' Complaint are conclusions of law to which no res onse is required. To the extent a response is required, Defendant denies the allegations contain d in Paragraph 9 of Plaintiffs' Complaint in accordance with Pa. RC.P. 1029(e). 2 .WAL.JJ5 10. Defendant denies the allegations contained III Paragraph 10 of Plaintiffs' Complaint in accordance with Pa. RC.P. I029(e). II. Defen~ant denies the allegations contained III Paragraph II of Plaintiffs' I Complaint in accordmtce with Pa. RC.P. 1029(e). 12. The allegations contained in Paragraph 12 of Plaintiffs' Complaint are conclusions of law t which no response is required. To the extent a response is required, Defendant denies th allegations contained in Paragraph 12 of Plaintiffs' Complaint in accordance with Pa. R C.P. 1029(e). 13. The a egations contained III Paragraph 13 of Plaintiffs' Complaint are conclusions of law t which no response is required. To the extent a response is required, Defendant denies th allegations contained in Paragraph 13 of Plaintiffs' Complaint in accordance with Pa. R C.P. 1029(e). 14. The al egations contained III Paragraph 14 of Plaintiffs' Complaint are conclusions of law to which no response is required. To the extent a response is required, Defendant denies th allegations contained in Paragraph 14 of Plaintiffs' Complaint in accordance with Pa. R .P. 1029(e). 15. The al egations contained III Paragraph 15 of Plaintiffs' Complaint are conclusions of law to which no response is required. To the extent a response is required, Defendant denies the allegations contained in Paragraph 15 of Plaintiffs' Complaint in accordance with Pa. R. .P. I029(e). 16. The al gations contained III Paragraph 16 of Plaintiffs' Complaint are conclusions of law to which no response is required. To the extent a response is required, 3 . WAL.335 Defendant denies the allegations contained in Paragraph 16 of Plaintiffs' Complaint III accordance with Pa. R.C.P. 1029(e). 17. Defen4ant admits the allegations contained III Paragraph 17 of Plaintiffs' , , Complaint. 18. Defen1ant denies the allegations contained III Paragraph 18 of Plaintiffs' Complaint in accord ce with Pa. RC.P. 1029(e). 19. t admits the allegations contained III Paragraph 19 of Plaintiffs' Complaint. 20. Defend t denies the allegations contained III Paragraph 20 of Plaintiffs' Complaint in accord ce with Pa. RC.P. 1029(e). 21. t denies the allegations contained III Paragraph 21 of Plaintiffs' Complaint in accord e with Pa. RC.P. 1029(e). 22. t denies the allegations contained III Paragraph 22 of Plaintiffs' Complaint in accordan e with Pa. RC.P. 1029(e). 23. Defend t denies the allegations contained III Paragraph 23 of Plaintiffs' Complaint in accordan e with Pa. RC.P. 1029(e). 24. Defend t denies the allegations contained III Paragraph 24 of Plaintiffs' Complaint in accordan e with Pa. RC.P. 1029(e). 25. Paragra h 25 of Plaintiffs' Complaint is an incorporation paragraph, to which no response is required. 26. Defend t denies the allegations contained in Paragraph 26 of Plaintiffs' Complaint in accordan e with Pa. RC.P. 1029(e). 4 'WAL.335 27. Defendant denies the allegations contained III Paragraph 27 of Plaintiffs' Complaint in accorda$ce with Pa. R.c.P. 1029(e). NEW MATTER 28. Shouldl investigation or discovery in this case reveal the statute of limitations has not been tolled, then tte defense of the statute of limitations is pled. I WHEREFO , Defendant, Wal-Mart Stores, Inc. demands that Plaintiffs' Complaint be dismissed andjudgme t be entered in its favor. Respectfully submitted, Dell, Moser, Lane & Loughney, LLC By: 5 Wal. 335 VERIFICATION I, John A. B gess, attorney for Wal-Mart Stores, Inc., pursuant to PaRC.P. 1024(c)(2), verify that the averme ts of fact made in this foregoing Answer and New Matter are true and correct and based upon my personal knowledge, information or belief. I understand that averments of fact in said docume t are made subject to the penalties of 18 Pa. C.S. 94904, relating to the unsworn falsifications authorities. This Verification is made by the undersigned due to lack of sufficient time to obt a Verification from Wal-Mart Stores, Inc., and will be provided when available. Date: . Burgess, Esquir y for Wal-Mart Stores, Inc, CERTIFICATE OF SERVICE I hereby certify that true and correct copy ofWal-Mart Ston:s, Inc.'s Answer and New Matter has been served by U. . Mail, postage prepaid, this..2- 3 day of alokF' ,2003, upon all counsel of record follows: Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, P A 17013 Counsel for PlaintiffS ~7 .. .U- John . Burgess, Esquire ~ CJ q W 0 -,-1 1~ n :;. :TI ~ f,lr- N .-". .Tl Ci,>'f }1'; ... ':JQ. ",.'. --1- 0 ~-,:, -L :!l l(" :;;J: (,.., "0 ta t5~ c: ..... ~ N ~ +' ~ .. W AL-MART 335 IN THE COURT OF COMMON PLEAS OF CU1'vIBERLAND COUNTY, PENNSYL VANIA KATHY G. PEACHEY and BARRY L. PEACHEY 11 Matthew Court Carlisle, PA 17013 CIVIL DIVISION No. 03-419 JURY TRIAL DEMANDED Plaintiffs, MOTION FOR SUMMARY JUDGMENT vs. W AL-MART STORES, INC., 6520 Carlisle Pike Mechanicsburg, P A 17055 Filed on behalf of Defendant: Wal-Mart Stores, Inc. Counsel of Record for this Party: W AL-MART STORES, INC. 702 S.W. Eighth Street Bentonville, AR 72716 John A. Burgess, Esquire Pa. J.D. No. 89216 Defendant. Sharon M. Menchyk, Esquire Pa. J.D. No. 85559 DELL, MOSER, LANE & LOUGHNEY, LLC Firm No. 753 525 William Penn Place Suite 3700 Pittsburgh, PA 15219 Phone: (412) 471-1180 Fax: (412) 471-9012 .. ~ Wal-Mart 335 No. 03-419 IN THE COURT OF COMMON PLEAS OF CU~tlBERLAND COUNTY, PENNSYL VANIA KATHY G. PEACHEY and BARRY L. PEACHEY 11 Matthew Court Carlisle, PA 17013 CIVIL DIVISION No. 03-419 Plaintiffs, JUR Y TRIAL DEMANDED Vs. W AL-MART STORES, INC., 6520 Carlisle Pike Mechanicsburg, P A 17055 W AL-MART STORES, INC. 702 S.W. Eighth Street Bentonville, AR 72716 Defendant. MOTION FOR SUMMARY JUDGMENT AND NOW, comes Defendant, Wal-Mart Stores, Inc. (herein after "Wal-Mart"), by and through its attorneys Dell, Moser, Lane & Loughney, LLC and John A. Burgess, Esquire and files a its Motion for Summary Judgment stating as follows: I. Statement of the Facts 1. The instant case arises out of a slip and fall accident which Plaintiff alleges occurred on February 2, 2001 in the parking lot of the Mechanicsburg, Pennsylvania Wal-Mart. (Complaint, 1][1][7, 10). 2. The alleged accident occurred at approximately 6:50 p.m. as Plaintiff was walking from the Wal-Mart store to her automobile. (Complaint, 1][1][7, 10). Wal-Mart 335 No. 03-419 3. She had taken the same path to enter the Wal-Mart approximately twenty minutes earlier. (Complaint, iJ[5; Depo. Tr. of Kathy G. Peachey at 12 attached as Exhibit "A"). 1 4. Plaintiff slipped on a smooth patch of ice near another parked car. (Depo. Tr. of Kathy G. Peachy atB-15 attached as Exhibit "A"). 5. Plaintiff did not trip on a hill or ridge of ice (Id.). 6. Plaintiff alleges that Wal-Mart was negligent in failing to remove the ice which allegedly caused Plaintiff's injury. (Complaint, iJ(12). 7. Defendant Wal-Mart now moves for Summary Judgment asserting that it is entitled to judgment as a matter of law because the Plaintiff's claims are barred by the "hills and ridges" doctrine. Alternatively, Defendant Wal-Mart moves for Summary Judgment asserting that it did not have actual or constructive notice of the alleged presence of the ice. MOTION FOR SUMMARY JUDGMENT BASED UPON THE HILLS AND RIDGES DOCTRINE 8. Under the Commonwealth of Pennsylvania law, a defendant's liability for injuries which a pedestrian sustains by falling on snow or ice is detern1ined by application of the "hills and ridges" doctrine. 9. Importantly, to resist a motion for summary judgment based upon the "hills and ridges" defense, a plaintiff bears the burden of proving: (1) that snow and ice had accumulated on the sidewalk (or other surface) in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such a condition; and (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. Absent proof of all such facts, a plaintiff has no basis for recovery and judgment must be entered 1 Defendant will provide a complete copy of this transcript should the court desire one. 2 Wal-Mart 335 No. 03-419 in favor of the defendant landowner. Roland v. Kravco, Inc., 355 Pa.Super. 493, 513 A.2d 1029, 1032 (1986), alloc. denied 535 A.2d 1058. See also, Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 219 A.2d 676 (1966); Rinaldi v. Levine, 406 Pa. 74, 176 A.2d 632,625 (1962). 10. Plaintiff was deposed on September 16, 2003. 11. Plaintiff testified during her deposition that she recalled observing that the ice upon which she allegedly fell was smooth enough to reflect. (See Depo. Tr. of Kathy G. Peachey at 13-15 attached as Exhibit "A"). 12. As further evidence of the absence of hills or ridges of ice, Plaintiff testified that after she slipped, she fell and hit the back of her head. (See Depo. Tr. of Kathy G. Peachey at 13 of Exhibit "A"). 13. Accordingly, Plaintiff in the case at bar has failed to demonstrate that her fall was caused by the existence of ridges or elevations of ice or even that such ridges or elevations were present at the time of the incident at issue in this suit. 14. Moreover, assuming, arguendo, that Plaintiff is able to produce some evidence that she was caused to fall as a result of a hill or ridge of ice, which she cannot, Plaintiff is unable to offer any evidence that this Defendant knew or should have known of the presence of the ice. 15. Plaintiff testified during her deposition that she does not know how long the ice had been present prior to her fall. (See Depo. Tr. of Kathy G. Peachey at 16-17 of Exhibit "A"). 16. Moreover, there is no evidence that this Defendant knew of the alleged presence of the ice or that the ice had been present long enough to charge this Defendant with constructive notice. 3 Wal-Mart 335 No, 03-419 17. As such, no genuine issue of material fact exists that Plaintiff's claims are barred by the hills and ridges doctrine and, therefore, this Defendant is entitled to summary judgment as a matter of law. MOTION FOR SUMMARY JUDGMENT BASED UPON LACK OF EVIDENCE THA T THIS DEFENDANT KNEW OR SHOULD HAVE KNOWN OF THE ALLEGED PRESENCE OF THE ICE 18. Assuming, arguendo, that the hills and ridges doctrine is not applicable in the instant case, which it is, this Defendant is nevertheless entitled to summary judgment as Plaintiff is unable to offer any evidence that this Defendant caused, knew or should have known of the alleged presence of the ice. 19. It is axiomatic that even if a plaintiff need not demonstrate hills and ridges, she still must prove actionable negligence on the part of the property owner or snow removal contractor. See Zeig v. Pittsburgh, 348 Pa. 155,34 A.2d 511 (1943); Williams v. Shultz, 429 Pa. 429,240 A.2d 812 (1968); Biernacki, 828 A.2d 1114 (Pa. Super. 2003). 20. In order for the Plaintiff to establish liability, this Defendant must have had actual notice of the alleged dangerous condition or the alleged dangerous condition must have existed for a sufficient length of time to charge with constructive notice. Id. 21. As set forth above, Plaintiff testified during her deposition that she does not know how long the ice was present on the parking lot prior to her fall. (See Depo. Tr. of Kathy G. Peachey 16-18 of Exhibit "A"). 22. Further, no evidence exists that this Defendant had actual knowledge of the alleged presence of the ice or that the ice had allegedly been present long enough to charge this Defendant with constructive notice of its presence. 4 Wal-Mart 335 No. 03-419 23. As such, Plaintiff is unable to offer sufficient evidence regarding this Defendant's alleged negligence. Therefore, no genuine issue of material fact exists and this Defendant is entitled to summary judgment as a matter of law. WHEREFORE, this Defendant respectfully requests that this Honorable Court grant its Motion for Summary Judgment and dismiss the instant case with prejudice. Respectfully submitted, DELL MOSER LANE & LOUGHNEY, LLC By . /I fr~ /3t6 ohn A. Burgess, Esquire ' Counsel for Defendant Wal-Mart Stores, Inc. 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 A It was cold. It wasn't doing anything. It wasn't raining or snowing or sleeting, because I wouldn't have gone if it would have been doing anything. Q Well, what time of the day was this approximately when you left? A Six-thirty, maybe. I think six or six-thirty. Q We have your receipt when you left the store. A Okay. I didn't know if you meant when I left home or when I left the store. I don't know. Q According to your Complaint it says you arrived at the store around 6:30 p.m.? A Okay. Q Did you go straight from your house to 2 3 4 5 6 7 Wal-Mart? A Yes. Q What were you going to Wal-Mart for that day, if you recall? A Nothing in particular, just something to do. My husband works nights, so I often go shopping or something in the evening. Q Was it dark? A Yes. Q Do you know what the wE!ather had been like that day, if it snowed or rained? A No. It had snowed, I think a couple days before 9 EXHIBIT I "A" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that, but that day it hadn't done anything. Q How would you describe the condition of the roads, snowy, wet, dry? A Dry. They were fine, the main roads were. I don't drive on bad roads. I mean, that much I do remember. I wouldn't have gone if the roads would have been bad. Q Just you and your son were home that evening? A Yes. Q Now, do you recall where you parked in the parking lot? A Not specifically. I know, like when you go into the store, it was to the left. Q Okay. Is this a Super Center or just a regular Wal-Mart? A No. They're in the process of making it a Super Center now but it wasn't at the time. Q So just a regular Wal-Mart? A Yes. Q And you went in through the main doors? A Yes. There's only one set of doors into. Well, actually there's two but one is the garden center. Q Right. A I went in the main doors. Q If you're looking at the main doors from the 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Okay. Q Does that sound about right? A I guess. I don' t remerl1iber. Like you've got my receipt. I've got the receipt. Q Okay. A I don't wear a watch and I was on no time limit so. Q Okay. When you left Wal-Mart, did you go back to your car? A Yes. Q Did you take the same path that you had come from before? A I'm sure I did. I usually do because that's how I remember where my car is parked., Q I understand. A I'm terrible at getting lost. Q What happened as you were approaching your car? A It happened so fast, I vias down. When you walk-- I mean, it was dark. I was not looking down, you know. Typically when you're walking you don't look down. Before I knew it I was flat on the ground. I mean, I got up right away. You know how you're embarrassed, you don't want anybody to see you fall. So I got up. And I remember getting up and turning around to see what the heck happen'3d, because I didn't 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 You know, you would know if you think I tripped. tripped. Q Okay. A I remembered I could see the reflection of the light on ice. And then I hurried to my car and didn't talk to anybody. Of course it was dark and I don't if anybody saw me. Nobody-- I mean, I got up quick and nobody said anything to me or came up to me. Q Did you feel one of your feet slide out or do you recall? A I could not tell you. I was on the ground before I knew. It happened so quick. The only thing I remember is hitting the back of my head. Q You fell backwards? A I don't know. To this day I don't understand how I broke my pelvis on the right: side, because I must have hit there. But what I remember is hitting the back of my head because it was, it was quite a hit. I'm thinking, gee, am I going to be okay. Q Did you feel your feet slip? A I couldn't tell you. It happened so quick, I don't-- Q I think you already said you didn't feel like you tripped over anything? 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 f"' A you trip, it. Q A Q No, I don't. I mean, I don't remember. When if you trip over something you usually know okay. But it happened so quick. Where was this? You said you looked back and saw in the light the pavement was shiny? A Yes, the parking lot. Q And where was that? Were you still on the ground when you looked back? A No, I had got up by then. Q Okay. A I got up and I wasn't far from my car. I looked back right away trying to figure Clut what the heck happened, because it happened so quick. Q And then you saw, what, a shiny part in the parking lot? A Yes. I could see it must have been the light reflecting off it. I mean it was ice. I could tell it was ice. Q Okay. And could you tell how much was there? A No, I don't recall. I wa.s walking pretty-- I was walking not in the middle of the aisle. I was walking behind, pretty close behind the vehicles, you know, the cars that were parked up from mine. So I could not tell 14 1 you how big an area it was. 2 Q Alright. Well, you mean because it might have 3 gone underneath one of the cars? Is that what you mean? 4 A I don't know. I just-- 5 Q How much did you see? Was it as big as this 6 glass table? (Mr. Burgess indicating.) 7 A Yes. Honestly, I couldn't tell you. 8 Q Yes or you can't tell me? 9 A How big it was. 10 Q Okay. 11 A I was in a hurry. I was embarrassed. I didn't 12 want anybody to see me. I just wa.s trying to figure out 13 what happened. 14 I remember turning around looking back, seeing 15 light reflecting off ice and I went to my car. 16 Q Okay. Let me know if this is right. Maybe you 17 saw light reflecting and you're not sure how much more ice 18 might have been around, but you just saw the light part? 19 A I remember-- Of course, I'm trying to figure 20 out what happened, because it happened so fast, and I 21 didn't take a whole lot of time. I just turned around 22 real quick to see what happened because I was sure-- I 23 didn't think I tripped. 24 It just happened so quick. I was down on the 25 ground, you know, and that's what really surprised me. 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Are you sure that the i.ce is what caused you to fall? A I'm positive. Q Why are you positive? A Because it was right where I fell and because I do remember looking back to see what happened, why I fell, you know. Q okay. A And I'm positive that's what it was. Q Alright. Now, had you 1Nalked over that area where you had fallen when you wen~t into Wal-Mart? A That I couldn't tell you. Q You could have or you couldn't have? You don't know either way? A I don't remember how I ""Talked when I went in. I don't know if I would have crossed behind my vehicle and went up or if I would have walked up that way. That I don't remember. Q Is this the only ice pat.ch that you saw in the Wal-Mart parking lot? A When I went in I wasn't looking and when I came out all I did was turn around and looked to see where I fell, what happened, so I didn't notice. I didn't look for any other ice. Q Okay. That's what I meant too. You didn't come 16 1 across any other ice patches? 2 A I didn't look for them but, no, I couldn't-- I 3 can't say yes or no because I wasn't looking for them. 4 Q Okay. But this is the only one you saw? 5 A Yes, because it was right where I fell. I mean, 6 it was right in the general area, so I did not look in the 7 rest of the parking lot. 8 Q You said it was, right, you're walking at the 9 back, walking down the aisle, but sort of to the right or 10 the back of the vehicles? 11 A Yes, behind them. I don't typically walk in the 12 middle between rows of cars. I pretty much stick to, you 13 know, closer to them. 14 Q Were the vehicles to your right or to your 15 left? 16 A To my right. coming out: of the store they were 17 to my right. I mean, heading to my car. 18 Q Do you know how long that ice patch had been 19 there before you came upon it? 20 A I have no idea. I don't go there-- I didn't go 21 there very often. 22 Q Do you know what the source of whatever was 23 frozen was? Do you know what I mean? 24 A No. I know typically around here they'll take 25 parking lots and pile snow up in one area. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. Did you see any snow piled up in the area? A I didn't look, to tell you the truth. I'm sure it was dark when I got there and it was dark when I left and I wasn't-- I have no idea. I wasn't looking. Q Was the ground, other than the area where you saw the ice, was the ground around the other area that wasn't ice, was it wet or dry? A I don't really know. All I remember is getting up. I wasn't paying attention going into the store. Then I fell and I remember getting up looking back to see what happened, why I fell, and that's all I noticed. I didn't look anywhere else. Q Do you know if this was frozen water as opposed to like frozen Pepsi or another liquid substance? A I have no idea. I didn /' t go back and look at it. Q And you said you got up and obviously, like you said, you maybe were sort of embarrassed, so you didn't talk to anybody from Wal-Mart when you were out there? A Didn't talk to a custom€~r. I didn't talk to anybody. I got in my car and drove home. I didn't know I was hurt that bad at the time. I got up and drove home and I was fine driving home. Q What happened when you got home? 18 'i .\; 'l ;,L h'1'"' ~ j ~I .. ',/' ., . ,: -f!- :>RM CD-64 ~> RESc:RISED BY AO. ZOI-17 U, S. DEPARTMENT OF COMr.,ffiRCE Asheville, N.C. I CERTIFY that the attached are authentic and tzue cQpies of meteoro1ogica1 records on fi1e in the NA.nONAL CLIMATIC DATA CENTER. ASHEVILLE, NORm CAROLINA. r M. Lt/, d~A.w- r AUGUST:L. SHUMBERA RECORDS CUS'I'ODIAN DATA ADMINiSTRATOR (Offic:i.a1 Tit1e) . . . . . . . . . . . . . . . . I HEREBY CERTIFY that AUGUST L. SHUMBERA RECORDS COSTODIAN, who signed the foregoiDg certificate, is now, and was at the time of signing, DATA ADMINIS'IRATOR, NATIONAL CLIMATIC DATA CENTER, and that ful1 faith and credit shou1d be given his certificate as such. I: further state that 1: ain the person to whom the said custodian reports, INWlTNESS 'WHEREOF, 1: bave hereunto subscribed my name and caused the seal of the Department of Commerce to be affixed F'!'"\ <'I .- "n"" L ,1 4; ,; L'JJJ on this date: For the SECRETARY OF COMMERCE: .1f /In. } '\.{i~ I ) fJ jj Ai.VLY. \..lJe L-0~rt.L\.. ~1~ i) mOMAS R KARL DJ:RECTOR NATJ:ONAL CLI:M~T1:C DATA CENTER (Certifying Officer) EXHIBIT j "B" WZLIl ~Q!J wI-> :'I~ffi :'II-.. o!!la: OZw -:r 15~!( ~~~ Wit..J :'Iw< t-:rz a::o.Q ~i!ll- w~< Ol-Z .< ~o ::>z < o Z <( w S ~ << ~ ~ z q> CD :Ii ~ 5!~ ~~ U) z: o ~ if Ul th a2 o ~ S:! C) g o ti s ::::; o o :i II: ILl > a: IL. o Q II: o o w a: I j - w ~~~ ~ ~ ~ w .. ~I)J ... ~ ~ II: .... :I: < < ~ II: Q ~ W Z ~ 2: ~ :2 II: .. w " ~ '" II: '" > ~ . NOI.llQNOO .Aoqe WO.q JUeI8WP J! 1lO11~^>>sqo ,0 ewti. ......... &l!lSeureo >: '" 8 . 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"$(1/) -:10- 'MOIJ$ '" C ~\: 0 ~ c 0 <::) ~ ~ 0 \) ,; &..1 PfU.W .~ '.. " .. , ... . . tai.:ci:i ';: ffi ~~ j- 0.- lu, .~ ~h i- :t'- r--. ~ - Iv. . " ~ ~ !I ..... '" . \' ~ 'I.. , I'( c: 1- ..., '" ~ U/ it m ,,," I~ .~ r.-{ "' 0 ~ ..: ~ "I'(' c ~ ~ - " ~. -\ " "'~ OJ ~ II: ; .-! :.J ~ .I! '. . i: lU Z t cr: ~ co . III ... 0 '" 2 llt > ti- co t... dl 8 ~ w l( it ... i~il a: :. <~ ,~ t5:~ ... UJ I!! 0 ?; ~ I " z Jn~ I a: 8 ' x 0 ... ~ l -= ~'i i Q ~ 0 ; is .. .. "' ~ z 8l~.D !' '.e <;! '~ 'a ~ ~ 'l! ~ ~ .. lij, ~. <t '" lI: ~. 'R III lil \- ~3 \ ~ .l~Q - N '"' ~ '" '" ~ .. .. :: <:; N .. .cciuci , 1 ., ; , , ., l , , I I' , I, . I ---- . - ~ IN THE COURT OF COMMON PLEAS OF CUNlBERLAND COUNTY, PENNSYL VANIA KATHY G. PEACHEY and BARRY L. PEACHEY 11 Matthew Court Carlisle, P A 17013 CIVIL DIVISION No. 03-419 Plaintiffs, JUR Y TRIAL DEMANDED Vs. W AL-MART STORES, INC., 6520 Carlisle Pike Mechanicsburg, P A 17055 W AL-MART STORES, INC. 702 S.W. Eighth Street Bentonville, AR 72716 Defendant. ORDER OF COURT AND NOW, this day of , 200_, upon consideration of Defendant Wal-Mart Stores, Inc.'s Motion for Summary Judgment, this Motion is hereby granted. BY THE COURT, J. - . Wal-Mart 335 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Wal-Mart Stores, Inc.'s Motion for Summary Judgment has been served by U.S. Mail, postage prepaid, this ~ 200~, upon all counsel of record as follows: ~ day of ?tf..NJt/r; ,y Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, P A 17013 Counsel for Plaintiffs }!:mge!!:qu~~/1kl3 '-- (- ~:~~ " .: J' " o ~~;: =2 r-...:l c::> (."J i"_,'-' f", ::'1'1 .-1 -r h:', :-.1 - ~I ~ :'1 -.~-) {~) ~- :;...:: o ;',' ) ---(~ -.--; ., ') tl-l c.) ,,\ ,..) L,.: c'- ,--"i .-< ",. W AL-MART 335 IN THE COURT OF COMMON PLEAS OF CUl\IBERLAND COUNTY, PENNSYL VANIA KATHY G. PEACHEY and BARR Y L. PEACHEY 11 Matthew Court Carlisle, PA 17013 CIVIL DIVISION No. 03-419 JUR Y TRIAL DEMANDED Plaintiffs, PRAECIPE TO SET ARGUMENT vs. W AL-MART STORES, INC., 6520 Carlisle Pike Mechanicsburg, P A 17055 Filed on behalf of Defendant: Wal-Mart Stores, Inc. Counsel of Record for this Party: W AL-MART STORES, INC. 702 S.W. Eighth Street Bentonville, AR 72716 John A. Burgess, Esquire Pa. J.D. No. 89216 Defendant. Sharon M. Menchyk, Esquire Pa. J.D. No. 85559 DELL, MOSER, LANE & LOUGHNEY, LLC Firm No. 753 525 William Penn Place Suite 3700 Pittsburgh, PA 15219 Phone: (412) 471-1180 Fax: (412) 471-9012 - W AL-MART 335 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA KATHY G. PEACHEY and BARRY L. PEACHEY 11 Matthew Court Carlisle, PA 17013 CIVIL DIVISION No. 03-419 Plaintiffs, JUR Y TRIAL DEMANDED Vs. WAL-MART STORES, INC., 6520 Carlisle Pike Mechanicsburg, P A 17055 W AL-MART STORES, INC. 702 S.W. Eighth Street Bentonville, AR 72716 Defendant. PRAECIPE TO SET ARGUMENT FOR DEFENDANT'S W AL-MART STORES. INC.'S MOTION FOR SUMMARY JUDGMENT AND NOW, comes Wal-Mart Stores, Inc., (hereinafter Wal-Mart), by and through its attorneys, Dell, Moser, Lane & Loughney, LLC and John A. Burgess, Esquire and files the following Praecipe to Set Argument Date for Defendant's Vlal-Mart's Motion for Summary Judgment stating as follows: 1. Counsel for Defendant Wal-Mart has filed a Motion for Summary Judgment pursuant to Pa. R.C. P. 1035 for failure to substantiate a claim. 2. Counsel for Defendant now requests that this matter be placed on the oral argument list for February 2,2005. W AL-MART 335 WHEREFORE, counsel for this Defendant, Wal-Mart Stores, Inc, respectfully requests that this Honorable Court set an oral argument date for Defendant's Motion for Summary Judgment in the above-captioned matter. Respectfully submitted, DELL MOSER LANE & LOUGHNEY, LLC By L~u!l- Esquire Counsel for Defendant W AL-MART 335 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA KATHY G. PEACHEY and BARRY L. PEACHEY 11 Matthew Court Carlisle, PA 17013 CIVIL DIVISION No. 03-419 Plaintiffs, JURY TRIAL DEMANDED Vs. W AL-MART STORES, INC., 6520 Carlisle Pike Mechanicsburg, P A 17055 W AL-MART STORES, INC. 702 S.W. Eighth Street BentonvilIe, AR 72716 Defendant. ORDER AND NOW, on this _ day of , 2005, oral argument is set for the Defendant Wal-Mart Stores, Inc.'s Motion for Summary Judgment on this _ day of ,2005 at J. G !'~.....") (.'::.;,) c> ( T.~ .r::.:::> --:n <~ C./'l -\ L.. :~j \': r~l II i:':~ , .,.:-,-. fTl ; C' 0 ) ., ,,> \J .; =~: ". ..;,"- ) (q ~:-. G') ~ 1",.) +- .-..... 'vVAL-MART :;:;5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KATHY G. PEACHEY and BARRY L. PEACHEY II Matthew Court Carlisle. PA J70n CIVIL DIVISION No. 03-419 JURY TRIAL DEMANDED Plaintiffs, PRAECIPE TO WITHDRA W ARGUMENT vs. W AL-MART STORES, INC., 6520 Carlisle Pike Mechanicsburg. PA 17055 Filed on behalf of Defendant: Wal-Mart Stores, Inc. Counsel of Record for this Party: W AL-MART STORES, INC. 702 S.W, Eighth Street Bentonville. AR 72716 John A. Burgess, Esquire Pa, LD. No, 89216 Defendant. Sharon M, Menchyk, Esquire Pa. LD, No, 85559 DELL, MOSER, LANE & LOUGHNEY, LLC Firm No, 753 525 William Penn Place Suite 3700 Pittsburgh, PA 15219 Phone: (412) 471-1180 Fax: (4] 2) 471-9012 W AL-MART 335 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA KATHY G. PEACHEY and BARRY L. PEACHEY 11 Matthew Court Carlisle, P A 17013 CIVIL DIIVISION No. 03-419 Plaintiffs, JURY TRIAL DEMANDED Vs. W AL-MART STORES, INC., 6520 Carlisle Pike Mechanicsburg, P A 17055 W AL-MART STORES, INC. 702 S.W. Eighth Street Bentonville, AR 72716 Defendant. PRAECIPE TO WITHDRAW ARGUMENT OF DEFENDANT'S WAL-MART STORES. INC.'S MOTION FOR SUMMARY JUDGMENT AND NOW, comes Wal-Mart Stores, Inc., (hereinafter Wal-Mart), by and through its attorneys, Dell, Moser, Lane & Loughney, LLC and John A. Burgess, Esquire and files the following Praecipe to Withdraw Argument of Defendant's Wal.Mart's Motion for Summary Judgment stating as follows: L Counsel for Defendant Wal-Mart has filed a Motion for Summary Judgment pursuant to Pa. R.C. P. 1035 for failure to substantiate a claim. 2. Counsel for Defendant set this matter to be placed on oral argument list for February 2, 2005. WAL-MART335 3. Plaintiffs counsel has notified Counsel for Defendant of a scheduling conflict for February 2, 2005. WHEREFORE, counsel for this Defendant, Wal-Mart Stores, Inc, respectfully requests that this Honorable Court cancel an oral argument date for Defendant's Motion for Summary Judgment in the above-captioned matter set for February 2, 2005. Respectfully submitted, DELL MOSER LANE & LOUGHNEY, LLC By I!:Bmg~ ~!:: ounsel for Defendant /(8 W AL-ViART :135 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA KATHY G, PEACHEY and BARRY L. PEACHEY II Matthew Court Carlisle. PA 17013 CIVIL DIVISION No. 03-4]9 PI ai nti ffs, JURY TRIAL DEMANDED Vs. W AL-MART STORES, INC., 6520 Carlisle Pike Mechanicsburg. PA 17055 W AL-MART STORES, INC. 702 SW Eighth Street Bentonville, AR 72716 Defendant. ORDER AND NOW. on this _ day of , 2005, oral argument has been canceled for February 2, 2005 on this _ day of ,2005, J, c:- ..--, ~', ~.< ",," {.,'.\ -' - \Vi\L-MART :n5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA KATHY G. PEACHEY and BARRY L. PEACHEY II Matthew Court Carlisle. PA nOl3 CIVIL DIVISION No, 03-419 JURY TRIAL DEMANDED Plaintiffs, MOTION FOR SUMMARY JUDGMENT vs, WAL-MART STORES, INC., 6520 Carlisle Pike Mechanicsburg, PA 17055 Fi led on behalf of Defendant: Wal-Mart Stores, Inc. Counsel of Record for this Party: W AL-MART STORES, INC. 702 S,W, Eighth Street Bentonville. AR 72716 John A. Burgess, Esquire Pa. LD, No, 89216 Defendant. Sharon M, Menchyk, Esquire Pa, 1.0. No, 85559 DELL, MOSER, LANE & LOUGHNEY, LI_C Firm No, 753 525 William Penn Place Suite 3700 Pittsburgh, PA 15219 Phone: (412) 471-] ] 80 Fax: (412) 471-90]2 \Vat-Marl:ns No. 03-419 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KATHY G. PEACHEY and BARRY L. PEACHEY I 1 Matthew Court Carlisle, PA 17013 CIVIL DIVISION No, 03-419 Plaintiffs. JURY TRIAL DEMANDED Vs. W AL-MART STORES, INC., 6520 Carlisle Pike Mechanicsburg. PA 17055 W AL-MART STORES, INC. 702 S,W. Eighth Street Bentonville, AR 727 1 6 Defendant. MOTION FOR SUMMARY JUDGMENT AND NOW, comes Defendant, Wal-Mart Stores, Inc. (herein after "Wal-Mart"), by and through its attorneys Dell, Moser, Lane & Loughney, LLC and John A. Burgess, Esquire and files a its Motion for Summary Judgment stating as follows: 1. Statement or the Facts 1. The instant case arises out of a slip and fall accident which Plaintiff alleges occulTed on February 2, 2001 in the parking lot of the Mechanicsburg. Pennsylvania Wal-Mart. (Complaint, 9[9[7. 10), 2. The alleged accident occurred at approximately 6:50 p,m, as Plaintiff was walking from the Wal-Mmt store to her automobile. (Complaint, 'lI'lI7. 10), Wal-Mart])5 No_ 03-4l9 3. She had taken the same path to enter the Wal-Mart approximately twenty minutes earlier. (Complaint, 'lI5; Depo. Tr. of Kathy G. Peachey at 12 attached as Exhibit "A"). I 4. Plaintiff slipped on a smooth patch of ice near another parked car. (Depo. Tr. of Kathy G. Peachey at13-15 attached as Exhibit "A"). 5. Plaintiff did not trip on a hill or ridge of ice (rd.). 6. Plaintiff alleges that Wal-Mart was negligent in failing to remove the ice which allegedly caused Plaintiff's injury. (Complaint, ~[12). 7. Defendant Wal-Matl now moves for Summary Judgment asserting that it is entitled to judgment as a matter of law because the Plaintiff's claims are barred by the "hills and ridges" doctrine. Alternatively, Defendant Wal-Mart moves for Summary Judgment asserting that it did not have actual or constructive notice of the alleged presence ofthe ice. MOTION FOR SUMMARY JUDGMEJI/T BASED UPON THE HILLS AND RIDGES DOCTRINE 8. Under the Commonwealth of Pennsylvania law, a defendant's liability for injuries which a pedestrian sustains by falling on snow or ice is determined by application of the "hills and ridges" doctrine. 9. Importantly, to resist a motion for summary judgment based upon the "hills and ridges" defense, a plaintiff bears the burden of proving: (1) that snow and ice had accumulated on the sidewalk (or other surface) in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such a condition; and (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. Absent proof of all such facts, a plaintiff has no basis for recovery and judgment must be entered 1 Defendant will provide a complete copy of this transcript should the court desire one.. 2 Wal-Man135 No_ 03-4[9 in favor of the defendant landowner. Roland v. Kravco, Inc., 355 Pa.Super. 493, 513 A.2d 1029, 1032 (J986), alloc. denied 535 A.2d 1058. See also, Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 219 A.2d 676 (1966); Rinaldi v. Levine, 406 Pa. 74, 176 A.2d 632,625 (1962). 10. Plaintiff was deposed on September 16,2003. 1]. Plaintiff testified during her deposition that she recalled observing that the ice upon which she allegedly fell was smooth enough to reflect. (See Depo. Tr. of Kathy G. Peachey at 13-15 attached as Exhibit "A"). 12. As further evidence of the absence of hills or ridges of ice, Plaintiff testified that after she slipped, she fell and hit the back of her head. (See Depo. Tr. of Kathy G. Peachey at 13 of Exhibit "A"). 13. Accordingly, Plaintiff in the case at bar has failed to demonstrate that her fall was caused by the existence of ridges or elevations of ice or even that such ridges or elevations were present at thc time of the incident at issue in this suit. 14. Moreover, assuming, arguendo, that Plaintiff is able to produce some evidence that she was caused to fall as a result of a hill or ridge of ice, which she cannot, Plaintiff is Lmable to offer any evidence that this Defendant knew or should have known of the presence of thc ice. i5. Plaintiff testified during her deposition that she does not know how long the ice had been present prior to her fall. (See Depo. Tr. of Kathy G. Peachey at 16-17 of Exhibit "A"). ] 6. Moreover, there is no evidence that this Defendant knew of the alleged presence of the ice or that the ice had been present long enough to charge (his Defendant with constructive notice. 3 WaPvlarl:n') No_ O]-41l) 17. As such, no genuine issue of material fact exists that Plaintiff's claims are baHed by the hills and ridges doctrine and, therefore, this Defendant is entitled to summary judgment as a matter of law. MOTION FOR SUMMARY JUDGMENT BASED UPON LACK OF EVIDENCE THA T THIS DEFENDANT KNEW OR SHOULD HAVE KNOWN OF THE ALLEGED PRESENCE OF THE ICE ] 8. Assuming, arguendo, that the hills and ridges doctrine is not applicable in the instant case, which it is, this Defendant is nevertheless entitled to summary judgment as Plaintiff is unable to offer any evidence that this Defendant caused, knew or should have known of the alleged presence of the ice. 19. It is axiomatic that even if a plaintiff need not demonstrate hills and ridges, she still must prove actionable negligence on the part of the property owner or snow removal contractor. See Zeig v. Pittsburgh, 348 Pa. 155,34 A,2d 511 (1943); Williams v. Shultz, 429 Pa. 429,240 A.2d 812 (1968); Biernacki, 828 A.2d 1114 (Pa. Super. 2003). 20. In order for the Plaintiff to establish liability, this Defendant must have had actual notice of the alleged dangerous condition or the alleged dangerous condition must have existed for a sufficient length of time to charge with constructive notice. Id. 21. As set forth above, Plaintiff testified during her deposition that she does not know how long the ice was present on the parking lot prior to her faiL (See Depo. Tr. of Kathy G. Peachey 16-18 of Exhibit "A"). 22. Further, no evidence exists that this Defendant had actual knowledge of the alleged presence of the ice or that the ice had allegedly been present long enough to charge this Defendant with constructive notice of its presence. 4 Wal-Marz:r;s No_ 03-419 23. As such, Plaintiff is unable to offer sufficient evidence regarding this Defendant's alleged negligence. Therefore, no genuine issue of material fact exists and this Defendant is entitled to summary judgment as a matter of law. WHEREFORE, this Defendant respectfully requests that this Honorable Court grant its Motion for Summary Judgment and dismiss the instant case with prejudice. Respectfully submitted, DELL MOSER LANE & LOUGHNEY, LLC By ~4 }&~ It /)/P~: . A6 /}6hn A. Bllfgess, Esquire ICounsel for Defendant Wal-Mart Stores, Inc. 5 Wal-:\1arl.ns CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Wal-Mart Stores, lnc.'s Motion for Summary Judgment has been served by U.S. Mail, postage prepaid, this /1 'JIli'Vdl)2005, upon all counsel of record as follows: da y of Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 Counsellor Plaintiffs ~~ /I flrt:v /5kfj /1: hn A Burgess, Esquirl tI ----- r-; () ~ r ~ ,..11 { ) r<, , :'.., -..; PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and suhnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: please list the within matter far the ne>tt Argunent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) KATHY G. PEACHEY and BARRY L. PEACHEY, (Plaintiff) VB. WAL-MART STORES, INC. ( Defendant) No. 03 Civil 419 19 1. State matter to be argued (i.e., plaintiff' s rrotion for new trial. defendant' s demurrer to complaint. etc.): Motion for Summary Judgment 2. Identify =unsel who will argue case: (a) far plaintiff: l\ddress: Joseph D. Ruckley, Esquire 1237 Holly Pike Carlisle, PA 17013 (b) for defendant: Address: John A, Burgess, Esquire 525 William Penn Place; Suite 3700 Pittsburgh, PA 15219 3. I will notify all parties in writing within t'NO days that this case has been listed for argunent. Yes. 4. Argunent Court Date: March 23, 2005 Dated: 1/24/05 1~ f3~~~r::(itB '~:, .,'../'" ,- ~'~~. .,;1..... r--) -'. o ~.'i .-, -r:-r \-n~ ,."""trn <)C? .,.\ t~:.~~-\ () (') ",'?'otn ~,~:\ t;2 ',"\ '_~4 c::..-:> .....1 --------- KATHY G. PEACHEY and BARRY L. PEACHEY, PLAINTIFFS IN THE COURT OF CO MON PLEAS OF CUMBERLAND COUNT , PENNSYLVANIA V. WAL-MART STORES, INC., DEFENDANT 03-0419 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JU GMENT OPINION AND ORDER OF COURT Bayley, J., April 5, 2005:-- On February 2, 2001, at approximately 6:30 p.m., plaintiff, Ka y G. Peachey, fell in the parking lot of defendant Wal-Mart Stores, Inc. in Mechanicsbu g, Cumberland County. She fractured her pelvis for which she seeks damages in thi suit alleging the negligence of defendant. Plaintiff testified in a deposition that she p rked her car in the In Washington v. Baxter, 719 A2d 733 (Pa. 1998), the Supre e Court of parking lot and went into the store. As she was returning to her car, pproximately twenty minutes later, she slipped on a smooth patch of ice near anol er parked car. The ice was smooth and shiny enough to reflect the parking lot lights. There had been no snowfall for approximately two weeks prior to February 2, 2001. ai-Mart had a contractor plow the lot after the snowfall, and the snow was pushed i Plaintiff testified that at the time she fell the lot appeared generally clear and Pennsylvania set forth the standard for examining a motion for summ ry judgment. A court: [m]ust view the record in the light most favorable to the on-moving party, and all doubts as to the existence of a genuine issue of ate rial fact must be resolved against the moving party, Pennsylvania Stat University v. County of Centre, 532 Pa. 142, 143-145,615 A2d 303, 04 (1992). In order to withstand a motion for summary judgment, a no -moving party 03-0419 CIVIL TERM "must adduce sufficient evidence on an issue essentia to his case and on which he bears the burden of proof such that a jury co Id return a verdict in his favor. Failure to adduce this evidence establish s that there is no genuine issue of material fact and the moving party is ntitled to judgment as a matter of law." Erlrel v. Patriot-News Co., 544 Pa 93, 101-102, 674 A2d 1038, 1042 (1996). Citing Roland v. Kravco, Inc., 355 Pa. Super. 493 (1986), de endant argues that when injuries to a pedestrian are sustained by falling on snow a d ice it must appear that there was a dangerous condition due to ridges or elevati ns which were allowed to remain for an unreasonable length of time. The doctrine f "hills and ridges" is "a longstanding and well entrenched legal principle." Morin v. Tra eler's Rest Motel, Inc., 704 A2d 1085 (Pa. Super. 1997). However, in Tonik v. pex Garages, Inc., 442 Pa. 373 (1971), plaintiff fell on a crack in a public sidewalk here ice had formed. There had been no recent precipitation. The Supreme Cou of Pennsylvania, noting an exception to the "hills and ridges" doctrine, stated: [p]roof of 'hills and ridges' is necessary only when it app ars that the accident occurred at a time when general slippery condi ions prevailed in the community, which is not the case here. . . . Where, s here, a specific localized patch of ice exists on a sidewalk otherwise fre of ice and snow, the existence of 'hills and ridges' need not be establishe . See also Williams v. Shultz, 429 Pa. 429 (1968); Bacsick v. Barne ,234 Pa. Super. 616 (1975). In the case sub judice, plaintiff claims that she fell on a I calized patch of ice in a parking lot. It had not snowed for over two weeks. Therefore, the "hills and ridges" doctrine is not applicable. Even when proof of hills and ridges is not required it is still nee ssary for plaintiff to prove that defendant had actual or constructive notice of the existe ce of the hazard -2- '\ 03-0419 CIVIL TERM or a condition giving rise to the hazard. Bacsick v. Barnes, supra. That means that defendant knew of or reasonably should have known of the hazard. Swift v. Northeastern Hospital of Philadelphia, 690 A,2d 719 (Pa. Super. 997). Plaintiff testified in her deposition that she did not recall where she parked in the parking lot other than the store was to her left. When she came out she took th same path that she had come from before. It was dark. "It happened so fast. . . Be ore I knew it I was flat on the ground." She could not say even if she felt her feet slip, it happened so quickly, although she did not trip over anything. She got up right aw y, and saw the Q. Is this the only ice patch that you saw in the Wal Mart parking lot? A, When I went in I wasn't looking and when I cam out alii did was turn around and looked to see where I fell, what happe ed, so I didn't notice. I didn't look for any other ice. Q. Okay. That's what I meant too. You didn't come across any other ice patches? A, I didn't look for them but, no, I couldn't - - I can't because I wasn't looking for them. Q. Okay. But this is the only one you saw? A, Yes, because it was right where I fell. I mean, it as right in the general area, so I did not look in the rest of the parking It.. . . And: Q. Do you know how long that ice patch had been th re before you came upon it? A, I have no idea. I don't go there - - I didn't go ther very often. Q. Do you know what the source of whatever was fr en was? Do you know that I mean? A, No. I know typically around here they'll take parki snow up in one area. Q. Okay. Did you see any snow piled up in the area. A, I didn't look, to tell you the truth. I'm sure it was d rk when I got there and it was dark when I left and I wasn't - - I have n idea. I wasn't She did not reflection of the light on ice. She was embarrassed and hurried to h talk to anybody. She drove home not realizing the extent of her inju -3- \ 03-0419 CIVIL TERM looking. . . . Q. Do you know if this was frozen water as oppos to like frozen Pepsi or another liquid substance? A. I have no idea. I didn't go back and look at it. There is no evidence that defendant had actual knowledge of the existence of the ice on which plaintiff claims she fell. As to constructive notice, pi intiff argues in her brief: Wal-Mart had specific knowledge that melting snow in t e daylight hours could later turn to icy patches. Wal-Mart knew that its a ents piled mounds of snow in areas throughout its parking lot. W I-Mart knew that liquids were spilled in its parking lot. It is reasonable to expect that motorists traveling from communities which have experi need recent precipitation in the form of snow or ice, may have snow nd ice fall from their parked vehicles, which melt and then later turns to ice. During the winter months Wal-Mart knew that patches of ice could orm in its lot from a variety of causes other than general climatic events. owever, Wal- Mart admittedly only monitored the sidewalk near its sto e's entrance. Wal-Mart employees monitored the parking lot, not for p tches of ice, but only errant shopping carts, trash and broken glass. Re sonable care by its employees who monitored the parking lot could have easily identified icy spots and corrective action could have been taken. he practice and method of monitoring ice patches and distributing anti-s id or de-icing material utilized on Wal-Mart's front sidewalk could easil have been applied to the walkway in Wal-Mart's parking lot. There can be no question that Wal-Mart would ha e discovered the dangerous condition of the ice patches in its parking lot, s described by Mrs. Peachey, if it had exercised reasonable care. In fa t, the Store manager testified that it had many employees monitorin the parking lot, but such employees would neither report nor engage in r medial action if they had notice of ice or spilled liquid in the parking lot. The problem with this argument is, that while plaintiff has some heories, there is no evidence from which a jury could draw a reasonable inference as to what caused the isolated patch of ice that plaintiff claims she fell on. Although there ma have been piles of snow in the parking lot there is no evidence that the patch of ic formed as a -4- 03-0419 CIVIL TERM result of runoff from such a condition. Furthermore, there is no evid nce as to how long the patch of ice was present before plaintiff fell. Thus, plaintiff is un ble to present sufficient evidence whereby a jury could reasonably conclude that constructive notice of the condition which she claims caused her inju . Accordingly, the following order is entered. ORDER OF COURT AND NOW, this S~ day of April, 2005, the motion of d fendant for summary judgment, IS GRANTED. ;? By the/Court, Edgar B. Bayley, J. I Joseph D. Buckley, Esquire For Plaintiff " John A Burgess, Esquire 525 William Penn Place Suite 3700 Pittsburgh, PA 15219 For Defendant :sal -5- KATHY G. PEACHEY and BARRY L. PEACHEY, PLAINTIFFS : IN THE COURT OF COM ON PLEAS OF : CUMBERLAND COUNT, PENNSYLVANIA V. WAL-MART STORES, INC., DEFENDANT 03-0419 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JU MENT ORDER OF COURT AND NOW, this ~ day of April, 2005, the motion of d fendant for summary judgment, IS GRANTED. By the Court, Joseph D. Buckley, Esquire For Plaintiff ,I , John A. Burgess, Esquire 525 William Penn Place Suite 3700 Pittsburgh, PA 15219 For Defendant CDryv-.j ~kcL Lf-- ~ C:l' )k :sal ~ ;:? wS"4 ~~2 C~ ~t~r.: 9Q 62:: UJ dUJ u.~ ~ .3 If) co x "'" i::: z ~t~ ~; ::::1 .::';~~ .~,~ ~y ~jLQ -.,9CL :;r:: ;::J (.) <.0 I 00: "- ...: "" = = "" KATHY G. PEACHEY and BARRY L. PEACHEY, PLAINTIFFS V. WAL-MART STORES, INC., DEFENDANT IN THE COURT OF COM ON PLEAS OF CUMBERLAND COUNT , PENNSYLVANIA 03-0419 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JU GMENT ORDER OF COURT AND NOW, this ~ day of April, 2005, the motion of d fendant for summary judgment, IS GRANTED. Joseph D. Buckley, Esquire For Plaintiff I John A. Burgess, Esquire 525 William Penn Place Suite 3700 Pittsburgh, PA 15219 For Defendant :sal By the Court, ^. C~J ~..lz.vL Lf-- [; c') J~ fi; ~ w~:~ ~t;~O " ~1-- n:r=;: (:':>C.1 6g: '::':lUJ '-'-;;: \5 ..:!r I,J") co ~ -.t:> I 0<: ~ ..,., = = <N b z i~3~ ?j .:s* ;Jto :1.1(.1- ~-;,. :':5 <.) - KATHY G. PEACHEY and BARRY L. PEACHEY, PLAINTIFFS IN THE COURT OF CO MON PLEAS OF CUMBERLAND COUNT , PENNSYLVANIA V. WAL-MART STORES, INC., DEFENDANT 03-0419 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JU GMENT OPINION AND ORDER OF COURT Bayley, J., April 5, 2005:-- On February 2,2001, at approximately 6:30 p.m., plaintiff, Kat y G. Peachey, fell in the parking lot of defendant Wal-Mart Stores, Inc. in Mechanicsbu , Cumberland County. She fractured her pelvis for which she seeks damages in thi suit alleging the negligence of defendant. Plaintiff testified in a deposition that she pa ked her car in the parking lot and went into the store. As she was returning to her car, pproximately twenty minutes later, she slipped on a smooth patch of ice near anot er parked car. [m]ust view the record in the light most favorable to the n n-moving party, and all doubts as to the existence of a genuine issue of aterial fact must be resolved against the moving party, Pennsylvania Stat University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 04 (1992). In order to withstand a motion for summary judgment, a no -moving party A The ice was smooth and shiny enough to reflect the parking lot lights. There had been no snowfall for approximately two weeks prior to February 2, 2001. ai-Mart had a contractor plow the lot after the snowfall, and the snow was pushed in 0 piles. Plaintiff testified that at the time she fell the lot appeared generally clear and ry. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supre e Court of Pennsylvania set forth the standard for examining a motion for summ court: 03-0419 CIVIL TERM "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury co Id return a verdict in his favor. Failure to adduce this evidence establish that there is no genuine issue of material fact and the moving party is ntitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93, 101-102,674 A,2d 1038, 1042 (1996). Citing Roland v. Kravco, Inc., 355 Pa. Super. 493 (1986), de end ant argues that when injuries to a pedestrian are sustained by falling on snow a d ice it must appear that there was a dangerous condition due to ridges or elevati ns which were allowed to remain for an unreasonable length of time. The doctrine f "hills and ridges" is "a longstanding and well entrenched legal principle." Morin v. Tra eler's Rest Motel, Inc., 704 A,2d 1085 (Pa. Super. 1997). However, in Tonik v. pex Garages, Inc., 442 Pa. 373 (1971), plaintiff fell on a crack in a public sidewalk here ice had formed. There had been no recent precipitation. The Supreme Cou of Pennsylvania, noting an exception to the "hills and ridges" doctrine, stated: [p]roof of 'hills and ridges' is necessary only when it app ars that the accident occurred at a time when general slippery condi ions prevailed in the community, which is not the case here. . . . Where, s here, a specific localized patch of ice exists on a sidewalk otherwise fre of ice and snow, the existence of 'hills and ridges' need not be establishe . See also Williams v. Shultz, 429 Pa. 429 (1968); Bacsick v. Barne ,234 Pa. Super. 616 (1975). In the case sub judice, plaintiff claims that she fell on a I calized patch of ice in a parking lot It had not snowed for over two weeks. Therefore, the "hills and ridges" doctrine is not applicable. Even when proof of hills and ridges is not required it is still nec ssary for plaintiff to prove that defendant had actual or constructive notice of the existe ce of the hazard -2- .. 03-0419 CIVIL TERM or a condition giving rise to the hazard. Bacsick v. Barnes, supra. That means that defendant knew of or reasonably should have known of the hazard. Swift v. Northeastern Hospital of Philadelphia, 690 A.2d 719 (Pa. Super. 997). Plaintiff testified in her deposition that she did not recall where she parked in the parking lot other than the store was to her left When she came out she took th same path that she had come from before. It was dark. "It happened so fast. . . Be ore I knew it I was flat on the ground." She could not say even if she felt her feet slip, it appened so quickly, although she did not trip over anything. She got up right awa ,and saw the reflection of the light on ice. She was embarrassed and hurried to he car. She did not talk to anybody. She drove home not realizing the extent of her inju : Q. Is this the only ice patch that you saw in the Wal- art parking lot? A. When I went in I wasn't looking and when I came out alii did was turn around and looked to see where I fell, what happen d, so I didn't notice. I didn't look for any other ice. Q. Okay. That's what I meant too. You didn't come across any other ice patches? A. I didn't look for them but, no, I couldn't - - I can't because I wasn't looking for them. Q. Okay. But this is the only one you saw? A. Yes, because it was right where I fell. I mean, it as right in the general area, so I did not look in the rest of the parking It. . . And: Q. Do you know how long that ice patch had been th re before you came upon it? A. I have no idea. I don't go there - - I didn't go ther very often. Q. Do you know what the source of whatever was fro en was? Do you know that I mean? A. No. I know typically around here they'll take parki g lots and pile snow up in one area. Q. Okay. Did you see any snow piled up in the area. A. I didn't look, to tell you the truth. I'm sure it was d rk when I got there and it was dark when I left and I wasn't - - I have n idea. I wasn't -3- \ 03-0419 CIVIL TERM looking. . . . Q. Do you know if this was frozen water as oppose to like frozen Pepsi or another liquid substance? A. I have no idea. I didn't go back and look at it. There is no evidence that defendant had actual knowledge of he existence of the ice on which plaintiff claims she fell. As to constructive notice, pi intiff argues in her brief: Wal-Mart had specific knowledge that melting snow in t e daylight hours could later turn to icy patches. Wal-Mart knew that its a ents piled mounds of snow in areas throughout its parking lot. W I-Mart knew that liquids were spilled in its parking lot. It is reasonable to xpect that motorists traveling from communities which have experi nced recent precipitation in the form of snow or ice, may have snow nd ice fall from their parked vehicles, which melt and then later turns to ce. During the winter months Wal-Mart knew that patches of ice could orm in its lot from a variety of causes other than general climatic events. owever, Wal- Mart admittedly only monitored the sidewalk near its sto e's entrance. Wal-Mart employees monitored the parking lot, not for p tches of ice, but only errant shopping carls, trash and broken glass. Rea onable care by its employees who monitored the parking lot could have asily identified icy spots and corrective action could have been taken. T e practice and method of monitoring ice patches and distributing anti-s 'd or de-icing material utilized on Waf-Marl's front sidewalk could easil have been applied to the walkway in Wal-Marl's parking lot. There can be no question that Waf-Marl would ha e discovered the dangerous condition of the ice patches in its parking lot, s described by Mrs. Peachey, if it had exercised reasonable care. In fa ,the Store manager testified that it had many employees monitoring the parking lot, but such empfoyees would neither report nor engage in r medial action if they had notice of ice or spilled liquid in the parking lot. The problem with this argument is, that while plaintiff has some heories, there is no evidence from which a jury could draw a reasonable inference as to what caused the isolated patch of ice that plaintiff claims she fell on. Although there ma have been piles of snow in the parking lot there is no evidence that the patch of ic formed as a -4- 03-0419 CIVIL TERM result of runoff from such a condition. Furthermore, there is no evid nce as to how long the patch of ice was present before plaintiff fell. Thus, plaintiff is un ble to present sufficient evidence whereby a jury could reasonably conclude that constructive notice of the condition which she claims caused her inju . Accordingly, the following order is entered. ORDER OF COURT AND NOW, this .:$"'""", day of April, 2005, the motion of d fendant for summary judgment, IS GRANTED. /;/ By the yourt, ( I Joseph D. Buckley, Esquire For Plaintiff '-- John A Burgess, Esquire 525 William Penn Place Suite 3700 Pittsburgh, PA 15219 For Defendant :sal -5-