Loading...
HomeMy WebLinkAbout00-08150 IN THE eOURT OF eOMMON PLEAS OF eUMBERLAND eOUNTY, PENNSYLVANIA ETHEL LUTHER 127 Mt. View Terrace Dover, P A 17315 Plaintiff vs. NO. {)1J - J' i So eIVIL--r;~ WAL-MART STORES, INe. 6520 earlis1e Pike Mechanicsburg, PA 170155 PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY, Please issue a writ of summons upon the above captioned Defendant. Thank you for your prompt attention to this matter. Date: /1- 20 -0<' Commonwealth of Pennsylvania County of Cumberland Ethel Luther 127 Mt. View Te=ace Dover, Pa. 17315 Court of Common Pleas VB. No. n.9_Q.-=~1-_5_Q__~_ty:i-L1""!!]1_mnnn__ ILn Wal-Mart Stores, Inc. 6520 Carlisle Pike Mechanicsburg, Pa. 17055 In ___<::J~:i-LAgt:i-pP-_!c~______________________ To J[ql~Mir(t_S_tQre>i._IIll:.___________________ You are hereby notified that .___~~0~~__~~~~~~___1_~Z_~~,_Yj_~~_!~_~~?~_~c_~Y_~~!_~~,_~_~~!?______________________________ the Plaintiff ha s commenced an action in ___Ciy.il.Jd9W___________________________________________ against you which you are required to defend or a default judgment may be entered against you. (SEAL) .c~~t:i-_~_8~__~Q~iL_____________________________ Prothonotary Dat"N~~~:"'__~q!__2_qQ~___________ ~____ By ___~--~~~~----------------- SHERIFF'S RETURN - REGULAR CASE NO: 2000-08150 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LUTHER ETHEL VS WAL-MART STORES INC. JASON VIORAL , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon WAL-MART STORES INC the DEFENDANT , at 0011:10 HOURS, on the 29th day of November, 2000 at 6520 CARLISLE PIKE MECHANICSBURG, PA 17055 by handing to CHAD WRIGLESWORTH (ASST. MGR) a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers:,;-, y / ~~""'""':,,..r-<:: j1~r'::'C ~ ' ! 18.00 6.20 .00 10.00 .00 34.20 R. Thomas Kline 11/30/2000 JOSEPH D. BUCKLEY Ii;. me this /J~- day of Sworn and Subscribed to before By: ~ ~ A.D. ~r2~~ ~' " rothonotary / McDONNELL & ASSOCIATES BY: Patrick]. McDonnell, Esquire Attorney LD. No. 62310 BY: Daryl W. Winston, Esquire Attorney LD. No. 66242 Two Penn Center Plaza, Suite 910 Philadelphia, P A 19102 (215) 636,4482 ATTORNEYS FOR DEFENDANT W AL'MART STORES, INC. ETHEL LUTHER COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. WAL,MART STORES, INC. NO. 00,8150 Civil Term ENTRY OlP APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearances on behalf of Defendant, W al, Mart Stores, Inc. in connection wirh the above,referenced matter. McDONNELL &; ASSOCIATES By: ~LL 'Daryl Vv.Wmston, Esquire PatrickJ. McDonnell, Esquire Attorneys for Defendant, Wal,Mart Stores, Inc. DATED: December 6, 2000 eERTIFICATE OF SERVICE DARYL W. WINSTON, ESQUIRE hereby certifies that a true and correct copy of the Entry of Appearance was served by United States first class mail, postage prepaid on December 6, 2000 to the counsel below named: Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, Pi\.17013 BY: McDONNELL &' ASSOCIATES L.d:L D'ARYL W. WINSTON, ESQUIRE McDONNELL & ASSOCIATES BY: Patrick J. McDormell, Esquire Attorney LD. No. 62310 BY: Daryl W. Winston, Esquire Attorney LD. No. 66242 Two Penn Center Plaza, Suite 910 Philadelphia, P A 19102 (215) 636-4482 ATTORNEYS FOR DEFENDANT WAL-MART STORES, INC. ETHEL LUTHER COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. WAL-MART STORES, INC. NO. 00-8150 Civil Telm PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Please enter a Rule upon plaintiff to file a Complaint within twenty (20) days hereof or suffer the entry of a Judgment of Non Pros. McDONNELL & ASSOCIATES B':: ULL Daryl w. Winston, Esquire PatrickJ. McDormell, Esquire Attorneys for Defendant, Wal-Mart Stores, Inc. McDONNELL & ASSOCIATES BY: PatrickJ. McDonnell, Esquire Attorney LD. No. 62310 BY: Daryl W. Winston, Esquire Attorney LD. No. 66242 Two Penn Center Plaza, Suite 910 Philadelphia, P A 19102 (215) 636,4482 ATTORNEYS FOR DEFENDANT WAL,MART STORES, INC. ETHEL LUTHER COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. WAL,MART STORES, INC. NO. 00,8150 Civil Term RULE TO FILE COMPLAINT AND NOW, this J I -I h day of Ou.~1V\ txr ,2000, Rule is hereby granted upon plaintiff to file a Complaint herein within twenty (20) days after service hereof or suffer the entry of a Judgment of Non Pros. (j 'I ~I ).wJ!JJ 1< ;(>m? PROTHONOTARY CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS ETHEL LUTHER TERM, -VS- CASE NO: 00-8150 CIVIL TERM WAL-MART STORES, INC. 'As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of DARYL W. WINSTON, ESQUIRE certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. d1CS on,.~epajl,j of Ic'lllu//vW~ DA~'W. WINSTON, ESQUIRE Attorney for DEFENDANT DATE: 02/26/2001 DEll-237477 51454-LOl COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: COURT OF COMMON PLEAS ETHEL LUTHER TERM, -VS- CASE NO: 00-8150 CIVIL TERM WAL-MART STORES, INC. NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 SEIDEL MEMORIAL HOSPITAL SEIDEL MEMORIAL HOSPITAL MEDICAL AND HOSPITAL BILL X-RAY ONLY TO: JOSEPH D. BUCKLEY, ESQ KCS on behalf of DARYL W. WINSTON, ESQUIRE intends to serve a subpoena identical to the one that is 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 subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to KCS or by contacting our local KCS office. DATE: 02/06/2001 KCS on behalf of DARYL W. WINSTON. ESQUIRE Attorney for DEFENDANT CC: DARYL W. WINSTON, ESQUIRE - K-206 Any questions regarding this matter, contact THE KCS GROUP INC. 1601 HARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-144502 51454-COl COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERL~'iD ETHEL LUTHER File So. 00-8150 CIVIL VS WAL-MART STORES, INC. SUBPOENA TO PRODUCE DOCUML'-lS OR THINGS FOR DISCOVERY PURSUk"-l TO RULE 4009.22 TO: CUSTODIAN OF RECORDS FOR:SEIDEL HOSPITAL (Name of Person or S.,tity) Within t'\oo\'e:-:-=!' (20) days after service of this subpoena. you are ordered by the court to produce the following documents or things: SEE ATTACHED at MCS GROUP INC., 1601 MARKET ST., #800, PHILA.,PA 19103 (Addr~ss.) You may deiiver or mail legible copies of the documents or produce things re<;uested by this subpoena. together with the certificate 0: :o:npJiance. to the party making this request at the address listed .above. You have the right to seek, in advance. tht :-easonable ccst of preparing the copies or producing the things sought. if you fail to Toduce the documents or things required by this subpoena,. .....;tr.in twenty PO) days aiter its service, the party serving this s-.:opoena may seek a court order compelling you to comply ",;th ~.... THIS SLl>POENA WAS ISSUED AT THE REQUEST OF TIlE FOLLOWING PERSON: SAME: nARY1, W WTNSTON. l'SO ADDRESS: 2 PENN CENTER PLAZA, STE 910 FHTLA.. FA 19102 TELEPHO\'E: 215-246-0900 SUPRE~fE COURT 10 #: ATTOR.'\fY FOR: DEFENDANT BY THE COURT: DATE: ?'f:iJflAAAjltj_ d" JtDI Seal of the Court (Eif. 7/97) EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: SEIDEL MEMORIAL HOSPITAL 120 S. FILBERT STREET MECHANICSBURG, PA 17055 RE: 51454 ETHEL LUTHER INCLUDE ABSTRACTS OF HOSPInLIZATIONS & IN/OUT PATIENT RECORDS. Any and all records, correspondence, files and memorandums, handwritten notes, billing and payment records, relating to any examination, consultation, care or treatment of patient. Dates Requested: up to and including the present. Subject: ETHEL LUTHER 127 MOUNTAlNVIEW TERRACE, DOVER, PA 17315 Social Security #: 168-24-4321 Date of Birth: 05-18-1928 SUlO-289312 51454 -L 0 1 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS ETHEL LUTHER TERM, -VS- CASE NO: 00-8150 CIVIL TERM WAL-MART STORES, INC. As a prerequisite to service of a subpaena for documents and things pursuant to Rule 4009.22 MCS on behalf of DARYL W. WINSTON, ESQUIRE certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. MCS on behalf of DATE: 02/26/2001 DARYL W. WINSTON, ESQUIRE Attorney for DEFENDANT DEll-237478 51454-L02 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: COURT OF COMMON PLEAS ETHEL LUTHER TERM, -VS- CASE NO: 00-8150 CIVIL TERM WAL-MART STORES, INC. NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 SEIDEL MEMORIAL HOSPITAL SEIDEL MEMORIAL HOSPITAL MEDICAL AND HOSPITAL BILL X-RAY ONLY TO: JOSEPH D. BUCKLEY, ESQ MCS on behalf of DARYL W. WINSTON, ESQUIRE intends to serve a subpoena identical to the one that is 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 subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 02/06/2001 MCS on behalf of DARYL W. WINSTON, ESQUIRE Attorney for DEFENDANT CC: DARYL W. WINSTON, ESQUIRE - M-206 Any questions regarding this matter, contact THE MCS GROUP INC. 1601 HARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-144502 S14S4-COl COMMONYVEALTH OF PENNSYLVANIA COUNTY OF CUMBERLA..'iD ETHEL LUTHER VS File No. 00-8150 CIVIL WAL-MART STORES, INC. SUBPOENA TO PRODUCE DOCUMS'-iS OR THINGS FOR DISCOVERY PURSUAAi TO RULE 4009.22 TO: CUSTODIAN OF RECORDS FOR:SEIDEL HOSPITAL (Name of Penon or Enti~.) Within t'\o'o"ei'r.)" (20) days after sendee of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED at MCS GROUP INC.. 1601 MARKET ST., #800, PHILA.,PA 19103 (Addr...) You may deih.er or mail legible copies of the documents or produce things re-quested 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 ",..onable cost of preparing the copies or producing the things sought. If you fail to ?ioduce the documents or things required by this subpoena.. "';tf....in twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply 'With r.... THIS SLllPOENA WAS ISSUED ATrnE REQUEST OF THE FOLLOWING PERSON: ~AME: DARYl W WTN>i1'ON. llS0. ADDRESS: 2 PENN CENTER PLAZA, STE 910 PHTT.A. . PA 19102 TELEPHO~E: 215-246-0900 SUPREME COURT 10 II: ATIOR.'\"E), FOR: DEFENDANT BYTIfE COURT: DATE: f;.b.JWA..lJ- /It OJM ( Seal of the Court (EfI. 7/97) EXPIANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: SEIDEL MEMORIAL HOSPITAL 120 S. FILBERT STREET MECHANICSBURG, PA 17055 RE: 51454 ETHEL LUTHER Any and all X-Rays pertaining to patient. Dates Requested: up to and including the present. Subject: ETHEL LUTHER 127 MOUNTAINVIEW TERRACE, DOVER, PA 17315 Social Security #: 168-24-4321 Date of Birth: 05-18-1928 SU10-289314 5 l4 5 4 -L 0 Z IN THE eOURT OF eOMMON PLEAS eUMBERLAND eOUNTY, PENNSYLVANIA ETHEL LUTHER 127 Mt. View Terrace Dover,PA 17315 Plaintiff v. NO. 00-8150 eIVIL TERM eIVIL AenON - LAW W AL-MART STORES, INC. JURY TRIAL DEMANDED Defendant IMPORTANT NOneE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty days (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONeE. IF YOU DO NOT HAVE A LAWYER OR eANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFIeE SET FORTH BELOW TO FIND OUT WHERE YOU eAN GET LEGAL HELP. eumberland eounty Bar Association 2 Liberty Avenue earlisle, PA 17013 (171) 249-3166 IN THE eOURT OF eOMMON PLEAS eUMBERLAND eOUNTY, PENNSYLVANIA ETHEL LUTHER Plaintiff v. NO. 01 - eIVIL TERM eIVIL AenON - LAW W AL-MART STORES, INe. JURY TRIAL DEMANDED Defendant COMPLAINT AND NOW this 17th day of September, 2001 comes Plaintiff, by and through her counsel, Joseph D. Buckley, Esquire and complains of Defendant as follows: 1. Plaintiff, Ethel Luther, is an adult female, senior citizen currently residing at 127 Mt. View Terrace, Dover, P A 17315. 2. Defendant, Wal-Mart Stores, Inc., is an Arkansas corporation, duly authorized to conduct business in the eommonwealth of Pennsylvania and operates a retail store located at 6520 earlisle Pike, Mechanicsburg, eumberland eounty, P A 17055. 3. Wal-Mart Stores, Inc. operates many of its retail outlets, including the aforementioned Mechanicsburg store under the name "Wal-Mart". 4. At all times material to plaintiffs cause of action, Wal-Mart Stores, Inc. (hereinafter called "Wal-Mart") was the owner, operator and possessor, maintainer and in control of the aforementioned retail outlet located on the earlisle Pike in Mechanicsburg, P A and the said outlet was open to the public and operated for profit. 5. All of the acts alleged to have been done or not to have been done by defendant Wal-Mart were done or not done by said defendant, its agents, officers, servants, workmen and/or employees, acting in the course and scope of their employment with and on behalf of said defendant. 6. In the early hours of Friday, November 27, 1998, plaintiff responding to advertisements placed by Wal-Mart drove to Wal-Mart's store in Mechanicsburg, P A. 7. Plaintiff desired to arrive very early at the store for a place in line at the store which would be opening for "Black Friday" sales. 8. Plaintiffs motivation for arriving early was to insure she would be able to purchase a specific toy called a "Furbie" for her granddaughter who would be visiting for the ehristmas holidays. 9. Upon arrival at the store, Plaintiff found that she was second in line and learned that the doors to the store would open at 6:00 A.M. 10. As the morning continued hundreds of people began to arrive, also arriving were television personnel and camera crews interviewing patrons in line. 11. Wal-Mart had no security outside the store to handle crowd control. 12. At all times pertinent to this complaint, the "Furbie" toy was one of the most sought after and hard to find toys, was in very limited supply and Wal-Mart had advertised that it had such "Furbie" toys as an added inducement to have the public, including plaintiff, patronize its Mechanicsburg store. 13. Wal-Mart had established a special area/counter for the sale of "Furbie" toys which was located at the opposite end of the store from the front doors. 14. Wal-Mart maintained a customer service area in close proximity to the front doors. 15. On Friday, November 27, 1998, approximately one hour before the store was to open, the crowd had grown to several hundred persons and Wal-Mart sent an employee outside to distribute a one page map detailing where those desiring a "Furbie" must travel to reach a special area/counter which would be selling Furbies. 16. The front doors leading into the Wal-Mart store are a set of consecutive, double doors, thus any person entering the store must travel through the first set of doors into a small entrance area then proceed through the second set of doors prior to entering the retail area. 17. Prior to opening its doors, Wal-Mart employees did not let it be known to the crowd of nearly one thousand waiting patrons, that there were only 85 "Furbies" being offered for sale. 18. At 6:00 A.M. Wal-Mart employees appeared and first unlocked the doors leading from the parking area into the entrance area. 19. Immediately thereafter the crowd rushed the store and began pushing Plaintiff into the second set of glass doors. 20. Wal-Mart employees had not unlocked the second set of doors and had difficulty unlocking the same. 21. Once the doors were unlocked, the force of the crowd pushed Plaintiff to the floor where she was trampled. 22. The crowd ran through the store toward the "Furbie" area passing plaintiff as others helped her to her feet. 23. Plaintiff suffered damage to her legs, back, neck and wrists and continues to this day to suffer great physical and mental anguish because of the incident at Wal-Mart. 24. Wal-Mart, their agents, officers, servants and employees were negligent in failing to provide proper security at its Mechanicsburg store for a crowd it not only anticipated, but one which it and its advertising created. 25. Wal-Mart, their agents, officers, servants and employees were negligent in the placernent of the "Furbie" sales area and it was reasonably foreseeable that the gathered crowd would rush through the store in an attempt to reach the area ahead of slower, older patrons. 26. Wal-Mart, their agents, officers, servants and employees were negligent in failing to follow an acceptable, alternative, safety conscience procedure for the sale of a limited item in light of the crowd which had gathered that morning. 27. In addition to the allegations of negligence set forth above, Defendant Wal-Mart is further responsible to Plaintiff for her injuries and damages as a direct and proximate result of its negligence, carelessness and recklessness as follows: a. Failing to enact or promulgate or if enacted or promulgated, failing to enforce sufficient and adequate rules and regulations regarding to the handling of crowds involving selling items oflimited quantity which were in extremely high demand by the public. b. Failing to provide adequate supervision of its store managers and employees to ensure that proper rules, practices and procedures were followed. c. Failing and neglecting to employ and hire managers, staff and other agents, servants and employees with adequate experience, training, qualifications and skills to promptly and properly handle situations involving crowds and involving selling items of limited quantity which were in extremely high demand by the public. 28. Wal-Mart's negligence was a substantial factor in bringing about plaintiffs past, present and future injuries. 29. Wal-Mart's negligence was the cause of the injuries suffered by plaintiff. 30. Plaintiffs compensatory damages caused by Wal-Mart's negligence are as follows: a. Medical expenses in an amount less than $25,000.00. b. Past pain and suffering, and mental anguish in an amount in excess of $25,000.00. c. Past loss of enjoyment oflife in an amount in excess of $25,000.00. d. Future medical expenses in an amount less than $25,000.00. e. Future pain and suffering, and mental anguish in an amount in excess of $25,000.00. f. Future loss of enjoyment oflife in an amount in excess of$25,000.00. 31. Plaintiff is entitled to Punitive Damages in excess of $25,000.00 because of Wal-Mart's conduct and to deter such future conduct, based on the following: a. Wal-Mart's advertising resulted in the large crowd which gathered at it Mechanicsburg store. b. Wal-Mart had prior knowledge ofthe "Furbie" craze, as well as, prior knowledge of similar toy crazes during the holiday season, and the desire of many of its patrons to obtain a "Furbie" which was in known limited supply and availability with extremely high demand and the safety problems associated with such occurences. c. Wal-Mart, although having prior knowledge of the potential safety problems associated with crowds desiring to purchase items which are in extrernely high demand and known to be in extremely limited quantities, failed to establish and/or follow additional safety guidelines, failed to hire or to place additional security personnel at the scene, failed to open its doors properly, intentionally placed the selling counter at the opposite end of the store when other convenient areas were available all in an attempt in maximize profits at the expense of the safety of its patrons. d. Wal-Mart failed to follow acceptable, alternative, safety conscience methods for assuring those persons who were first in line who desired to purchase a "Furbie" could purchase the item without having their safety placed in peril by the crowds of persons who were not first in line. e. Wal-Mart knew that without proper security, without proper safety procedures, with the placement of its "Furbie" selling area, and without using an alternative, safe method of assuring those first in line could purchase the "Furbie", created a high risk of physical harm to the plaintiff and others. f. Wal-Mart's conduct was grossly negligent, reckless, wanton and/or in intentional disregard for the health safety and welfare of its paying customers. g. Wal-Mart's acted in conscious disregard of and/or indifference to the risk of harm to plaintiff which ultimately occurred due to Wal-Mart's inaction and/or action and was only motivated by maximization of its profits. h. Granting punitive damages will deter Wal-Mart from repeating its reckless and/or willful conduct in the future and will deter it from placing its profits ahead ofthe safety of its patrons. WHEREFORE, Plaintiff prays that this Honorable eourt enter a judgment in her favor as against Defendant for compensatory damages in an amount in excess of twenty-five thousand dollars and punitive damages in an amount in excess of twenty five thousand dollars, together with interest and the costs associated with this action. Joseph D. uc e , Esquire Attorney of the laintiff ID # 38444 1237 Holly Pike earlisle, PA 17013 (717) 249-2448 VERIFIeAnON I, Esther Luther, the Plaintiff in this action, verify that I have read the foregoing eomplaint and to the best of my individual knowledge, information and belief the statements made therein are true and correct. I understand that the statement made herein are subj ect to the provisions and penalties of 18 Pa. e.s. Section 4904 relating to unsworn falsifications to authorities. Date: i;7101 / ~ 1-. flu. ETHEL LUTHER ~ eERTIFleATE OF SERVIeE I, Joseph D. Buckley, Esquire, hereby certifY that a true and correct copy ofthe foregoing eomplaint was duly served via United States Mail First elass, Prepaid on the following persons: Patrick J. McDonnell, Esquire Two Penn eenter Plaza, Suite 910 Philadelphia, PA 19102 September 11, 2001 eourtney Seda McDonnell, Esquire Two Penn eenter Plaza, Suite 910 Philadelphia, PA 19102 Joseph D. Buckl ,Esquire Attorney for the Plaintiff LAW OFFICES OF McDONNELL & ASSOCIATES BY: Patrick J. McDonnell, Esquire AttorneyLD. No.: 62310 BY: Rocco 1. Iacullo IV, Esquire Attorney LD. No.: 86144 Two Penn eenter Plaza - Suite 910 Philadelphia, PA 19102 (215) 636-1493 Attorneys for Defendant, Wal-Mart Stores, Inc. ETHEL LUTHER eOURT OF eOMMON PLEAS eUMBERLAND eOUNTY vs. WAL-MART STORES, INe. eIVIL AenON NO. 00-8150 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of defendant Wal-Mart Stores, Inc. in connection with the above-referenced matter. LAW OFFICES OF McDONNELL & ASSOCIATES By: t'--f'~ ). ~ rr Patrick 1. McDonnell, Esquire Rocco J. Iacullo IV, Esquire Attorneys for Defendant, Wal-Mart Stores, Inc. DATED: September 20,2001 F;\WalMart\31165\31165\M_206 Luther\Plcad\2woaeoa_wpd CERTIFICATE OF SERVICE Roeeo J. IAeULLO IV, ESQUIRE hereby certifies that the attached Entry of Appearance was served by United States first class mail, postage prepaid on September ,;}-O ,2001 to the counsel below named: Joseph D. Buckley, Esquire 1237 Holly Pike earlisle, PA 17013 LAW OFFICES OF McDONNELL & ASSOCIATES BY: ~ &!., ~ II Roeeo J. IAe LO IV, ESQUIRE P:\WalMartI31165\31165\M-206 Luther\Plead\2woaeoa.wpd LAW OFFICES OF McDONNELL & ASSOCIATES BY: Patrick J. McDonnell, Esquire Attorney LD. No.: 62310 BY: eourtney Seda McDonnell, Esquire Attorney LD. No.: 76263 Two Penn eenter Plaza - Suite 910 Philadelphia, PA 19102 (215) 636-1493 Attorneys for Defendant, Wal-Mart Stores, Inc. ETHEL LUTHER eOURT OF COMMON PLEAS CUMBERLAND COUNTY vs. WAL-MART STORES, INe. eIVIL AenON NO. 00-8150 DEFENDANT W AL-MART STORES. INC.'S NOTICE OF REMOVAL TO THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYL VANIA TO: Prothonotary Cumberland County Courthouse One eourthouse Square earlisle, P A 17013-3387 PLEASE TAKE NOTIeE that this action has been removed to the United States District eourt for the Middle District of Pennsylvania. Attached hereto is a copy of the Notice of Removal filed with the elerk of the United States District eourt for the Middle District of Pennsylvania effectuating such removal. PLEASE TAKE FURTHER NOneE that, in accordance with 28 U.S.c. 91446(d), the eourt of eommon Pleas of eumberland eounty shall not proceed any further in this action F:\WalMart\31165\3 I 165\M_206 LutherIPlead\n2ccp.wpd unless and until the action is remanded by the United States District eourt for the Middle District of Pennsylvania. LAW OFFICES OF McDONNELL & ASSOCIATES By: P"rri'kJ~ \'vc~ eourtney Seda McDonnell, Esquire Attorneys for Defendant, Wal-Mart Stores, Inc. DATED: October 10, 2001 F:\WalMart\31165\3J J65\M_2D6 LutherIPJead\n2ccp_lI'pd 2 ~s 4* (Rey. 3/99) CML COVER :::::.....EET The JS..;q. civil cover shee: ~id tJ.1e information contained herein :lei~hej replace nor suppieme;1t t::";e filing and ser\'ice ofpieJding5 or otbe:- pape;s ~ r~gujr~d ~~~j~~~'th~cf~\~fC~~;~j~;l~~O~~~~~~S oati~jti~~in~~~er~:;;;[ d~~~~~'~;~i~.tb.(S~iig~fRC~Trm~sf~~ frlEe~;2~~kE SOFt~~r?~;~~.i\S ;:qUJrec ror Ui~ J. ral PLAINTIFFS ETHEL LUTHER 127 Mt. View Terrace Dover, PA 17315 (b) Counry of Residence of~\iSt Lis!;':; Plaintiff Cumber land 1 (EXCEPT iN U.S. PL.~T};TIFF CASC:S) PA I DEF.E:'<'DANTS I WAL-MART STORES, INC. I 702 S.W. Eighth Street I Bentonville, AR 72716 I Caun!y of Residence QfFi~~ Listed Ben ton, m< u.s. PLA!1-<TIFf CASES ONi. 'Ii NOTE: fN LAi"u COj\,'DE~.iNA TION C,J..SE3. lJSE i:--ta i..OCATION OF In'E l..,-\"'''iv rN'VOL.VEO. AR \ (e) Al!omey's (Firm Name. Address. and Telephone Number) Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013; (717) 249-2448 Auom'YSiIfKnowni Patrick J. McDonnell, Esq. Courtney Seda McDonnell, Esquire Two Penn Center Plaza - Suite 910 Philadelphia, PA 19102; (215) 636- 3985 III. CITIZENSHIP OF PRlNCIPAL P ARTIES(pI", an "X";n On, So> roc PI",,; (far Diversity Cases Only) and ~ 801. fQ~ Def~dant\ PTf DEf PTf DEf ~ I 0 I lncorporaled or Principal Place O. 0 4 of Eiusiness In This State Citizen of This State II. BASIS OF JURISDICTION (Plac;: an "X" in OM Bo~ Only) o 1 U.S. Government Plaintiff o 3 Federal Question (U.S. Government Not a Party) CJ::! U.S. Government Defendant X)X4 Diversity (Jndic;lre Citizenship of Parties in l"m[lJ) Citizen of Another State Cl 2 0 2 Incorporated and Principal Place 0 of Business In Anomer State )Q{5 . [V NATURE OF SUIT Citizen or Subjet:t of a 0 3 0 3 Foreign. Nation Forerlln Countrv o 6 06 CONTRACf TORTS FORFErrURElPENAL TO' BANKRUPTC)' OTHER STATUTES J IlOln5ut7U'lte PERSONAL INJURY PERSONAL INJURY 0 61U Agnculture 0 422 Appeal 23 use iSS o AGO Stale Rcapponlonmem 1 120 Marine 0 J1OAirpl2l1c 0 J62Personal [njury- 0 620 Orher Food &: Drug o .\IOAnlitrust r l lJOMilIerAcl 0 J 13 AirplW'le Product Med. Malpractice 0 625 Drug Related Seizure 0 423Withdr.1wal o 430 Banks and B:mking ; 1.\0 Neg.otiable Insrrument Liability 0 365?ersonallnlury- of ?ropeny 21 usc 28 use 157 CJ 450 Commercl1!CC Raleslelc. ! 150 RecoveryofOverpayrnem 0 3101Us3ull.LibeJ& PrOducl Liability 0 630 Liquor Laws o 460Deport:lflOn , & Enfo(cli:mem of Judgment Slande( 0 368 Asbestos Perso~:J! 0 640 R.R. & Truck PROPERTY RIGHTS o 41Q Racketeer InflUel\Cl:d and 151 Medicare Act 0 ]30 F,deral Employers' [njuryProduc( 0 650 Airline Regs. 0 820CopyrighlS CorrupIOrgal'liz:.IIians in ReCO\'Cry of Def;l.ulted Liability Liabilil:\' 0 660 Occupational o BIO Se{'Cc~ive Se~ice Sludem Loans 0 JAOMarine PERSONAL PROPERTY Safety/Health 0 830 Palenl o 350 S"urilieslCommoditid (Extol. Veterans) 0 -:AS Marine Product 0 370 Other Fraud 0 69UOlher 0 340 Trademark E.1chanse 153 Recovery1JfOverpayment LitlbililY 0 371 Truth ill Lending o 315 Cuslomer Challenge ofVeleran':sBendits 0 }5\} MOIl,r lJehicle 0 33n Other Penon'll LABOR SOCIAL SECURITY IlUSCl4l0 160 Stock/loJders' Suits 0 3SSMo(orVehicle Propert)" Damage 0 711J Fair Labor Standards 0 0891 AgricullUr.iIActs !90QlherConrracl Product Liabili;y 0 335 Property Damage 861 HIA(I 39St1) o 892 Economic Sl<lbiliUllion Act 195 Con0'3cl Producl Liability OC ?~60 .Other Personal Product Liability Act 0 862 Black Lung (92.3) o 893 Envlronmclnlal Matteo. 0 120 La'oorlW1.gmt. Relations 0 86l DIWC/DiWW 14OSls)) RE....LPROPERTY CIVIL RIGHTS PRISO)';ER PETITIONS 0 864 SSIO TillCl XVI o 894 Energy Alloc.1tion ACl 0 730 LaboriMgmt.Rcponing 0 865 RSI140S(g)) o a9 j F <<:ed~un of Inform.uion Act 210 Land Condemmlllon 0 441 Voting: 0 SlO Motions 10 Vaclll: & Disl;!osureAc( ~:!o Foreclosure 0 -141 Employmem Sentence FEDERAL T A.X SUITS o tH\!JA~ of Fee 0 7.;0 Railway Labor Act O.::mminalian 23Q Rent LeClSe &: Ej~<;;tmel\t 0 443 Hoosingi 'Habeas COlpus: - Under Equal Acc=ss 10 240 Tons 10 Land Accommodations 0 5JOGc:ner.lJ 0 790 Other Labor l.itigation CI 87Q Taxes (V.S. PlaimitT JlI5licc '1~5 Ton Product Llabllirv 0 ~4JWell:lJ'e 0 515 De:lfh ?~nalty or Oef-:ndant\ Cl 9S0 Consmutil:lI\a!iry uf :90 AJJ Other Re3./ Pra~ny 0 440 Other Civil RlghES 0 540 Mandamw &: Olher 0 i9! Emp!. R~L In~. Sta(~ Slatulcs 0 550Cr..ilRil!hts S~cunry A.Cl o gil IRS-Thiro Pan)' o 890 Other Slat\nory Al;llons C! 555 Prison '.ondition 1.5 USCi609 " '" (Place an "X" in One Box Only I ORIGIN (PLAL E AN ":\ IN ONe BOX ONL n Onginal *: R~rnQ\'~d irom 0:: Remanded from Q 4 Reinsta~ed or C :; Proc:eding. S\::!e Caul"! Appellate COUi'!. Reopened CAUSE OF ACT'ON iCalllb~ L:.5: C.ivi! $t3tute uilder which :.cu are i1iiilg alta ....Tlle OfI-:f Slalem:nt oir:ause. , . J." Do l'lott.tlc)unsO,lt..lcnai WUutes unless dr'imU)".i Transferred from another district Ispecir,.) G 6 Multidistrict Utigattcn Aopeal to District O luds.~ from I Magisaate Judgment Personal Injury. REQUESTED IN }:OMPUINT: .. RELATED CASE(S) IF A1'i'Y ~ CHECK IF THIS IS A CL~ ACnO"i UNDER F.R-C.P. 2J in excess IS.. insttUc~ions): DE~L.\.:'iD 5 of $75,000.00 CHECK YES anI]' if demanded in c.omclalnt JURY OnlAND: If y" 0 'NQ JUDGE DOCKET NUMBER Ie / fro (0 )FFlCE USE ONt y m'T= A..MOT..i'N1' APPL YINO IF? JUDGE MA('; ltrr-~'.!: IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ETHEL LUTHER CIVIL AeTION vs. WAL-MART STORES, INe. NO. DEFENDANT W AL-MART STORES. INC.'S NOTICE OF REMOVAL Defendant, Wal-Mart Stores, Inc. ("Wal-Mart"), files this Notice of Removal pursuant to 28 U.S.c. !l1441(a) and (b) to remove this action from the eourt ofeommon Pl.eas ofeumberland eounty, No. 00-8150, in which it is now pending, to the United States District eourt for the Middl.e District of Pennsylvania, and in support thereof states as follows: 1. On September 17, 2001, Plaintiff Ethel Luther filed a Complaint in the eourt of eOmmOll Pleas ofeumberland eounty ("the eounty Action"). The eounty Action was issued by the elerk of said eourt and served upon Wal-Mart on or about September 19, 2001. A copy of the eomplaint is attached to this Notice of Removal as Exhibit "A" 2. Plaintiff Ethel Luther alleges that she was injured by a crowd assembled outside the Mechanicsburg Wal-Mart store when the crowd rushed the store and pushed her to the floor. (eomplaint ~21). 3. Plaintiff further alleges that she suffered damage to her legs, back, neck, and wrists and continues to suffer great physical and mental anguish. (eomplaint ~23). 4. In addition, Plaintiff claims she was obliged to expend various sums of money for medicines and medical attention related to her injuries. (eomplaint ~30). F, \WalMart \Jn6S\31165\M~ 2 06 Luther\Plead\nor. wpd 5. Plaintiff alleges that her compensatory damages are as follows: Medical expenses in an amount less than $25,000.00. Past pain and suffering, and mental anguish in an amount in excess of a. b. $25,000.0. c. d. e. $25,000.00. f. Past loss of enjoyment oflife in an amount in excess of $25,000.00. Future medical expenses in an amount less than $25,000.00. Future pain and suffering, and mental anguish in an amount in excess of Future loss of enjoyment oflife in an amount in excess of$25,000.00. 6. Plaintiff further alleges punitive damages in excess of$25,000.00 of defendant Wal- Mart. (eomplaint ~31). 7. On September 20, 2001, attorneys for Defendant Wal-Mart sent to Plaintiffs counsel a Stipulation Limiting Damages to $75,000.00. A copy of the Stipulation Limiting Damages is attached to this Notice as Exhibit "B." 8. Plaintiffs counsel informed defense counsel on October 9, 2001 that he was not willing to stipulate to damages ofless than $75,000.00. 9. Defendant has a good faith beliefthat the damages in this case exceed $75,000.00 and that the jurisdictional requirements for removal are met based upon the amount of compensatory and punitive damages demanded in plaintiffs eomplaint, and because plaintiffs counsel refused to execute the stipulation limiting damages to $75,000.00. 10. Removal from the eourt of eommon Pleas of eumberland eounty is proper under 28 U.S.c. !l1441(b), which authorizes the removal of any civil action if "none of the parties in F: \wall-lart\31155\31165\M-206 Luther\Plead\nor .wpd 2 interest properly joined and served as a defendant is a citizen of the state in which such actionis brought." 11. Wal-Mart is a corporation organized under the laws of the State of Delaware, with its principal place qf business in the State of Arkansas, and, as such, is not a citizen of the eommonwealth of Pennsylvania. Plaintiff is a citizen and resident of eumberland eounty, Pennsylvania. WHEREFORE, Wal-Mart respectfully requests that the eounty Action be removed from the eourt of eommon Pleas of eumberland eounty to the United States District eourt for the Middle District of Pennsylvania. LAW OFFICES OF McDONNELL & ASSOeIATES BY: /~I ," ' C~t~c0-h-P_vl ~cC0- lV, 2!~b\/",-Q./QP Patrick J. McDonnell, Esquire eourtney Seda McDonnell, Esquire Attorney J.D. Nos.: 62310/76263 Two Penn eenter Plaza - Suite 910 Philadelphia, PA 19102 (215) 636-3985 Attorneys for Defendant, Wal-Mart Stores, Inc. DATED: October 16,2001 F: \WaHlart.\3116S\31165\M-206 Luther\Plead\nor .wpd 3 IN THE eOURT OF eOMMON PLEAS eUMBERLAND eOUNTY, PENNSYLVANIA ETHEL LUTHER 127 Mt. View Terrace \ Dover, PA 17315 Plaintiff v. NO. 00-8150 CIVIL TERM eIVIL AeTION - LAW WAL-MART STORES, INe. JURY TRIAL DEMANDED Defendant IMPORT ANT NOnCE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty days (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE TmS PAPER TO YOUR LAWYER AT ONeE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFIeE SET FORTH BELOW TO FIND OUT WHERE YOU eAN GET LEGAL HELP. eumberland eouuty Bar Association 2 Liberty Avenue earlisle, P A 17013 (171) 249-3166 ;', ',.'",(, -h' ld~ . ~'B:; e-!, ?[~~'~'~ (:;)U;~~i ~:-::,~.~;--~~t _ 17--:,- D2.'i Ol di'...a~~ '/";)V( ~ ' / )1 - '-"'U- u_ 'I f ~ (.1I:u~ . / , PromOl1ctary ...;., IN THE COURT OF eOMMON PLEAS eUMBERLAND eOUNTY, PENNSYLVANIA ETHEL LUTHER Plaintiff v. NO. 01 - CIVIL TERM eIVIL AenON - LAW W AL-MART STORES, INe. JURY TRIAL DEMANDED Defendant COMPLAINT AND NOW this 17th day of September, 2001 comes Plaintiff, by and through her counsel, Joseph D. Buckley, Esquire and complains of Defendant as follows: 1. Plaintiff, Ethel Luther, is an adult female, senior citizen currently residing at 127 Mt, View Terrace, Dover, P A 17315. 2. Defendant, Wal-Mart Stores, Inc., is an Arkansas corporation, duly authorized to conduct business in the eommonwealth of Pennsylvania and operates a retail store located at 6520 earlisle Pike, Mechanicsburg, eumberland eounty, PA 17055. 3. Wal-Mart Stores, Inc. operates many of its retail outlets, including the aforementioned Mechanicsburg store under the name "Wal-Mart". 4. At all times material to plaintiffs cause of action, Wal-Mart Stores, Inc. (hereinafter called "Wal-Mart") was the owner, operator and possessor, maintainer and in control of the aforementioned retail outlet located on the earlisle Pike in Mechanicsburg, P A and the said outlet was open to the public and operated for profit. 5. All of the acts alleged to have been done or not to have been done by defendant Wal-Mart were done or not done by said defendant, its agents, officers, servants, workmen and/or employees, acting in the course and scope of their employment with and on behalf of said defendant. 6. In the early hours of Friday, November 27, 1998, plaintiff responding to advertisements placed by Wal-Mart drove to Wal-Mart's store in Mechanicsburg, PA. \ 7. Plaintiff desired to arrive very early at the store for a place in line at the store which would be opening for "Black Friday" sales. 8. Plaintiffs motivation for arriving early was to insure she would be able to purchase a specific toy called a "Furbie" for her granddaughter who would be visiting for the ehristmas holidays. 9. Upon arrival at the store, Plaintiff found that she was second in line and learned that the doors to the store would open at 6:00 A.M. 10. As the morning continued hundreds of people began to arrive, also arriving were television personnel and camera crews interviewing patrons in line. 11. Wal-Mart had no security outside the store to handle crowd control. 12. At all times pertinent to this complaint, the "Furbie" toy was one of the most sought after and hard to find toys, was in very limited supply and Wal-Mart had advertised that it had such "Furbie" toys as an added inducement to have the public, including plaintiff, patronize its Mechanicsburg store. 13. Wal-Mart had established a special area/counter for the sale of "Furbie" toys which was located at the opposite end of the store from the front doors. 14. Wal-Mart maintained a customer service area in close proximity to the front doors. 15. On Friday, November 27, 1998, approximately one hour before the store was to open, the crowd had grown to several hundred persons and Wal-Mart sent an employee outside to distribute a one page map detailing where those desiring a "Furbie" must travel to reach a special area/counter which would be selling Furbies. 16. The front doors leading into the Wal-Mart store are a set of consecutive, double doors, thus any person entering the store must travel through the first set of doors into a small entrance area then proceed through the second set of doors prior to entering the retail area. \ 17. Prior to opening its doors, Wal-Mart employees did not let it be known to the crowd of nearly one thousand waiting patrons, that there were only 85 "Furbies" being offered for sale. 18. At 6:00 AM. Wal-Mart employees appeared and first unlocked the doors leading from the parking area into the entrance area. 19. Immediately thereafter the crowd rushed the store and began pushing Plaintiff into the second set of glass doors. 20. Wal-Mart employees had not unlocked the second set of doors and had difficulty unlocking the same. 21. Once the doors were unlocked, the force of the crowd pushed Plaintiff to the floor where she was trampled. 22. The crowd ran through the store toward the "Furbie" area passing plaintiff as others helped her to her feet. 23. Plaintiff suffered damage to her legs, back, neck and wrists and continues to this day to suffer great physical and mental anguish because ofthe incident at Wal-Mart. 24. Wal-Mart, their agents, officers, servants and employees were negligent in failing to provide proper security at its Mechanicsburg store for a crowd it not only anticipated, but one which it and its advertising created. 25. Wal-Mart, their agents, officers, servants and employees were negligent in the placement of the "Furbie" sales area and it was reasonably foreseeable that the gathered crowd would rush through the store in an attempt to reach the area ahead of slower, older patrons. 26. Wal-Mart, their agents, officers, servants and employees were negligent in failing to follow an acceptable, alternative, safety conscience procedure for the sale of a limited item in light of the crowd which had gathered that morning. 27. In addition to the allegations of negligence set forth above, Defendant \ Wal-Mart is further responsible to Plaintiff for her injuries and damages as a direct and proximate result of its negligence, carelessness and recklessness as follows: a. Failing to enact or promulgate or if enacted or promulgated, failing to enforce sufficient and adequate rules and regulations regarding to the handling of crowds involving selling items of limited quantity which were in extremely high demand by the public. b. Failing to provide adequate supervision of its store managers and employees to ensure that proper rules, practices and procedures were followed. c. Failing and neglecting to employ and hire managers, staff and other agents, servants and employees with adequate experience, training, qualifications , and skills to promptly and properly handle situations involving crowds and involving selling items of limited quantity which were in extremely high demand by the public. 28. Wal-Mart's negligence was a substantial factor in bringing about plaintiffs past, present and future injuries. 29. Wal-Mart's negligence was the cause ofthe injuries suffered by plaintiff. 30. Plaintiffs compensatory damages caused by Wal-Mart's negligence are as follows: a. Medical expenses in an amount less than $25,000.00. b. Past pain and suffering, and mental anguish in an amount in excess of $25,000.00. c. Past loss of enjoyment of life in an amount in excess of$25,000.00. d. Future medical expenses in an amount less than $25,000.00. e. Future pain and suffering, and mental anguish in an amount in excess of $25,000.00. f. Future loss of enjoyment oflife in an amount in excess of $25,000.00. 31. Plaintiff is entitled to Punitive Damages in excess of $25,000.00 because of \ Wal-Mart's conduct and to deter such future conduct, based on the following: a. Wal-Mart's advertising resulted in the large crowd which gathered at it Mechanicsburg store. b. Wal-Mart had prior knowledge ofthe "Furbie" craze, as well as, prior knowledge of similar toy crazes during the holiday season, and the desire of many of its patrons to obtain a "Furbie" which was in known limited supply and availability with extremely high demand and the safety problems associated with such occurences. c. Wal-Mart, although having prior knowledge of the potential safety problems associated with crowds desiring to purchase items which are in extremely high demand and known to be in extremely limited quantities, failed to , establish and/or follow additional safety guidelines, failed to hire or to place additional security personnel at the scene, failed to open its doors properly, intentionally placed the selling counter at the opposite end of the store when other convenient areas were available all in an attempt in maximize profits at the expense of the safety of its patrons. d. Wal-Mart failed to follow acceptable, alternative, safety conscience methods for assuring those persons who were fust in line who desired to purchase a "Furbie" could purchase the item without having their safety placed in peril by the crowds of persons who were not first in line. e. Wal-Mart knew that without proper security, without proper safety procedures, with the placement of its "Furbie" selling area, and without using an alternative, safe method of assuring those first in line could purchase the "Furbie", created a high risk of physical harm to the plaintiff and others. f. Wal-Mart's conduct was grossly negligent, reckless, wanton and/or in intentional disregard for the health safety and welfare of its paying customers. \ g. Wal-Mart's acted in conscious disregard of and/or indifference to the risk of harm to plaintiffwruch ultimately occurred due to Wal-Mart's inaction and/or action and was only motivated by maximization of its profits. h. Granting punitive damages will deter Wal-Mart from repeating its reckless and/or willful conduct in the future and will deter it from placing its profits ahead of the safety of its patrons. WHEREFORE, Plaintiff prays that this Honorable eourt enter a judgment in her favor as against Defendant for compensatory damages in an amount in excess of twenty-five thousand dollars and punitive damages in an amount in excess of twenty five thousand dollars, together with interest and the costs associated with this action. Joseph D. uck e ,Esquire Attorney of the laintiff ID # 38444 1237 Holly Pike earlisle, P A 17013 (717) 249-2448 VERIFIeAnON I, Esther Luther, the Plaintiff in this action, verifY that I have read the foregoing eomplaint and to the best of my individual knowledge, information and belief the statements made therein are true and correct. I understand that the statement made herein are subject to the provisions and penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsifications to authorities. Date: r/;7101 I ~ r. /#.. ETHEL LUTHER ~ eERTIFIeATE OF SERvreE ." I, Joseph D. Buckley, Esquire, hereby certifY that a true and correct copy of the foregoing eomplaint was duly served via United States Mail First elass, Prepaid on the following persons: Patrick 1. McDonnell, Esquire Two Penn Center Plaza, Suite 910 Philadelphia, PA 19102 Courtney Seda McDonnell, Esquire Two Penn Center Plaza, Suite 910 Philadelphia, PA 19102 September 11, 2001 Joseph D. Buckl , Esquire Attorney for the Plaintiff I LAW OFFICES OF McDONNELL & ASSOCIATES BY: Patrick J. McDonnell, Esquire Attorney LD. No.: 62310 BY: Rocco J. Iacullo IV, Esquire Attorney I.D. No.: 86144 Two Penn Center rtaza - Suite 910 Philadelphia, PA 19102 (215) 636-1493 Attorneys for Defendant, Wal-Mart Stores, Inc. ETHEL LUTHER COURT OF eOMMON PLEAS CUMBERLAND eOUNTY vs. W AL-MART STORES, INe. CIVIL AenON NO. 00-8150 STIPULATION TO LIMIT DAMAGES THE PARTIES hereby understand and accept the following: . Defendant Wal-Mart Stores, Inc. has the right, pursuant to 28 u.s.e. !l1441, to remove this matter to Federal eourt; . W aI-Mart is willing to forego that right in exchange for the agreement of all parties to limit the damages which the plaintiff is entitled to recover, if any; and . In reliance upon the express agreement of all parties to the limitation of damages set forth herein, Wal-Mart will agree not to exercise its right to remove this matter to Federal eourt. F:\\ValMan\31165\31 165\M-206 Luther\Plead\~2]d.wpd 'I , II THEREFORE, on this day of October, 2001, the parties hereby STIPULATE Ai.'ID AGREE that the full amount and/or value of any and all damages to which the plaintiffmay be entifled in this matter shall not exceed Seventy-Five Thousand Dollars ($75,000.00). Date: Joseph D. Buckley, Esquire Attorney for Plaintiff, Ethel Luther LAW OFFICES OF McDONNELL & ASSOCIATES Date: Patrick J. McDoilllell, Esquire Rocco J. Iacullo IV, Esquire Attorneys for Defendant, Wal-Mart Stores, Inc. F:\Wal..\lanB 1165\3lI65\M-206 Luther\P]ea~:Hd. wpd 2 CERTIFICATE OF SERVICE eOURTNEY SEDA McDONNELL, ESQUIRE hereby certifies that a true and correct copy of Defendant Wal-Mart Stores, Inc.'s Notice of Removal was served by United States first class mail, po~'tage prepaid on ~t11 /1; .;2{\<) I to the counsel below named: Joseph D. Buckley, Esquire 1237 Holly Pike earlisle, PA 17013 LAW OFFICES OF McDONNELL & ASSOCIATES BY: /'\ / I) ( / ~, , ,~ ( .f; . -' /'"', , &iL(1)LLc)P c+!:... f)ii L)::; ,\..v,.Q-l~.' eOURTNEY SED McDONNELL, ESQUIRE ?, \Wall1art.\3116S\31l6S\M~206 Luther\Plead\nor .',,;;:d