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HomeMy WebLinkAbout01-4503BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :NO. ~/-z/~Z~3 CIVIL TERM :JURY TRIAL DEMANDED 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 (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 and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint of 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 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA : :NO. CIVIL TERM :JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff, Brenda L. Martin, is an adult individual currently residing at 169 Meadow Drive, Shippensburg, Pennsylvania 17257. 2. Burger King of Shippensburg is a business operating at 38 Walnut Bottom Road, Shippensburg, Shippensburg Township, Cumberland County, Pennsylvania 17257. 3. At all times relevant hereto Defendant, Burger King of Shippensburg, was in the business of providing food products to the general public which are offered for sale at its business location in Shippensburg Township, Cumberland County, Pennsylvania referenced above. 4. On or about May 2, 2000 at approximately 7:30 P.M., Plaintiff, Brenda L. Martin did drive to the business location of the Defendant. 5. At that said time and place the Plaintiff, Brenda L. Martin, did drive her vehicle to the drive thru window of the said Burger King of Shippensburg to place an order for products offered for sale by the said Defendant Burger King. 6. At that said time and place the Plaintiff, Brenda L. Martin, did order from Defendant a Whopper, Jr. and a coffee which were delivered to her through the drive thru window and into her vehicle upon payment for the same. 7. After receiving the products the Plaintiff did open the plastic tear away 3iece covering the opening to insert creamers which were provided by the Defendant for use in the coffee. 8. The Plaintiff thereafter did pull away from the drive thru window in her vehicle and did enter traffic to return to her home by entering the Walnut Bottom Road towards the Borough of Shippensburg. 9. As the Plaintiff was proceeding in her vehicle the coffee inside of the coffee cup did spill onto her pants and immediately caused severe pain, burning and extreme discomfort. 10. As a result of the spilling of the coffee onto her pants the Plaintiff did receive serious and permanent injuries as more fully set forth below. COUNTI NEGLIGENCE 11. Paragraph 1-10 ara hereby incorporated by references as set forth in their full text. 12. Plaintiff's injuries were the direct and proximate result of the reckless and negligent conduct of defendant generally and specifically with regard to the following: A. The defective design of the lid to the coffee cup which was provided to the Plaintiff at Defendant's business location; B. The defective manufacturer and service of the product by the Defendant in that the coffee sold to the Plaintiff was excessively hot and provided in such a way as it was foreseeable that severe burning would occur when the coffee spilled; C. Burger King of Shippensburg was negligent in disregarding the foreseeable risk associated with providing excessively hot coffee to the Plaintiff in a package that was negligently designed and manufactured and which did, in fact, cause the injuries suffered by the Plaintiff. 13. As a direct and proximate result of the reckless, wanton, careless and negligent conduct of the Defendant, Plaintiff has suffered significant and permanent loss and injury including but not limited to: B. C. D. Past and future pain and suffering; Embarrassment and humiliation; Disfigurement; Loss of enjoyment of life and it's pleasure; F. G. H. Past and future incidental cost; Past and future mental anxiety; Past and future medical expenses; and Cost of this action. WHEREFORE, Plaintiff requests this Honorable Court to enter Judgment against Defendant in an amount in excess of $25,000.00 plus cost and interest. COUNT II BREACH OF WARRANTY 14. Paragraphs 1- 13 ara hereby incorporated by reference as set forth in their text. 15. The actions of the Defendant violated the Pennsylvania Uniform Commercial Code in that the product sold to the Plaintiff was manufactured and distributed by the Defendant in a fashion that it did not fit the ordinary purposes for which such products are used thereby violating the warranty of marketability. 16. The Defendant, by manufacturing, marketing, advertising and selling this product represented that it was safe for its intended use and by placing this defective product in the stream of commerce have breached the warrant of marketability. 17. As a result of the accident caused solely by the Defendant's breach of warranty, Plaintiff suffered severe injuries as more fully set forth below. 18. As a result of the accident caused solely by the Defendant's breach of warranty, Plaintiff has sustained or may sustain the following damages: B. C. D. E. F. G. Past and future pain and suffering; Past and future loss of life's enjoyment; Past and future incidental cost; Past and future mental anxieties; Past and future medical expenses; Embarrassment and humiliation; and Disfigurement WHEREFORE, Plaintiff requests this Honorable Court to enter judgment against Defendant in an amount in excess of $25,000.00 plus cost and interest. COUNT III PRODUCTS LIABILITY 19. Paragraph 1-18 above are hereby incorporated by reference as set forth in their full text. 20. At all times relevant to this action, Defendant Burger King of Shippensburg was engaged in the manufacture and sale of coffee which was sold in the Commonwealth of Pennsylvania for distribution to the general public as the ultimate consumers. 21. Defendant expected the coffee it sold by them to reach consumers or users in the condition in which it was sold. 22. At all times relevant hereto Plaintiff utilized the products sold to her for its intended use and was unaware of any defect in the product package or product itself or that any danger to herself or others could result by using said product. 23. At all times relevant hereto the coffee and cup in which it was sold to Plaintiff was in a defective condition and unreasonably dangerous to a user, consumer or others in that a defect in design existed. A condition was not observable by a consumer who, lacking the technical knowledge and skills required to measure the temperature of the liquid or control the covering of the cup in which the liquid was sold, relied on the duty of the Defendant to deliver the coffee at the time of sale in a condition fit for use for the purpose intended. A breach of the duty by the Defendant and the defective condition of the coffee and cup in which it was sold was the proximate cause of the injury sustained by the Plaintiff, Brenda L. Martin. 24. As a result of the accident caused solely by the Defendant's breach of duty and the defective condition of the coffee and cup, more fully described above, Plaintiff Brenda L. Martin, at all times relevant hereto received serious medical injuries as more fully outlined above. 25. As a result of the accident caused solely by the Defendant's creation of a defective product, Plaintiff has sustained or may sustain the following damages: A. Past and future pain and suffering; B. Past and future loss of life's enjoyment; C. Past and future incidental cost; D. Past and future mental anxiety; E. Past and future medical expenses; F. Embarrassment and humiliation; and G. Disfigurement WHEREFORE, Plaintiff requests this Honorable Court to enter judgment against the Defendant in an amount in excess of $25,000.00 plus cost and interest. COUNT IV STRICT LIABILITY 26. Paragraphs 1-25 are hereby incorporated by reference as if set forth in their full text. 27. The Defendant, Burger King of Shippensburg, breached its non-delegable duty to provide a non-defective product into the stream of commerce. 28. At all times relevant hereto Plaintiff was using the product for its intended and normal use and there were no substantial changes to the product from the time it left control of the Defendant until the time of the accident. 29. PlaintifFs injuries were the direct and proximate result of the conduct of the Defendant, Burger King of Shippensburg, and that the following defects were present in the product sold to the Plaintiff at said time and place: ^. The defective design and manufacture of the cup; B. The defective design and manufacture of the lid; C. The defective manufacture of the product coffee in the cup; D. The defective design and manufacture of the coffee and cup in such a way to prevent excessive injuries to the Plaintiff in the case of spillage which was foreseeable and normal; and E. The defective design and manufacture of the coffee and cup in such a way as to fail to avoid serious injury by occupants in vehicles in the case of a spill similar to the one which occurred herein. 30. The conditions referenced above were in existence at the time of the sale of the product to the Plaintiff and at the time the product left Defendant's control and these defects were a substantial factor in causing Plaintiffs injuries. 31. Defendant, Burger King of Shippensburg, failed in its duty as a guarantor of the safety of its product in that it failed to manufacture its coffee, cup and lid with every element necessary to make it safe for use by the consuming public and specifically by Plaintiff Brenda L. Martin. 32. The Defendant breached it's duty to warn, post sale of the defective design and manufacture of its coffee by failing to provide complete and accurate information to protect against the foreseeable risk of harm that this defect presented. 33. The Defendant is strictly liable for the defective design and manufacture of the coffee, cup and lid due to the occurrence of a foreseeable accidental spill, which were to occur during normal use. 34. As a result of the accident caused solely by the Defendant's breach of its duty as a manufacturer and producer of such products, Plaintiff has sustained or may sustain the following damages: A. Past and future pain and suffering; B. Past and future loss of life's enjoyment; C. Past and future incidental cost; D. Past and future mental anxiety; E. Past and future medical expenses; F. Embarrassment and humiliation; and G. Disfigurement WHEREFORE, Plaintiff requests this Honorable Court to enter judgment against the Defendant in an amount in excess of $25,000.00 plus costs and interest. COUNT V UNFAIR TRADE PRACTICES ACT 35. Paragraphs 1-34 above are hereby re-alleged and incorporated as if set forth in their full text. 36. The Defendant, at all times relevant hereto, was engaged in trade in commerce as defined in the Pennsylvania Unfair Trade Practices Act, 73 P.S. §201-1 et seq. 37. The Defendant was, at all times relevant hereto, engaged in unfair or deceptive acts or practices as set forth more fully in the said Unfair Trade Practices Act. 38. As a direct result of the actions of the Defendant, all in violation of the Unfair Trade Practices Act, the Plaintiff has suffered a loss in excess of $25,000.00 and, are therefore, is entitled, pursuant to the provisions of the Act, to an award of actual damages, treble damages, costs and reasonable attorney fees. WHEREFORE, for all the above reasons, the Plaintiff requests judgment in her favor in an amount in excess of $25,000.00 plus treble damages, plus costs and reasonable attorney fees. Respectfully Submitted TURO LAW OFFICES Carol L cingr'a~elli, Esqu~ ' 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff VERIFICATION ~ verify that the statements made in the foregoing Complaint are true and correct. understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn falsification to authorities, _~c,~ ~.0~ 0~, ,IcP)ate (.3 Brenda L. Martin CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Complaint upon Burger King of Shippensburg by Cumberland County Sheriff's Department on the day of ., 2001, addressed as follows: Burger King of Shippensburg 38 Walnut Bottom Road Shippensburg, PA 17257 TURO LAW OFFICES Carol L. cin'granelli, Es(~i 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for SHERIFF'S RETURN - REGULAR CASE NO: 2001-04503 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MARTIN BRENDA L VS BURGER KING RESTAUR3kNT DOUGLAS DONSEN , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BURGER KING RESTAUP~ANT the DEFENDANT , at 1915:00 HOURS, on the 31st day of July at 38 WALNUT BOTTOM RD , 2001 SHIPPENSBURG, PA 17257 by handing to DAMIEN TURNER, MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 12.35 Affidavit .00 Surcharge 10.00 .00 40.35 Sworn and Subscribed to before me this ~? day of ~rdthonot ary ' So Answers: R. Thomas Kline 08/01/2001 TURO LAW OFFICES De~ty'-~heri f f Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: secl(~.tthlaw.com Attorneys for Defendant: Burger King Restaurant BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED ,PRAECIPm FOR ENTRY OF APPEARANCF TO THE PROTHONOTARY: Please enter the appearance of Stephen E. Geduldig, Esquire, and Thomas, Thomas & Hafer, LLP, as attorneys for Defendant, Burger King Restaurant, in the above-captioned matter, reserving our right to answer or otherwise plead to Plaintiff's Complaint. :139817.1 By: Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Attorney I.D. No. 43530 Attorneys for Defendant, BURGER KING RESTAURANT CERTIFICATE OF SERVI~m I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the ~ day of August, 2001, on all counsel of record as follows: Carol L. Cingranelli, Esquire TU1RO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17013 Attorneys for Plaintiff :139819.1 THOI4AS, THOMAS & HAFER, LLP Stephen E. Geduldig, Esquire BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2001, upon consideration of Defendant's Preliminary Objections to Plaintiff's Complaint in the Nature of a Motion to Strike or Alternatively in the Nature of a Motion for More Specific Pleading, it is hereby ORDERED that Counts V and II of Plaintiff's Complaint are STRICKEN. Alternatively, Plaintiff is ORDERED to plead with specificity the material facts on which she bases her claims set forth in Counts V and II of her Complaint. BY THE COURT, Distribution List: Attorney for Plaintiff: Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17013 Attorney for Defendant: Stephen E. Geduldig, Esquire THOMAS, THOMAS & HAFER Post Office Box 999 Harrisburg, Pennsylvania 17108-0999 Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFt=R, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: se_~i_~aw, co m Attorneys for Defendant: Burger King Restaurant BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant : NO. 01-4503 CIVIL TERM : JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DEFENDANT'S PRELIMINARY OBJECTIONS ~- TO PLAINTIFF'S COMPLAINT IN THE NATURE OF A ~i MOTION TO STRIKE, OR ALTERNATIVELY . ] :~ IN THE NATURE OF A MOTION FOR A MORE SPECIFIC PLEADinG ..~ Defendant Burger King Restaurant, attorneys, Objections Rule of Civil Procedure 1028 following: 1. Plaintiff filed a July 31, coffee she restaurant. attached hereto as Exhibit "A". 2. Count V of Plaintiff's Complaint alleges Defendant by and through its Thomas, Thomas & Hafer, LLP, hereby files Preliminary to Plaintiff's Complaint pursuant to Pennsylvania and in support thereof avers the Complaint in this matter on or about 2001, alleging that she sustained burns as a result of spilled on herself while leaving from Defendant's A true and correct copy of Plaintiff's Complaint is that violated the Pennsylvania Unfair Trade Practices Act. 3. To set forth a cause of action under this Act, Plaintiff must establish that Defendant made a false representation, that the false representation was deceiving or had a tendency to deceive, and that the representation was likely to make a difference in the purchasing decision. Fay v. Erie Insurance Group, 1999 Pa. Super. 7, 723 A.2d 712 (1999). 4. Plaintiff's Complaint fails to aver that Defendant made a false representation, how the alleged false representation was deceptive, and that the alleged false representation made a difference in Plaintiff's purchasing decision. 5. Plaintiff merely avers, in boilerplate form, that Defendant "engaged in unfair or deceptive acts or practices as set forth more fully in the said Unfair Trade Practices Act." See paragraph 37 of Plaintiff's Complaint. 6. The overall purpose of the Unfair Trade Practices Act is to prevent fraud. Commonwealth v. Monumental Properties, Inc., et al., 459 Pa. 450, 329 A.2d 812 (1974). 7. Rule 1019 (b) of the Pennsylvania Rules of Civil Procedure provides that "averments of fraud or mistake shall be averred with particularity." Pa.R.C.P. 1019(b). 8. Plaintiff fails to plead with the required specificity a claim under the Unfair Trade Practices Act. Lindstrom v. Pennswood Village, 417 Pa. Super. 495, 612 A.2d 1048 (1992). 9. Defendant's formulation of a meaningful defense depends on it knowing the details concerning the alleged false representation to Plaintiff. 10. Because of Plaintiff's failure to plead with any specificity how Defendant allegedly made a false representation to Plaintiff, Defendant is defense to the Plaintiff's thereby. 11. Plaintiff also unable to plead to or formulate a allegations and is prejudiced alleges a Breach of Warranty claim against Defendant in Count II of her Complaint. 12. To satisfy the pleading requirements for a Breach of Warranty claim, the Complaint should disclose the nature of the warranty, set forth its terms, state when, by whom and by authority it was made, whether it was written or oral, its breach, and the damages resulting therefrom, clearly and explicitly, and in terms neither vague nor evasive. Fishbein v. Corel Corp., 29 Pa. D. & C. 4th 289 (1996) (citing Pennsylvania Law Encyclopedia, Vol. 32, Sales ~294.) 13. Plaintiff's Complaint only avers in boilerplate form that the product "did not fit the ordinary purposes for which such products are used thereby violating the warranty of marketability" and that Defendant represented that the product was safe for its intended use by placing the alleged defective product in the stream of commerce. Plaintiff's Complaint. 14. The mere allegation that pleading practice warranty. 15. itself, Complaint fails to alleged warranty. See paragraphs 15 and 16 of a purchased product was defective is inadequate and violates Pennsylvania's fact- in a complaint alleging a breach of implied Toth v. Glessner, 16 D. & C. 3d 338 (1979). Keeping in mind that Plaintiff alleges that the as well as the container, was defective, Plaintiff's aver which product allegedly violated any 16. Plaintiff's Complaint fails to plead with the necessary specificity required to allow Defendant to formulate proper defense against Plaintiff's Breach of Warranty claim. WHEREFORE, the Defendant, Burger King, respectfully requests that this Honorable Court grant the Preliminary Objections of Defendant and strike Count V and Count II of or order her to specifically plead, in Respectfully submitted, THOMAS, By: THOMAS & H~--~]~R, LLP coffee Plaintiff's Complaint, the above matter. :141320.1 STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendant, BURGER KING I~ESTA~ 1~: 23. 717530~ ~n:erpr 9£e$ 1 71~ BRENDA L. MARTIN, Plain[iff BURGER KING RESTAURANT, Defendanl :IN T~'IE COURT OF COMMON Pm'EA$ OF :CUMBERLAND COUNT~, PENNSYLVANIA iNO. ?/- ~'J"~lVl L TER, M .. ;JUR' TRIAL DEMANDED NOTI YOU HAVE BEEN SUED IN COURT. set fo~h in the following pages, you must tak Complaint and Notice are sewed, by enteriri~ attorney and fiJing in writing with the Court your forth against you. You are warned that if you ~ you and a judgment may be entered against; any money claimed In the Complaint of for a Plaintiff, You may lose money or property or c YOU SHOULD TAKE THIS PAPER TO NOT HAVE A LAWYER OR CANNOT AFFO OFFICE SET FORTH BELOW TO FIND OU' you wish to defend against the daims action within twenly (20) day-, after this written appearance personally or by (lefenses or objections to the claims se[ ail to do so the case may proceed without ,ou by the Court without further notice for my other claim or relief requested by the {her rights irnpottal~t lo you. 'YOUR LAWYER AT ONCE. IF YOU DO ~,D ONE. GO TO OR TELEPHONE THE NHERE YOU CAN GET LEGAL HELP. Cumberland CountylBar AasoclaLIon 2 Liberty Agenus C-~trge. P/~ 17ol.3 (717) 24918166 AIJG-0?=-20c~l 10:14 ~777~21523@ 97Y~ P. 0S A~g-Ot-01 Oi:ZiP Ruzzo~9 £nt~rprises ! 717 7G3 717~ up.o3 BRENDA L. MARTIN, Plaintiff BURGER KING RESTAUI:[ANT, Defendant COMPh 1. Plaintiff. Brenda L. Martin, is an ~ Meadow Drive, Shippensburg, Pennsylvania 1 2. Burger King of Shlppenst~J~g is RoaQ, Shippensbur§, Shippensburg Townshi 17257. At all times teleran{ hereto De in the business of providing focx:l produ~ to tf sale at its business location in Shlppensburg Pennsylvania referenced above. :IN THIE COURT OF COMMON PLEAS OF :CU~ tERLAND COUNTY, PENNSYLVANIA : :NO. CIVIL TERM :JUl= TRIAL DEMANDED JNT dult individual cun'ently residing at 189 '257. ~uslness operating st 38 Walnut Bottom Cumberland County, Pennsylvania rlant, Burger King of Shippensburg, wes e general public which are offered for 3wnship, Cumberland County. 4. On or about May 2, 2000 at appe )x~mately 7:30 P.M.. Plaintiff, Brenda L. Martin did drive to the business Ioc~;;on of the Defendant. 5. At that said time end place the Plaintiff, Brenda L Ma~n, did drive her vehicle to the drive thn~ window of the said BuYer King of Shippensburg to place an order for produc~ offered for ,,ale by' the said [~lefendant Burger King. 6. At that said lime and place the P~alntlff, Brenda L. Me~n, did order from Derendanl a Whopper, Jr. and a coffee which 1Yore delivered to her through the drive thru window and into her vehicle upon paymar 7. After receiving the products the F · g the opening to insert creamers ~ use in the coffee. 8. The Plaintiff thereafter did pull ay vehicle and did enter traffic to return to her ho~ towards the Borough of Shippar~sburg. for the same. laintiff did open the plastic t~ar away Yhlch were provided by the Defendant for 'ay from the drive thru window In her le by entering the Walnut Bottom Road AUG-06-2081 10:14 877762623~ 9?~ P.O~ A~"g-01-01 01:21P Russol~ Fn~m?prises I 717 7G~ 7172 P 04 9. As the Plaintiff wes prooeeding i coffee cup did ~pill onto her pants and irnmed extreme discomforL 10. As a resuff of the spilling of the t receive serious and pen'nanent Injuries as mo COUN NEGLIGI 11. full text. 12. Paragraph 1-10 am hereby incor Pfalnliff's Injuries were the her vehicle the coffee inside o! ately c-used severe pain, burning and 0flee onto h~ pan~ ~ Plain~ did · fully set fo~ be~W. NCE ~mt~ by referents as set ~ a~ pmxima~ reset of t~ ~less and negligent conduct of defendant generally and ~pedfically with to the following: A. The defective design of the lid to the coffee cup which was provided to the Plaintiff at Oefenda~lt's business location; The defective manufactur Defendant in that the co~ and provided in such a wi burning would occur whet Bu~ger. King of ~hippensb fores~able risk associate sr and service of the product by the ~e sold to the Plaintiff was excessively hot y as ~ was foreseeable thai severe ,ihs coffee spilled; ,r9 was negligent in disregarding the ~ wffh providing excessively hot coffee to 13.¸ negligent conduct of the Defendant, Plaintiff h~'m suffered signilicent and and injury including but n~ limited to: A. Past and future pain and ~ ~,ffering; B. Embarrassment and hum lation; C. Disfigurement; D. the Plaintiff In a package hat was negligently designed and manufactured and which Vd, in faCt, cause the injuries suffered by the Plaintiff. ~ As a direct and proximate result 3fthe reckless, wanton, careless and permanent loss Loss of enjoyment of life ~nd it's pleasure; AUG-06-2081 18:14 8??7626238 97% P.O? Au'g-O1.-O1 01:21P Run.eli ~nterprises 1 717 76~ 7172 ~.OS Pa; an~ ~ Inc~an~ c, ogt; Eo F. Past and future mental a~:le~y; G. Past ancl ~uture medical ~(~penses; H. Cost of Ihls action. WHEREFORE, Plaintiff r~quests this I~ in an amount in excess of $25.000 ,Co4 14. Paragraphs 1- 13 are hereby text. 15. Commercial Code in that the product ~old to U distributed by the Defendant in a fashion that i which such IOroducts are used thereby violatin 16. The Defendant, by manufecbJrin and 0noreble Court to enter dudg~lent against OO plus coat and interest. INT II =rix)rated by reference es sst forth in their The actions of the Del'endant riveted the Pen neylvanla Uniform ,e Plaintiff was manufactured and ; did not fit the orcllnary purposes for the warranty of marketabilily. , marketing, adverUs~ng and selling this =rocluc! represented that it was safe for ~.s tnt{ nded use and by placing this defective in be stream of commerce have brea~ ~ed the warrant of marketability. 17. As a result of the accident cause,~l solely by the Defendant's breach of wan'anty, Plaintiff suffered severe injuries aa r ~ore fully set forth below. 18, As a result of the accident caus~ ~olely by the Defendant's breach of warranty, Plaintiff has sustalnecl or may m,r.~i~ the following darn~es: A. Past and future pain and ~uffering; C. D. E, F. G. Past and futura IDea of lif~'~ enjoyment; Past and futu re. indden tall cost; Past and future mental an~iefJes; Past and future medical eJ*penses; Embarrassment and bum'~Jation; and DisRg,rement Aug-o~.-ol o~:zzP Russo31 Enterprises 1 717 763 7172 P 06 WHEREFORE. Plaintiff ~ requests Utls 3norabJe Court to enter judgment against Defendant in an amount in excess of $25,000I )0 plus cost and interest. .PRODUCT I LIABILI.TY 19. Paragraph 1-18 above are heret their fuji text, 20. At all times relevant Io this act~o~ was engaged in the manufacture end sale of Commonwealth of Pennsylvania for distributi~ consumers. 21. Defendant expected the coffee incorporated by ref'~'renc~ aS set forth Defendant Buyer ~ng ~ Shippenabu~ Dfl~ which was sold in ~e [o ~e ge~ral public as the ultimate ~ld ~ t~m ~o ma~ ~sumem or users in the condition in which i! was sold, j 22. At ell times relevant hereto Plaintiff utili~'ed the products sold to her for its intended uSe and was unaware of any defect ill the product package or product Itself or I ' that any danger to herself or others cou d regret by using said product. 23. At aB times r~evant hereto the coffee and cup in which it was sold to Plaintiff was in a defective ~ondition and unrei or others in that a defect in design existed. A consumer who, lacldng the technical knowladc temperature of the liquid or ~',ntro{ the cov~dr relied on the duty of the Defendant. to deliver ! f~ for use for the purpoee intended. A breech defective condition of the coffee and cup in w~ of the injury sustaineKI by the Plaintil'f, Brenda 24. AS a result of the accident caus~ duty and the defective c~ndition of tho coffee PJaintiR Brenda L. Martin. et afl times mJavent es more fully outlined above. eonably dangerous to e user, ~onsutner =~ndition was not observable by a e and sldlls required to measure Ute of Ihe cup in which the liquid was sold, e coffee at the time of s~e in a Ethe du~ by the De~e~ant and ~h E was sold wes the p~xima~ ~use .. Ms,in. t ~lely by ~e Defendant's bme~ of nd ~p, more ~lly described a~ve, tere~ re~ seri~s medical J~uries RUS-86-2081 18:14 8?7?626238 97~ P, 89 Aug-O~-01 01:22P Russoli 25. As a result of the accident taus; ~ot'ectiv® product Plaint~ has su=~alned or r B. C. D. E. F. d solely by the Defendant's creation of a ly sustain the following dam;egos: Past and future pein and fauffering: Past and future loss of life Past and future ,ncidenbal Pest and future mental ar Past and fulute medical ~ Embarrassment and hurt Diaflgumrneflt enjoyment; Cost; fiery; ipenses; Iletion; and WHEREFORE, P~aintiff reque~ this Defendant in an amoun! In excess of $25 COUN STRICT 26. Paragraphs 1-25 are hereby in[ their ful] text. 27. The Defendant, Burger Kin;; of S duty Io prov(c~e a non-defective produCt into th 28. At all times relevant hereto Plain and normal use and there were no substantial left control of the Defendant unt~ the time of th 29. Plaintiff's injudes were the direct Defendant, Burger King of Shippensburg, and the product sold to the Plaintiff at said time ar~ A. The defective design and ~norable Court to enter judgment against 00.00 plus cost and Interest. 'IV =orated by reference ae if'set forth ippensburg, breached fie non-delegable ~ stream of commerce. ~wa$ using ~he product for its intended Changes to the product from Ihs time it ~ accident. Ind proximate result of I~e Conduct of l~e hal; the following defects were pre, ant in pJac. e: ttanufac~ure of the cuD; B. The defective design and l~anufacture of Ihs lid: C. The defective manufacture; of the product coffee in the cup; O. The defective design and. nanufacture of the coffee and Cup in such a way to prevent ex( ~ssive injuries to the Plaintiff in the case ol spillage whJr. J~ wes for ~eeble end normal; and AUG-8~-2001 18:14 877762~2~8 97% P.10 AW§=01-01 01:22P Rus$ogi Enterprises 1 717 763 7172 P.OB E. The defective daalgn andlmanufacture of the coffee and cup in such a way ss ~o fall to a~Oid~ serious injury by occupents in vehicles in the case of a ~p{ll similar to the one which occun'ed herein. 30, The conditions referenced abov ~, w~re in existence at th.e, time of the sale of the pn>duct t~ the Plaintiff and et Its time tJ le woduct left Defendant s control and these defects were a subst,,ntial fa=tar In oau lng Plaintiff's injuries. 31. Defendant, Bu~ger King of Shipl ensburg, failed in its duty es a guarantor of the safety of its product in that it failed I~ m~ inufacture its coffee, cup arid lid with eveP/element necessary to make it safe I'or u le by [he consuming public and specifically by Plaintiff Brenda L. Marlin. 32, The Defendant breached ifs dut I to warn. post sale of the defective design and manufacture of Its coffee by falling to provide complete and accurate Information to protect against the foreseeable risk of harm that this defect presented. 33. The Defendant is strictly liable fi: t' the defective design and manufacture of the coffee, cup and lid due to the occurrence ~ a foreseeable accidental spill, which were to occur dudng normal use. 34. As a result of the accident caus~ dUty as a manufacturer and producer of such sustain the following clamages: B. C. [3. E. F. G. Past and futura pein and Past and future lass o1: lift Past and ~utura incidents, Past end future mental a~ Past and future medical e Embarrassment ~nd huml Disfigu r®ment WHEREFORE, Plaintiff mcluests this H the Defendant tn an amount in excess of $25,~ solely by the Defendant's breach of its 3r0ducts, Plaintiff has sustained or may uffering: enjoyment; ooet; [lation; and )notable Court te enter judgment against ~0.00 plus costs and Interest. RUG-06-2001 10:14 8797626238 98Z P.11 /~u.g-O~'-Ol 01:23P Russoqi Enterp~'l~,es 1 717 763 7172 P.O9 cou.kv UNFAIR TRADE PI~CTICES ACT 35. Pars§raph= 1-34 above are he41b¥ re.alleged and In~mted ~h in ~elr full tern. 36. The ~ant. at all times ~e~nt hem~, w~ engag~ in ~mmer~ as de, ned in ~e ;enns~nla Un'ir Trade Pm~ A~, 73 P.S. {201-1 sea. 37. The De~endant was, at =11 ~ relevant hereto, engag~ In unfair or de~p~e a=ts or pr=~S ~ s~ ~ ~e f~lly in ~e said Unfair Tm~ ~i~s A~. ~. ~ a ~lre= msu~ ~ ~e a~ons ~ ~e De~ant, all in vi~on ~ me A=, the Ptain~ has s~er~ a loss in ex.ss of $25~000.00 an~, Unfair Pmct~es a~ the~fore. ~ entitled, pumuant ~ ~e prov~ions of ~e Act, to en award of actual damages, treble damages. ~sts e~ ~asona~le affomey fees. WHEREFORE, for all the abova r~so~, the Plain~ff r~uests Judgment in her favor in an amount in ~ss ~ ~5,0~.00 pl~s treble damages, ptus ~sts and reasenable a~omey fees. DaW / ' Resr~ TURC ct~lly Submitted , LAW OFFICES Carol IL. Cing~anelli, Esqu~e 28 Sd~th Pitt Street C, aflls~e, PA 17013 (717) ~45-g668 Att~r~y for Plalnt~F AUG-OG-2001 10:~4 879762~2~ 9?% P.12 Au~-OI~01 01:Z~P Russol9 EnteT-p~'9~e$ I 717 753 7172 P.i0 VERIFIC/~TION I verify thru lhe ~alement$ m~l~ In 1}~ foregoing Complaint ~re u'ue and c=rrecl. I undemtend ti'tat falee statemenfs h,et~t~ a~ made ,subject to the perlaltie~ of 18 Pa.C.S. §4904 relating to unaworn falsifica/~on[to author, ties. ~ato £3 RIJ5-06-200% 18:14 8???626238 97~ P. i3 CER?IFIC~TE IF ~ERV. lCI= heret)y certify that I served a true Burger K~ng of Shippensbung by Cumberle ~ of . .2001. mhd correct copy of the Complaint upon Rd County Sheriffs Department on the ~ddre$$ed as Burger King of ~ippensburg 38 Walnut Bo~lom Road Shippenmburg~ PA t ?257 TUR, Cst 28 $, Carl (717 AttoJ LAW OFFICES CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the ~ day of August, 2001, on all counsel of record as follows: Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17013 Attorneys for Plaintiff THOMAS, THOMAS & HAFER, LLP Stephen E. Geduldig, E~'quire :139819.1 PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) BRENDA L. MARTIN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 01-4503 CIVIL TERM BURGER KING RESTAURANT, : Defendant : JURY TRIAL DEMANDED State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiff's Complaint 2. Identify counsel who will argue case: (a) for plaintiff: Address: Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17013 (b) for defendant: Address: Stephen E. Geduldig, Esquire THOMAS, THOMAS & HAFER, LLP 305 N. Front St., P.O. Box 999 Harrisburg, PA 17108-0999 I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 24, 2001 Dated: August 30, 2001 Attorney for Defendant, Burger King :141932.1 Restaurant CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the ~ day of August, 2001, on all counsel of record as follows: Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17013 Attorneys for Plaintiff THOMAS, THOMAS & HAFER, LLP Stephen E. Geduldig, E~uire :139819.1 Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: se.q~,,tthlaw.com Attorneys for Defendant: Burger King Restaurant BRENDA L. MARTIN, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-4503 CIVIL TERM BURGER KING RESTAURANT, Defendant V. Burger King Corporation, Douwe Egberts Coffee Service, Inc., and Douwe Egberts Superior Company, Additional Defendants JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS TO JOIN ADDITIONAL DEFENDANTS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action to Additional Defendants to be served by deputized shedff at the following addresses: Douwe Egberts Coffee Service, Inc. c/o C.T. Corporation Systems 1515 Market Street Suite 1210 Philadelphia, PA 19102 (by Deputized Shedff) Burger King Corporation c/o C.T. Corporation Systems 1515 Market Street Suite 1210 Philadelphia, PA 19102 (by Deputized Sheriff) Douwe Egberts Superior Company c/o C.T. Corporation Systems 1515 Market Street Suite 1210 Philadelphia, PA 19102 (by Deputized Shedff) Date: Thomas, Thomas & Hafer, LLP STEPHEN E. GEDULDIG, Esc[~ire I.D. Number: 43530 305 N. Front St., 6th FI. P.O. Box 999 Harrisburg, PA 17108 (717) 237-7141 CERTIFICATE OF SERVICE I hereby certify that a true and correc~ copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the { 5 h'- day of October, 2001, on all counsel of record as follows: Attorneys for Plaintiff: Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17013 Additional Defendants: Douwe Egberts Coffee Service, Inc c/o C.T. Corporation Systems 1515 Market Street Suite 1210 Philadelphia, PA 19102 Douwe Egberts Superior Company cio C.T. Corporation Systems 1515 Market Street Suite 1210 Philadelphia, PA 19102 Burger King Corporation c/o C.T. Corporation Systems 1515 Market Street Suite 1210 Philadelphia, PA 19102 THOMAS, THOMAS & HAFER, LLP Stephen E. Geduldig, Esquire :144635.1 Cumberland County, ss: The Commonwealth of Pennsylvania to Bur_~er KJ~9 e'nrnorat~on, l~n~ V,21~r+e (~Na~e o~ A&litiorml Defendant) Coffee Service, Inc., and Douwe Egberts Superior Ccmpany You are notified that ~ur~er King Restaurant (Name (s) of Defendant (s) ) has (1-me~) joined you as an additional defendant in this action, which you are re- quired to defend. Date. October 1, 2001 Curtis R. Lonq, Prothonotary Douwe Egberts Coffee Service, Inc. c/o C.T. Corporation Syste~ 1515 Market Street, Suite 1210 Philadelphia, PA 19102 Douwe Egberts Superior C~%pany c/o C.T. Corporation Systems 1515 Market Street, Suite 1210 Philadelphia, PA 19102 BurGer King Corporation c/o C.T. Corporation Systems 1515 Market Street, Suite 1210 Philadelphia, PA 19102 SWEENEY & SHEEHAN, P.C. By: Guy Mercogliano, Esquire Identification No. 39766 1515 Market Street, 19th Floor Philadelphia, PA 19102 (215) 563-9811 Attorney for: Defendant, Burger King Corporation BRENDA L. MARTIN Plaintiff BURGER KING RESTAURANT Defendant BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC. and DOUWE EGBERTS SUPERIOR COMPANY Additional Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Additional Defendant, Burger King Corporation, in regard to the above-captioned matter. SWEENEY/~H~/// By: Gu~erco~gli, i~° Attorney for Additional Defendant, Burger King Corporation DATE: Law BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant BURGER KING CORPORATION, et al Additional Defendants :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :NO.C)I-zl~-o.~ CIVIL TERM :JURY TRIAL DEMANDED OBJECTIONS TO SUBPOENA PURSUANT TO RULE 4009.21 The Plaintiff, Brenda L. Marlin, objects to the proposed subpoenas that are attached herein for the following reasons: 1. Plaintiff objects to the subpoena proposed to be served on Henry Wehman, M.D., addressed as follows: Stevens Center, 33 State Avenue, Carlisle, PA 17013. Said subpoena is objectionable as the materials sought are irrelevant to the subject matter of the pending litigation; the materials are not reasonably calculated to lead to discovery of admissible evidence; the discovery of said materials will cause unreasonable annoyance and the invasion of personal, private matters which are irrelevant to these proceedings. 2. Plaintiff objects to the subpoena proposed to be served on Ruth Kovacs, M.D., addressed as follows: Stevens Center, 33 State Avenue, Carlisle, PA 17013. Said subpoena is objectionable as the materials sought are irrelevant to the subject matter of the pending litigation; the materials are not reasonably calculated to lead to discovery of admissible evidence; the discovery of said materials will cause unreasonable annoyance and the invasion of personal, private matters which are irrelevant to these proceedings. Date TURO LAW OFFICES car~)l L. Cingra e ', q ' 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff BRENDA L. MARTIN, Plaintiff Vo BURGER KING RESTAURANT, Defendant BURGER KING CORPORATION, et al. : Additional Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED TO: Records Custodian Henry Wehman, M.D. Stevens Center 33 State Avenue Carlisle, PA 17013 (717) 243-6033 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all records, reDorts, correspondence, notes, memos and dia;Inostic studies reclardina:Brenda L. Martin; Date of Birth 8130152; S.S. No.: 176- 46-6114, at Thomas, Thomas & Hafer, LLP, P.O. Box 999, Harrisbur.q, PA 17108-0999 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request ~ the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the- party serving this subpoen'~'may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT ID~: 43530 Attorney for Defendant Burger King Restaurant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy : 148242.5 BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant BURGER KING CORPORATION, et al. : Additional Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED TO: Records Custodian Ruth Kovacs, M.D. Stevens Center 33 State Avenue Carlisle, PA 17013 (717) 243-6033 Within twenty (20) flays after service of this subpoena, you are ordered by the court to produce the following documents or things: Comolete cooies of any and all records, reports, correspondence, notes, memos an, I d a¢;nostic studies reqardina:Brenda L. Martin; Date of Birth 8130152; S.S. No.: 176 46-6114, at Thomas, Thomas & Haler, LLP, P.O. Box g@g, Haf, i=burq, PA 17108-099:i You may deliver or mall legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request st the address listed above, You have the Hght to seek in advance, the reasonable cost of preparing the copies or produdng the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the* party serving this subpoen"~msy seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-71 lg SUPREME COURT ID~: 43530 Attorney for Defendant Burger King Restaurant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy : 148242.6 CERTIFICATE OF SERVlCF I hereby certify that I served a true and cor_r~ect copy of the aforegoing Objections to Subpoenas on the _,~_~_'"~ay of November, 2001 by depositing the same in the United State Mail, postage prepaid, addressed as follows: Stephen E. Geduldig, Esquire Thomas, Thomas & Haler 305 N. Front Street, 6th Floor P. O. Box 999 Harrisburg, PA 17108-0999 Guy Mercogliano, Esquire Sweeney & Sheehan 19th Floor 1515 Market Street Philadelphia-1983, PA 19102 Robert A. Lerman, Esquire Griffith, Strickler, Lerman Solymos & Calkins 110 South Northern Way York, PA 17402-3737 TURO LAW OFFICES Col L Cmgranelh,~squ~re 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Brenda Martin Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: se.q(~tthlaw.com Attorneys for Defendant: Burger King Restaurant BRENDA L. MARTIN, Plaintiff Vo BURGER KING RESTAURANT, Defendant BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC., and DOUWE EGBERTS SUPERIOR COMPANY, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Plaintiff and counsel: YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. Respectfully submitted, : 149004.2 THOMAS, THOMAS & HAFER, LLP By: ~ STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendant, Bb-RGER KING RESTAb-RANT Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 Nor[h Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: se.q~,tthlaw.com Attorneys for Defendant: Bu~ger King Restaurant BRENDA L. MARTIN, Plaintiff Vo BURGER KING RESTAURANT, Defendant Vo BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC., and DOUWE EGBERTS SUPERIOR COMPANY, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANT, BURGER KING RESTAURANT, TO PLAINTIFF'S COMPLAINT King undersigned counsel, Thomas & Hafer, LLP, AND NOW, Restaurant" throughout ("Defendant"), Stephen E. and files Matter comes Defendant, wrongfully identified as "Burger by and through its Geduldig, Esquire, of Thomas, the following Answer and New to Plaintiff's Complaint: 1. Admitted that Brenda L. Martin is an adult individual. The remaining averments of paragraph 1 of Plaintiff's Complaint are denied pursuant to Pa. R.C.P. 1029(e) . 2. Denied. There is no such thing as "Burger King of Shippensburg" and "Burger King of Shippensburg" is not the business operating at 38 Walnut Bottom Road, Shippensburg, Shippensburg Township, Cumberland County, Pennsylvania 17257. On the contrary, there is a Burger King Restaurant operating at 38-40 Walnut Bottom Road, Shippensburg, Pennsylvania. 3. It is denied that "Defendant, Burger King of Shippensburg" is a party to this lawsuit. It is also noted that "Burger King Restaurant" is designated as the Defendant in the caption. 4. 5. 6. 7. 8. 9. 10. Denied pursuant to Pa. Denied pursuant to Pa. Denied pursuant to Pa. Denied pursuant to Pa. Denied pursuant to Denied pursuant to Denied pursuant to R.C.P 1029(e). R.C.P 1029(e) R.C.P 1029(e) R.C.P 1029(e) Pa. R.C.P 1029(e) Pa. R.C.P 1029(e) Pa. R.C.P. 1029(e) WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint be dismissed in its entirety and judgment entered in its favor. Count I Negligence 11. incorporation. 12{A)-(C). R.C.P. 1029(e). 13(A)-(H). R.C.P. 1029(e). WHEREFORE, No response is required as this is a paragraph of Denied as legal conclusions and pursuant to Pa. Denied as legal conclusions and pursuant to Pa. Complaint be dismissed in its entirety and its favor. Defendant respectfully requests that Plaintiff's judgment entered in Count II Breach of Warranty 14. No response is incorporation. 15. 1029(e). 16. 1029(e). 17. 1029(e). required as this is a paragraph of Denied as legal conclusions and pursuant to Pa. R.C.P. Denied as legal conclusions and pursuant to Pa. R.C.P. Denied as legal conclusions and pursuant to Pa. R.C.?. 18(A)-(G). R.C.P. 1029(e). WHEREFORE, Defendant respectfully Complaint be dismissed in its entirety its favor. Denied as legal conclusions and pursuant to Pa. requests that Plaintiff's and judgment entered in Count III Products Liability 19. No response is required as this is a paragraph of incorporation. 20. Denied. It is denied that "Defendant Burger King of Shippensburg" was engaged in the manufacture and sale of coffee. 21. No response is required as this is a legal conclusion. 22. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029{e). 23. 1029(e). 24. 1029(e). 25(A)-(G). R.C.P. 1029(e). WHEREFORE, Complaint be its favor. Denied as legal conclusions and pursuant to Pa. R.C.P. Denied as legal conclusions and pursuant to Pa. R.C.P. Defendant respectfully requests that Plaintiff's dismissed in its entirety and judgment entered in Denied as legal conclusions and pursuant to Pa. Count IV Strict Liability 26. incorporation. 27. Denied as 1029 (e) . 28. Denied as 1029 (e) . 29(A)-(E) . R.C.P. 1029(e) . 30. Denied as 1029 (e) . 31. 1029 (e) . 32. 1029 (e) . 33. 1029 (e) . 34 (A)-(G) . R.C.P. 1029(e) . No response is required as this is a paragraph of legal conclusions and pursuant to Pa. R.C.P. legal conclusions and pursuant to Pa. R.C.P. Denied as legal conclusions and pursuant to Pa. legal conclusions and pursuant to Pa. R.C.P. Denied as legal conclusions and pursuant to Pa. R.C.P. Denied as legal conclusions and pursuant to Pa. R.C.P. Denied as legal conclusions and pursuant to Pa. R.C.P. Denied as legal conclusions and pursuant to Pa. WHEREFORE, Defendant respectfully requests that Complaint be dismissed in its entirety and its favor. Plaintiff's judgment entered in 5 Count V Unfair Trade Practices 35-38. WHEREFORE, Defendant Complaint be dismissed in its favor. Stricken by Order of Court. respectfully requests that Plaintiff's its entirety and judgment entered in NEW MATTER 39. Defendant incorporates herein by reference, the averments and denials contained in Paragraphs 1 through 38 of its Answer to Plaintiff's Complaint. 40. There is no entity with the legal name "Burger King Restaurant" or "Burger King of Shippensburg" which owns, maintains, possesses or control a Burger Ming Restaurant at 38-40 Walnut Bottom Road, Shippensburg, Cumberland County, Pennsylvania 17257. On the contrary, Grady Corporation, by assignment from Robert J. Russoli and Robert C. Russoli, o~Jns and operates the subject restaurant. 41. No act or omission on the part of, or product sold by, Defendant caused or contributed to any harm alleged by Plaintiff. 42. No defect existed in any product sold by Defendant. 43. Defendant did not design or ma:%~facture any product allegedly involved in Plaintiff's accident. 6 44. Plaintiff's claim is barred by her misused of the products she claims as defective, denied as aforesaid. 45. Plaintiff was comparatively negligent and/or assumed the risk of harm, if the allegations of h~r Complaint are believed, denied as aforesaid, because she drove her car with coffee between her legs. 46. Plaintiff's Complaint fails to allege a cause of action of negligence. 47. Plaintiff's Complaint fails to a!.lege a cause of action in breach of warranty. 48. Plaintiff's Complaint fails to allege a cause of action in product liability. 49. Plaintiff's Complaint fails to allege a cause of action in strict liability. 50. Defendant asserts that the doctrines of res judicata and/or are asserted herein. 51. Any damages, losses and/or this action may be barred by collateral estoppel, which injuries allegedly sustained by Plaintiff were caused in whole or conduct of Plaintiff in: (a) {b) in part by the Misusing the product. Failing to read or follow instructions, and warnings accompanying the product. notices 52. At manufactured, defects. WHEREFORE, Defendant Complaint be dismissed in its favor. :14g004.1 all times herein mentioned, any products designed, fabricated or sold were safe and free from any By: respectfully requests that Plaintiff's its entirety and judgment entered in Respectfully submitted, THOMAS, THOMAS & HAFER, LLP STEPHEN E. GEDULDIG, ESQUIR~ Attorney I.D. No. 43530 Attorneys for Defendant, BURGER KING RESTAURANT VERIFICATION I, Robert Ru.~soll, herebv veriiy Lna~ the averments made in the fore~4oinQ oocumcnL are crue and correct. . under~tand that fa]s~ s~al:,emenLs na~'a~n are made subject ~o the pena]tJ~s of 18 Pa. C.S.A. 490~ re]st~ng LO unsworn Laluification to authorities. · ,,Itl I-~_._ Robert Ru$$oli CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, ~ day of November, 2001, on all P~nnsylvania, on the counsel of record as f~llows: Attorneys Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania for Plaintiff Robert A. Lerman, Esquire GRIFFITH, STRICKLER, LERF~%N, SOLYMOS & CALKINS 110 South Northern Way York, Pennsylvania 17402-3737 Attorneys for Additional Defendants, DOUWE EGBERTS COFFEE SERVICE, INC. and DOUWE EGBERTS SUPERIOR COMPANY Guy Mercogtiano, Esquire SWEENEY & SHEEHAN 19th Floor 1515 Market Street Philadelphia, Pennsylvania 19102-1983 Attorneys for Additional Defendant, Burger King Corporation :139819.1 THOMAS, THOMAS & HAFER, LLP Stephen E. ~.~eduldig, .ire Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, TItOiVIA~ & HAFER, LIP 305 North Front Street Post Ofllee Box 999 Harrisburg, Pennsylvania 17108 (717) 237-71OO E-M~al: seg(~tthlaw, com Attorneys for Defendant: Burger King Restaurant BRENDA L. M3IRTIN, Plaintiff Vo BURGER KING RESTAURANT, Defendant BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC., and DOUWE EGBERTS SUPERIOR COMPANY, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED DEFENDANT BURGER KING RESTAURANT'S MOTION TO COMPEL AND NOW comes the Defendant, Burger King Restaurant, by its attorneys, Thomas, Thomas & Hafer, LLP, and moves your Honorable Court to Order Plaintiff to comply with discovery requests for record production regarding her history of psychiatric or psychological care or treatment, and in support thereof aver as follows: 1. On July 26, 2001, Plaintiff filed a Complaint to commence an action against Defendant to recover damages arising out of a hot beverage spill incident on May 2, 2001. Plaintiff alleges she limited to, and future mental anxieties. See Plaintiff's Complaint, hereto and marked Exhibit "A", Paragraph 13 (F). of suffered physical injuries, including but not burns to her genital area, disfigurement, and past attached 2. On or about November 6, 2001, Defendant sent a Notice Intent to Serve Subpoenas To Produce Documents and Things for Discovery Pursuant to Pa. R.C.P. 4009.21, and copies of said proposed subpoenas, two of which included subpoenas to providers who are believed to have provided psychological care or treatment to Plaintiff. Copies of the referenced Notice and proposed subpoenas are attached hereto and marked Exhibit "B". 3. On or about November 15, 2001, Plaintiff filed Objections to Subpoena Pursuant to Rule 4009.21, including objection to subpoenas directed to Henry Wehman, M.D., at Stevens Center, 33 State Avenue, Carlisle, Pennsylvania, and directed to Ruth Kovacs, M.D., at Stevens Center, regarding Plaintiff's psychiatric or psychological care or treatment. See Plaintiff's Objections to Subpoena Pursuant to Rule 4009.21, attached hereto and marked Exhibit ~C". 4. Plaintiff objected to Defendant's subpoena for psychological records on the basis that the ~materials sought are irrelevant to the subject matter of the pending litigation; the materials are not reasonably calculated to lead to discovery of admissible evidence; and the discovery of said materials will cause unreasonable annoyance and the invasion of personal, private matters which are irrelevant to these proceedings". 5. The Commonwealth Court has held that where a plaintiff in a civil suit places his or her mental condition directly at issue, the privilege is waived as to that condition and the plaintiff must either consent to the disclosure of the information at issue or be precluded from pursuing claims related to his or her emotional and mental condition. Rost v. State Bd. of Psychology, 659 A.2d 626 (Pa. Cmwlth. 1995). 6. By alleging mental anxiety, loss of life's enjoyment, and embarrassment and humiliation, Plaintiff has placed her psychiatric and psychological condition at issue, and such care is relevant to the proceedings. 7. Under Pennsylvania law, the ~privilege of confidentiality in medical records 'evaporates' when the patient brings a personal injury action which calls into question his physical or mental condition." Q~-~L~, 150 F.R.D.519, 521 (M.D. Pa.1993). 8. Information regarding Plaintiff's history of psychological or psychiatric care or treatment is essential to the defense of this action. 9. Denying Defendant access to Plaintiff's psychological records would be manifestly unfair and grossly prejudicial to Defendant because the records are relevant to refuting Plaintiff's injury claim. 10. Moreover, Plaintiff has waived any objection to production of this material based on privilege by not asserting it as a basis for objection to this discovery. WHEREFORE Defendant, Burger King Restaurant, respectfully requests this Honorable Court to issue an Order overruling Plaintiff's objection to Defendant's request for records pursuant to subpoenas directed to Henry Wehman, M.D., and Ruth Kovacs, M.D., and to execute any appropriate authorizations requested by the providers, within twenty (20) days of the date of the Order, or be precluded from pursuing her claims related to her emotional and mental condition. I, -7-01 :150882.1 Respectfully submitted, THOMAS, THOF~AS & ~{AFER, LLP STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendant, Bu~§erF~§ Re$~au~t · 08/0~6/20(;1 09:07 PAX $7?'7626238 Aug-Ol-Ol O1:21P RUS~O GALLAGIZER BASSET SERVICE ' ffn%erprlses 1 72 ~005/014 BRENDA L. MARTIN. PlainUff Mo BURGER KiNG RESTAURANT, Defendant NOTI YOU HAVE BEEN SUED IN COURT. -.et forth in the following pages, you must tat( :IN T~'IE C, OURT OF COMMON PEEAS OF :CUN~BERLAND COUNTY. PENNSYLVANIA !N O. ?/- ~/J'~-~IVIL TERM : :JUR f TRIAL DEMANDED If you wish to defend against the claims , action within twenty (20! days after this Complaint and Notice are served, by enterir~ a written appearance pemonafly or by attorney and filing in writing with the Court yo~r defenses or objections to the claims set forth against you. You are warned that if you 1 ail to do so the case may pmceecl without you and a judgment may be entered against any money claimed In the Complaint of for a Plaintiff, You may lose money or pmpenty or ¢ YOU SHOULD TAKE THIS PAPER TO NOT HAVE A LAWYE. R OR CANNOT AFFOI OFFICE SET FORTH BELOW TO FIND OUT by the Court without further notice fo? other claim or relief requested by the Ihor rights impol~el~t to you, YOUR LAWYER AT ONCE. If YOU DO ~O ONE, GO TO OR TELEPHONE THE NHERE YOU CAN GET LEGAL HELP. Cumberland CountylBar AssedsUon Liberty Aivenu e Ca~|sle, F',~ 17013 (717) 24~8166 P. 05 05/d'6,'2001 d9:07 FAX 87776262.38 GALLAGHER BASSET SER¥ICE Enterprises I 7:1 ~005/014 763 717Z uP.03 BRENDA L. MARTIN. Plaintiff BURGER KING RESTAURANT, Oofcndant :IN THE COURT OF COMMON PLEAS OF ?UM~ERLAND COUNTY, PENNSYLVANIA !NO.~ CIVIL TERM ;JURy TRIAL DEMANDED COMPL 1. Plaintiff, Brenda L. Ma~in, is an ~ Meadow Ddve, Shippensbu~g, Pennsylvania 1 2. Burger King of Shlppenst~Jtg is Roa(;I, Shippensbur§, Shippensburg Township~ 17257. 3. At all times relevant hereto Defe~ in the business of providing food products to ti sale at its business location in Shlppensburg 'I Pennsylvania referenced above. INT dult individual cu~ently residing et 169 '257. business operating at 38 Walnut Bottom Cumberland County, Pennsylvania dant, Burger King of Shippensburg, was general public which are offered for I~vnship, Cumberland County. 4. On or about May 2, 2000 at app~ 3ximately 7:30 P.M., Plaintiff, Brenda L. Martin did drive to the business Io~on of the Defendant. 5. At that said time end place the Plaintiff. Brenda L. Martin, did drive her vehicle to the drive thru window of the saki BuYer King of Shlppensburg to place an order for products offered for sale by' the said I~¢endant Burger King, 6. At that said time and place the P~alntlff, Brenda L. Merlin, did order from Defendanl a Whopper. Jr. and a coffee which Were delivered to her through the drive thru window and into her vehicle upon paymer 7. After receiving the products the F ~iece covering the opening to insert creamers, usa in the c~ffee. 8. The Plaintiff thereafter did pull aY vehicle and did enter traffic to relum to her her towards the Borough of Shippe~sburg. for the same. laintiff did open the plastic tear away Yhich were provided by [he Defendant for 'ay from the drive thru window In her le by entering the Walnut Bottom Road (19:07 FAX $777826235 AC~9-OI-O1 Ol:21P lusso~ ' GALLAGHER BASSET SERVICE 763 7172 P.04 9. As the Plaintiff was ptoaeeding i~her vetticJe the coffee inside al ec~3--ff~ee--cu-p-'-di--d-~pit-II-'°ntOx~mme~:,.r.omxor~- her pants and immediately ceased severe pain, bumirlg and / 10. As a msuti of the splliing of the qbffee onto her pants the Plaintiff did receive serious and permanent injuries es rnol~ fully set forth below. E 1 t. Paragraph 1-10 are hereby inca full texl. 12. Plaintiffs injuries were the ditecl negligent conduc-[ of defendant generally and A. ~rated by references as set forth in their ,nd proximate result of the reckless and Specifically with regard to the following: The defective design oft.he lid to the coffee cup which was provided to the Plaintiff at Defendant's business location; The defective manufactur Defendant in thai the coif and provided in such a w~ burning would occur whe~ Burger. King of ~htppensl: foreseeable risk asaoeiat~ and service of the product by the ~e sold to the Plaintiff was excessively hot as it was foreseeable that severe ~,l:he coffee spilled; L~rg was negligent in disregerdirig 1he with providing excessiYely hot coffee to the Plaintiff In a package ~hat was negligently designed and manufactured and whlcl~ ~d, ~n fact, cause the injuries suffered by the Plaintiff. 13. As a dim<:t and proximate result ~f the reckless, wanton, careless and negligent conduct of the Defendant, Plaintiff h~,s suffered signi6cant and permanent loss and Injury including but no1 limited to: A. P~st and future pain and ~ffefing; B. Embarrassment and hum~iation; C. Disfigurement; [ D. Loss of enjoyment of life ~nd it's pleasu re; 'Au'g-'Ol-01 01:21P Rus:~O" ' Knterprises I ?.~ 762 7172 E. Pas~ and future Incidental cost; F. Peal and futura mental arlxlety; G. Past ar~l future medical ekpenses; and Cost of this action. WHEREFORE, PiainfJff requests this H ;~nomble Court to enter Judgment against Defendant in an amount in excess of $25.000 00 plus cost and in[erest. COl INT II BREACH OI: W_.~I~_.RANTY 14. Paragraphs 1- 13 are hereby in¢ ;rporat~d by refe~nce as set forth in their text. Commercial Code in that the p~3duct sold to distributed by the Defendant in a fashion thai which such products are used thereby violatin! 16. The Defendant, by manufacturin, 15. The actions of the Defendant vi~lated the Pennsylvania Uniform la Plaintiff wes manufactured and ', did not lit the oMInary purposes for the warranty of marketability. marketing, advertising and selling this 3roduc! represented that it was safe for Es intended use and by placing this del:active :)roduct in !11e slream of commerce have brea~t~ed the warrant of marketability. -- 17. As a result of the accident caus .e.~l solely by the Defendant's breach of warranty, Plaintiff suffered severe injt~ie$ aa n~re fully' set forth below. 18, As a result of the accident cauae~ selely by the Defendant's breach of warranty, Plaintiff has sustained or may A- Past and future pain B. Past and futura lose of lif! C. Past and futu re incidental D. Past and future mental ar E, F. G. h the following damages: iUffering; 'S enjoyment; cost: Past and future medical eJ*penses; Embarrassment and humiliation; and OisRgurement RUG-06-2801 18:14 87~?~26238 9~Z P.0~ 08/0,6/2001 09:07 FAX 8777626238 GALLAGHER BASMET 1 ~n%erpr t se~ 1 763 717~ P.O6 WHEREFORE, Plaintiff requests this H Defendant in an amount in excess of COl ~RODUC'I 19. Paragraph 1-18 above are here[ their full text. 20. At all times relevant Ia this actka was engaged in Ihs manufacture and sa[~ of Commonwealth of Pennsylvania for distributi¢ 21. Defendant expected the coffee i 2notable Court to enter judgment against 00 plus cost and interest. NT 111 ~ LIABILITY incorporat~:l by reference as set forth in Defendant Burger King of Shlppenaburg )Ilea which wes sold in ~a to the general public as the ultimate ~old by them to reach consumers or users in the condition in which it was sold. } 22, At all times relevant hereto Plaintiff utdized' the products auld to her for its intended use and was unawar~ of any defec, tiP, the product package or produci itself or that any danger to herself or ethan could res~tt by using said produc~, 23. At ail times re~evant hereto the coffee and c~p in which il was sold to Plaintiff was in a defective oondition and unre~ or others in that a defect in design ex'rated. A consumer who. lacking the technical kno~dedg temperature of the liquid or oontrol the relied on the duty of'he Defendant. to deliver ! fit for use for the purpose intended. A breech defective condition of the coffee and cup in of the injury sustained by the Ptaintiff, Brenda 24. AS a result of the accident caus~ duty and the def~ctiYe c~ndition of the coffee Plaintiff Brenda L. Martin. et all times relevant es more fully outlined above. ~onably dangero~Jo to a u~er, consumer I~mdition was not observable by a · and skills required to measure I of the cup in which the liqu~ wa~ ~ld. ~ ~ffee at the time of sNe in tithe du~ by the Defe~ant nod the ch R was sold wes the p~ximate L. Ma~in. d ~fely by ~e Defendant's bme~ of md ~p. more ~lly described a~ve. qere~ re~ seri~s medical injuries AUg-01-01 01:22P Russ(' i Ent~rpr~se~ I 7 763 7172 ! 25. As a ~sult o( the a~dent ~usJU solely b) ~e Defendan('~ ~aUon of a dofe~ve p~u~t, Plaint~ has ~u~tained or m~y sustain (he foUowin~ dame,s: A. Past and ~um ~in ~nd ~ffering: Post a~ ~um loss ~ li[~'~ enjoyment; C. ~st a~ f~re D. Past ~nd ~tum ~n~l a~ie~y; E. Pest e~ ~um m~l~l · ~penses; F. Emba~nt and ~m II~ion; end G. Disfigurement WHEREFORE, Plaintiff requests th~s H ~norable C:ou~t to enter judgment against the Defendant in an arnoun! in excess of $25 ~90.00 plus cost end interest. c0U iv STRIC_I' LII I ILITY 26. Paragraphs 1-25 are hereby inr..c ~orated by reference aa if se! forth in their full text, 27. The Defendant, Burger King of ,~ ippensl0urg, breached its non-~lelegable duty to provide a non,~efective product Into th ~ stream ol~ commerce. 28. At all times relevant hereto Plain I~' wes using the product for its intended and normal use and them were no substantial Changes to the product ~om the time it left conlrol of the Defendant until the time ofU~ a accident. 29. PlaintifFs in)uries were the direct and proximate result of the conduct of Defendant, Burger King of Shippensburg, and Ihat the following defecl~ were present in the product sold to the Plaintiff at said time ami place: A. The defec~ve design end *tenufac~ure of the B. The defective design and l~anuracture of the lid; C. The defective manufacture, of the product coffee in the cup; O. The defective design =,nd. nanufac'ture of the coffee eno cup in such a way to prevent exc~ ~ssive injuries to the Plaintiff in the case ol spillage w'ttJ.~q wes ~ eeeble end noiTnal; and ArJG-06-2~O1 1~:14 8???626238 37X P.10 AU~I-01-O1 03.:22P Russf i En'l;erprises 1 ? 763 7172 E. The defective deelgn and such a way as to fail to vehicles in the case of a herein. 30, The c~ndltlons referenced of the product m the Plaintiff and st Me time ti ~hese defects were a substantial factor In 31. Defendant, Buyer King of Shlpl of the safety of its product in that It failed to m even/element necessary to make it safe [or specifically by Plaintiff Brenda L, Marlin. 32. The Defendant breached MS dr design and manufacture of Its coffee by falltnl; Infom~al~on to protect against the foreseeable 33. The Defendant is Mrlctly liable manufab--ture of'the coffee and cup in ~bid serious injury by oCcupants in w'll Similar to the one which occurred ~. w~re in existence at the time of'the sale ~e p~oduct left Defendant s control and ting Plaintiff's injuries, ensbu~g, failed in its duty as a guarantor Ilnufacture its coffee, cup and lid with ,e by the consuming public and ~ to warn, post sale of the defective to provide complete and accurate ~isk of harm that this defect presented. t' the defective design and manufacture of the coffee, cup and lid due to the occurrence ~ a foreseeable accidental spill, which were to occur during normal use. 34. As a result of the accident cause duty as a manufacturer and producer of ouch sustain the following damages: A. Past and future pein and B. Past and future less o1: life C. Past and ~ut~re inckle~l D. Para and ftYmm nmntal er E. Past and futura medical e F. Embarrassment and hum G. Disfigurement WHEREFORE. Plaintiff requests this H the Defendant in an amount in excess of $25 d solehj by the Defendant's breach >r0duCts, Plaintiff has sustained or may ~uffering; enjoyment; ~ost; zloty; /:pense. s: [latlon; and )notable Court b3 enter judgment against 100.00 plus costs and Interest. AUG-8~-2881 18:14 877762~238 98~ P.11 09:07 FAX $777526235 Aug-01-01 01:23P Russ~ BASSET SERVICE 1 7 763 717Z [~ 012,'014 , .~ cou r v UNFAIR TRADE PI~e~CTICES ACT 35. Paregrapha 1-34 above are hereby re.alleged and incorporated as E set ~h in their full te~. 36. The ~fe~ant, at air t~mes ~e~nt hem~, w~ engSg~ in t~e in ~mmer~ as de~n~ Soo. 37. The Def~dant was, at ~1 fl~ relevant hereto, engag~ In unfair or de~p~e a~ts or pre~s ~ s~ ~ ~e f~Jly in the said Unfair T~e Pm~J~s A~. 38. ~ a dlre~ result ~ ~e a~ons ~ ~e Dare.ant, all in vi~on ~ the Unfair T~de Pm~es A~. the Plaint~ has s~ ~er~ a less in ex,ss of $25,000.00 and are therefore, is entitled, pursuant to the provi damages, treble damages, exists ansi eeasona WHEREFORE, for all the above reasor favor in an amount in excess of ~25,0D0.00 pi reasonable attomey fees. ions of the Act, to an award of actual de affomey fees. B, the Plaintiff requests judgment I. her la treble damages, plus oosts anti / , ReSl:~l~,t~ y Submitted TURQ LAW OFFICES 28 S~uth Pitt Street Carlisle. PA '~7013 (717) ~245.9668 A~corR~y for Plalnti~ GALLAGHER BASSET SERVICE ~]013/014 VERIFlC~ I ~rffy that the statements m~la In the I unde~siand that folee ~tatements herein Pa,C.S. §4904 relating Io unawom falsificalia mort foregoing Complaint am we and correct. made subject to the penaltie~ c~ 18 aut~orities. Bren~ I~ L. Marlin RrJG-O~-2DO[ 10:14 87775262ZS 97% P.13 CERTIFICATE iF :SERVICE I hereby cerlify that I served a tree ~nd correct copy of the Complaint upon Burger King of Shippensbung by Cumberland County S~erifl',~ Department mn the day of .2001, Iddressed as follows: Burger King of ~ippensburg 38 Walnut Bo~fom Road Shippengl3urgJ PA 17257 TUR~ 28 $~ Cadh (717] Atto~ LAW OFFICES .. Clngran~li, ES~l~im Je. PA. 17013 245-9688 ~ey for AUG-OS-2001 10:14 87776260~8 97~ P.14 Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: seq~,tthlaw.com Attorneys for Defendant: Burger King Restaurant BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC., and DOUWE EGBERTS SUPERIOR COMPANY, Additional Defendants TO: Counsel and Parties of Record Defendant, BURGER KING RESTAUI~NT, intends to serve subpoenas identical to the ones attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. STEPHEN E. GEDULDIG, ESQUIRE 305 NORTH FRONT STREET - 6TH FLOOR HARRISBURG, PA 17108 (717) 237-7119 ATTORNEY FOR DEFENDANT BURGER KING RESTAURANT I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the ~/~'~q~ day of November, 2001, on all counsel of record as follows: Attorneys for Plaintiff Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania i70i$ Attorneys for Additional Defendants, DOUWE EGBERTS COFFEE SERVICE, INC. and DOUWE EGBERTS SUPERIOR COMPANY Robert A. Lerman, Esquire GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 110 South Northern Way York, Pennsylvania 17402-3737 Attorneys for Additional Defendant, Burger King Corporation Guy Mercogliano, Esquire SWEENEY & SHEEHAN 19th Floor 1515 Market Street Philadelphia, Pennsylvania 19102-1983 THOMAS, THOMAS & HAFER, LLP Stephen E. Geduldig, Esquire :148241.1 BRENDA L. MARTIN, : Plaintiff : BURGER KING RESTAURANT, : Defendant : BURGER KING CORPORATION, et al. : Additional Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED TO: Records Custodian Ruth Kovacs, M.D. Stevens Center 33 State Avenue Carlisle, PA 17013 (717) 243-6033 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all records, reports, corresDondence, notes, memos and diagnostic studies regarding:Brenda L. Martin: Date of Birth 8/30/52: S.S. No.: 176- 46-6114. at Thomas. Thomas & Hafer. LLP. P.O. Box 999. Harrisburg. PA 17108-0999 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. if you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT ID#: 43530 Attorney for Defendant Burger King Restaurant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy : 148242.6 BRENDA L. MARTIN, : Plaintiff : BURGER KING RESTAURANT, : Defendant : BURGER KING CORPORATION, et al. : Additional Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED TO: Records Custodian Henry Wehman, M.D. Stevens Center 33 State Avenue Carlisle, PA 17013 (717) 243-6033 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all records, reports, correspondence, notes, memos and diagnostic studies regarding:Brenda L. Martin: Date of Birth 8~30~52: S.S. No.: 176 46-6114. at Thomas. Thomas & Hafer. LLP. P.O. Box 999. Harrisburg. PA 17108-0999 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O, Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT ID#: 43530 Attorney for Defendant Burger King Restaurant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy : 148242.5 BRENDA L. MARTIN, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA BURGER KING RESTAURANT, Defendant BURGER KING CORPORATION, et al Additional Defendants :NO~l--qS'C,[ CIVIL TERM : :JURY TRIAL DEMANDED OBJECTIONS TO SUBPOENA PURSUANT TO RULE 4009.21 The Plaintiff, Brenda L. Martin, objects to the proposed subpoenas that are attached herein for the following reasons: 1. Plaintiff objects to the subpoena proposed to be served on Henry Wehman, M.D., addressed as follows: Stevens Center, 33 State Avenue, Carlisle, PA 17013. Said subpoena is objectionable as the materials sought are irrelevant to the subject matter of the pending litigation; the materials are not reasonably calculated to lead to discovery of admissible evidence; the discovery of said materials will cause unreasonable annoyance and the invasion of personal, private matters which are irrelevant to these proceedings. 2. -,Plaintiff objects to the subpoena proposed to be served on Ruth Kovacs, M.D., addressed as follows: Stevens Center, 33 State Avenue, Carlisle, PA 17013. Said subpoena is objectionable as the materials sought are irrelevant to the subject matter of the pending litigation; the materials are not reasonably calculated to lead to discovery of admissible evidencei the discovery of said materials will cause unreasonable annoyance and the invasion of personal, private matters which are irrelevant to these proceedings. Date TURO LAW OFFICES Carol L. Cingranelli, Esquir, e~' 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff BRENDA L. MARTIN, Plaintiff Vo BURGER KING RESTAURANT, Defendant BURGER KING CORPORATION, et al. : Additional Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED TO: Records Custodian Henry Wehman, M.D. Stevens Center 33 State Avenue Carlisle, PA 17013 (7t 7) 243-6033 Within Iwenty (20) days after service of this aubpoena, you are ordered by the court to produce the following documents or things: ComPlete copies of any and all records, reports, corresoondence, notes, memos ami dla;nostlc stud;es reaardlno. Brenda L. Martin; Date of Birth 8130152; S.S. No.: 176 46-6t14, at Thomas, Thomas & Hafer. LLP, P.O. Box 999, Harrisburq, PA 17108-099.,~ You may deliver or mall legible copies of the documents or produce things requested by this subpoena, together with the certilicete of compliance, to the party rnstdug this request at the address listed above. You have the dght to seek In advance, the reasonable cost of preparing the copies or producing the things sought. If you fall to produce the d_~_..menls or things required by this subpoena, wilhln twenty (20) days after its cen~'ice, the- party sen4ng this subpoena may seek a court order compelling you to comply with It. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT ID~: 43530 Attorney for Defendant Burger King Restaurant BY THE COURT: DATE: Seal of the Court ~rothonotary/Clerk, Civil Division :148242.5 Deputy BRENDA L. MARTIN, : Plaintiff : : BURGER KING RESTAURANT, : Defendant : BURGER KING CORPORATION, et al. : Additional Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED TO: Records Custodian Ruth Kovacs, M.D~ Stevens Center 33 State Avenue Carlisle, PA 17013 (717) 243-6033 Within twenty (20) days alter rentice of this subpoena, you are ordered by the court to produce the following documents or things: Comolete CODieS Of al'IV and all records, reoorts, corresoondence, no,es, memos and diaonosfic studies reaardinq:Brenda L. Marlin; Date of Birth 8130152; S.S. No.: 176 46-6114, at Thomas. Thomas & Hafer, LLP. P.O. Box 999, Harrisburq, PA 17108-099;i You may deliver or mall legible copies of the documents or produce things requested by this subpoena, together with the redJlinate of COmldlanna, to the pady making this request at the address listed above. You have the right to seek In advance, lite reasonable cost of preparing the copies or produdng the things Sought. If you fall to produce the documents or things required by this subpoena, within twenty (20) days after Its sewioe, the. party renting this 8ubpoerla'm-~y seek a coud order compelling you to comply wi~ It. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT ID~: 43530 Attorney for Defendant Burger King Restaurant BY THE COURT: DATE: 'Seal of the Court Prothonotary/Clerk, Civil Division Deputy :1~242.6 CERTIFICATE OF SERVICE I hereby certify that I served a true and cor_.rect copy of the aforegoing Objections to Subpoenas on the .....7~.'~. a.y of November, 2001 by depositing the same in the United State Mail, postage prepaid, addressed as follows: Stephen E. Geduldig, Esquire Thomas, Thomas & Hafer 305 N. Front Street, 6th Floor P. O. Box 999 Harrisburg, PA 17108-0999 Guy Mercogliano, Esquire Sweeney & Sheehan 19th Floor 1515 Market Street Philadelphia-1983, PA 19102 Robert A. Lerman, Esquire Griffith, Strickler, Lerman Solymos & Calkins 110 South Northern Way York, PA 17402-3737 TURO LAW OFFICES Carol L. Cingranelli, Esquire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Brenda Martin CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the ~4~ day of December, 2001, on all counsel of record as follows: Attorneys Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17013 for Plaintiff Robert A. Lerman, Esquire ORIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 110 South Northern Way York, Pennsylvania 17402-3737 Attorneys for Additional Defendants, DOUWE EGBERTS COFFEE SERVICE, INC. and DOUWE EGBERTS SUPERIOR COMPANY Guy Mercogliano, Esquire SWEENEY & SHEEHAN 19th Floor 1515 Market Street Philadelphia, Pennsylvania 19102-1983 Attorneys for Additional Defendant, Burger King Corporation u398~9.~ THOMAS, THOMAS a MAFER, LLP Stephen E. Geduldig, Esquire Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Maih ~ Attorneys for Defendant: Burger King Restaurant BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant Vo BURGER KING CORPORATION, et al: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVAIqIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant certifies that: 1. A Notice of Intent to Serve Subpoenas with copies of the subpoenas attached thereto was mailed or delivered to each party at least twenty days prior to the day on which the subpoenas were sought to be served; 2. A copy of the Notice of Intent, including the proposed subpoenas, is attached to this Certificate; 3. No objection to the subpoenas has been received; and 4. The subpoenas which will be served are identical to the subpoenas which are attached to the Notice of Intent to Serve Subpoenas. !A -7 -ol :150969.5 THOMAS, THOMAS & HAFER, LLP STEPHEN E. GEDULDIG, ESQUIRE 305 NORTH FRONT STREET - 6TH FLOOR HARRISBURG, PA 17108 (717) 237-7119 ATTORNEY FOR DEFENDANTS BURGER KING RESTAURANT I, STEPHEN E. GEDULDIG, ESQUIRE of the law firm of THOMAS, THOMAS, & HAFER, LLP do certify that I served the foregoing document on the following person(s), by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: Carol L. Cingranelli. Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17013 Attorneys for Plaintiff Robert A. Lerman, Esquire GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 110 South Northern Way York, Pennsylvania 17402-3737 Attorneys for Additional Defendants, DOUWE EGBERTS COFFEE SERVICE, INC. and DOUWE EGBERTS SUPERIOR COMPANY Guy Mercogliano, Esquire SWEENEY & SHEEHAN 19th Floor 1515 Market Street Philadelphia, Pennsylvania 19102-1983 Attorneys for Additional Defendant, Burger King Corporation Date: :139819.1 THOMAS, THOMAS & HAFER, LLP Stephen E. Geduldig, Esquire Stephen E. Geduldig, Esquire Attorney i.D. No. 43530 THOMAS, THOMAS 8, HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: seq~,,tthlaw.com Attorneys for Defendant: Burger King Restaurant BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED Vo BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC., and DOUWE EGBERTS SUPERIOR COMPANY, Additional Defendants TO: Counsel and Parties of Record Defendant, BURGER KING RESTAURANT, intends to serve subpoenas identical to the ones attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. STEPHEN E. GEDULDIG, ESQUIRE 305 NORTH FRONT STREET - 6TH FLOOR HARRISBURG, PA 17108 (717) 237-7119 ATTORNEY FOR DEFENDANT BURGER KING RESTAURANT I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg; Pennsylvania, on the ~'"/q~ day of November, 2001, on all counsel of record as follows: Attorneys for Plaintiff Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 170 i$ Attorneys for Additional Defendants, DOUWE EGBERTS COFFEE SERVICE, INC. and DOUWE EGBERTS SUPERIOR COMPANY Robert A. Lerman, Esquire GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 110 South Northern Way York, Pennsylvania 17402-3737 Attorneys for Additional Defendant, Burger King Corporation Guy Mercogliano, Esquire SWEENEY & SHEEHAN 19th Floor 1515 Market Street Philadelphia, Pennsylvania 19102-1983 THOMAS, THOMAS & HAFER, LLP Stephen E. Geduldig, Esquire :148241.1 BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant BURGER KING CORPORATION, et al. Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED TO: Records Custodian Chambersburg Hospital 112 N. 7th Street Chambersburg, PA 17201-1700 (717) 267-3000 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all records, reports, correspondence, notes, memos and diagnostic studies regardincl:Brenda L. Martin; Date of Birth 8130/52; S.S. No.: 176- 46-6114, at Thomas, Thomas & Hafer, LLP, P.O. Box 999, Harrisburg, PA 17108-0999 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT ID#: 43530 Attorney for Defendant Burger King Restaurant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy : 148242.1 BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant BURGER KING CORPORATION, et al. Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED TO: Records Custodian Graham Medical Clinic 100 S. High Street Newville, PA 17241-1499 (717) 776-3114 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all records, reports, correspondence, notes, memos and diagnostic studies regarding:Brenda L. Martin; Date of Birth 8/30152; S.S. No.: 176- 46-6114, at Thomas, Thomas & Hafer, LLP, P.O. Box 999, Harrisburg, PA 17108-0999 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the dght to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order cempelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT ID#: 43530 Attorney for Defendant Burger King Restaurant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy : 148242.2 BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant BURGER KING CORPORATION, Additional et al. : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED TO: Records Custodian Erich Metzler, M.D. Women's Health Associates 419 Stonehedge Drive Carlisle, PA 17013 (717) 218-8888 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all records, reports, correspondence, notes, memos and dia.qnostic studies re.qardin,q:Brenda L. Martin; Date of Birth 8130/52; S.S. No.: 176- 46-6114, at Thomas, Thomas & Hafer, LLP, P.O. Box 999, Harrisburq, PA 17108-0999 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT ID#: 43530 Attorney for Defendant Burger King Restaurant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy : 148242.3 BRENDA L. MARTIN, Plaintiff Vo BURGER KING RESTAURANT, Defendant Vo BURGER KING CORPORATION, et al. Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED TO: Records Custodian/Legal Department Allstate Insurance Company 2775 Sanders Road, Suite A6 Northbrook, II_ 60062 (847) 402-5000 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Re: MVA Accident date: 3/6198, Case File No. 185303802502 - complete copies of any and all records, reports, correspondence, notes, memos and medical records, inc ud n.q those on the file iacket, re.qard n.q Brenda L. Martin; Date of Birth 8130152; S.S. No.: 176-46-61'14, at Thomas, Thomas & Hafer, LLP, P.O. Box 999, Harrisburg, PA 17108-0999 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. if you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT ID#: 43530 Attorney for Defendant Burger King Restaurant BY THE COURT: DATE: Sealofthe Court Prothonotary/Clerk, Civil Division Deputy : 148242.4 BRENDA L. MARTIN, Plaintiff Vo BURGER KING RESTAURANT, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA : :NO. 01-4503 CIVIL TERM : : :JURY TRIAL DEMANDED 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. ANSWER TO NEW MATTER This is a paragraph of incorporation, and, therefore, no response is required. After reasonable sufficient to form This paragraph is This paragraph is This paragraph is This paragraph is This paragraph is This paragraph is This paragraph is This paragraph is This paragraph is This paragraph is This paragraph is Thi paragraph is investigation, Plaintiff is without knowledge or information a belief as to the truth of this paragraph. a legal conclusion to which no res ~onse is rec a legal conclusion to which a legal conclusion to which a legal conclusion to which a legal conclusion to which a legal conclusion to which a legal conclusion to which a legal conclusion to which a legal conclusion to which a legal conclusion to which a legal conclusion to which a legal conclusion to which uired. no res }onse is rec uired. no res )onse is rec uirad. no res )onse ~s re¢ uired. no res )onse ~s rec uired. no res )onse ~s rec uired. no res )onse is rec uired. no res )onse ~s rec uired. no res )onse is rec uired. no res )onse ~s rec uired. no res )onse ~s rec uired. no response is required. Date Respectfully Submitted TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff VERIFICATION I verify that the statements made in the foregoing Answer to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. {}4904 relating to unsworn falsification to authorities. Date Carol L. Cingf~nelli, Esqu~e For Brenda L. Martin CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing same in the United States mail, postage prepaid, on all counsel of record as follows: Stephen E. Geduldig, Esquire Thomas, Thomas & Hafer 305 N. Front Street, 6th Floor P. O. Box 999 Harrisburg, PA 17108-0999 Guy Mercogliano, Esquire Sweeney & Sheehan 19th Floor 1515 Market Street Philadelphia, PA 19102-1983 Robert A. Lerman, Esquire Griffith, Strickler, Lerman Solymos & Calkins 110 South Northern Way York, PA 17402-3737 Date Respectfully Submitted TURO LAW OFFICES By: Carol L. Cingranelli, Esquire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff Stephen E. Geduldig; Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: ~ Attorneys for Defendant: Burger King Restaurant BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant BURGER KING CORPOP~ATION, DOUWE EGBERTS COFFEE SERVICE, : INC., and DOUWE EGBERTS : SUPERIOR COMPANY, : Additional Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-4503 CIVIL TERM JURY TRIAL DEbr'~NDED DEFENDANT BURGER KING RESTAURANT'S MOTION TO COMPEL AND NOW comes the Defendant, Burger King Restaurant, by its undersigned counsel, Stephen E. Geduldig, and Thomas, Thomas & Hafer, LLP, and brings the following Motion to Compel discovery: 1. On July 26, 2001, Plaintiff filed a Complaint to commence an action against Defendant to recover damages arising out of a coffee spill incident on May 2, 2001. Plaintiff alleges she suffered physical injuries, including but not limited to, burns to her genital area, disfigurement, and past and future mental anxieties. See Plaintiff's Complaint, attached hereto and marked Exhibit ~'A". 2. On September 24, 2001, a Notice to Take Oral Deposition of Plaintiff was mailed to Plaintiff's counsel. Attached hereto and marked as Exhibit "B". 3. Plaintiff's deposition took place on November 9, 2001, at Thomas, Thomas & Hafer, LLP. At such time Plaintiff identified several items in her possession of which Defendant requested copies. 4. On November 21, 2001, Defendant wrote to Plaintiff's counsel requesting several items that Plaintiff had identified in her deposition be produced. Attached hereto and marked as Exhibit 6. On December 26, 2001, Defendant wrote to Plaintiff's counsel again asking for Plaintiff to produce those items identified during Plaintiff's deposition. Attached hereto and marked as Exhibit "D". 7. Defendant's counsel has made repeated telephone calls to Plaintiff's counsel requesting production of those items Plaintiff identified during her deposition, and has gotten no response from Plaintiff. 8. The Plaintiffs' failure to respond to written discovery requests are in violation of the Pennsylvania Rules of Civil Procedure and are delaying the progress of this case. 9. Defendant Burger King Restaurant is severely prejudiced in defending this action in light of Plaintiffs' failure to appropriately respond to Defendant's Request for Production of Documents. 10. Plaintiff is represented by Carol L. Cingranelli, Esquire, TURO LAW OFFICES, 28 South Pitt Street,Carlisle, Pennsylvania, 17013. 11. Defendant is represented by Stephen E. Geduldig, Esquire of Thomas, Thomas & Hafer, LLP, 305 North Front Street, Harrisburg, Pennsylvania, 17108. WHEREFORE, Defendant, Burger King Restaurant, respectfully requests this Honorable Court to issue an Order compelling Plaintiff to produce the request materials within 10 days of the date of the Order. Respectfully submitted, Thomas, Thomas & Hafer, LLP Stephen E. Geduldig Attorney I.D. No. 43530 Attorneys for Defendant, Burger King Restaurant CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, pope. s prepaid, at Harrisburg, Pennsylvania, on the~/~ day of February, 2002, on all counsel of record as follows: Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17013 Attorneys for Plaintiff Robert A. Lerman, Esquire GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 110 South Northern Way York, Pennsylvania 17402-3737 Attorneys for Additional Defendants, DOUWE EGBERTS COFFEE SERVICE, INC. and DOUWE EGBERTS SUPERIOR COMPANY Guy Mercogliano, Esquire SWEENEY & SHEEHAN 19th Floor 1515 Market Street Philadelphia, Pennsylvania 19102-1983 Attorneys for Additional Defendant, Burger King Corporation THOMAS, THOMAS a HAFER, LLP Stephen E. Geduldig, Esquire Exhibit A Aug-O1-01 Ol:ZIP RUSSO ~n~erprgses ! 7~ 7~ 7~7Z BRENDA L. MARTIN, PlainUff Vo :IN TItlE COURT OF COMMON PEEAS OF :CUqBERLAND COUNTY, PENNSYLVANIA ::N O. ?/- ~5"~z/~.:lVl L TERM BURGER KING RESTAURANT, : Defendant :JUR' N,OTI YOU HAVE BEEN SUED IN COURT. set fo~h in the following pages, you must tat( ?TRIAL DEMANDED E If you wish to defend against the claims action within twenty (20) days aftsr this ComPlaint and Notice are served, bY entefirlg a written appearance personally or by attorney and filing in writing with the Court yodr lefenses or objections to the claims set forth against you. You are warned that if you you and a judgment may be entered against any money claimed in the Comptalnt of for Plaintiff. You may lose money or proi~erty or YOU SHOULD TAK~ THiS PAPER NOT HAVE A LAWYER OR CANNOT AFFO, OFFICE SET FORTH BELOW TO FIND OUT Cumberland County 2 Liberty ,~ Carlisle, P~ (717) 248. ail tO do so the case may proceed without ~3u by the Court without further notice for ~y other claim or relief requested by the the? rights imporf~l~t to you. 'YOUR LAWYER AT ONCE. IF YOU [30 :~) ONE. GO TO OR TELEPHONE THE ~HERE YOU CAN GET LEGAL HELP. Ber Aasoclal.~3n ~el'~f8 ~ 17013 1166 AIJG-O~-2001 18:14 877?626238 97X P.85 ~Au'g-.01-O1 O! :2].P Russo . . 07/317~_~01 lB: 21 73.75L-irdl~. I 7] 763 7Z72 P. 03 BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Oofcndant :IN TIlE COURT OF COMMON PLEAS OF :CUM IERLAND COUNTY, PENNSYLVANIA :NO. CIVIL TERM :JUR' ' TRIAL OEMANDED COMpI. J 1. Plaintiff. Brenda L. Martin, is an ~ Meadow Drive, ShiPpensbu~g, PennsYtVsnle I 2. Burger King of Shlppenst)u~g Is Roacl, Shippensburg, Shippensburg Township 17257. 3. At all tJme~ relevant hereto Defel in *,he business of providing food product~ to tt sale at its business location in Shlppensburg 3 ~INT dult individual currently residing gt 169 ~'257. ~3usiness operating at 38 Walnut Bottom Cumberland County, Pennsylvania Idant, Burger King of Shippensburg, was general public which are offered for 13~vnship. Cumberland Counb/. Pennsylvania referenced above. 4. On or about May 2, 2000 at appr :)xlmately 7:30 P.M.. Plaintiff, Brenda L. Martin did drive to the business location of the ~l~)efendant. 5. At that said time end place the ptaintiff. Brenda L. Me~n, did drive her vehicle to the drive thru window of the said Bu~ger King of Shlppensburg to place sn order for products offered for sale by the ssid 1 lei'em:lent Burger Kir~g. 6. At that ssid Nme and place the P dntlff, Brenda L. Martin, did order from Defendanl a Whopper, Jr. and a coffee which thru window and into her vehicle upon paymerl 7. After receiving the products the piece covering the opening to insert creamem usa in the coffee. 8. The Plaintiff thereafter did pull ay vehicle and did enter traffic to return to her hor towards the Borough of Shippensburg. tare delivered to her through the drive for the aame. faintiff did open the plastic tear away vhlch ware provided by [he Defendant for ,ay from the drive thru window In her le by entering the Walnut Bottom Road RUG-06-2001 18:14 S777626238 97~ P.06 9. As the Plaintiff wes prooeeding ~ her vehicle the coffee inside o! Ibe ' coffee cup did spill onto her pants and irnme¢ ItcHy caused severe pain, buming and extreme discomfort. 10. As a result of the spilllng of the c~0ffee onto her penis the Plaintiff did receive serious and permanent injudes aB mo~ · fully set forU1 below. COUN NEGLIGI TNiCE I t. paragraph 1-10 are hereby incol ~mted by references as set foMh in {heir full text. 12. Plaintiff's injuries were the direct in~ proximate result of the reckless and negligent conduct of defendant generally and ~pecificallY with regard to the following: A. The defective design of tiie lid to the coffee c[Jp which was provided to the Plaintiff et oefenda~'s busineSs location; El. The defective manufa~tur ~r and se~ice of the product by the Defendant in that the coffl and provided in such a wi burning would occur whet C. Bu~ger. King of Shippensb foreseeable risk associate the Plaintiff in a package manufactured and which the Plaintiff. 13. As a direct and proximate result negligent conduct of the Defendant, Plaintiff h= and Injury incJuding but no1 limited to: Past and future pain and Embarrassment and hum~ Disfigurement; Loss of enjoyment of life sold to the Plaintiff wes excessively hot ¥ as it was foreseeable that severe ,the coffee spilled; jrg was negligent in disregarding the d wi~h providing excessively hot coffee hat wes negligently designed and lid, ~n fact, cause the injuries suffered by 3fthe recMess, wanton, careless and suffered signilicant and permanent loss ~,ffering; Iiation; ~nd it's pleasure; AUG-O~-2801 10:1~ 8???626238 97~ P.O? .~u~9-~l-O1 Ol:21P Russo" ' EnteY-pr 9 sea 1 7:~ 763 717~ P.05 Eo Past and (u~ure incidenta~ cost; Past and futura mental ar~Xlet¥; Past ar~! future medical ~nses; and H. Cost of ~hls actkm. WHEREFORE;, Plaintiff requests this H ~norable Court to enter Judgment against Defendant in an amount in excess 0f $25.00O O0 plu~ c. cmt and interest. COl INT Ii .BREACH 14, Paragraphs 1- 13 am hereby inc =rporat.¢l by reference as set forth in their text. 15. The actions of the Del'endant vic lated the Pennsylvania Uniform Commercial Code in that the product ~old to I ma Plaintiff wes manufactured and distributed by I~e Oefendant in a fashion that t did not fit the ordinary purposes for which such 10mducts are used thereby violatin the warranty of marketability. 16. The Defendant, by manufacbJrin , marketing, advertising and selling this product represented that it was safe for Its infl nded use and by placing this defective product in the stream of commerce have brae: had the warrant of marketability. 17. As a result of the accident cause solely by the Defendant's breach of warranty, Plaintiff suffered severe injuries as r~ore fully set forth below. 18, As a result of the accldeat cause warranty, Plaintiff has sustained or may sushi Past and future pain and Past and future loss of lif! Pest and futu re incidental Past and future mental am ~1 az)lely by the Defendant's breach of n the following damages: ~uffeHng; 's enjoyment; cost; xie~Jes; Past and future medical eJepenses; Embarrassment and humiliation; and G. OisRgurement RUG-06-2001 10:14 8'7'77626238 9FJY, P. 0~ WHEREFORE. PlainUif requests this H Defendant In an* amount in excess of COI PRODUC'I t 9. Paragraph 1-18 above em here~ their full text. 20, At all times relevant lo this eCtio~ was engaged in Ihs manufacture and sale of Commonwealth of Pennsylvania for distr,3=ufit corlsumer~, 21. Defendant expected the coffee users in the condition in which IT was sold. 22. At all times relevant her~o Plain Int~nded use and was unaware of any defect ~norable Court to enter judgment against .00 plus cost and interest. NT ill LIABILITY , incorporats¢l by reference as set forth Defendant Burger K~ng of Shlppenaburg ~lfee which was sold in the f,o the general public as the uilimate ~old by them to reach consumers or lff utilized the produce sold to her for its {~e pn>duct package or p~oduc~ itself or that any danger to herself or °them could res~t~ by using said produc~. 23. At all times relevant hereto the coffee and cup in which il was sold to Plaintiff wa= in a defective condition and unree or others in that a defect in design existed. A, consumer who, lacking the technical kno~ledl: temperature of the liquid or ¢~ntrol the co~rln relied on the duty of the Defendant to deliver f'~ for use for the purpose intended. A breech defective condiUon of the coffee and cup in w~ of the injury sustained by the Plaintiff, Brenda 24. As a result of the accident ca,se duty and the defectiv~ c~ndition of the coffee Plaintiff Brenda L. Martin. et all times relevant es more fully outlined above. ~3nably dangerous to e user, consumer =ondition was not observable by a e and skills required to measure 1Jla of the cup in which the liquid was ~old, coffee at the time of sale in s c~ndJtimn ~f the duty by the Defendant sod the ~h it was sold was the proximate cause .. Martin. ~ solely by the Defendant's breach of ind cup, more fully described above. ~ereto received serious medical injuries RUG-06-2001 18:14 ~??7626238 37~; P.89 .A6g-O1-O1 O]. :2:~P Russ¢ i Ent~rpr~e~ 1 7 763 7172 P.07 25. As a result of the accident caust defective product. Plaintiff has sustained or m D. E. F. G. Past and futura pein and Past and future loss of life Past and future incidental Past and future mental ae Past end future medical e Embarrassment and hum~ Diafigumrrmnt WHEREFORE, Plaintiff reque~ this H the Defendant in an amount In excess of $25 cOUI STRICT LU 26. their full text. 27. Paragraphs 1-25 are hereby ina The Defendant, Burger King of $ solely by the Defendant's ~.]'eaf~on of a , sustain the follow~ng damages: adflering: 'S enjoyment; Cost: iety; )enses; [lation: end ~lnorable Court to enter judgment against 00.00 Plus cost and interest. IV ,ILITY rporated by reference as if set forth in 4ippensburg, breached its non-delegable duty to provide a non-defective produ~ into th1~ stream of commerce. 28. At all times relevant he~,~u~ Plain~fwas using the product for its intended and normal use and them were no substantial~Changes to the product from abe time it left conlrol of the Defendant until the time of th~ accidenL 29. Plaint/frs in)uries were the direct land proximate result of the conduct of Defendant, Burger King of Shippensburg, and ~at the following defects were present in the prOduct sold to the Plaintiff at said time an~l place: A. The defective design and ~anufacture of the cup; B. The de~ve design and manufacture of the lid; C. Tl~e defe~'~'.~e manufacture; of the product coffee in the cup; D. The defective design and T~enufacture o! the coffee and Cup in such a way to prevent exc ~ssive injuries to the Plaintiff in the case oi spillage wl3Jr.~ wee fore ~eable end normal; and AUG-06-2001 10:14 8???626238 97Z P.10 .Au'~I-OI-O1 o'm ::~_p · 07./31/2B01- 18:21 i Enterprises 1 7 763 7!7Z .,P.08 The defective design andlmanufab"ture Of ttte coffee and cup in such a way as to fall to a~bicl serious injury by occupants in vehicles in the case of a ~pilr similar tothe one which occurred herein. 3,0. The c~nditions referenr..~d abov(,were in existence ~t the time of the sale of the pnxluct to the Plaintiff and et the time t, e product left Defendant's control and these defe~[a were · substantial teeter in cau: :lng Plaintiff's injuries. 31. Defendant, Burger King of Shipr snsbuq), failed in its duty as a guarantor of the safety of its product in ~hat it failed to m Inufecture its coffee, cup and lid with every element necessary to make it safe [or u le by the consuming public and specifically by Plaintiff Brenda L. Marlin. 32. The Defendant breached ~s duty to wam. post sale of the defective design and manufacture of Its coffee by fallin~ to prOvide complete and accurate information to protect against the foreseeable ~isk of harm that this defect presented. 33. The Defendant is strtctly liable f~f the defective design and manufacture of the coffee, cup and lid due to the occurrence ~ a foreseeable accidental spill, which were to occur clurlng normal use. 34. As e result of tho accktent cause solely by the Defendant's breach of its dUty OS a manufacturer and producer of SuCh ~3ducts. Plaint~f has sustained or may sustain the following damages: Past end future pein end ~uffering; Past end future less el~ tif~'.s enjoyment: Past and ~uture incklentelI cost; Past and future ment~ arlxlely; C. D. E. F. G. Past and future medical e Embarrassment and hum Disfigurement WHEREFORE. Plaintiff requests this the Defendant in an amount in exoess of $25.1 (penses: ~iation; and >notable Court to enter judgment against ~30.00 plus costs and Interest. RUG-06-2001 10:14 877762623@ 38X P.11 Enterprises I 7. 763 7172 P.O~ cou, v UNFAIR TRADE PRACTICES AOT T 35. Paragraph= 1 ~ above are hen~b¥ re.alleged and Jncoq~orated as if set ~o~h in their full text. I 36. The Defendant. at all limas mlevtIn! hereto, wes engage~l in tra,la In c~mmerc~ as defined in the I~enn,~ylv~[nla Unfair Trade Practices Act. 73 P.S. §201-1 et S~O. 37. The Defendant was, at all times relevant hereto, engaged In unfair or deceptive egis or practices es set forth ~:we fi I 38. As a direct result of the a~tions 0 Unfair Trade Practices Act, the Plaintiff has su are therefore, is entitled, pursuant to the provi lily in the said Unfair Trade Pmctlces Act. I the Defendant, all in violation of the feted a loss in excess of $25,000.00 and, Ions of the Act, to an award of actual treble damages, coats and teasona~le attorney fees. damages, WHEREFORE, for ell the above reasor }, the Plaintiff requests Judgment In her favor in en amount in excess of $25, ODO.00 pirie treble damages, plus costs and reasonable attomey fees. Respectfully Submitted TURO LAW OFFICES Carol[. CinoFa~elli. Esqu~ 28 Se~ith Pitt Street C. arlis~e. PA 17013 (717) ~245.9868 Allenby for Plalntif~ IlRUi~l " '"" ~ ,n l~astt~¥ ~lw'e01, I he~ UNO ~ ~ ~no AUG-OG-2001 10: 1~ ~???G2G2~S 97% P. 12 Au~-O!-03. 01:~'3P · 87/'41/2BO'L ~ Enterprises i ~ 7~3 73.7~ P. lO I verl~y U'tm the statements made In the I undersband ~ falee ~taten~nts herein Pa.C.$. §4904 relating to unshorn falslt~ali= ~ON ~omgoing Complmir~ arm InJ~ ~nd oorrect. r~ made subject to ~e ~ ~ 1~ to a~ori~es. \~.~ ~0, o~ Bren¢ · L. MenJn AlJO-O6-2001 10:14 87??626238 97% P.13 · Aug-Ol-01 01:~3P Flu.~-~, I Enterprises~u.~-m I 7 763 717;~ P.'11 I hereby certify that I se~ed a tree Burger King of Shippensbung by Cumberh day of_ ,2001, CERTIFICATE ~F ~gERVICE Ind con'ect copy of the Complaint upon ~d County Sheriff's Department on the ddres~ed as Burger KJng of ~ippensburg 38 Wntnut Bo' tom Road ShippenSburg, TUR~ PA 17257 LAW OFFICES 28 $~ Car11~ (717] Attor~ . L. Cin'gran~li, EsqUire ~ ' uth Pitt Street le. PA 17013 245-9688 ,ay for RUG-06-2001 10:14 8???626238 97Z P. i4 Exhibit B Oct~ool Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17o~3 Re: Martin v. Burger King Restaurant Cumberland County No. o4x-45o3 Dear Attorney Cingranelli: Enclosed please find a deposition notice for your client for November 9, starting at 9:0o a.m. in our office. As you can see, I have contacted the court reporter. Very truly yours, THOMAS, THOMAS & HAFER, LLP SEG/tk :~ 39829.4 Enclosure cc: Hughes, Albright (with enclosure) Stephen E. Geduldig Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: se,qL~,tthlaw.com Attorneys for Defendant: Burger King Restaurant BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED DEPOSITION NOTICE TO: Ail parties and their counsel: PLEASE TA~u~ NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, the undersigned will take the deposition of BRENDA L. MARTIN ON NOVEMBER 9, 2001 beginning at 9:00 A.M. AT THE LAW OFFICES OF THOMAS, THOMAS & HAF~R, 305 NORTH FRONT ST~.~ET, 6~ FLOOR, HARRISBURG, PA 17101 upon oral examination, for the purpose of discovery and for use as evidence in the above-captioned action, at the offices of before a Notary Public or some other person authorized or commissioned to administer oaths on all matters not privileged which are relevant and material to the issues and subject matter involved in the pending action, including, but not limited to, the facts of the alleged incident, and the events leading up thereto. Parties and attorneys are directed to bring with them any and all materials or documents which in any way relate to the subject lawsuit. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP :1~138.1 By: STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendant, BURGER KING RESTAURANT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the day of October, 2001, on all counsel of record as follows: Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17013 Attorneys for Plaintiff THOMAS, THOMAS & HA~R, LLP Stephen E. Geduldig, Esquire :139819.1 Exhibit C (717) 237-7119 E-Mail: seg@t~hlaw, com November 21, 2001 Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17o13 Re: Martin v. Burger Kine Restaurant v. Bureer Kine Corporation. et al Cumberland County No. ol-45o3 Dear Attorney Cingranelli: I am following-up on the Plaintiffs deposition at which we requested the following: 3o Please provide color photocopies of all documents, photos, receipts and so fort~ which have been identified in Answer to Interrogatories. While I personally am not looking forward to receiving copies of the photographs your client produced at the deposition, ff she is going to attempt to publish these to a jury, I need copies. Please make color photocopies. I also would request photocopies of the receipt and notes, even though I recognize that the receipt is faded. I want to show my client what was produced. Finally, please identify who took what photographs and on what date they were taken. Please provide the name of the manufacturer of your client's coffee maker, the model number and the place and date of purchase. Please produce the log your client compiled of comparative coffee temperature readings, which she discussed at her deposition. Also, identify the manufacturer and the numbers on the bottom of the coffee cup, along with any numbers and identifying features on the lid. Please preserve for future inspection the lid and the coffee cup. Please advise when the candy thermometer your client referenced in her deposition can be tested. Carol L. Cingranelli, Esquire Re: Martin v. Burger King Restaurant v. Bulmer King Corooration. et al Cumberland County No. Ol-45o3 November 21, 2001 Page 2 I would like a full and complete response to my document request. This was not provided. Finally, will you agree to the dismissal of corporate Burger King and Douwe Egberts, the manufacturer of the coffee machine? You did not sue them, we did, and we would like to discontinue suit against them. Under my reading of the Rules, I need to consent of all parties. Please advise. Very truly yours, THOMAS, THOMAS & HAFER, LLP SEG/tk :~ 39829.7 By: Stephen E. Geduldig CC: Robert A. Lerman, Esquire Guy Mercogliano, Esquire bc: Ms. Vicky Strickler (Gallagher Bassett Claim No. oo1393-OOO866-PA-o1) Mr. Gary Pmett (Claim No. 2OOl-25452-CC) Exhibit D ~D (717) 237-7n9 E-Mail: seg@tthlaw.com December 26, 2001 Carol L. Cingranelli, Esquire TURO LAW OFFICES e8 South Pitt Street Carlisle, Pennsylvania 17o~3 Re; Martin v. Burger King Restaurant v. Burger Kin~ Corooration, et al Cumberland County No. ox-45o3 Dear Attorney Cingraneni: Enclosed please find a copy of my letter to you of November 21, 2oo~. More than a month has gone by since I requested the information in that letter. Will you please give me a call to discuss. Thank you. Very truly yours, THOMAS, THOMAS & HAFER, l.!,p By: SEG/tk :139829.9 Enclosure Stephen E. Geduldig ce: Robert A. Lerman, Esquire (with enclosure) Guy Mercogliano, Esquire (with enclosure) be: Ms. Vicky Stric!der (Gallagher Bassett Claim No. oo1393-ooo866-PA-ol) (with enclosure) Mr. Gary Pruett (Claim No. 2oo~-25452-CC) (with enclosure) BRENDA L. MARTIN, Plaintiff VS. BURGER KING RESTAURANT, Defendant VS. BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC., AND DOUWE EGBERTS SUPERIOR COMPANY: Additional Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4503 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: DEFENDANTS' MOTION TO COMPEl, ORDER AND NOW, this ~ ¢ °~ day of February, 2002, a brief argument on the within motion to compel is set for Thursday, April 4, 2002, at 2:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Carol L. Cingranelli, Esquire For the Plaintiff ess, J. Stephen Geduldig, Esquire For the Defendant Robert A. Lerman, Esquire Guy Mercogliano, Esquire For Additional Defendants :rim V1NVA'IASNN=Jd ,LLNNO0 6"1:01141/ L ~ 833 80 BRENDA L. MARTIN, Plaintiff VS. BURGER KING RESTAURANT, Defendant VS. BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC., AND DOUWE EGBERTS SUPERIOR COMPANY Additional Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4503 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: DEFENDANTS' MOTION TO COMPEL ORDER AND NOW, this 2 ~ ' day of March, 2002, a brief argument on the defendant's motion to compel filed December 10, 2001, is set for Thursday, April 4, 2002, at 2:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Carol L. Cingranelli, Esquire For the Plaintiff Stephen Geduldig, Esquire For the Defendant Robert A. Leman, Esquire Guy Mercogliano, Esquire For Additional Defendants Hess, J. BRENDA L. MARTIN, Plaintiff VS. BURGER KING RESTAURANT, Defendant ¸VS. BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC., AND DOUWE EGBERTS SUPERIOR COMPANY: Additional Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4503 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: DEFENDANTS' MOTION TO COMPEL PSYCHOLOGICAI, OR PSYCHIATRIC RECORDS ORDER AND NOW, this day of April, 2002, following argument thereon, the motion of the defendant for production of mental health records is GRANTED to the extent that, unless same are produced, the plaintiff shall be barred from adducing medical testimony in support of a claim for special psychological or psychiatric damages. BY THE COURT, F~o~rOl L. Cingranelli, Esquire the Plaintiff phen Geduldig, Esquire the Defendant Margaret Grab, Esquire For Additional Defendant Egberts Hess, J. BRENDA L. MARTIN, Plaintiff VS. BURGER KING RESTAURANT, Defendant VS. BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC., AND DOUWE EGBERTS SUPERIOR COMPANY Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4503 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: DEFENDANTS' MOTION TO COMPEL PRODUCTION ORDER AND NOW, this 5/* day of April, 2002, following argument thereon, the motion of the defendant, Burger King, for production is GRANTED to the extent that it is ordered and directed that: 1. The items referred to in paragraph 1 of the letter of Mr. Geduldig dated November 21, 2001, shall be produced. Any and all photographs of the plaintiff shall be kept by defense counsel under seal to be viewed only by members or employees of Thomas, Thomas and Haler LLP, or any experts retained by said law firm in connection with this case. 2. The record can reflect that counsel for the plaintiffhas complied with paragraphs 2, 4 and 5 of the letter of November 21, 2001. 3. The items referred to in paragraphs 3 and 6 of Mr. Gednldig's November 21st letter either have never existed or cannot be found. BY THE COURT, ~ol L. Cingranelli, Esquire For the Plaintiff ~8't~en Geduldig, Esquire For the Defendant ~nFor AMargaret Grab, Esquire dditional Defendant Egberts :rim Kevin ~. Hess, J. / IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRENDA L. MARTIN, Plaintiff, BURGER KING RESTAURANT, Defendant, BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC. AND DOUWE EGBERTS SUPERIOR COMPANY, Additional Defendants. CIVIL ACTION - LAW NO. 01-4503 JURY TRIAL DEMANDED. PRAECIPE TO THE PROTHONOTARy: Please enter a Rule upon Defendant, Burger King Restaurant, to file a Complaint within twenty (20) days from the date of the service of this Rule or suffer Judgr~ff~n~pros. GRIFFI~I, STRICKLER, LERMAN, _ soryMOg & CALKINS / Attorney for Defendants, Douwe Egberts Coffee Service, /ne. and Douwe Egberts Superior Company 1~5~3j~.~_ 110 South Northern Way ~ York, Pennsylvania 17402 Date: .---._ (717) 757-7602 NOW,. , 2002, RULE ISSUED AS ABOVE. PROTHONOTARy d ' klr/douwe-rule.z BY: G tD~PUTY SWEENEY & SHEEHAN, P.C. By: Guy Mercogliano, Esquire Identification No. 39766 1515 Market Street, 19th Floor Philadelphia, PA 19102 (215) 563-9811 Attorney for: Defendant, Burger King Corporation BRENDA L. MARTIN Plaintiff BURGER KING RESTAURANT Defendant BURGER KING CORPORATION, DOUWE EOBERTS COFFEE SERVICE, INC. and DOUWE EGBERTS SUPERIOR COMPANY Additional Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Kindly enter a Rule upon Defendant, Burger King Restaurant, 38 Walnut Bottom Road, Shippensburg, PA 17257, to file a Complaint in the above matter within twenty (20) days from the date hereof. SWEENEY & SHEEHAN BY , ~ Guy Me~ogliano ~/ RULE TO FILE COMPLAINT AND NOW, this o2~ day of April, 2002, a Rule is hereby granted upon Defendant, Burger King Restaurant, 38 Walnut Bottom Road, Shippensburg, PA 17257, to file a Complaint within twenty (20) days after service hereof, or suffer a judgment of non pros. DATE: ~I~ROTEIONO~AR~ g SWEENEY & SI:IEEHAN, P.C. By: Guy Mcrcogliano, Esquire Identification No. 39766 1515 Market Street, 196 Floor Philadelphia, PA 19102 (215) 563-9811 Attorney for: Defendant, Burger King Corporation BRENDA L. MARTIN Plaintiff Vo BURGER KING RESTAURANT Defendant BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC. and DOUWE EGBERTS SUPERIOR COMPANY Additional Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE GUY MERCOGLIANO, being duly sworn according to law, deposes and says that he is the attorney for Burger King Corporation, Defendant herein, that on May 8, 2002 he mailed a true and correct copy of Rule to File Complaint to Stephen E. Geduldig, Esquire, attorney for Defendant, Burger King Restaurant, 38 Walnut Bottom Road, Shippcnsburg, PA 17257, via First Class Mail. Sworn to and subscribed before me this~day of ~~, ~002 r LiC/ NOTARIAL SEAL SUZANNE M, DIGATI, Notary Public OltY of Philadelphia, Phila. County M~ ~;Qmrnl~alan Expkes May 3, 2004 SWEENEY & SHEEHAN, P.C. By: Guy Mercogliano, Esquire Identification No. 39766 1515 Market Street, 194 Floor Philadelphia, PA 19102 (215) 563-9811 Attorney for: Defendant, Burger King Corporation In ;:c! ?:,3'v ',:,"Er'co;,, ! hsre unto set my mc and 'fi-~a s~ai of s~d Court at Carhs'e, Pa. his ........ day ..... BRENDA L. MARTIN Plaintiff Vo BURGER KING RESTAURANT Defendant Vo BURGER KING CORPORATION, : DOUWE EGBERTS COFFEE SERVICE, : INC. and DOUWE EGBERTS SUPERIOR : COMPANY : Additional Defendants : COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 014503 CIVIL TERM IURY TRIAL DEMANDED pRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Kindly enter a Rule upon Defendant, Burger King Restaurant, 38 Walnut Bottom Road, Shippensburg, PA 17257, to file a Complaint in the above matter within twenty (20) days from the date hereof. SWEENEY & SHEEHAN BY ~uy Me~0glian° ~/ RULE TO FILE COMPLAINT AND NOW, this c~ day of April, 2002, a Rule is hereby granted upon Defenrl~nt, Burger King Restaurant, 38 Walnut Bottom Road, Shippansburg, PA 17257, to ~e a Complaint wjthln twenty (20) days after service hereof, or suffer a judgment of non pros. PROTHOI -ffT.kfiY (7 DATE: 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRENDA L. MARTIN, CIVIL ACTION - LAW Plaintiff, NO. 01-4503 V. BURGER KING RESTAURANT, Defendant, JURY TRIAL DEMANDED. BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC. AND DOUWE EGBERTS SUPERIOR COMPANY, Additional Defendants. AFFIDAVIT OF SERVICE Robert A. Lerman, being duly sworn according to law, deposes and says that he is the attorney for Douwe Egberts Coffee Service, Inc. and Douwe Egberts Superior Company, Defendant herein, that on April 30, 2002, he mailed a tree and correct copy of the Rule to File Complaint to Stephen E. Geduldig, Esquire, attorney of record for Defendant, Burger King Restaurant, certified mail, return re~ requested, and a copy of the return receipt card evidencing service is attached her¢l marked Exhibi~/l' /~ P'~ERT ~' LERM'AN'U J SWORN and SUBSCRIBED to before me this ,/'~/~ day~ ,2002 Notary Public ~ My Commission Expires: INOTARIAL SEAL Catherine N. Byerts, Notary Public Springettsbury Township, County of York My Commission Expires Jul. 21,2003 · Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · Print your name and eddress on the reveme so that we can return the card to you. · Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to; n-- oM- _ [] Addresses Date of Delivery address If YES, enter delivery address below: [] No 3. Service Type ifled Mail [] Registered [] Insured Mail [] Expmes M~dl [] Return Receipt for Merchandise [] C.O.D. 4. Restricted Delivery? (Extra Fee) [] Yes 2. Article Number (Transfer from service label) PS'Form 3811 August 2001 7001 0320 0003 4630 8579 Domestic Return Receipt ~, 102595-01 .M-2509 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRENDA L. MARTIN, Plaintiff, V. BURGER KING RESTAURANT, Defendant, V. BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC. AND : DOUWE EGBERTS SUPERIOR COMPANY, : Additional Defendants. : CIVIL ACTION - LAW NO. 01-4503 JURY TRIAL DEMANDED. PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS PURSUANT TO Pa. R.C.P. Rule 1037 TO THE PROTHONTARY: Please enter judgment against Defendant, Burger King Restaurant, and in favor of Defendants, Douwe Egberts Coffee Service, Inc. and Douwe Egberts Superior Company, pursuant to Pa. R.C.P. Rule 1037(a) for failure of Defendant, Burger King Restaurant, to file a Complaint within 20 days after service of the Rule. Attached hereto and marked Exhibit 1 is a tree and correct copy of the written Notice of Intent to File this Praecipe for Judgment of Non Pros which I certify was served upon Stephen E. Geduldig, Esquire, counsel for Defendant, Burger King Restaurant, on May 22, 2002. Dated: GRIFFIT/STRICKLER, LERMAN._ g LV OS a CA rd S /') Egberts Coffee Service, Inc. and Douwe Egberts Superior Company 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 IN THB COURT OF COMlvION PLEAS OF CUivIBERLAND COUNTY, PENNSYLVANIA BRENDA L. MAKTIN, : CIVIL ACTION - LAW Plaintiff, : v. : NO. 01-4503 BURGER KING RESTAURANT, : Defendant, : BURGER KING CORPORATION, DOUWE EGBERTS COFFEE : SERVICE, INC. AND DOUWE EGBERTS SUPERIOR COMPANY, : Additional Defendants. : JURY TRIAL DEMANDED NOTICE OF PRAECIPE TO ENTER JUDGMENT OF NON PROS TO: Burger King Restaurant c/o Stephen E. Geduldig, Esquire Thomas, Thomas & Hafer, LLP 305 N. Front Street, 6th Floor Harrisburg, PA 17108 DATE OF NOTICE: May 22, 2002 IMPORTANT NOTICE: YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE A COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WrlHOUT A REARING AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: ldr/douwe-default.z Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 .,~ Telephone: (717)249-3~/6// Attorney for Additional Defendants, Douwe Egberts Coffee Service, Inc. and Douwe Egberts Superior Company 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRENDA L. MARTIN, Plaintiff, BURGER KING RESTAURANT, Defendant, BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC. AND DOUWE EGBERTS SUPERIOR COMPANY, Additional Defendants. CIVIL ACTION - LAW NO. 014503 JURY TRIAL DEMANDED. CERTIFICATE OF SERVICE ANDNOW, this3(~ dayof ~ ,2002 I, RobertA. Lerman, amemberofthe firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have, this date, served a copy of Praeeipe for Entry of Judgment of Non Pros Pursuant to Pa. R.C.P. Rule 1037 by United States Mail, addressed to the party or attorney of record as follows: Carol L. Cingranelli, Esquire Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 (Plaintiffs Counsel) Stephen E. Geduldig, Esquire Thomas, Thomas & Hafer, LLP 305 N. Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108 (Counsel for Burger King Restaurant) Idr/douwe-prp.z Gaetano Mercogliano, Esquire Sweeney & Sheehan 19th Floor 1515 Market Street Philadelphia, PA 19102-1983 (Counsel for Burger King Corporation) GR1FFIT~CKLER, LERI~AN, RA~jf~ ' ~d~X'; 'e ~7~ 4t ~D o uwe Egberts Coffee Semce, Inc. ~d Douwe Egbe~s Superior Compmy 110 Sou~ No.em Way Yor~ P~sylv~ia 17402 (717) 757-7602 BRENDA L. MARTIN, Plaintiff BURGER KING RESTAURANT, et al. Defendants :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 01-4503 CIVIL TERM : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please settle, withdraw and discontinue the above-captioned matter on behalf of the Plaintiff. Respectfully Submitted TURO LAW OFFICES Carol L. Cingranelli, Esqd~re 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Praecipe to Discontinue on the ~_,~..¢~ day of ,//~~ , 2002, by First Class mail addressed as follows: Stephen E. Geduldig, Esquire Thomas, Thomas & Hafer 305 N. Front Street, 6t~ Floor P. O. Box 999 Harrisburg, PA 17108-0999 Gaetano Mercogliano, Esquire Sweeney & Sheehan 19th Floor 1515 Market Street Philadelphia, PA 19102-1983 Robert A. Lerman, Esquire Griffith, Strickler, Lerman Solymos & Calkins 110 South Northern Way York, PA 17402-3737 TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff