The URL can be used to link to this page

Home My WebLink About01-04503BRENDA L. MARTIN, :IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. :NO. ~/-~1.So3 CIVIL TERM BURGER KING RESTAURANT, Defendant :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 v. 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 piece 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 are hereby incorporated by references as set forth in their full text. 12. Plaintiffs 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: A. Past and future pain and suffering; B. Embarrassment and humiliation; C. Disfigurement; D. Loss of enjoyment of life and it's pleasure; E. Past and future incidental cost; F. Past and future mental anxiety; G. Past and future medical expenses; and H. 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 are 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: A. Past and future pain and suffering; B. Past and future IoSS of life's enjoyment; C. Past and future incidental cost; D. Past and future mental anxieties; E. Past and future medical expenses; F. Embarrassment and humiliation; and G. 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 enterjudgment 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 anon-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: A. 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 NFAIR 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 TURD LAW OFFICES Da Carol L. Cingranelli, Esq ' e 28 South Pitt Street Carlisle, PA 17013 (717)245-9688 Attorney for Plaintiff VERIFICATION I 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. ~~~ ~_ ~ 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 Sheriffs Department on the day of , 2001, addressed as follows: Burger King of Shippensburg 38 Walnut Bottom Road Shippensburg, PA 17257 TURD LAW OFFICES V~ C! r Carol L. Cingranelli, Esq ire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for ~) -. Cn~ _ ~ ~; ACS' ~ ~ ~. ~ ~: .~ ~ ~ e~ ~f: a ~ SHERIFF'S RETURN - REGULAR CASE NO: 2001-04503 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TIN BRENDA L VS BURGER KING RESTAURANT 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 RESTAURANT the DEFENDANT at 1915:00 HOURS, on the 31st day of July 2001 at 38 WALNUT BOTTOM RD __ 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 G ~' day of So Answers: ~~~ R. Thomas Kline 08/01/2001 TURD LAW OFFICES By:~ .~ De ty heriff IA.Lrii.vr~ o`Zcb/ ~,,, ~A;., D . ~vu~.~ q,~/O/S~ r thonotary ~ I r' s Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS 8: HAFER, LLP 305 North Front Street Post OfFce Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: seg(ciltthlaw.com Attorneys for Defendant: Burger King Restaurant BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 01-4503 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE 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. Respectfully submitted, ~^ / THOMAS, THOMAS & HAFER, LLP %(.~~ By. :139817.1 STEP EN E GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendant, BURGER KING RESTAURANT ~~ ,.J : - ~. o -....,.~ ., ._,_ . a, ..r . ~ ~~ ~ ,. - - 0 f 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 ~7 '' 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 fqsyy 1 ,`1 C_ '-` '~ Y~ in n i r; ;i-~ . _' L . : d~ _.., mil;' ". - 4 °-~ .J i NJ _t ~ ~` ~~ BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :NO. 01-4503 CIVIL TERM :JURY TRIAL DEMANDED PLAINTIFF'S BRIEF IN OPPOSITION TO PRELIMINARY OBJECTIONS I. Statement Of Facts: Plaintiff, Brenda L. Martin, filed a complaint with this Honorable Court on July 26, 2001. Therein, she alleges that on May 2, 2000, she sustained personal injuries when extremely hot coffee which was sold to herby Defendant, Burger King, spilled on her lap. Martin seeks compensation for the resulting serious and permanent injuries. Martin avers, among other things, that the coffee purchased was excessively hot; it was provided in a cup defectively designed; using a lid that was defective in design; that Burger King represented the product it sold to her was safe; that she relied on the duty of Burger King to deliver coffee fit for its intended use; and that she was unaware of any danger that might result if she used the product as intended. (See Complaint, paragraphs 12, 16, 22 and 23). Burger King filed Preliminary Objections to Martin's Complaint, challenging two of the five counts therein. Burger King contends that Martin has not stated a cause of action under the Unfair Trade Practices Act, nor has she stated a cause of action under a theory of a breach of warranty. Burger King requests this Honorable Court to strike ~g these counts from Martin's Complaint. In the alternative, Burger King seeks more specific pleadings. II. Discussion: LA.) Pa. Unfair Trade Practices and Consumer Protection Law Burger King is asking this court to strike Martin's claim under the Pa. Unfair Trade Practices and Consumer Protection Laws. Defendant argues that Martin has merely averred boilerplate language, and has not set forth any false representations by Burger King, or how the representations may have impacted Martin's purchasing decision. To the contrary, Martin submits that she adequately pled that Burger King falsely represented: its coffee was sold at a safe temperature, the coffee was sold in a safe container and that the coffee lid was safely designed and properly placed on the coffee cup. Martin obviously relied on these representations when purchasing the coffee from Burger King. However, the coffee was in fact sold much hotter than a consumer such as Martin could be expected to contemplate. Upon information and belief the coffee sold to Martin was over 180° when provided by Burger King through its drive through window. Liquid at this temperature provides a health threat to anybody that comes in physical contact with it. Martin had no way of knowing that Burger King's coffee was being sold to her at a dangerously high temperature, and believes she was deceived into believing otherwise. Burger King references the relevant statue as the "Unfair Trade Practices AcY'. However, the corcect title of the statute is the "Unfair Trade Practices and Consumer Protection Law". 73 P.S. § 201-1 et seq. In addition to being sold at an unsafe temperature, Martin contends that the coffee container and lid were flimsy in design and contributed to the incident causing her injuries. Again, Martin relied on Burger King's representations that the packaging of its coffee was safe for its intended purpose. Had she understood otherwise, she would not have purchased the coffee in the first instance. Martin submits that the claim against Burger King based on the Unfair Trade Practices and Consumer Protection Law should be allowed to stand. (B.) Breach of Warranty Burger King next argues that Martin has failed to set forth a cause of action under a breach of warranty theory. Again, Burger King asserts Martin's pleadings are vague and nothing more than boilerplate assertions that there was a breach Burger King suggests that Martin merely alleged the product purchased was defective, without indicating the nature of the warranty implicated, the terms of the warranty, when and by whom the warranty was made, whether the warranty was written or oral, and the specific nature of the breach. Again, Martin believes she adequately pled in her complaint that Burger King breached its implied warranty of merchant's ability. It is specious to argue that Martin needs to more fully set forth the nature of this warranty: Burger King as a seller in the market place is well aware that the law implies a warcanty that products sold are fit for their intended use. Likewise, to suggest Martin has not specifically pled when, by whom, and by what authority the warcanty was made is nonsensical under the circumstances of a warcanty implied by the operation of law. Lastly, contrary to Burger King's contentions, the breach has been specifically pled. Throughout the complaint Martin references Burger King's duty (or warranty) to sell its coffee at a safe temperature and to sell its coffee in a safe cup and to sell its coffee with a safe lid properly applied. Burger King's duty was breached by selling excessively hot coffee - capable of leaving blistering and scarring bums. Burger King further breached its duty by selling its coffee inadequately packaged, such that the lid partially came off allowing the spillage in the first place. WHEREFORE, for the reasons addressed above, Martin requests that Burger King's preliminary objections be denied. ~o y~~~ Date Respectfully Submitted TURD LAW OFFICES ~ ~~ Carol L. Cingranel i, Esquire 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 Plaintiffs Brief in Opposition to Preliminary Objections upon Stephen E. Geduldig, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the 23`~ day of October, 2001, from Carlisle, Pennsylvania, addressed as follows: Stephen E. Geduldig, Esquire Thomas, Thomas & Hafer 305 N. Front Street, 6~' Floor P. O. Box 999 Harrisburg, PA 17108-0999 ~ ~~~~~~ Date C~ ~ ~~ Y~ Carol L. Cingranel ' Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff ~ 3 ~ SE,~ ~ ~ ~~9~ Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMA5, THOMAS 8 HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17106 (717)239-7t00 E-Mail: 52CJ~O.tth ~8W . COlll Attorneys for Defendant: Burger King Restaurant BRENDA L. MARTIN, Plaintiff v. BURGLAR KING RESTAURANT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 01-4503 CIVIL TERM JURY TRIAL DEMANDED BRIEF IN SUPPORT OF DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT I. STATEMENT OF FACTS AND HISTORY This is a personal injury case where Plaintiff avers that she sustained burns to her genital area when she spilled coffee she allegedly purchased at Defendant's restaurant. This injury occurred while she was trying to drive her car with the cup between her legs and then drove away. A true and correct copy of Plaintiff's Complaint is attached to Defendant's Preliminary Objections as Exhibit "A". Plaintiff's Complaint alleges a claim under the Pennsylvania Unfair Trade Practices Act ("PUTPA") and a claim for Breach of Warranty. Plaintiff's Complaint only makes a general averment that Defendant was engaged in unfair or ~. deceptive acts or practices, and does not include the material facts necessary to plead a cause of action under the PUTPA. Moreover, Plaintiff's Complaint also fails to plead a Breach of Warranty claim. Plaintiff's boilerplate language is not sufficient to establish a basis for a Breach of Warranty claim. Also, Plaintiff's Complaint fails to specify which ~~product" violates any alleged warranty. Plaintiff's failure to allege with specificity the material facts on which she bases her claim under the Pennsylvania Unfair Trade Practices Act and her claim for Breach of Warranty prevents Defendant from formulating a meaningful response to Plaintiff's Complaint and a defense to the Plaintiff's vague allegations. Plaintiff commenced this action by the filing of her Complaint on or about July 31, 2001. Defendant filed timely Preliminary Objections in the nature of a Motion to Strike, or alternatively, Motion for a More Specific Pleading. This brief is submitted in support of Defendant's Preliminary Objections. II. ISSUES A. SHOULD PLAINTIFF'S COMPLAINT BE STRICItEN FOR FAILING TO PLEAD WITH SPECIFICITY THE MATERIAL FACTS UNDERLYING HER CAUSES OF ACTION? (Suggested Answer: Yes) B. IN THE ALTERNATIVE, SHOULD PLAINTIFF BE ORDERED TO REPLEAD WITH SPECIFICITY THE MATERIAL FACTS ON WHICH PLAINTIFF BASES HER CAUSES OF ACTION? (Suggested Answer: Yes) II. DISCUSSION A. Plaintiff's Complaint should be Stricken, or in the Alternative, Plaintiff should be Ordered to Plead with Specificity the Material Facts on which she Alleges a Claim under the Pennsylvania Unfair Trade Practices Act. Under Pennsylvania law, to set forth a cause of action under the Pennsylvania Unfair Trade Practices 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 have made a difference in the purchasing decision. Fay v. Erie Insurance Group, 1999 Pa.Super. 7, 723 A.2d 712 (1999). 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). According to Rule 1019(b) of the Pennsylvania Rules of Civil Procedure, "averments of fraud or mistake shall be averred with particularity." Pa.R.C.P. 1019(b). 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. Plaintiff merely avers 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. Plaintiff fails to plead with specificity the material facts which form the basis for alleging a claim under the Unfair Trade Practices Act, Lindstrom v. Pennswood Village, 417 Pa.Super. 495, 612 A.2d 1048 (1992). This failure violates Rule 1019(b). Defendant's formulation of a meaningful defense depends on it knowing the details of the alleged made a false representation to Plaintiff. Because of Plaintiff's failure to plead with any specificity how Defendant allegedly made a false representation to Plaintiff, Defendant is unable to plead to or formulate a defense to the Plaintiff's allegations and is unduly prejudiced. B. Plaintiff's Complaint should be Stricken, or in the Alternative, Plaintiff should be Ordered to Plead with Specificity the Material Facts on which she Alleges a Claim for Breach of Warranty. 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 X294.) The mere allegation that a purchased product was defective is inadequate and violates Pennsylvania's fact-pleading practice in a complaint alleging a breach of implied warranty. Toth v. Glessner, 16 D. & C. 3d 338 (1979). Plaintiff's Complaint only avers 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. Furthermore, the Complaint fails to identify which product Plaintiff alleges violated any alleged warranty. These vague pleadings do not provide Defendant the specificity needed to adequately defend against Plaintiff's claim. IV. CONCLUSION In conclusion, and for the reasons stated above, Plaintiff's Complaint should be stricken, or alternatively, Plaintiff should be ordered to plead with specificity the material facts on which she bases her claims. Without knowledge of the material facts, Defendant is unable to appropriately respond Plaintiff's Complaint and prepare a defense against Plaintiff's claim. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP ~` ~s~or BY~ -- :191320.1 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 August, 2001, on all counsel of record as follows: Carol L. Cingranelli, Esquire TURD LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17013 Attorneys for Plaintiff THOMAS, THOMAS & HAFER, LLP Stephen E. Gedulduire 139819.1 f BY THE COURT, J. BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 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. Distribution List: Attorney £or 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 r .~ 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 Attorneys for Defendant: E-Mail: S2q(C~tthI8W.C01'Tl Burger King Restaurant BRENDA L. MARTIN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. N0. 01-4503 CIVIL TERM • ~-. ., . _", BURGER KING RESTAURANT, I_-,,!-_ -A Defendant JURY TRIAL DEMANDED G~_"; -~ o,: ~`,; DEFENDANT'S PRELIMINARY OBJECTIONS <'-' TO PLAINTIFF'S COMPLAINT IN THE NATURE OF A ~ ~ r'. MOTION TO STRIKE, OR ALTERNATIVELY y`= ~ ~~ IN THE NATURE OF A MOTION FOR A MORE SPECIFIC PLEAD~IG:_s Defendant Burger King Restaurant, by and through its attorneys, Thomas, Thomas & Hafer, LLP, hereby files Preliminary Objections to Plaintiff's Complaint pursuant to Pennsylvania Rule of Civil Procedure 1028 and in support thereof avers the following: 1. Plaintiff filed a Complaint in this matter on or about July 31, 2001, alleging that she sustained burns as a result of coffee she spilled on herself while leaving from Defendant's restaurant. A true and correct copy of Plaintiff's Complaint is attached hereto as Exhibit "A" 2. Count V of Plaintiff's Complaint alleges that Defendant 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). r 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 unable to plead to or formulate a defense to the Plaintiff's allegations and is prejudiced thereby. 11. Plaintiff also 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. See paragraphs 15 and 16 of 14. The mere allegation that a purchased product was defective is inadequate and violates Pennsylvania's fact- pleading practice in a complaint alleging a breach of implied warranty. Toth v. Glessner, 16 D. & C. 3d 338 (1979). 15. Keeping in mind that Plaintiff alleges that the coffee itself, as well as the container, was defective, Plaintiff's Complaint fails to aver which product allegedly violated any alleged warranty. 16. Plaintiff's Complaint fails to plead with the necessary specificity required to allow Defendant to formulate a 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 Plaintiff's Complaint, or order her to specifically plead, in the above matter. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP :141320.1 STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendant, BURGER KING RESTAURANT Aug-O1'-O1 01:21P Ru55oly 07/31/2001 18:21 7175300103 v l BRENDA L. MARTIN, PIaInG}f v. Enterpr7ses 1 717 763 7172 rs+~C ~P.02 fSYlbita~ bH1YrtJaJCUKu ;IN T, E COURT OF COMMON PLEAS OF :CU HERLAND COUNTY, PENNSYLVANIA -NO. /-r/.S~iVIL TERM t3URGER KING RESTAURANT, Defendant TRIAL DEMANDED YOU HAVE BEEN sUED IN COURT. ~If you wish to defend against the daims set forth in the following pages, you must iak action wlthfn twenty (20) days after this Complaint and Notice are served, by ®nterirjg a written appearance personally or by attorney and filing in writing with the CouR yoJr defenses. or objections to the claims set foRh against you. You are warned that if you ail to do so the ease may proceed without you and a judgment may be entered against u by the Court without further notice for any money Calmed -n the Complaint of for pry other daim or relief requested by the Plaintiff, You may lose money or property or lhor rights impottatrt to you. YOU SHOULD TAKE THIS PAPER T YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFO 0 ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT HERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty enue Cadlsle, P 17013 (717) 248 8166 RUG-06-?001 10:14 8777626238 97=e P. 05 Aug-OS-O1 01=21P Russoli Entarprises~1noys 'nlrrc~~curcu 63 7172 ,. 8~/3112~81 18:_1 71793bb1b:~ i BRENDA L. MARTIN, PtalntiiY v. BURGER KING RESTAURANT Dofcndant P_03 wVl VL :IN TFNE COURT OF COMMON PLFJ+S OF :CUM ERLAND COUNTY, PENNSYLVANUI :NO. CIVIL TERM :JUR TRIAL DEMANDED 1. Plaintiff, Brenda L. Martin, ie an Meadow Drive, Shippensburg, Pennsylvania 1 2. Burger King of Shippensburg is < Road, Shippensburg, Shippensburg Township 17257. 3. At all timed relevant hereto Defer in the business of providing toad productm to tt sale at Rs business location in Shippensburg T Pennsylvania referenced above. 4. On or about May 2, 20110 at appr Martin did drive to the tusiness location of the 5. At that said time and place the vehicle to the drive thru window of the said Bi order for products offered for sale by the said B. At that said time and place the F Defendant a Whopper, Jr. and a coffee which thru window and into her vehida upon 7. After receiving the products the piece covering the opening to insert creamers uae in the coffee. 8. The Plaintiff thereaRer did pull vehicle and did enter traffic to return to her towards the Borough of Shippensburg. individual currently rebtding at tB9 ~uslness operating at 38 Walnut Bottom Cumberland County, Pennsylvania ant, Burger King of Shippensburg, was general public which are offered for Cumberland County, 7:30 P.M., Plaintiff, Brenda L. ff, Brenda L. Martin, did drive her King of Shippensburg to place an ndant Burger King, ff, Brenda L. Martin, did otdertrom delivered to her through the drive for the same. f did open the plastic tear away were provided by the Defendant for from the drive thru window In her by entering the Walnut Bottom Road AUG-06-2001 10 14 8777626239 97: P. 06 Aug-O1-O1 O1c21P Russol5 Entorpr'ises~1Veµ~ xiuruocurv 63 7172 ....._ P_O4 67/31/2001 SB:'Ll /l /T~tlV7117d y I g, As the Plaintiff was proceeding i her vehiGe the coffee inside of the coffee cup did spill, onto her pants and imm®d tely caused severe pain, 6uming and extreme discomfort. 10. As a tesutt of the spuling of the c~ffee onto her. pants the Plaintiff did receive serious and permanent injuries as mo~e fully set forth below. 11. Paragraph 1-1u are hereby full text. 12. Pldintiffa inJuries were the negligent conduct of defendant generelly and by rt3fOrOnces as set forth in their and proximate result of the reckless and with regard to the following: A, The defective design of this lid to the coffee cup which was provided to the Plaintiff at Defendaht's business location; I B. The defective manufacturf~r and service of the product by the Defendant in that the coffee sold to the Plaint{ff was excessively not and provided in such a w y as rt was foreseeable that severe burning would occur wher~~the coffee spilled; C. BurgerKing of 5hippensll~rg was negligenl in disregarding the foreseeable risk associa d with providing excessively hot coffee to the PlalntlPP in a paGkaga +Ihat was riegligentty designed and marlufaCtufed and which dlid, in tact, GaUSe the injuries SUI'fer9d by the Plaintiff. j 13. As a direct and proxunata result ~3f the recldess, wanton, careiesa end i negligent conduct of the Defendant, Plaintiff h$s suffered significant and permanent loss and Injury including but not limited to: A. Past and future pain and suffering; l3. Embarassment and hum~lation: C_ Dlsfigurernent; p. Loss of enjoyment of life $nd it's pleasure; RUG-06-2~1 10 14 8777626238 97: P. 07 Au'g-O1.-01 01:21P Russoli ',p7/31/2001 iB:21 71753©01p3 Enter rises 1 717 763 7172 P.O5 F tlfcik7tlu~ ~nirrtrao~Ra ~••~- ~ , E. Past and future Ineldentaicost; F. P®st and future mental a kiety; G. Past and future medical p~tpensas: and H. Cost of this salon. WHEREFORE, Plaintiff requests this Hbnarable Court to enter Judgment against pefendant in an amount Fn excess of $25,000+OD plus cost and interest. 1a. Paragraphs 1-13 are hereby incorporated by reference as sal forth in their text. 15. The salons of the Defendarri violated the Pennsylvania Uniform Commercial Code in that the product sold to a Plaintiff was manufactured ahd distributed by the Defendant in a fashion that did not fit the ordinary purposes for which such products are used thereby v'iolatin the warranty of marketability. 16. The Defendant, by manufacturn ,marketing, advertising and selling this product represented that it was safe for Its int nded use and by placing this defective product in [he stream of commerce have brew ed the warrant of marketabilky. 17. As a result of the accident taus solely by tha Defendant's breach Of warranty, Plaintiff suffered severe injuries ae r~rore fully set forth below. t 8. As a result of the axldent caus~ solely cy the Defendant's breach of warranty, Plaintiff has sustalnetl ar may susta~ the following damages: A. Past and futuro pain and >~uHering; B. Past and future IoeB of IiFf~'B enjoyment; C. Past and future inddental~IICOSt; D. Past and future mental ar>~rieties; E, Past and future medical el1l``apenses; F. Embarrassment and humiliation; and G. Disfigurement , ~IUG-06-?001 10 14 9777626236 99; P. 08 ~a Aug-O1~-01 01:2ZP Russo~i Enterprises 1 717 763 7172 rru•nour a ~~ ', 07/31l26F11 1H::1 n roenn.l na + , nrv.l vo"~ WHEREFORE. Plaintiff requests Defendant In an amount in excess of $i 14. Paragraph 1-18 above are their full text. ~` ~P . 06 gable Court to enter judgment against plus cost and interest. lncorporatad by reference es set forth In 20. At all times relevent to this ac3io ,Defendant Burger f4ng of ShiDPansburg was engaged in the manufacture and sale of flee which was sold in the Commonwealth of Pennsylvania for distribuGo to the general public as the ultimate consumers. 21. Defendant expetxed the coffee i~ sold by them to reach consumers or users in the condition in which it was sold. 22. At all times relevant hereto Plain Iff utilized the products sold to her for its (ntendad use and was unaware of any defect ~, the product package or product itself or that any danger to herself or others could resrjlt by using said product. 23. At all times relevaht hereto the coffee and cup in which it was sold to Plaintiff was in a defective condition and unre 'sonably dangoroua to a user, consumer or others in that a defect in deli®n existed. A ondition was not observable by a ', consumer who, lacking the terhnieel knowled and skills required to measure the ~ temperature of the liquid or emntrol the coverin of the cup in which the Liquid was sold, relied on the duty of the Defendant to deliver coffee at the time of sale in a condition frt for use for the purpose Intended. A breach f the duty by the Defendant and the defective condition of the coffee and cup in w ich it was sold was the proximate cause of the Injury sustained by the Plaintiff, Brenda .Martin. 24. AS a result of the accident cau solely by the DefendanYa breach of duty and the defective condition of the coffee nd cup, more fully deStribed atxsve, Plaintiff Brenda L. Martin, at all times relevant erato received serious medical injuries as more fully outlined above. RUG-05-001 10 14 PTr'7525238 97°i. P.09 Aug-O1.-Ol V Ol :22P Russol i EntorprisesnK i nu43 ~t,llru ~ ~v 63 7172 ^~ ~P.07 ". B7/~l/2601 18:21 717,x300103 . '. i~ 23. As a result of the accident taus d solely by the Defendant's creation of e defective product, Plaintiff has sustained ur m y sustain the following damages: A. Past and future pain and puffering; 8. Past and future loss o'f li( 'e enjoyment; C. Past and future incidental Cost; D. Pest and future mental a .iety; E. Pest and future medical a penses; P. Embarrassment end hum lation; and G. Diafigurerttent WHEREFORE, Plaintiff reques+ks this H notable Court to enterjudgmenE against the Deiendant in an amount in excess of 523,~Ot).00 plus cost and interest. 26. Paragraphs 1-25 are hereby inct their full text. 27. The Defendant, Burger King of i duty io provide a non.defectiva product into th 21i. At all times relevant hereto Plain and normal use and there were no substantial left control of the Deiendant until tee time of er 28. Plaintiff's injuries were the direct Defendant, Burger Keg of Shippensburg, and the product sold to the Plaintiff at said time an A_ Tha defective design and B. The defective design and C. The defective manufsctur D. The defective design and such a way to prevent ext of spillage whlt:rr was tore by reference as if sal forth in breached its non delegable stream of Commerce. Fwas using the product for its intended hanges to the product from fhe time it accident. nd pmximata result of the Conduct of the gat the fallowing detects were present in place: tanufacture of the Cup; ranufacture of the lid; of the product coffee in the cup; ranufacturs of the coffee and Cup in ssive injuries to the Plaintiff in the caso ®eable end normal; and RUG-06-2001 10 14 8777526238 97i P. 10 AWg-O1-O1 01:22F' Russo'li Enterprises 1 717 763 7172 l no4o nnirruunuru Dr . 07/31/2001 18.21 l1 ~~:7tltl1b3 . E. Ttte defadiva design andi such a way es to fail to a~ vehicles in the cage of a : ~ herein. 36. The conditions referenced ebow of the pnmdu~ to the PlainCAf and et the Urns tf these defects were a substantial factor fn cau: 31. Defendant, Burger King of ShipF of the safety of its product in that k faied 1a m every element necessary to make it safe for u specifically try Plalnt'~ff Brenda L. Martin. 32. The Defendant Dreaehed ft's dui design and manufacture of Its coffee by failinf information to protect against the foreseeable 33. The Defendant is strictly liable ft the coffee, cup and lid due to the occurrence 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 pain and 9. Past and future loss of tiff C. Past and future incidents p, Past and future rr~ntal ei E. Past and future nnedical [ F, Embarrassment and burr G. Disfigurement WHEREFORE, Plaintiff nsquests this h the Defendant in an amount in excess of 525, nufacture of the trofle6 and cup in serious injury by occupants in similar to the one which occurred were in existence at the time of the sale product left Defendant's control and ng Plaintiffs injuries, insburg, failed in its duty as a guarantor nufacture its coffee, cup and I'id with e by the consuming public and ~ to wam, post sale of the defective to provide wmplete and accurate +isk of harm that this defect presented. r the deafectiva design grid manufacture of F a foreseeable accidental spill, which solely by the Defendant's breach of its teducts, Plaintiff has sustained or may •s enjoyment: Cost; and le Court to enter judgment againet plus costs and interest RUG-06-2001 10 14 8777626238 98 P. 11 110~VV'6V111 IIJ.V( CKA OI IIV LVGJV V.lLLl1V11L3\ L(1JJLY ~Ll\, 1VL Awg-OS'-O1 O1_23P Russoli Enterpr55es 1 717 763 7172 P-Og ,• 87l 31 /'Lddl lkS: Z1 /L I75tl171 tld nniuowo xlirrpl,,JUUnu ~ ~+w 35. Paragraphs foRh in their full text. re-alleged and incorporated es if set 36. Ttte Defendant, at ali times relav~Int hareW, was engaged in trade In rommerce as defined in the Pennsylvania Untbir Trade Practlces Act, 73 P.S_ §201-i et seq. j 37. The Defendant was, at all tlmes felevant hereto, engaged In unfair or deceptive acts or practices as set forth more f~lily in the said Unfair Trade Practices Act. 39. As a direct result of the actions ~ the Defendant, alt in violation t7f the Unfair Trade Practices Act, the Plaintiff has su~Fered a loss in excess of $25,000.00 and, are therefore, is entitled, pursuant to the provi~fons of the Act, to an award of actual damages, treble damages, costs and reasona}~le attorney fees. WHEREECRE, for all the above reasor~3, the Plaintiff requests Judgment fn her favor in an amount in excess of $25,000.00 pl~s treble damages, plus Costs end i reasonable attorney fees. Resp$etfully Submitted TURq LAW OFFICES ~ ~I Da C' Carol:L. Cingranelli, Esq ' 2t3 th Pitt Street Cadl e, PA 17013 (717) 45.9868 Attorr~y for Plaintiff tlau~~ c~t;:Nv fe~dt~,t t~CCa~~ enl~estimatYyriM~'Ha1,fh8r9Ul:ls~ ~^ano do LhE seal e>k said touR ri ~ fh ~ ~ - I wofnoen+ta-~ RUG-8b-2at~1 ltd: la 8777526238 97i P. 12 r Auy-O1~-Ol 01:23P Russoli EnterpriSeS 1 717 763 7172 's7J31/i861 18: Z1 it/~jbNlbt aniacra anirr~ uaurtu I verity that the stalert-ents made In the 1 understand that false statemerrts herein c Pa.C.S. §4904 retetinp to unawvm falsification (onagoin8 Complrsint are true and correct. e made subject to the penatlies of 16 io authorities. RUG-06-2001 10 14 8777626238 g7~, P.13 IAUCJ.-Ol-O1 01:23P Russoli Enterprises ~i~~~~ ~„y1 `717 763 7172 ...__ _?-11 ! 07/31/2H1~1 lkf:'.'1 it iJSnnl ns i CERTIFIC TE F gERVICE I hereby certify that I served a true nd coned copy of the Complaint upon King of Shippensburg by Curntied d County Sheriffs Department on the _ day of , 2001, ddres8ed es follows: I Burger K1nB of Shippensburg 3B Wslnut8o~lom Road ShippensburgJ PA 17257 TUR LAW OFFICES . ~, 28 S~tfth Pitt Street Car11 e. PA 17013 (717) 24'5-9f38B Alto~eY for RUG-06-2001 10 14 97^r76~6239 97: P. 14 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 :139519.1 BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 01-4503 CIVIL TERM JURY TRIAL DEMANDED ORDER BY THE COURT, J. 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. Distribution List: Attorney for Plaintiff: Carol L. Cingranelli, Esquire TURD 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 & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mall: seg(ct~.tthlaw.com Attorneys for Defendant: Burger King Restaurant BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 01-4503 CIVIL TERM JURY TRIAL DEMANDED 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 A MORE SPECIFIC PLEADING Defendant Burger King Restaurant, by and through its attorneys, Thomas, Thomas & Hafer, LLP, hereby files Preliminary Objections to Plaintiff's Complaint pursuant to Pennsylvania Rule of Civil Procedure 1028 and in support thereof avers the following: 1. Plaintiff filed a Complaint in this matter on or about July 31, 2001, alleging that she sustained burns as a result of coffee she spilled on herself while leaving from Defendant's restaurant. A true and correct copy of Plaintiff's Complaint is attached hereto as Exhibit "A" 2. Count V of Plaintiff's Complaint alleges that Defendant 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 a1., 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 unable to plead to or formulate a defense to the Plaintiff's allegations and is prejudiced thereby. 11. Plaintiff also 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 X294.) 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. See paragraphs 15 and 16 of Plaintiff's Complaint. 14. The mere allegation that a purchased product was defective is inadequate and violates Pennsylvania's fact- pleading practice in a complaint alleging a breach of implied warranty. Toth v. Glessner, 16 D. & C. 3d 338 (1979). 15. Keeping in mind that Plaintiff alleges that the coffee itself, as well as the container, was defective, Plaintiff's Complaint fails to aver which product allegedly violated any alleged warranty. 16. Plaintiff's Complaint fails to plead with the necessary specificity required to allow Defendant to formulate a 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 Plaintiff's Complaint, or order her to specifically plead, in the above matter. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP ~t / ~1 ~°( yI By= :141320.1 STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendant, BURGER KING RESTAURANT Aug-O1-O1 01:21P RuSSOIi Enterpr-ISes 1 717 763 07i31/2001II 16:21 7175300103 FW.10t5a~ or+lrrrt+5nun~ ~~j` II - i BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant TRIAL DEMANDED YOU HAVE t3EEN sUED IN COURT. ~If you wish to defend against the claims set Forth in the following pages, you must talc action wlthtn twenty (20) days after this Complaint and Notlte are served, tsy ®ntarir}g a written appearance personally or by attorney and filing in writing with the CouR yc forth against you. You are warned that if you you and a judgment may ba entered against any money Calmed In the Complaint of fns Plaintiff. You may lose money or property or YOU SHOULD TAKE THIS. PAPER NOT HAVE A LAWYER OR CANNOT AF def9ns86 or obJections to the claims s®t II to do so the case may pmcead without ~u by the Court without further notice for y other claim or relief requested by the rights impattant to you. YOUR LAWYER AT ONCE. IF YOU DO ISD ONE, GO TO O!7 TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT INHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty enue Cadlsle, P 17013 (717) 249 8166 7a7z P.oz rwu~ of :IN T E GUURT OF COMMON PLEAS OF :CU HERLAND COUNTY. PENNSYLVANIA :NO. 1-5/.S'~IVIL TERM RUG-0b-2001 10:Sa 8777626239 97: P.05 „~ Aug-O1-O1 01=21P Russol i Entarpris2s~1~~4, ~nl~~c~=n~u 63 7172 P_03 07/31/?001 18:_1 717~S:idbib:i ~~~` "` BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Oofcndant :1N TFME COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :NO. CIVIL TERM :JUR TRIAL DEMANDED 1. Plaintiff, Brenda L. Martin, is an Meadow 4rive, Shlppensburg, PennsyNanla 1 individual currently re~lding at 184 2. Burger King of shlppenstwrg is ~ dyuslness operating at 38 Walnut Bottom Road, Shippansburg, Shlppensburg 17257. 3. At all timer relevant hereto in the business of providing food productm to ri sale at its business location in Shlppensburg ~ Pennsylvania referenced above. 4. On or about May 2, 201X1 at appr Martin did drive to fhe business IOCation of the Cumberland County, Pennsylvania ant, burger King of Shippansburg, was general public which are offered for Cumberland County. 7:30 P.M., Plaintiff, Brenda L. 5. AL that said time and place the PtbinGff, Brenda L. Martin, did driv® her vehicle to the drive thrv window of the said Burger King of Shlppensburg to place an order for prnducl3 offered for sale by the said ~fendant Burger King, 6. At that said time and place the P IntFff, Brenda L. FJlar6n, did order hvm Defendant a Whopper, Jr. and a coffee which thru window and into her vehice upon 7. After receiving the products the piece covering the opening to insert creamers use in the coffee. 8. The Plaintiff thereafter did pull vehice and did enter traffic to return to her towards the Borough of Shippenstrurg. delivered to her through the drive for the same. f did open the plastic tear away were provided by the Defendant for from the drive thtu window In her by entering the Walnut Bottom Road AUG-06-206i i©~id 8"'62638 8^r: P. D6 Aug-Ol-O1 01 :21P Russol5 Entorprlses 1 717 763 7172 ~..._ P_04 69/31J2DB1 18;'L1 !1 h'.'Ntl1tl3 7N',1 uGUD xiurGlvourv ( g. As the P-ainfrff was'proaeeding i her vehlGe the coffee inside of the coffee cup did spill onto her pants and immed tely caused severe pain, buming and extreme discomfort. 10. As a result of the spl-Gng of the r~ffee onto her pants the Plaintiff did receive sar'rous and permanent injuries as mo 11. Paragraph 1-10 are hereby in full text. 12. Plaintiffs injuries ware the negligent conduct of defendant generally and fully set forth below. by references as set forth in their ~d proximate result of the reckless and ecifically with regard to the fallowing: A. The defective design of tti0 lid to the coffee cup which was provided to the Plaintiff at Defenda~tt's business location; I B. The defective manufacturer and service of the product by the Defendant in that the toff sold to the Plaintiff was excessively not and grovided in such a w y as it was foreseeable that severe buming would occur whe .the coffee spilled; G. Burger-King of Shippensb~trg was negligent in disregarding the tornseeable risk assooiat~Id with providing excessively hat coffee to the PlalntlH In a package hat was ne8lieently designed and manufactured end which slid, in tact, Gause the injuries suffered by the Plaintiff. 13. As a direct and proximate result bf the recldesa, wanton, careiesa and i negligert conduct of the Qefendent, Plaintiff his suffered significant and permanent loss and lniury including but not limited to: A. Past and future pain and Buffering; B. Embarrassment and hum~fation: C. Disfigurement; D. Loss of enjaymant of life rind it's pleasure; I RUG-05-2~1 10 14 E777526238 97 P.07 Aug-o1-O1 O1:21P Ru5sall Enterprises 1 717 763 7172 P.O5 p7i 31/2001 18:21 7175300103 tlKlntlu~ onlrr2roc~RU ^~- ' i I E. Past and futurO incldentaM cost; F. P®st and future mental a kiety; G. Past and future medical e~tpenses: and H. Cosl of this action. ~ WHEREFQRE, Plaintiff rerqueets this Hpnarable Court to enter Judgment against Defendant in an amount in excess of 525.000+Q)D plus cast and interest. i 14. Paragraphs 1- 13 are hereby text l5. The actions of the Defendant vie Commercial Cade in that the product sold to t distributed by the Defendant in a fashion that which such products are used thereby v'platin 16. The Defendant, by manufacturin product represented that it was safe for Its inti product in the stream of comftlerce nave bras 17. As a result of the accident cause warranty, Plaintiff suffered severe injuries as r 18. As a result of the accldenl cause warranty, plaintiff has sustained ar may noels A. Peet and futuro pain and B. Past and future lose of lift C. Past and future inddental D. Past and future mental ar E. Past and future medical e F_ Embarrassmt3nt and hum G. Disfigurement by reference as set faith in their ated the Pennsylvania Uri~fotm a Plaintiff was manufactured and did not fit the ordinary purposes for the warranty of marketabillty_ marketing, advertising and selling this tded use and by placing this defective led the warrant of rnarketabilky. solely by the Defendant's breach of xe fully set forth below. solely fly the Defendant's breach of the following damage6: enjoyment; n; and taUG-05-2001 10 14 9777b2b239 99n P.09 Aug-01-O1 O1:ZZP Russoli Enterprises 1 717 763 7172 P_06 Qf/31/Zbdl 1tl:.1 /1 /Ddtl171 l7d nr•,1uoY~ onirrcr.nour,v ^~~-• I i WHEREFORE. Ptafntlff requests this Honorable Court to enter judgment against Defendant In an amount in excess of $28,0! f 4. Paragraph 1-1i3 above are their full text, 20, At all times relevant to this attic was engaged in the manuf®cture and sale of plus cost and interest. incerparatad by reference es sef forth In Defendant Burger King of Shippansburg which was sold in the Commonwealth of Pennsylvania for distributio to the general public as the ultimate consumers, 21. Defendant expected the coffee i sold by them to reach consumers or users in the condition in which it was sold. 22. At all times relevant hereto Plaln~iff utilized the products sold to her for its Intended use and was unaware of any defect kt the product package or product ltsealf or that any danger to herself or others could restjlt 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 unre or others in rhea a defect in design existed. A wnsumer who, lacking the technical knowled temperature of the liquid or mntrol the coverir relied on the duty of the Defendant to deliver i frt for use for the purpose intended. A bra®ch d®fectivs condition of the coffee and cup in wl of the injury sustained by the Plaintiff. Brenda 24. As a result of the accident cause duty and the defective condition of the coffee Plaintiff Brenda L. Martin, at all times relevant as mare fully outlined above. RUG-06-?001 10 14 Bi7752b238 enaWy dangerous to a user, cdnsumer rndition was not observable by e and skills required to measure the of the cup in which tfie Liquid was sold, ~ coffee at the time of sate in a condition the duty by the DeFendant and the tit was sold was the proximate cause Martin. solely by the Defendant's breach of d cup, more fully described above, crate received serious medical injuries 97~« P,09 ,. , ~~ Aug-OS-O1 ' e'f/sl/001 71 =22P Russoli Entorprisesnr.in¢an snxrrc~~nurt~ 63 7172 ^~ ~P.07 18.21 ~ 717x300193 li 23. As a result of the accident cans d solely by the Defendant's creation of a defective product, Plaintiff has sustained arm y sustain the folJow'rng damages: A. Past and future p~ein and fuffering; 8. Past and future Ions ~ I C. Past and future incident D. Past and future .mental E. Past and future medical F. Embarrassment end hui G. Disfigurement WHEREFORE, Plaintiff requests this the Defendant in an amount in excess of 32 26. Paragraphs 1-25 are hereby ina thBir full text. 27. The Defendant. Burger King of ; duty to provide anon-defective product into th 2B. A4 all times relevant herelD Plain and normal use and there were no substantial 'IS en)oyment: Cast; and CouR to enterjudgrnent against plus cost and interest. by reference as if set forth in breached its non~tielegable stream of commerce. using the product for its intended ~s to the product from the time it left control of the Defendant until the time of th accident. 29. Plaintiffs injuries were fhe direct nd proximate result of the conduct of the Defendant, Burger King of Shippensburg, and at the following defects were present in the produce sold to the Plaintiff at said time a place: RUG-06-2©01 10;14 A_ The defectvive design and''hanufarsurr: of the cup; B. The defective design andt~nanufacture of the lid; C. The defective rnanuFacturi: of the product coffee in th® cup; D. The defective design arui ~nanufacturd of the cart®e entl Cup in such a way to prevent ex I ssrve injuries to the Plaintiff in thg ~sQ of spillage whlcn was fore sable end normal; and 8777626236 9^r~: P.1© Aug-Ol-Ol 01:22P Russoli Enterprises 1 717 763 7172 P.08 0al31/2001 la-2l /1 /~jbb1F]3 D+'.t uo4.a nnirrniunun~ E. The defedive design and such a way es to fail to a~ vehicles in the cage of a herein. 30. The conditions referen~ad etrov of the produce m the PlainCdf and at the Ume tl these defects were a subatantlal factor in tau 3'I. Defendant, Burger King of Shipl of the safely of rte product in that k faAed to m every ejement necessary to make it safe for u apecifrcally try Plaintiff Brenda L. Martin. 32. The Defendant breached it's dal design and manufacture of Its coffee by failint information to protect against the foreseeable 33. The Defendant is strtctly liable h the coffee. cup and lid due to the occurrence wer@ to occur during normal use. 34. As S resort of tho accident cause duty 85 8 menUfectUfer and prOdUCer Of BUC[1 sustain the iotlowing damages: A. Past and future pain end B. Past and future Toss of lift C. Past and future incidence D. Past and (afore rru3ntal ai E. Past and future rmedlcal r F. Embarrassment and hum G. Disfigurement WHEREFORE, Plaintiff requests this h the Defendant in an amount in excess of 525, nufacture of the coffee and cup in serious injury by occupants in similar to the ane which occuned were in existence at the time of the eels product left Defendant's control and ng Plaintiffs injuries, ansburp, failed in its duly as a guarantor nufacture its coffee, cup and I'xl with e by the consuming public and t to wam, post sale of the defective to provide complete and accurate disk of harm that this defect presented. [ the defective design acid manufacture of f a foreseeable accidental spill, which solely by the Defendant's breach of ks 7duct8. Plaintiff has sustained or may •s enjoyment; over and e Court to enter judgment against plus costs and interest RUG-Ob-?001 10 14 877752623a 98>; P. 11 Aug-ol-O1 o1 _23P Russoli Enterpryses 1 717 763 7172 ~~ P_09 0'!131/YtlC11 1M: Y'1 /11'35tltll tld .a.l vowo .a+trruvuunu 35. Paragraphs 1-3d above are re-alleged and incorporated es if set forth in their full text. 36. The Defendant, at all limes commerce as defined in the Pennsylvania t hereW, was engaged in trade In Trade Practices Act, 73 P.S. §2D1-~ at seq. j . 37, The Defendant was, at all dmes relevant hereto, engaged In unfair or deceptive acts or practices as set forth more f~llly in the said Unfair Trade Practices Act. 38. As a direct result of the actions 9L~ the Defendant, al! in violation of the Unfair Trade Practices Atx, the Plaintiff has su~fered a loss in excess of $25,000.00 and, are therefore. is entitled, pursuant to the pcovi~lons of the Act, to an award of actual damages, treble damages, costs and reasonable attomey fees, WHEREFORE, for all the above raasonls, the Plaintiff requests judgment In her favor in an amount in excess of $25,OD0.00 pl1~s treble damages, plus casts end i reasonable attomey fees. •. i Resp$ctfully Submitted TURQ LAW OFFICES Da ~~~1 C' Ca~Clnpranelli. Esq ' eEsq ' e 2t3 th Pitt Street Garb e, PA 17013 (717) 45.9868 Akorrjey for Plaintiff I sIAL~- r~:~~ ~e~~•~ FECas-i~ on l~astimonY wiME'POI, f n0rt3 Ulit~ Sat rr7 Wane and the xal of uid Court // ~-~n/ wornonacdnr EaUG-06-2001 10:14 8777626237 97': P. 12 Aug-O1-O1 01-23P RusSOli Enterprises 1 717 763 7172 ~` P_10 e~r31i2eei is:zi n~sjneie~ e~,~~o.> >~.~.~,.~a~n~ ..~ I verity that the stalejrttents made In iJ I understand that false statements herein Pa.C.S. §4904 relating to unt~om Complaint are true and coRect_ made subject to the pertatGes of 16 (o authorities. r~ur-©6-z®a1 1e:l.a e~~~hzsz3s ~7,;. P.13 LAug-01-O1 O1:23P ' Russoli Enterprises ~u~~ ~,y?, `717 7fi3 7172 B7/31/2Hh1 t 1Ff:- II ~l~~snnioo P_11 CERTIFICATE F SERVICE I hereby certify that I served a true ' nd correct copy of the Complaint upon Burger King of Shippensburg by Curnberi d County Sheriffs Department on the day of , 2001, ddrassed as follows: Burger Kln® of 5ltippenebui 3BWsInutBo mRoad Shiooensbuml PA 17257 -ruR~ t_aw aFFICES ~:~t .,~-~~i ~~-;may<.~,.~~ Garo L. Cingranelli, EsgGire 26 S th Pitt Street Car11 e. PA 17013 (717)II245.9&f3B Attor~hev for RUG-0b-2001 10 14 9777b26239 97i P. 14 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 £or Plaintiff THOMAS, THOMAS & HAFER, LLP Stephen E. Geduldig, E quire 139819.1 1 .~ PRAECIPE FOR LISTING CASE FOR ARGUMENT.. ~f~~t-7aa_-ypewritten_and_su_mitted in duplicate). 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. N0. 01-4503. CIVIL TERM BURGER KING RESTAURANT, Defendant JURY TRIAL DEMANDED 1. 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: Carol L. Cingranell, Esquire Address: TURD LAW OFFICES 28 South Pitt Street - Carlisle, Pennsylvania 17013 (b) for defendant: Stephen E. Geduldig, Esquire Address: THOMAS, THOMAS 6 HAFER, LLP 305 N. Front St., P.O. Box 999 Harrisburg, PA 17108-0999 3. 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 i .. 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 TURD LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17013 Attorneys for Plaintiff THOMAS, THOMAS & HAFER, LLP Stephen E. Geduldig, E quire :139819.1 ~ n ~a C,j - {._ _ _ _ n '1 1~ C..;'. ~i _ -; ~ ~) ((1~, v' yaw.m.:aw+mcxti~n~s~xar-'-ra~aeNkHvRt~e~ua¢-~x,-e...rz, .~w.~a,p~a,sn~,~@wrd~_.. .. xasxec. R.saw~ -•. ,:.~~ ~.. :, .~~~. ~,~F s'i-".Arf+'a .me~:~!~E:. ~~. ,~ 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: Se tthlaw.com BRENDA L. MARTIN, Plaintiff v. Attorneys for Defendant: Burger King Restaurant 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 sheriff 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 Sheriff) Burger King Corporation c/o C.T. Corporation Systems 1515 Market Street Suite 1210 Philadelphia, PA 19102 (by Deputized Sheriff) d• V •. Douwe Egberts Superior Company c/o C.T. Corporation Systems 1515 Market Street Suite 1210 Philadelphia, PA 19102 (by Deputized Sheriff) Thomas, Thomas & Hafer, LLP ~~~~ STEPHEN E. GEDULDIG, Es ire I.D. Number: 43530 305 N. Front St., 6'" FI. ~ ~ ~ (~ ~C P.O. Box 999 Date: Harrisburg, PA 17108 (717) 237-7141 ~~ ~U 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 ~ s ~ day of October, 2001, on all counsel of record as follows: Attorneys for Plaintiff: Carol L. Cingranelli, Esquire TURD LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17013 THOMAS, THOMAS & HAFER, LLP C 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 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 :144635.1 Stephen E. Geduldig, Esquire .~ Cumberland County, ss The Commonwealth of Pennsylvania to F3urger King G~ i,~~rati ~n n~„wP F,~harta (Name of Addirtional Defendant) Coffee Service, Inc., and Douwe Egberts Superior Canpany You are notified that Restaurant ('s) of Defendant (s) ) has (lie) joined you as an additional defendant in this action, which you are re- quired to defend. October 1, 2001 Curtis R. Luna, Prothonotary lirodhenartaiy D~'h' (~~) Ibuwe Egberts Coffee Service, Inc. Burger King Corporation c/o C.T. Corporation Systems c/o C.T. Corporation Systems 1515 Market Street, Suite 1210 1515 Market Street, Suite 1210 Phil~lelphia, PA 19102 Philadelphia, PA 19102 l~ouwe Egberts Superior Company c/o C.T. Corporation Systems 1515 Market Street, Suite 1210 Philadelphia, PA 19102 d ~ ro wHmH~, ~ ~ o ° .d ,~ y ~., ~ 'z `~°~ d y N $ ~ r ~' ~rt w ~m d rtu i N ~ - o n ~' ~ Z N i~. x ~ lTJ rt ~ ~, z d ~ ~ Y N Fi] '~ z s ~ ~ ~ ro d o' a ~I g~~~ m ~ m t4 N x ~ b' 5' ~~~ N ~ On G cn '~ rym i'i C N o n N n m°,~ ~' n~ ~~ g ~~ P~ N m rt ~S s x 0 w o a ~ N O W r ~ + a n U 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 APPEARANCE PURSUANT TO Pa.R.C.P. 1012 TO THE PROTHONOTARY: Kindly enter the appearance of Robert A. Lerman of Griffith, Strickler, Lerman, Solymos & Calkins, as attorneys for Additional Defendants, Douwe Egberts Coffee Service, Inc. and Douwe Egberts Superior Company, in the above-captioned matter and mazk the docket accordingly. GRIFFITH, CKLER, LERMAN, SO S & CAL S BY ~ R®BERT A. LERMAPA/ Attorney for Additional Defendants, Douwe Egberts Coffee Service, Inc. and Douwe Egberts Superior Company Supreme Court I.D. #07490 110 South Northern Way York, Pennsylvania 17402 b Z3 ~ / (717) 757-7602 Date: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRENDA L. MARTIN, Plaintiff, v. BURGER KING RESTAURANT, Defendant, v. CIVIL ACTION -LAW NO. 01-4503 JURY TRIAL DEMANDED. BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC. AND DOUWE EGBERTS SUPERIOR COMPANY, Additional Defendants. CERTIFICATE OF SERVICE ~y v~ AND NOW, this ~ day of October, 2001, I, Robert A. Lerman, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have, this date, served a copy of PRAECIPE FOR ENTRY OF APPEARANCE by United States Mail, addressed to the party or attorney of record as follows: Carol L. Cingranelli, Esquire Stephen E. Geduldig, Esquire Turo Law Offices Thomas, Thomas & Hafer, LLP 28 S. Pitt Street 305 N. Front Street, 6th Floor Carlisle, PA 17013 P.O. Box 999 (Plaintiff s Counsel) Harrisburg, PA 17108 Burger King Corporation c/o C.T. Corproation 1515 Market Street Suite 1210 Philadelphia, PA 19102 (Defendant Burger King Restaurant's Counsel) Egberts Coffee Service, Inc. and Douwe Egberts klr/douwe.plp.z Superior Company 110 South Northern Way York, Pennsylvania 17402 (717)757-7602 Attorney ror Addrnonal lletendants, llouwe r. c^ ~~ c_ °- , . ..fJ ~._, ~ ~ _r 3 _ _ ~:__ ~f•_ G`J ~~ --~ .r -G d:. . r~ti, ~;~ ' C-: ~. z <'-; . _ ' fir' ;v , ', "~ ::.~ -d rv , SWEENEY & SHEEHAN, P.C. By: Guy Mercogliano, Esquire Identification No. 39766 1515 Market Street, 19~' Floor Philadelphia, PA 19102 (215)563-9811 COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA BRENDA L. MARTIN v. BURGER KING RESTAiJRANT Defendant v. BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC. and DOUWE EGBERTS SUPERIOR COMPANY Additional Defendants Attorney for: Defendant, Burger King Corporation NO. 01-4503 CIVIL TERM NRY 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 & SH HAN By: G ercogliano Attorney for Additional Defendant, Burger King Corporation DATE: ,i '"") S _. n:.~ ,~ , dv -. U~ ,.1,-r --.1j Fir: ;~ ~ -~ ^ . . ~ ~t,. ~ . J~,._ y., C' .^' y7 ~~ ('J ~r ~~ ~i~ BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant v. BURGER KING CORPORATION, et al Additional Defendants :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA NO.DI-~-IS63 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 evidence; the discovery of said materials will cause unreasonable annoyance and the invasion of personal, private matters which are irrelevant to these proceedings. TURD LAW OFFICES ~/a Date Carol L. Cingranelli, Esquir 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant v. BURGER KING CORPORATION, et al. Additional Defendants TO: Records Custodian Henry Wehman, M.D. Stevens Center 33 State Avenue Carlisle, PA 17013 (717) 243-6033 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 01-4503 CIVIL TERM JURY TRZAL DEMANDED 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 anv and all records. reports. correspondence. notes. memos and diagnostic studies regarding:Brenda L. Martin; Date of Birth 8130152; 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 certficate of compliance, to the party making fhis 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 148242.5 Prothonotary/Clerk, Civil Division Deputy BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant v. BURGER KING CORPORATION, et al. Additional Defendants : .` IN THE COURT OF COMMON PLEAS OF CUMBERLPND 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: 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 148242.6 Prothonotary/Clerk, Civil Division Deputy CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the aforegoing Objections to Subpoenas on the s~3ay of November, 2001 by depositing the same in the United tate Mail, postage prepaid, addressed as follows: Stephen E. Geduldig, Esquire Thomas, Thomas & Hafer 305 N. Front Street, 6~' Floor P. O. Box 999 Harrisburg, PA 17108-0999 Guy Mercogliano, Esquire Sweeney & Sheehan 19~' 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 TURD LAW OFFICES ~~ f.~-. Carol L. Cingranelli, squire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Brenda Martin c-~ c~ 4- -o c'~ r9} n' L. ~7 c.' ~-yj 4` L c) '.1a C --G c~ a ~, -:., ;' u3 ; -n _ i-i .b ~ {1 ~ Jar d C1l tD -'4 ~i~, c:: _ 1 _ ... _...i .. nca~ssz.,w.~s-cn rvi+~.s: ~ ac:-sa.un esd~+';?~efii _, .. _ a i t ~ Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 TI~MAS, THOMAS 8. HAFER, LLP ~05 North Front Street PQ&t Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: segt~tthlaw.com Attorneys for Defendant: Burger King Restaurant 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 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 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, THOMAS, THOMAS & HAFER, LLP r~l~>~''la~ By: 149004.2 STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendant, BURGER KING RESTAURANT J 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: seg(a~tthlaw.com Attorneys for Defendant: Burger King Restaurant 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 N0. 01-4503 CIVIL TERM JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANT, BURGER KING RESTAURANT, TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, wrongfully identified as "Burger King Restaurant" throughout ("Defendant"), by and through its undersigned counsel, Stephen E. Geduldig, Esquire, of Thomas, Thomas & Hafer, LLP, and files the following Answer and New IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Matter 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. Denied pursuant to Pa. R.C.P. 1029(e). 5. Denied pursuant to Pa. R.C.P. 1029(e). 6. Denied pursuant to Pa. R.C.P. 1029(e). 7. Denied pursuant to Pa. R.C.P. 1029(e). 8. Denied pursuant to Pa. R.C.P. 1029(e). 9. Denied pursuant to Pa. R.C.P. 1029(e). 10. Denied pursuant to 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. 2 Count I Negligence 11. No response is required as this is a paragraph of incorporation. 12 (A)-(C) Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 13(A)-(H). Denied as legal conclusions and pursuant to 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 II Breach o£ Warranty 14. No response is required as this is a paragraph of incorporation. 15. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 16. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 17. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 3 ..-_,v r 18(A)-(G). Denied as legal conclusions and pursuant to 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 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. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 24. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 25 (A)-(G). Denied as legal conclusions and pursuant to 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. 4 Count IV Strict Liability 26. No response is required as this is a paragraph of incorporation. 27. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 28. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 29(A)-(E). Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 30. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 31. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 32. Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 33. Denied as legal conclusions ar.d pursuant to Pa. R.C.P. 1029(e). 34(A)-(G) Denied as legal conclusions and pursuant to 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. 5 Count V Unfair Trade Practices 35-38. Stricken by Order of Court. WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint be dismissed in its entirety and judgment entered in its favor. 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 King 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~ms and operates the subject resY.aurant. 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 mar.•ufacture any product allegedly involved in Plaintiff's accident. 6 1 ~A 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 her 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 allege 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 this action may be barred by the doctrines of res judicata and/or collateral estoppel, which are asserted herein. 51. Any damages, losses and/or injuries allegedly sustained by Plaintiff were caused in whole or in part by the conduct of Plaintiff in: (a) Misusing the product. (b) Failing to read or follow instructions, notices and warnings accompanying the product. 7 52. At all times herein mentioned, any products designed, manufactured, fabricated or sold were safe and free from any defects. WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint be dismissed in its entirety and judgment entered in its favor. Respectfully submitted, THOMP,S, TH7MAS & HAFER, LLP r~/~1~~ :149004.1 ~~~ ~Z By: ~ > STEPHEN E. GEDULDIG, ESQUIR Attorney I.D. No. 43530 Attorneys for Defendant, BURGER KING RESTAURANT 8 Y - VERIFICATION I, kobert. hii.=.snli, rarFby ve:iiLy Lhut the averm=nfs made in thF farP:~ginq d~7cumetlt, are truE and' ~arrFC-t. _1_ _undFrstar~d T.haT. fri~EF. S~al:.i~(flPY1L5 t]Cl.'CiI2_ i1rCi maC{Q,_Sll.6]P.C.t %O t.hP__pena7t_iPS of 1F1 - Pa. C.S.A. 990'A relating Lo unsworn lalsi_ication to authdritiFS. -- -_ °- - 11!2.1 ~ ml ~ 1~.7 ~1• RobYTt. Russoli Y - j ~ 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 r}.t~'~t _ day of November, 2001, on all counsel of record as f llows: Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 1701 Attorneys for Plainti££ Robert A. Lerman, Esquire GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 110 South Northern Way York, Pennsylvania 17402-3737 Attorneys £or 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 & HAFER, LLP :139819.1 ___ ~ Y Stephen E. G'eduldig, Esquire t_, W © ~ c; -, ~,- ~" ~ c , ~_ - ~a.. ~> ~ r:=; _ >,~ _~ W -~ to -c 0 H fs B~ 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-nnaa: seoCa~tfhlaw.com Attorneys for Defendant: Burger King Restaurant BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant v. BURGER KING CORPORATION, et al: JURY TRIAL DEMANDED CERTIEICATE.PRERE.QUISITE TC± SERVICE OF SUBPOENAS ;::. PURSUANT TO RULE 4c309.22 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. THOMAS, THOMAS &HAFER, LLP ~~''--~_ ~~-?-of :750969.5 STEPHEN E. GEDULDIG, ESQUIRE 305 NORTH FRONT STREET - 6TH FLOOR HARRISBURG, PA 17108 (717) 237-7119 ATTORNEY FOR DEFENDANTS BURGER KING RESTAURANT IN TFiE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM - .. CERTIFICATE OF SERVICE 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 TURD 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 19`h Floor 1515 Market Street Philadelphia, Pennsylvania 19102-1983 Attorneys for Additional Defendant, Burger King Corporation THOMAS, THOMAS &HAFER, LLP Date: :139819.1 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 Attorneys for Defendant: E-Mail: Seq~ttillaW.COm Burger King Restaurant BRENDA L. MARTIN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. N0. 01-4503 CIVIL TERM BURGER KING RESTAURANT, Dependant JURY TRIAL DEMANDED v. BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC., and DOUWE EGBERTS SUPERIOR CONIPP_NY, Additional Dependants ~; NOTICE OF INTENT Tb SERVE SUBPOENAS TO PRODUCE;D000MENTS AN® THINGS FOR'. q -DI$CCtVERY PURSIJANT7t~`RUCE 4009:21- 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. THO , T O. AS &HAFER, LLP .~~' STEPHEN E. GEDULDIG, ESQUIRE 305 NORTH FRONT STREET - 6TH FLOOR HARRISBURG, PA 17108 (717} 237-7119 ATTORNEY FOR DEFENDANT BURGER KING RESTAURANT ~~ . ~' ~ ~ : `~~ v,;;CE T161CATE 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 i'rw"~` day of November, 2001, on all counsel of record as follows: Attorneys for Plaintiff Carol L. Cingranelli, Esquire TURD LAW OFFICES 28 South Pitt Street ar is e, en Attorneys for Additional Defendants, DOUWE EGBERTS COFFEE SERVECE, INC. and DOUWE EGBERTS SUPERIOR COMPANY Robert A. Lerman, Esquire GRIFFITH, STRICKLER, LERMAPJ, 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 & HAEER, LLP f ,y1, ~:~: ~' Stephen E, Geduldig, Esquire :148241.1 BRENDA L. MARTIN, IN THE COURT OF COMMON-PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. BURGER KING RESTP_URANT, Defendant . v. BURGER KING CORPORATION, et al. Additional Defendants N0. 01-4503 CIVIL TERM JURY TRIAL DEMANDED TO: Records Custodian Chambersburg Hospital 112 N. 7th Street Chambersburg, PA 1 7201-1 7 00 (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 anv and all records. resorts, correspondence, notes. memos and 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 148242.1 Deputy BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant v. BURGER KSNG CORPORATION, et al. Additional Defendants 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 anv and all records. reports. correspondence, notes, memos and diagnostic studies regarding: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 (2D) 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 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED BY THE COURT: DA' Seal of the Court 148242 2 Prothonotary/Clerk, Civil Division Deputy BRENDA L. MARTIN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. BURGER KING RESTAURANT, Defendant v. BURGER KING CORPORATION, et al. Additional Defendants NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS . FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Records Custodian Erich Metzler, M.D. Women's Health Associates 419 Stonehedge Drive #4 Carlisle, PA 17013 (717)218-8888 Within twenty (20) days after service of this subpoena, you- are ordered 6y the court to produce the following documents or things: diagnostic studies regarding: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 148242.3 Prothonotary/Clerk, Civil Division Deputy BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant v. 2N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. OI-4503 CIVIL TERM JURY TRIAL DEMANDED BURGER KING CORPORATION, et a1. Additional Defendants TO: Records Custodian/Legal Department Allstate Insurance Company 2775 Sanders Road, Suite A6 Northbrook, IL 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: 316198. Case File No. 155303802502 -complete copies of any and all records, reports, correspondence, notes. memos and medical records, 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. (f 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 148242.4 Deputy . t r~ . ~ - c~; R> ,^ v BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED ANSWER TO NEW MATTER 39. This is a paragraph of incorporation, and, therefore, no response is required. 40. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this paragraph. 41. This paragraph is a legal conclusion to which no response is required. 42. This paragraph is a legal conclusion to which no response is required. 43. This paragraph is a legal conclusion to which no response is required. 44. This paragraph is a legal conclusion to which no response is required. 45. This paragraph is a legal conclusion to which no response is required. 46. This paragraph is a legal conclusion to which no response is required. 47. This paragraph is a legal conclusion to which no response is required. 48. This paragraph is a legal conclusion to which no response is required. 49. This paragraph is a legal conclusion to which no response is required. 50. This paragraph is a legal conclusion to which no response is required. 51. This paragraph is a legal conclusion to which no response is required. 52. This paragraph is a legal conclusion to which no response is required. Respectfully Submitted TURD LAW OFFICES ~.~~' ~~ ( Date By: Carol . Cingran i, Esquire 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. Cing anelli, Esq ' 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 ~~ y« Date Respectfully Submitted TURO LAW OFFICES Y r By: Carol L. Cingranelli, Esquire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff O _ ~~ ~ t' f i ; TJ - (~ ~ ~~ 9J -: /.~~. ~7 .___~ __.._ .....,.~eo ~.~.nar.~r~smvcve~~ wu~; v~.na~ n„~°<.e^iFae~sa®,A - 9nsm~~ml 4 ~ CEC ~ 1200 ~ Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania r7ro8 (9r9) z39-9roo Attorneys for Defendant: E-Mail: SBEC~t~IlaW.COn1 Burger King Restaurant 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 v. BURGER KING CORPORATION, . DOUWE EGBERTS COFFEE SERVICE, INC., and DOUWE EGBERTS SUPERIOR COMPANY, Additional Defendants BRIEF IN SUPPORT OF DEFENDANT BURGER KING RESTAURANT'S MOTION TO COMPEL I. FACTUAL AND PROCEDURAL HISTORY On July 26, 2001, Plaintiff filed a Complaint to commence an action against Defendant, Burger King Restaurant, alleging that Plaintiff, Brenda L. Martin, suffered damages as a result of a hot beverage spill on May 2, 2001. On or about November 6, 2001, Defendant sent a Notice of Intent to Serve Subpoenas to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 to Plaintiff. Defendant received Plaintiff's written response to Defendant's proposed subpoenas on or about November 15, 2001. Plaintiff objected to Defendant's proposed subpoenas directed to Henry Wehman, M.D., and Ruth Kovacs, M.D., who, it is believed, have information concerning Plaintiff's previous psychiatric or psychological care or treatment. Plaintiff objects on the basis that the Subpoenas to Henry Wehman, M.D., and Ruth Kovacs, M.D., are "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". No objection was asserted on the basis that said information was subject to a privilege, and same is therefore waived. This brief is filed in support of, and simultaneously with, Defendant's Motion to Compel Plaintiff to comply with discovery requests with respect to subpoenas directed to Henry Wehman, M.D., and Ruth Kovacs, M.D., who provided psychological care or treatment to Plaintiff. II. STATEMENT OF QUESTION INVOLVED SHOULD PLAINTIFF'S OBJECTIONS TO SUBPOENAS ISSUED PURSUANT TO RULE 4009.21, FOR RECORDS OF PLAINTIFF'S PSYCHOLOGICAL CARE AND TREA'~MENT BE OVERRULED? Suggested answer: YES III. ARGUMENT Although the Pennsylvania Supreme Court has yet to rule on this issue, 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). Federal Courts interpreting Pennsylvania law have held that placing the confidential information at issue in a civil trial is an implicit waiver of the statutory privilege of confidentiality. Mulholland v. Dietz, 896 F. Supp. 179 (E.D. PA. 1994); O'Boyle v. Jensen, 150 F.R.D. 519 (M.D. Pa. 1993); Premark v. Ogar, 148 F.R.D. 140 (E.D. Pa. 1993). 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." O'Boyle v. Jensen, 150 F.R.D. 519 (M.D. Pa. 1993). In this case, Plaintiff has not waived a confidentiality objection, and same is therefore waived. Plaintiff has placed her psychiatric care or treatment at issue by alleging mental anxiety, loss of life's enjoyment, and embarrassment and humiliation.SPlaintiff's medical records indicated that she received psychiatric care prior to the incident. Defendant attempted to access Plaintiff's psychiatric andJor psychological records by sending Plaintiff the proposed subpoenas. Plaintiff objected to the subpoenas addressed to Henry Wehman, M.D., and Ruth Kovacs, M.D. Information regarding Plaintiff's history of psychological or psychiatric care or treatment is relevant to refute Plaintiff's injury claims, and essential to the defense of this action. Denying Defendant access to Plaintiff's psychological records would be manifestly unfair and grossly prejudicial to Defendant. Furthermore, it is submitted that any attempt to object to the discovery of this information at this time is untimely, as Plaintiff did not assert a privilege as a basis to objecting to this discovery. If Plaintiff believes that such records are irrelevant, then an appropriate objection may be made at trial; however, relevance is not an appropriate objection to the discoverability of this evidence. IV. For the foregoing reasons, Defendant, Burger King Restaurant, submits that this Honorable Court should overrule Plaintiff, Brenda L. Martin's, objection to issuance of the subpoenas directed to Henry Wehman, M.D., and Ruth Kovacs, M.D., and order Plaintiff to sign any authorizations required by the providers, or be precluded from pursuing her claims related to her emotional and mental condition. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP :150882.1 STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendant, Burger King Restaurant CERTIFICATE OF SERVICE x hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, posta~e prepaid, at Harrisburg, Pennsylvania, on the _~ day of December, 2001, on all counsel of record as follows: Carol L. Cingranelli, Esquire TURD 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 & HAFER, LLP Stephen E. Geduldig, Esquire :i398i9.i tiEC 1 Y 200 (~ Stephen E. Geduldig, Esquire Attorney I.D. No. g353o THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17to8 (717) 237-7100 Attorneys for Defendant: E-Mail: S0 tthlaw.com Burger King Restaurant BRENDA L. MARTIN, IN THE COURT OF COMMON PLEA5 OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-4503 CIVIL TERM BURGER KING RESTAURANT, Defendant JURY TRIAL DEMANDED v. BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC., and DOUWE EGBERTS SUPERIOR COMPANY, Additional Defendants ORDER AND NOW, this day of 2001, upon consideration of Defendant's Motion to Compel Plaintiff Brenda L. Martin to withdraw her objection to Defendant's proposed subpoenas to Henry Wehman, M.D., and Ruth Kovacs, M.D. It is hereby ORDERED that Defendant's Motion is GRANTED and Plaintiff is directed to withdraw her objection within twenty (20) days of the date of this Order or be precluded from pursuing her claims related to her emotional and mental condition. BY THE COURT: J. ~~c x x 200 ~ Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box qq9 Harrisburg, Pennsylvania t71o8 (717) z37~1too E-Mail: 50~ C~tth13W. COITl Attorneys for Defendant: Burger Kvig Restaurant BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant v. 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 BRIEF IN SUPPORT OF DEFENDANT BURGER KING RESTAURANT'S MOTION TO COMPEL I. FACTUAL AND PROCEDURAL HISTORY On July 26, 2001, Plaintiff filed a Complaint to commence an action against Defendant, Burger King Restaurant, alleging that Plaintiff, Brenda L. Martin, suffered damages as a result of a hot beverage spill on May 2, 2001. On or about November 6, 2001, Defendant sent a Notice of Intent to Serve Subpoenas to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 to Plaintiff. Defendant received Plaintiff's written response to Defendant's proposed subpoenas on or about November 15, 2001. Plaintiff objected to Defendant's proposed subpoenas directed to Henry Wehman, M.D., and Ruth Kovacs, M.D., who, it is believed, have information concerning Plaintiff's previous psychiatric or psychological care or treatment. Plaintiff objects on the basis that the subpoenas to Henry Wehman, M.D., and Ruth Kovacs, M.D., are "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". No objection was asserted on the basis that said information was subject to a privilege, and same is therefore waived. This brief is filed in support of, and simultaneously with, Defendant's Motion to Compel Plaintiff to comply with discovery requests with respect to subpoenas directed to Henry Wehman, M.D., and Ruth Kovacs, M.D., who provided psychological care or treatment to Plaintiff. II. STATEMENT OF QUESTION INVOLVED SHOULD PLAINTIFF'S OBJECTIONS TO SUBPOENAS ISSUED PURSUANT TO RULE 4009.21, FOR RECORDS OF PLAINTIFF'S PSYCHOLOGICAL CARE AND TREATMENT BE OVERRULED? Suggested answer: YES IIZ. ARGUMENT Although the Pennsylvania Supreme Court has yet to rule on this issue, 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. Mate Bd. of Psychology, 659 A.2d 626 (Pa.Cmwlth. 1995). Federal Courts interpreting Pennsylvania law have held that placing the confidential information at issue in a civil trial is an implicit waiver of the statutory privilege of confidentiality. Mulholland v. Dietz, 896 F. Supp. 179 (E.D. PA. 1994); O'Bovle v. Jensen, 150 F.R.D. 519 (M.D. Pa. 1993); Pr mack v Ogar, 148 F.R.D. 140 (E.D. Pa. 1993). 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." O'Bovle v. Jensen, 150 F.R.D. 519 (M.D. Pa. 1993). In this case, Plaintiff has no waived a confidentiality objection, and same is therefore waived. Plaintiff has placed her psychiatric care or treatment at issue by alleging mental anxiety, loss of life's enjoyment, and embarrassment and humiliation. Plaintiff's medical records indicated that she received psychiatric care prior to the incident. Defendant attempted to access Plaintiff's psychiatric and/or psychological records by sending Plaintiff the proposed subpoenas. Plaintiff objected to the subpoenas addressed to Henry Wehman, M.D., and Ruth Kovacs, M.D. Information regarding Plaintiff's history of psychological oz psychiatric care or treatment is relevant to refute Plaintiff's injury claims, and essential to the defense of this action. Denying Defendant access to Plaintiff's psychological records would be manifestly unfair and grossly prejudicial to Defendant. Furthermore, it is submitted that any attempt to object to the discovery of this information at this time is untimely, as Plaintiff did not assert a privilege as a basis to objecting to this discovery. If Plaintiff believes that such records are irrelevant, then an appropriate objection may be made at trial; however, relevance is not an appropriate objection to the discoverability of this evidence. IV. CONCLUSION For the foregoing reasons, Defendant, Burger King Restaurant, submits that this Honorable Court should overrule Plaintiff, Brenda L. Martin's, objection to issuance of the subpoenas directed to Henry Wehman, M.D., and Ruth Kovacs, M.D., and order Plaintiff to sign any authorizations required by the providers, or be precluded from pursuing her claims related to her emotional and mental condition. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP ~ " E~~~ -Ql By: :150882.1 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 December, 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 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 & HAFER, LLP Stephen E. Geduldig, Esquire a398iq.i CSC 112001 `~ Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAPER> I.I.P 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania r7ro8 (717) 237-7100 E-Mail: SOLna t~11aW.COIn Attorneys for Defendant: Burger King Restaurant BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant v. 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 ORDER AND NOW, this day of 2001, upon consideration of Defendant's Motion to Compel Plaintiff Brenda L. Martin to withdraw her objection to Defendant's proposed subpoenas to Henry Wehman, M.D., and Ruth Kovacs, M.D. It is hereby ORDERED that Defendant's Motion is GRANTED and Plaintiff is directed to withdraw her objection within twenty (20) days of the date of this Order or be precluded from pursuing her claims related to her emotional and mental condition. BY THE COURT: J. DEC 112~0~ ~ Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania t7to8 (717) z37-7too E-Mail: Sei;C~tCIlIflW.COTH BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant V. Attorneys for Defendant: Burger King Restaurant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 01-4503 CIVIL TERM JURY TRIAL DEMANDED ~ c-~ r, _ L_ __~ , -. -- ; -' S'~ I; ". ~-7 - <l~.-`. is -<:: . ra; ..,~ ~:; _- =- ,_: M ,; rn =< BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC., and DOUWE EGBERTS SUPERIOR COMPANY, Additional Defendants 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 r ~ 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", Paragraph 13 (F). 2, pn or about November 6, 2001, Defendant sent a Notice of 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 Psycholoav, 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." O'Bovle v.Jensen, 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. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP ~ ~~ 1 ~ -7 °~ I By: :150882.1 STEPHEN E. GEDULDTG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendant, Burger King Restaurant 0Si06:2001 (19:07 FA.I' 87776282J8 GALLAGHER BASSET SERVICE lQ OOSi014 Aug-O1-O1 O1 _Z1P Ru55o 07/31/2001 18:21 7175300_ t 1~ BRENDA L. MARTIN, Plaintiff 4. Enterpr7ses 1 71 763 7172 P~02 EW.I0if1~ ~HLrYtr~S+ ,u rwuc ui :IN T E GUURT OF COMMON PLEAS OF :CU BERLAND COUNTY, PENNSYLVANIA :NO. /-5/SG~IVIL TERM BURGER KING RESTAURANT Defendant TRIAL DEMANDED YOU HAVE BEEN SUED IN COURT. ~If you wish to defend against the claims set forth in the following pages, you must tak action within twenty (20) days after this Complaint and Notice are served, by ®nterii attorney and filing in writing with the Court y0 forth against you. You are warned that if you you and a judgment may be entered against any money claimed fn the Complaint of fnr ~ Plaintiff, You may Lose money or property or YOU SHOULD TAFCE THIS PAPER NOT HAVE A LAWYER OR CANNOT OFFICE SE7 FORTH BELOW TO FIND OUT Cumberland Count 2 Liberty Carlisle, F (717) 24 a written aDDearance pert:onally or by tlefensea or objections to the claims set it to do so the case may proceed without ~u by the Court without further notice for y other claim or relief requested by tho rights importarrt to you. YOUR LAWYER AT ONCE. IF YOU DO ONE, GO TO OR TELEPHONE THE YOU CAN GET LEGAL HELP. Association 17013 -98:OB;i~801 09:07 FAS A7778282JA Aug-O1-O1 01:21P Russ^ 67/31!?F1B1 18:^_1 717~~db_ BRENDA L. MARTIN, Plaintiff v. GALLAGHER B.ISSET SER\%ICE Enterprises 1 77 7G3 7172 141117tl 43 ,nirrGV.~i .V BURGER KING RESTAURANT Dofcndant ~jbos~ol~t P_03 , ..~~ vt :1N ThME COURT OF COMMON PLEAS.OF :CUM ERLAND COUNTY, PENNSYLVANIA :NO. CIVIL TERM :JUR TRIAL DEMANDED Plaintiff, Brenda L. Martin, is an ~dutt individual cunently residing et 184 Meadow Drive, Shippensburg, Pennsylvania 1 2. Burger King of Shippensburg is ~ business operating at 38 Walnut Bottom Road, Shippensburg, Shippensburg Townshipf Cumberland County, Pennsyvania 17257. 3. At all times relevant hereto in the business of providing food productm to sale at its business locaton in Shippensburg Pennsylvania referenced above. 4. On or about May 2, 2D00 at ant, Burger King of Shippensburg, was general public which ere offered for Cumberland County. 7:30 P.M., Plaintiff, Brenda L. Martin did drive to the business location of the,befendant. 5. At that said lima an0 place the Plaintiff, Brenta L. Martin, did driv®her vehicle to the drive thrv window of the said Bulger K{ng of Shippensburg to plate an order for products offered far sale by the said Pendant Burger King, 6. At that said time and place the PIntfff, Brenda L. Martin, did order from Defendant a Whopper, Jr. and a coffee which thru window and into her vehiGe upon 7. After receiving the products the piece covering the opening fo insert creamers use in the coffee. 8. The Plaintiff thereafter did pull vehicle and did enter traffic to return to her towards the Borough of Shippensburg. delivered to her through the drive for the same. f did open the plastic tear away were provided by the Defendant for from dte drive thrv window In her he by entering the walnut Bottom Road I OA%OB%;2601 09:67 FAS 8777626208 Aug-O1-O1 O1 _21P Russo 67!31/2001 iB:21 l1 ~7jNb. GALLAGHER BASSET SERPICE Entorpri ses 1 71 763 7172 u.iuc~~ x+irru~u. IQIUU7%U 14 P.O4 ...._ .. 9. As the Plaintiff was proceeding i her vehiGe the coffee inside of the coffee cup did spill onto her pants and immed tely caused severe pain, buming and extreme discomfort. 10. As a result of the spelling of the r{bffee onto her. pants the Plaintiff did receive serious and permanent Injuries es 11. Paragraph 1-1d are hereby full text. 12. Plaintiffs injuries were the negligent oondud of defendant genenally and A. The defective design of the lid to the coffee cup which was provided to the Plaintiff at Detend~ B. The defective manufactu Defendant in that the cof and provided in such a x buming would occur whe C. Burger King of 5hippensl foreseeable riskasaoeiat the PlalntlfY in a package manufactured and which the Plaintiff. 13. As a direct and proximate result negligent conduct of the Oefendent, Plaintiff fully set forth below. by references as set forth in their proximate result of the reckless and ifically with regard to the following: s business location; and service of the product by the sold to the Plainti#f was excessively hot as iY was foreseeable that severe the coffee spilled; trg was negligent in disregarding the d with providing excessively hot mffee to hat was negligently designed and fd, in tact, cause the injuries suffered by the racMess, wanton, careless end suffered significant and permanent loss and injury including but not limited to: A. Past and future pain and ~uffering; B. Embarrassment and hum~iation; C. Disfigurement; D. Loss of enjoyment of life $nd it's pleasure; ~~~ . Avlg-01-O1 01-21P Ru5S0" Enterprises 1 77 763 7172 ~P.O5 07/31/2881 18:21 71753E0-. 19c1 tleu> >ntrrtru. .u '^... i E. Past and future incldentakcost; F. P®st and future mental a ktety; G. Past and future medical e~tpenses: end H. Cost of this action. ~ WHEREFORE, Plaintiff requests this H~norable Court to enter Judgment against Defendant in an amount Fn excess of 525.000100 plus cast and "enterest. 1G. Paragraphs 1-13 are hereby incorporated by reference as set forth in their I text. 15. The actions of the Defendant vioMated the Pennsylvania Uniform Commercial Code in that the product sold to a Plaintiff was manufactured and distributed by lrie Defendant in a fashion chat did not fit the ordinary purposes for which such products are used thereby v'IOlatin the warranty of marketability. 16. The Defendant, by manufacturin g, marketing, advertising and selling this product represented that it was safe for Its int nded use and by placing this defeatve product in the stream of commerce have brtaa ed the warrant of matketabilfty. 17. As a result of the accident taus solely by the Defendant's breach of warranty, Plaintiff suffered severe injuries ea n' tore fully set forth below. 18. As a result of the accident ~aus'I ' .solely cy the Defendant's breach of warranty, Plaintiff has sustained or may sustai the following damagee: ~ ,h_ Past and /uturo pain and uffering: B. Past and future loss of life 's enjoyment; C. Past and future inddentall~Icosk D_ Past and future mental ar~tidties; E, Past and Iuture medical etll}apenses; F_ EmbafrassrTtentend humiliation: and G_ Disfigurement , RUG-05-2001 10 14 9777526239 39Z P.09 A8i06/2001 09:(17 FAS A7776262JA GALLd1GHER BASSI;'1' S1;HYICC ~uua!uta Aug-O1-O1 01:2ZP RLISSr 1 Ent:eYprises 1 7 763 7172 ~P.06 @7/31/26%1 1H: L1 /1 /Ddb! S nr•.a~o~~ anarrcru. •;a ^~~ ii WHEREFORE. PlatnUff requests this Defendant In an' amount in excess of $26,0( 14. Paragraph 1-18 above are ~ thmir full text, 20. At all times relevant to this was engaged in the manufacture and sale of ', Commonwealth of Pennsylvania for distribute irebte Court to enter judgment against plus cost and interest. incorporated by reference as sef forth in Defendant Burger 1Gng of Shippensburg flee which was sold in the to the general public as the ultimate consumers. 21. Oe(andant e~xpecxed the coffee i sold by them to reach consumers or users in the condition in which It was sold. 22. At all times relevant hereto Plaln Iff utilized the products sold to her for its Intended use and was unaware of any defect' . the product package or produce Itself or that any danger to herself or others could resuik by using said product. 23. At all times relevant hereto the coffee and cup in which i1 was sold to Plaintiff was in a defective condition and unre ~SOnaWy dangorous to a user, consumer or others in that a defect in design existed. A ondition was not observable by e consumer who, {acking the technical Itnowled a and skills required to measure the temperature of die liquid or oantrol the covedn of the cup in which the liquid was Bald, relied on the duty of the Defendant to deliver coffee at the time of sate in a condition fit for use for the purpose intended. A bra®ch f the duty by the Defendant and the d®fective condition of the coffee and cup in w ich it was sold was the proximate cause of the injury sustained by the Plaintiff, Brenda .Martin. 24. As a result of the accident cau solely by the Defendant's breach of duty and the defective condition of the coffee nd rvp, more fully described abtsva, Plaintiff Brenda l_. Martin, at all times relevant crew received serious medical injuries as more fully outlined above. Aug-O1-Ol 01 :22P Russc 5 Enterprises 1 7 763 7172 ^~ ~P_07 971 31 /2661 SCi:21 ~17~3HE j CK.1 07643 ~nxrrav:,. .ea ~ '. I 25. As a result of the accident caul d solely by the Defendant's creation of e defective p7vduct, Plaintiff has sustained Qr m y sustain fhe following damages: A. Past and future pain and puffering; H. Past and future loss ~ lif~'~s enJoyment; C. Past and future incident D. Pest and future mental s E. Past and future medical F. Embam3ssment end hm G. Disfigurement WHEREFORE, Plaintiff requests this the Defendant in an amount In excess of S2: 26. Paragraphs ~-25 are hereby their full text. 27. The Defendant, Burger King of ; duty to provide anon-defective product into th 2B. At all times relevant helsto Plain and normal use and there were no substantial left control of the Defendant until the time of th 2g. Plaintiffs injuries were the direct Defendant, Burger King of Shippensburg, and the product sold to the Plaintiff at said time am A_ The defective design end B. The defective design and C_ The defective manufaciun D. The defective design and such a way to prevent exc of spillage whlcn was fore RUG-06-001 10 14 B77^r526238 and la CouR to enterjudgment against plus cost and interest. IV by reference as if set forth in breached its norndelegable stream of commerce. gwas using fhe product for its intended :hanges to the product from the time it accident. nd proxirnata result of the conduct of the fat the folloving defects were present in place: tanufaaure of the cup; 7anufacture of the lid; of khe product coffee in the cup; 7anufacture of the cafiee entl cup in ssive injuries to the Plaintiff in the cast jeable end normal; and 37~. P. 10 Aug-O1-O1 01=22P Russr i Enterprises 1 7 763 7172 ....~ ~P.OE3 07/31/2001 18: 2I /1 /Djf7t 3 p',1 uou~ nnirruc .ru E. The defective design and such a way es to fail to at vehicles in the case of a ~ herein. 36. The conditions referenced atrov~ of the product m the Plaintiff and et the Ume U these defects were a substantial factor fn cau: 31. Defendant, Butger King of Shipl of the sa/sty of its product in that k taNed Ta m every element necessary to make it safe for u specifically by Plaintiff Brenda L. Martin. 32. The Defendant breached It's dui design and manufacture of Ifs coffee by failing lnforthation to protect against the foreseeable 33. The Detendant is strictly liable ft the coNee, cup and lid due to the ocwrrerxe ~ were to occur during normal use. 34. As a result of tho accident cause duty as a manufacturer and producer of such sustain the following damages: A. Past and future pain and B. Peet and future loss of lift C. Past and future incidental D. Past and future mental ar E. Past and (inure nuedlcal e F. Embarrassment and hum G. Disfigurement WHEREFORE, PlalnUff requests this H the Defendant in an amount in excess of 325, nufacture of the coffee and cup in serious injury by occupants in similar to the one which occurred were in existence at the time of the sale product left Defendant's control and n9 Plaintiffs injuries. ~nsburg, failed in its duty as a guarantor nufacture its coffee, cup and 1'id with e by the consuming public and to wam, post sale of the defective to provide complete and accurate risk of harm that this defBCt presented. t the defective design and manufacture of F a foreseeable accidental spNl, which solely by the i7afendant's breach of its ducts, Plaintiff has sustained or may 's enjoyment; cost: and le Court to enter judgment against plus costs and Interest HUr,-06-291 1®: i4 8777626238 99f P. 11 oA%06.2001 09:07 FAS 877782825,4 GALLAGIIER BASSET SER4ICE ~012i01~1 Aug-O1-OS D1=23P Russo i Enterprl5es 1 7. 763 7172 P_09 87/31 /'LtlHl 18: Y1 /1 /bstlb.. ~d a,~i unYO x+irruv..unu ~ ~~+- 35. Paragraphs 1-3d above are her~IDy re-alleged and incorporated es if set forth in their full text. 36. The Defendant, at all limes ralavJJ~nt hereto, was engaged in trade In cammerca as defined in the Pennsylv®nla Unfpir Trade PracSces Act; T3 P.S. §201-1 et seq. j . 37. The defendant was, at all dmes deceptive acts or practices as set forth rttore 38. 0.s a direct result of the actions Unfair Trade Practices Act, the Plaintiff has are therefore. is entitled, pursuant to the prc damages, treble damages, costs and reaso WMEREF~RE, for all the above tea; :levant hereto, engaged In unfelt or ly in the said Unfair Trade Practices Act. the Defendant, all in violation of the eyed a loss in excess of $25,000.00 and, ins of the Act, to an award of actual e attorney fees. the Plaintiff requests judgment In her favor in an amount in excess of $25,OD0.00 pl~e treble damages, plus costs end i reasonable attorney fees. Resppcifully Submitted TURQ LAW OFFICES 07 a~) De ! -.~ Cero1:L_ CinOranelli, Esq ~ e 2B th Pitt Street Carat e, PA 17013 (717) 45.9868 Attorr}®y for Plaintiff I t~RL'~• (~I;:~'v fR~ii:.i•P,eA i:;P.:C~sr'SJ .n d stlmvnY wivtrsol, f here unto ~ ~ na an tt» >ost ~ taM Caurt >n TR ~ a3 i `~" ~- / Dr0l hartLfta tY uo; uo; ~yul ua: un raa 8/r~C.GL J+S (iALLA(iHHli 11A571;'1' StHV 1(;t. t~ O1J 1014 Aug-O1-O1 01=23P Russc i Enterpri5e5 1 7 763 7172 ~` P_10 07/31/1801 18;21 /1 /b:7Gb. 1 ena m.o onlrrc~u.~~nu ..~ I vertty !tzar the statements made In U l understand that false statements herein Pa.C.S. §4904 relating to unawam agoine Complaint aro true and correct. mace sutsject to the peneRies of 16 authorities. RUG-05-001 10=14 977/525238 571 P. 13 Aug,01-O1 01=23P Russo 1 Enterprises 1 7. 7fi3 7172 67/31/20b1 Zli:'L'1 111J3~7t J unyuw., u~•i~ . ~~..,. ...__ _P.11 CE}271FICATE F SERVICE I hereby certify that I served a true nd correct copy of the Complaint upon Burger King of Shippensburg by Cumber{ d County Sheriffs Department on the day of 2001, ddressed as fatlows: I Burger Klnp of Slhippenebui 39 W stout Bo~fom Road Shiooen9burgJ PA 17257 LAW OFFICES 26 St}uth Pitt Street Cartl e. PA 77013 (717) 245-9688 Atto~eY for ai ir,-car;-~RG71 ie: is 9^r7?52638 97 . P.la Stephen E. Geduldig, Esquire Afforney I.D. No. 43530 THOMAS, THOMAS &HAFER, LLP 305 North Front Street Post Office Box 999 Harrishurg, Pennsylvania 17108 (717) 237-7100 E-Maie seaCa~tthlaw.com BRENDA L. MARTIN, Plaintiff v. Attorneys for Defendant: Burger King Restaurant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 01-4503 CIVIL TERM BURGER KING RESTAURANT, Defendant JURY TRIAL DEMANDED v. BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC., and DOUWE EGBERTS SUPERIOR COMPANY, Additional Defendar_ts 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. THO ~,~T~10~AS &HAFER, LLB ~ ~ STEPHEN E. GEDULDIG, ESQUIRE 305 NORTH FRONT STREET - 6TH FLOOR HARRISBURG, PA 17108 (717) 237-7114 DEFEI~iDAB1T'S ATTORNEY FOR DEFENDANT ~ EXHIBIT 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 ~ "~` 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 arise, en Attorneys for Additional Defendants, DOUWE EGBERTS COFFEE SERVICE, INC. and DOUWE EGBERTS SUPERIOR COMPANY Robert A. Lerman, Esquire GRiFFITH, STRiCKLER, LERMAN, 50LYMOS & CALKiNS 110 South Northern Way York, Pennsylvania 17402-3737 Attorneys for Additional Defendant, Burger King Corporation Guy Mercogliano, Esquire SWEENEY & StiEEHAN 19th Floor 1515 Market Street Philadelphia, Pennsyivania 19102-1983 THOMAS, THOMAS & HAt=ER, LLP r° +' / ..i - j Stephen E. Geduldig, Esquire :148247.1 $RENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED BURGER KING CORPORATION, et al. Additional Defendants 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: diagnostic studies re ao rding:Brenda L. MarEin: Date of Birth 8130152; S.S. No.: 176- 46-6114, at Thomas. Thomas & Hafer. LLP. P.O. Bo>: 999. Harrisbu~. 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: DA Seal of the Court 148242.6 Prothonotary/Clerk, Civil Division Deputy BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 01-4503 CIVIL TERM JURY TRIAL DEMANDED BURGER KING CORPORATION, et al. Additional Defendants wFOR`D~ISGOVE TO: Records Custodian Henry Wehman, M.D. Stevens Center 33 State Avenue Carlisle, PA 17013 (717) 243-6033 IMENTS~OR THINGS TO RULE 4009 22 Within twenty (20) days after service of this subpcena, you are ordered by the court to produce the following documents or things: Complete copies of any and ail records. reports. correspondence. notes. memos and diagnostic studies regarding:Brenda L. Martin: Date of Birth 8130/52: S.S. No.: 176- 40-6114. at Thomas. Thomas & Hafer. LLP. P.O. Bo>: 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, wifhin 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 148242.5 Deputy BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT Defendant V. BURGER KING CORPORATION, et al Additional Defendants :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :NOUI~~lS6~, CIVIL TERM n o 0 7 - -„ :JURY TRIAL DEMANDED -;rt: ~~; -~ m:~~ -~ ,-,_ ~- - ~ n ~ i ` L.`7 ~';~ '- -l ~{~ y U T ~-- •' -t ~~ { 40 K 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. J;laintiff 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. TURD LAW OFFICES i ~/Q Date 28 South Pitt Street DEFENDANT'S Carlisle, PA 17013 ~ EXHIBIT (717)245-9688 a ' ~ Attorney for Plaintiff _ BRENDA L. MARTIN, IN THE COURT DF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-4503 CIVIL TERM BURGER KING RESTAURANT, Defendant JURY TRIAL DEMANDED v. BURGER KING CORPORATION, et al, Additional Defendants 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: diagnostic studies reaardina: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 patty making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or produdng the things sought. If you fait to produce the do~ments or things required by this subpoena, within twenty (20) days after its service, the- party serving this subpeena may leak a coact order compelling.you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME; Stephen E. Gedutdig, 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 146242.5 Deputy BRENDA L. MARTIN, Itd THE COUP.T OF CONli'~20N PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v BURGER KING RESTAURANT, Defendant v TO: Records Custodian Ruth Kovacs, M.D: Stevens Center 33 State Avenue Carlisle, PA 17013 (717)243-6033 N0. 01-4503 CIVIL TERM JURY TRIAL DEMANDED Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete conies of anv and all records. reports. correspondence. notes. memos and You may deliver or mail legible copies of the documents or produce things requested by 4hls subpoena, together vrith the certificate of compliance, to the party making this request at the address fisted above. You have the right to seek in advance, the reasonable cost of preparing the copies or produdng the things sought. If you fait to produce She documents or things required by this subpoena, within twenty (20) days after its service, the - party serving this subpoen2~"may seek a court order compelling you to comply wiUh 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 GOURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division taezaz.a Deputy BURGER KING CORPORATION, et al. - - Additional Defendants CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the aforegoing Objections to Subpoenas on the ~,s~day 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, 6"~ Floor P. 0. Box 999 Harrisburg, PA 17108-0999 Guy Mercogliano, Esquire Sweeney & Sheehan 19'^ 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 1 TURD LAW OFFICES ~~ Carol L. Cingranelli, squire 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 ~'~_ day of December, 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 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 & HAFER, LLP Stephen E. Geduldig, Esquire :i398i9.i 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 O1-4503 CIVIL CIVIL ACTION -LAW JURY TRIAL DEMANDED IN RE: DEFENDANTS' MOTION TO COMPEL ORDER AND NOW, this 2 0' day of March, 2002, a brief argument on the defendant's motion to compel filed December 10, 2001, is set for Thursday, Apri14, 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. Lerman, Esquire Guy Mercogliano, Esquire For Additional Defendants /j Kevi A. Hess, J. ~ „~. 2l. (7 ,L :rhn Ai.~~d~i"~- -~ ~tii /'.V ._L~ ~.. _ Stephen F. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMA.4 & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania t7ro8 (~t~) z39-7too Attorneys for Defendant: E-Mail: 58;;C~tY~t1aW.COTn Burger Kiug Restaurant BRENDA L. MARTIN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. 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 DEFENDANT BURGER KING RESTAU'RANT'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 Y 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", Paragraph 13 (F). 2. On or about November 6, 2001, Defendant sent a Notice of 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 Psycholocgy. 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." O'Boyle v.Jensen, 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. 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. 1,~-7 ~01 By: :150882.1 Respectfully submitted, THOMAS, THOMAS & HAFER, LLP STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendant, Burger King Restaurant -~~ 08/0$-2641 09 Aug-O1-O1 07/31/2001 07 FA.I' A7778262JA GALLAGHER BASSET SERVICE 1Q 005/01§ 01=ZIP Ru55o Enterprises 1 77 763 7172 P.OZ 12' 21 7175308_ ESY.Itliia ~ aHlrrel~5. .u r+.+u~ va BRENDA L. MARTIN, :IN T E GUURT OF COMMON PLEAS OF Plaintiff :CU tJ1rR1.AND COUNTY. PENNSYLVANIA ~_ :NO. /-4/S4~IVIL TERM BURGER KING RESTAURANT, Defendant :JURY TRIAL DEMANDED YOU HAVE BEEN SUED IN COURT. ~If you wish to defend against the claims set forth in the following pages, you must tak action within twenty (20) days after this Complaint and Notice are served, by ®nterir}p a written aDDearance personally or by attorney and filing in writing with the CouR yo foRh against you. You are warned that if you you and a judgment may be entered against any money clamed In the Corplaint of for ; defenses or obJections to the claims set i) to do so the case may proceed without w by the Court without further notice for y other claim or relief requested by the Plaintiff, You may lose money or properly or YOU SHOULD TAFCE THIS PAPER NOT HAVE A LAWYER OR CANNOT OFFICE SE7 FORTH BELOW TO FIND OUT Cumberland Coun~ 2 Liberty Carlisle, F {Iii) 24 rights important to you, YOUR LAWYER AT ONCE. IF YOU DO ONE, GO TO OR TELEPHONE THE ERE YOU CAN GET LEGAL HELP. 3er Asaodatlon 'enue 17D13 3166 ~i ir._a~._~aa~ ~ a: i ~ 97i P. 95 n3•(i~:2001 09:07 FAS A77782823A Aug-Ol-OI 01:21P Russo a?/31/?aB1 18:^_1 717~5~bb_ BRENDA L. MARTIN, Plaintiff v. GALLAGHER BASSET SERPICE Enterprises 1 77 763 7172 tlK111C4u 5nlrrGVOt .u 9URGER KING RESTAURANT Daicndant ~oosinl~t P_03 , ~~~ u~ :IN TFME COURT OF COMMON PLEAS OF :CUM ERLAND COUNTY, PENNSYLVANw :NO. CIVIL TERM :JUR TRIAL DEMANDED Plaintiff, Brenda L. Martin, is an z•duR individual currently residing et 189 Meadow Drive, Shippensburg, Pennsylvania 1 2. Burger king of Shlppenslwrg is ~ business operating at 3l3 Walnut 6oUom Road, Shippensburg, Shippensburg Township Cumberland County, Pennsylvania 17257. 3. At all times relevant hereto Def in the business of providing iood produckm to sale al its business IocaUon in Shippensburg Pennsylvania referenced above. 4. On or about May 2, 2000 at Martin did drive to the business location of the ant, Burger King of Shippensburg, was general public which are offered for Cumberland County, 7:30 P.M., Plaintiff, Brenda L. 5. At that said time and place the Plaintiff, Brenda L. Martin, did drive her vehicle to the drive ttuu window of the said Burger King of Shippensburg to place an order for products offered for sale by the said fondant Burger King, 6. At that said time and place the P q~ilntfff, Brenda L. wlartin, did order from Defendant a Whopper, Jr. and a coffee which ~rere delivered to her through the drive thru window and into her vehicle upon payment for the same. 7. After receiving the products the laintiff did open the plastic teae away piece covering the opening to insert creamers hich were provided by the Defendant for use in the coffee. 8. The Plaintiff thereafter did pull a ay from the drive thru window In her vehicle and did enter traffic to return to her ha a by entering the Walnut Bottom Road towards the Borough of Shippensburg. ~ U9%U8/.GO1 09:07 FAY 877782B2J8 Aug-O1-O1 O1 :21P Russo 07/31/2001 10:'21 /11~7b0. GALLAGHER BASSET SERPICE Entmrprises 1 7] 763 7172 ti'.tucu> >narrci v. 1PJUU7/U1~3 P.O4 I I g. As the Plaintiff was proceeding i her vehiGe the coffee inside of the coffee cup did spill onto her pants and immed tely caused severe pain, burning and extreme discomfort. 10. As a result of the spilling of the ooffee onto her pants the Plaintiff did receive ear""roue and permanent injuries as mote fully set forth below. 11. Paragraph 1-16 are hereby into rated by references as set forth in their full text. 12. Plaintiffs inJurias were tha direct end proximate result of the reckless end negligent conduct of defendant generally and specifically wifh regard to the following: A. The defective design of tti0 lid to the coffee cup which was provided to the Plaintiff at Defenda~tt's business location; I f3. The defective manu(actur~r and service of the product by the Defendant in that the toff sold to the Plaintiff was excessively not and provided in such a w y as it was foreseeable that severe burning would occur whe ,the coffee spilled; C. Burger King of 5hippens~rg was negligent in disregarding the foreseeable risk assOCia d with providing excessively hot mffee to the Plaintiff in a package >Ilhat was naglipently designed and manufactured and which ~id, in fact, cause the injuries suffered Dy the Plaintiff. ~ 13. As a direct and proximate result of the rracfdeas, wanton, careless and r negligerri conducl of the Defendant, Plaintiff his suffered significant and permanent loss and inlury inGuding but not limited to: j A. Past and future pain and ~uffering; B. Embarrassment and hum~fation: C_ Dlsfigurernent; D. Loss of enjoyment of life >.~nd it's pleasure; q7^7q'~gJ'3q 97'/. P.D^r ~AU'g-01=01 01:21P Ru55o~~ ' Enterprises 1 77 763 7172 ^... ~P.05 X7/31/2981 19:21 71753p0. 74C1bGU~ 5ntrrtro. ~~ I E. Past and future ineldentar!cost; F. P®st and future mantel a kiety; G. Past and future medical ~tpenses: end M. Cost of this action. ~ WHEREFORE, Plaintiff requests this Hpnorable Court to enter Judgment against pefendant in an amount in excess of $25.000+00 plus cost and interest. 1a. Paragraphs 1- i3 are hereby inc~-Porated 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 a Plaintiff was manufactured and distributed by the Defendant in a Pashlon ihat~ did not fit the ordinary purposes for which such products are used thereby violabn the warranty of tnarkatabilhy. 16. The Defendant, by manufacturing, marketing, advertising and selling this product represented that it w»s safe for its int nded use and by placing this defect(ve product in the stream of commerce have brew ad the warrant of mattcetabflfty_ 17. As a result of the accident taus solely by the Defendant's breach of warranty, Plaintiff suffered severe injuries as r~+ore fully set forth below. t B. As a result of the accident taus' I' solely by the Defendant's breach of Wamanfy, Plaintiff has SUStalned Dr may eVStBi the follawing damages: A. Past and futuro pain and ~uffering; B. Past and future lose of IiFl~'6 enjoyment C. Pest and future inddental~cost: D. Past and future mental ar~rietias; E, Past and future medical e}`apenses; F. Embefr888mBnt and humlletion; and G. Disfigurement , RUG-06-2001 10~1a 9777626238 99i P.09 03i08i:C01 09:(17 FAk 8777826.'JS GALLAGHEx BA551;7~ s~xvlce w~uoa~ox~, Aug-O1-Ol 01722P RuSSr t Enterprisesnr.luo~~ onirrc~~. ,;,~ 63 7172 P_06 b7/31/~bb1 ltl_.1 /1 /7db\ S ~` WHEREFORE. Ptaintltf requests this Honorable Court to enter judgment against Defendant In an amount in excess of $26,0( 19. Paragraph 1-18 above are chair full text. 20. At all Gmes relevant to this was engaged in the manufacture and sale of plus cost end interest. incorporated by reference as set forth in Defendant Burger King of Shippenaburg which was sold in the Commonwealth of Pennsylvania for distritxrtio to the general public as the ultimate consumers. 2t. Oefendant expected the coffee i sold by them to reach consumers or users in the condition in which ft was sold, 22. At all times relevant hereto Plaln~iff utilized the products sold to her for its Intdnded use and was unaware of am defect In the product package or product itself or that any danger to herself or others could resrjk by using said product. i 23. At all Umes relevant hereto the coffee and cup in which it was sold to Plaintiff was in a defective opndition and un or others in that a defect in design exitsted. A consumer who, lacking the technical knowlad~ temperature of the liquid or control the coverlr relied on the duty of the Defendant to deliver i fit for use for the purpose intended. A breach defective condition of the coffee and cup in wl of the InJury sustained by the Plaintiff, Brenda 24. As a result of the accident cause duty and the defective condition of the coffec Plaintiff Brenda L. Martin, at all times relevant as More fully outlined above. onably dangonws to a user, consumer tndiGon was not observable by e and skills required to measure the of the cup in which the liquid was sold, i coffee at the time of sale in a condition the duty by the Deferxlant and the h it was sold was the proximate cause Martin. solely by the Defendant's breach of d cup, more fully described atxsve, crew recehred serious medical injuries ai ir,-AF-?Ani 1 e: ~ a 87775?_52?8 97 ; P. 09 Au O1-Ol 9 01 =22P Russc i Enterprises 1 7 763 7172 Pe07 ~ ^ ~ 07/31/2001 SB:21 717rs30E J nr.i ncsv~ nnxrrcw~. .~u ~- ~ 25. As a result of the accident taus d solely by the Defendant's creation of e defective product, Plaintiff has sustained or m y sustain the following damagos: A. Past and future pain and farffering: 8. Past and future loss d lif '!3 en)oyment; C. Past and future incidental Coat; D. Pest end future rrtental a ,iety; E. Past and future medical a penses; t=. Embarrassment end hum lation; and G. Disfigurement WHEREFORE, Plaintiff requests this H notable CouR to enter judgment against the Defendant in an amount in excess of 325,00.00 plus cost artd Interest. w 26. Paragraphs 1-25 are hereby ins theirfuU text. 27. The Defendant, Burger King of S duty to provide anon-defective product into th 28. A4 all times relevant hereto Plairt and normal use and there were no substantial left control of the Defendant until tAe time of th 29. Plaintiffs injuries were the direct Defendant, Burger King of Shippensburg, and the produce sold to the Plaintiff at said time arx A. Tha defective design and B. The defective design and C. Ths defective manufecturv D. The defective design and such a way to prevent exc 01 spillage whlcn was forei by reference as if set forth in ~ippensburg, breached its non-delegable stream of commerce. `f was using the product for its intended :hanges to the product from the time ii accident. nd proximate result of the conduct of the 'I fat the following defects were present in place: tanufaaure of the cup; Manufacture of the lid: of the product coffee in the cup; ianufactura of the catfee end Cup in ssive injuries to the Plaintiff in the cast feeble end normal; and RUG-06-2001 10~1d 8777525238 97%; P. 10 ~. ~~:, AU 907/31/ 001 O1a.22P R1 L5i3b~ s En~terprises~luo~a nnilruc ,nu 63 7172 T.~ P.OS 1 E. The defective design and manufacture of trte coffee and cup in such a way es to fail to a bid serious injury by occupants in vehicles in the case of a p81 similar to the one which occurred herein. 36. The conditions referenced e~bov ~vrere in existence at the time of the sale of the product to the Plaintiff and st the tittle f: product left Defendant's control and ~ Ness defects wens a substantial factor fn cau Ing Plaintiffs injuries. 31. Defendant, Burger King of Ship nsburg, failed in its duly as a guarantor of the safety of its product in that K faied tom nufacture its coffee, cup and I'id with every element necessary to make it safe for u e by the consuming public and specifically by Plalnfiff Brenda L. Martin. 32. The Defendant breached h's dui to wam, post sale of the dafediva ~ design and manufacture of Ifs coffee Dy fallin to provide complete and accurate information to protect against the foreseeable. isk of harm that this defect presented. 33. The Defendant is strictly liable r the defective design and manufacture of the coffee, cup and lid due to the occurrence mf a foreseeable accidental spill, which were to occur during normal use. 34. As a result of the accident cause duty as a manufacturer and producerof such sustain the following damages: A. Past and future pain and t3. Past and future loss of lif C. Past and future incidents D. Past end future mental ai E. Past and future rmedlcaf r F. Embarrassment and burr G. Disti9urement WHEREFORE. Plaintiff requests this h the Defendant in an amount in excess of 525, solely by the Defendant's breach of ks ducts. Plaintiff has sustained or may ..~~o....y, 's enjoyment; oust; and le Court to enter judgment a®aintst plus costs and Interest gIJG-05-2001 J0~14 87775262.39 99i P.il 08i0S-2001 09:07 FAS 67776262JA GALLAGHER BASSET SERVICE Aug-O1-O1 O1 o23P Russ, i Ente'r-pY152sa,~i uoY~ ~yl ~~ :~.,~nu 63 7172 07!31/'LtlHl 1M: Y1 /1/bstl6...d , 35. Paragraphs ~-34 above are forth in their full text. 36. The Defendant, at all limes commerce as defned in the Pennsylvenla seq. 37. The Defendant was, at all [Imes deceptive acts or practices as set forth more 38. As a direct result Of the actions Unfair Trade Practices Act, the Plaintiff has are therefore. i5 entitled, pursuant tq the pn damages, treble damages, costs and tease rd~oi2-oia P.09 n.,` .... re-alleged and incorporated a5 if set t herald, was engaged in trade In Trade Practices ACt; 73 P.S. §2D1-1 et :levant hereto, engaged In unfelt or ly in the said Unfair Trade Practices Act. the Defendant, all in violation of the eyed a loss in excess of $25,000.00 and, ons of the Act, to an award of actual Is attorney fees. WHEREFORE, for ell the above rgasor~s, the Plaintiff requests Judgment to her favor in an amount in excess of $25,000.00 pll~e treble damages, plus Costs end i reasonable attorney fees. Resp¢etfully Submitted TURQ LAW OFFICES ~ ~~ Da C~/ Caro1:L. Cingranelli, ESq 28 th Pitt Street Car1I e, PA 17013 (717) 45.9888 Attorr{®y for Plaintiff .n'~asdmonywtt"trsol, I h6r6 uf(tt1lsl~a. ~ na and the >osl ~ saM Court tt fh ~ ~ ' I WOIAOrtOtdry I ni it _rac _nran~ ~a• ~ n onnnc ^,cn~o on>r D 1'J Ub/llb',/:Ulll Uy:lln YA.C b~tY~lK2tf2s8 CiALLAGHtR HA551;'L Sl;f2v1(;1; Aug-O1-O1 01:23P Russc i Enterprises 1 7 763 7172 87/31/i001 18:21 /1 /b:lbb. d e.+.a uo.a Jnlr~G~s~~rtu f verity that the statements made in 11 1 understand that false statements heteln Pa.C.S. §4904 relating to untnvom falsificsti~ Viola/ol~t m` P.10 ®goinp Complaint aro true and correct. mace subject to the penaflies of 1t3 authorities. r~IJG-86-?001 10:14 9777626239 97~ P. 13 ll0%VO%Gavl lrtl. vn rnn miiia~v.vv .................. ~.___-_ _-_..__- Aug-O1-O1 01:23P Russo 1 Enterprises~r~~y~ ~„`?„7,. 87/31/26ti1 1H:'d'1 it i~snt .c 763 7172 , ..__ _P _ 11 CERTIFIC TE F SERVICE 1 hereby certify that I served a true nd corcect copy of the Complaint upon Burger King of Shippensburg by Curntrerl d County Shar'~s Department on the day of , 2!101, ddressed as follows: Burger Kln® of S1Ffippensbui 3B Wstnut Bo~iom Road 5hiooensburclJ F'A 17257 TUR~ LAW RFFICES '~~ . ~~ Caro L. Cingranelli, Es 28 S~luth Pitt Sheet Carll~Ie. Pft 77013 (717) 245.9&88 Atto~ev for RUG-05-2001 10 14 9777526238 97% P. 14 Stephen E. Geduldig, Esquire - - _ Attorney LD. No. 43fi30 _ _. -- - - _ - _ _ THOMAS, THOMAS &HAFER, LLP - 305 North Front Street - _ _ - Past Office Box 999. _ _ - _. - ___ Harrisburg, Pennsylvania 171 D8 __ _ _ _ - - - _ (717) 237 7100 - - - - Attorneys for Defendant: E-Mail: SEgnd.$h18W.COm _ Burger Kng Restaurant BRENDA L. MARTIN, IN THE COURT OF COMMQN PLEAS 6F Plaintiff CUMBERLAND CO-LINTY, PENNSYLVANIA v. NO. 07=4503 CIVIL TERM BURGER KING RESTAURANT, DefendarLt_ JURY TRIAL DEMANDED v. 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 attaehed to this notice. You have twenty (20) days from the dat~_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. THO ,S &HAFER, LLP STEPHEN E. GEDULDIG, ESQUIRE 305 NORTH FRONT STREET - 6TH FLOOR HARRISBURG, PA 17108 (717) 237-7119 DEFENDANT'S ATTORNEY FOR DEFENDANT ,~ F ~.{~g~T 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 y~day of November, 2001, on all counsel of record as follows: Attorneys for Plaintiff Carol L. Cingraneili, Esquire TURD LAW OFFICES 28 South Pitt Street ar is e, e n 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 19fh Floor 1515 Market Street Philadelphia, Pennsylvania 19102-1983 THOMAS, THOMAS & HAFER, LLP cry Stephen E. Geduldig, Esquire ;148241.1 BRENDA L. MARTIN, _ IN. THE COURT OF COMMON PLEAS-OF _ Plaintiff CUMBERLPSTD COUNTY, PENNSYLVANIA v. -- NO: 01-4503 CI~LIL_TERM_ BURGER KING RESTAURANT, Defendant JURY TRIAL DEMANI~BD _- _ v. BURGER KING CORPORATION, et al. Additional Defendants 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. 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 148242.6 Deputy BRENDA L. MARTIN, - Plaintiff v. _ BURGER KING RESTAURANT, Defendant _- __- _ v. BURGER KING CORPORATION, et al. Additional. Defendants IN THE .COURT OF COMMON PLEAS OF CUNiBERLAIQD COUNTY, PENNSYLVANIA NO. 01=4503 CIVIL TERM_ JURY TRIAL DEMANDED 01101'1/1 L'L1 /1 TA r]r~Alll 1/1C 1"f A1~111111CGIT0 AA TLIIAII'10 TO: Records Custodian Henry Wehman, M.D. Stevens Cenfer 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 conies of any and all records reports corresr~ondence notes memos and diagnostic studies regarding:Brenda L. Martin; Date of Birth 8130152• 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 certif cafe 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 t(ie 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 taszazs Deputy S BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, Defendant V. BURGER KING CORPORATION, et al Additional Defendants :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA NODI~~ISbt, CIVIL TERM C'7 o r i c; - JURY TRIAL DEMANDED „ f ~ : - _, _ "` r" - ~ --- c. R `. r _ __-r, ~ ~ ~ r, , - - . :, - - ~',~ ~ _° ` ~ ~n ~ ~o OBJECTIONS TO SUBPOENA PURSUANT TO RULE 4009.21 The Plaintiff, Brenda L. Martin, objects to the proposed subpoenas that are attached herein fior the following reasohs: 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 fhe 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 ircelevanf to these proceedings. 2. .Elaintiff 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 tc discovery of admissible evidence; fhe discovery of said materials will cause unreasonable annoyance and the invasion of personal, private matters which are irrelevant to these proceedings. TURD L7AW OFFICES ~_ `" _ Date Carol L. Cingranelli, Esquir 28 South Pitt Street DEFENDANT'S Carlisle, PA 17013 EXHIBIT (717)245-9688 Attorney for Plaintiff ' ~_,_ . , BRENDA L. MARTIN, - ~- IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. N0. 01-4503 CIVIL TERM BURGER K2NG RESTAURANT, Defendant .JURY TRIAL DEMANDED v. BURGER KING CORPORATION, et al. Additional Defendants TO: Records Custodian Henry Wehman, M.D. Stevens Center 33 State Avenue Carlisle, PA 17013 (717)243-6033 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 Gsted above. You have the right to seek in advance, the reasonable cost of preparing the copies or produang the things sought. If you fait to produce the do~ments or things required by this subpoena, within twenty (20j days after its service, the- party serving this subpoena may seek a court order compelling.you io comply with !L 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 IGng Restaurant BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division taazazs Deputy Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following 1 I BREtdDA L. MARTIN, Std THE COURT OF COMMON PLEAS OF Plaintiff .CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-4503 CIVIL TERM - BURGER KING RESTAURANT, Defendant JURY_TRIAL DEMANDED v. BURGER KING CORPORATION, et al. Additional Defendants - TO: Records Custodian Ruth Kovacs, M.D: Stevens Center 33 State Avenue Carlisle, PA 97013 (717)243-6033 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 tfilngs sought. If you fail to produce the documents or things required by this subpoena, within twenty (2D) days after its service, the party serving this subpoenF'rnay seek a court order compelling you b imply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Sox 999, Harrisburg, PA 1710&0999 TELEPHONE: (717} 237-7119 SUPREME COURT ID#: 43530 Aftomey for Defendant Burger King Restaurant 8Y THE COURT: DATE: Seal of the Court 148242.6 Prothonotary/Clerk, Civil Division Deputy Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: _ w ~ -, CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the aforegoing Objections to Subpoenas on the ~,S~day 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, 6'~ Floor P. O. Box 999 Harrisburg, PA 17108-0999 Guy Mercogliano, Esquire Sweeney & Sheehan 19~' 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 TURD LAW OFFICES ~~ Carol L. Cingranelli, squire 28 South Pitt Street Carlisle, PA 17013 (717)245-9688 Attorney for Brenda Martin y , , 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 December, 2001, on all counsel of record as follows: Carol L. Cingranelli, Esquire TURD 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 & HAFER, LLP Stephen E. Geduldig, Esquire :i398i9.i n h ' ' o (m`~{~ ~./~J ~ '_... ~~ C ) °~ ._._ ~ /~ [_..` ~11 ...~.~ y, '. ~„ FR~' 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 O1-4503 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, Apri14, 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. Lerman, Esquire Guy Mercogliano, Esquire For Additional Defendants ~ ~l~ Kevi .Hess, J. :rlm d~~,bmas~N3~ ri ~t :ill E ~4~ i. G ~~~ u~ / ,V ~tnr i ~. ~ i ,t _. ~„ 4/ /J/ Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAPER, LLP 305 North Pront Street Post Offce Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: S00n0 tth(aW.COtTI U¢~~ ~ 0 2002 Attorneys for Defendant: Burger King Restaurant 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 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 01-4503 CIVIL TERM JURY TRIAL DEMANDED O R D E R AND NOW THIS day of ,2002, upon consideration of Defendants' Motion to Compel Discovery, it is hereby ORDERED that Plaintiff shall file full and complete responses to Defendants' Request for Production of Documents within ten (10)days from the date of this Order. BY THE COURT, 9 J. ~, 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-Male seata'~tthlaw.com Attorneys for Defendant: Burger King Restaurant 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 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 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 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 Exhibit "C" Attached hereto and marked as 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. 2 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, TURD 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 BY: Stephen E. Geduldig Attorney I.D. No. 43530 Attorneys for Defendant, Burger King Restaurant 3 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, po ~a~qe prepaid, at Harrisburg, Pennsylvania, on the ~~ hhs 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 & HAFER, LLP Stephen E. Geduldig, Esquire 4 Aug-O1-O1 O1:Z1P RuSSo @7/31/2001 18:21 7175300_ ~~ BRENDA L. MARTIN, Plaintiff v. Enterprises 1 7? 763 7172 r,.uc ~P_02 Ei{:IOifi' ar+lrrrti5. .u :IN T1 E COURT OF COMMON PLEAS OF :CU BERlANO COUNTY. RENNSYLVANIA -NO: /-5/.fG~[VIL TERM BURGER KING RESTAURANT, Defendant YOU HAVE BEEN SUED IN COURT. set-forth ih the following pages, you must tat Complaint and Notice are served, by ®nteri attorney and filing, in writing with the Court yC forth against you. You are warned that'rf you you and a judgment may be entered against any money claimed In the Comptaiht u( for Plaintiff, You may lose money or properly or TRIAL DEMANDED If you wish to defend against-the daims action_wlthtn twenty (20) days after this I a written appearance personally or by ' tlefAnses Or objections to the cl8ims set tit to do so the ease may proceed, without ou by the Court without further notice for ry other claim or tellef requested by the rights importatrt to you. YOU SHOULD TAKE THIS PAPER T YOUR LAWYER AT ONCE. lF YOU DO NOT HAVE. A LAWYER OR CANNOT AFFO DONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT Cumberland County 2 Liberty A Carilsle, PA {717) 248 YOU CAN GET L.£GAl HELP. 3ar Asaociation renua 17013 RIJG-05-2001 10 14 8777526238 97i P.05 lib/UO/LUU1 VJ. Uf CnA OI IfOGO GJ9 .Aug-_01-01 01:21P Russo ar/311281 1B:^_S 71>`S9bb- BRENDA L. MARTIN, Plalndff „na.t~nvntn nnuuna unn, a..u '>±-'•,"v•"i= Enterpri ses~lntlyy ,nl~rc~~ ,~ (i3 7172 ~~` ~P _ 03 y, :NO. BURGER KING RESTAURANT, Dotcndant 1. Plain/iff, Brenda. L. Martin, ie an s Meadow Drive, Shippansburg, Pennsylvania 1 2. Burger King of Shippensbutg Is Road, Shippansburg, Shippansburg township 17257. 3. At all time; relevant hereto Defer in the business of providing food produets to tl sale at its, business location in 5hippen3burg l Pennsylvania referenced above. 4. On or about May 2, 20l)D at appr Martin did drive to the business location of the 5. At that said time and place the vehicle to the drive tftru window of the said Bu order for products offered for sale by the said B. At that said time and place the F Defendant a whopper, Jr, and a coffee which thru window and into her vehice upon peyme~ 7. After receiving the products the I piece covering the opening to insert creamers uae in the coffee. 8. The.Plainfitfthereafterdidpull vehice and did enter traffic to return to her towards the Borough of Shippansburg. E GOURT OF GOMIMON RLF.A$ OF HERLANt7 COUNTY, PENNSYLVANIA GIVIL TERM 'TRIAL DEMANDED individual currently residing at 189 business operating at 38 Walnut BolWm Cumberland County, Pennsylvania ant, Burger King of Shippansburg, was general public which are offered for unship, Cumberland County: 7:30 P.M., Plaintiff, Brenda t. iff, Brenda L. Martin, did drive her King o4 Shippansburg to place an Burger Kir-g, intHf, Brenda L. Martin, did order fmm .re delivered to her through the drive for the same. f did open the plastic tear away were provided by the Defendant for from the drive thru window In her by entering the Walnut Bottom Road AUG-06-2001 10 14 9777626238 97: P. 06 aug-Ol-Ol 01 :21P Russo~- Enterprises 1 7]' 763 7172 y,7,/31J3001 18:21 fl /7j0b. m.iuo~~ anarrr.i~u. u g, As the Plaintiff was proceeding i her vehiGe the coffee inside of the coffee cup die spill onto her pants and imm®d tely caused severe pain, bumirig and extreme discomfort. 10. As a result of the spWing of the cibffee onto her p@nta the Plaintiff did receive serious and permanent lpjuries as 11. Paragraph 1-1 (S are hereby full text. fully set forth below. by references as set forth in their 12. Plaintiffs injures were the direalend proximate result of the reckless and 'negligent conduct of defendant genecelly and specifically with regard to the following: A. The defective design of ttra lid to the coffee cup which was provided to the Plaintiff at Defenda~tt's business location; i 6. The defective manufactu Defendant in that the cof and provided in such a w burning would occur whe C. Burger-King ai Shippensl foreseeable risk assoCiat the PlalntlH fn a package manufactured and which the Plaintiff, and service of the product by the .sold to Uie Plaintiff was excessively not as it was foreseeable that severe ha coffee spilled; rg was negligent in disregarding the with providing excessively hot coffee to at was negligently designed and i, in fact, cause the injuries suffered Dy 13. As a direct and proximate result bf tt-e recldess, wanton, careless and I negligent conduct of the Defendant, Plaintiff his suffered significant and permanent loss and injury inGuding but net limited to: ~ I A. Past and future pain and ~uffering; B. Embarrassment and hum~fation: C. Disfigurement; D. Loss of enjoyment of life r}nd it's pleasure; I I raUG-06-20ai 10=14 8777526238 8?i P.07 Aug-O1~-01 O1 :21P Russo`" Enterprises 1 77 763 7172 ^,.. ~P.O5 07131/2001 18:21 71753Q0~_ ffKltltluD Ontl'Rfn. .u ' 1~ I E. Past and future incident F, Past and suture mental i G. Past and future medical H, Cost of this actiort. WHEREFORE, Plaintiff'nqueata this Defendant in an amount in excess of S25.OC ['ASt; and Ibnaratsie Court to enter Judgment against 100 plus cost and interest. ~r 14. Paragraphs 1-13 are hereby text. t5. The actions of the Defendant vial Commercial Code in that the product sold to distributed by the Defendant in a tashlan chat which such products are used thereby violatin 16. The Defendant, by manufacuuen product represented that it wzss safe fior its int product in the stream of commerce nave bras 17. As a reawlt of the accident taus warranty, Plaintiff suffered severe injuries as r{ t 8. As a result of the accident ceuse~ warranty, Plaintiff has sustained or may atlatai A. Past and futuro pain and B. Past and future lose Of lifp~' C, Pest and future inddent D. Past and future mental E, Past and future medical F. Embarrassment and hw G. Disfigurement by reference as set forth in their rted the Pennsylvania Uniform i Plaintiff was manufactured and did not fit the ordinary purposes for the warranty of marketability. .marketing, advertising and selling this ~ded use and by placing 4his defeaWe led the warrant of maricelabflfty. solely by the Defendant's breach of xe fully set forth below. solely by the Defendant's breach of the following damages; .v,...yr enjoyment and RUG-06-2001 10 14 9777626239 98; P. 08 Vn/UO,/,LVILL U.Y:UI rrtn OII~VCV Can ~ana.a.n~aaa.n unuv...+ .+a.av ..... ALi9B-iOI 31! bE)L Oita ZZP Ru S~bz i Enterprisesnr~.ico~~ anirru .. ,;v 63 7172 ,~` ~P-06 . i WHEREFORE. Plaintiff requests this norable Court to enter judgment against Defendant In an amount in excess of $26,1}l}~ 00 plus cost and interest. 19. Paragraph 1-18 above are chair full text. 20. At all times relevant t0 this incorporated by reference eS set forth in Defendant Burger King of Shippansbury was engaged in the manufacture and sale of flee which was sold in the Commonwealth of Pennsylvania for distributio to the general public as the ultimate consumers, 2t. Defendant esxpaaed the coffee i sold by them to reach consumers or users in the condition in which ft was sold. 22. At all limas relevant hereto Plain~i% utilized the products sold to her for its [ritended use and was unaware of any defect Jn the product package or product ltserlf or that any danger to herself or others could resrjk by using said product, 23. At all times relevant heretoYhe coffee and cup in which ft was sold to Plaintiff Was in a:defeltrkive conditio~i and unrA ~sfenably dangefeus to a usAr, censumer or others in that a defect in design exirited. A ondition was not obsarvablei by a consumer who, sacking the technical. knowled a and skills required to measure the temperature of the liquid or control the coverin of the cup in which the liquid was sold, relied on the' duty of the Defendant to deliver I fit for use for the purpose intended. A breacn defective condition of the w%e and cup in wl of the 1nJury sustained by the Plaintiff, 8randa 24. AS a result of the acadent cause duty and the defective condition oftha coffee Plaintiff Brenda L. Martin, at all times rrilavant ae more fully outlined above. i coffee at the time of sale in a condition th® dury by the Defendan! and the hit was sold was the proximate cause Martin. solely by the Defendant's breach of d cuD. more fully described abcsve, rreto received serious medical injuries AUG-06-2001 10 14 577^626238 97; P:09 .,Aug-A1-O1 01 :22P Russo i Entorpr;sesnk.i nova 5nxrrc~y-. .~~ 63 7172 ' BT/31/001 10:21 717538E ! i P.07 ,.~ 25. As a resul! of the at'didenC taus d solely by the D®fenderit's t:r~ation of e defective product; Plaintiff has. sustained qr m ysustain-the folowing damagos: A. Pest and future Pero end Fuffering: 8. Past and future loss ~ Iif~YS enJoyment; C. Past and future incidental G D. Pest end future mental a E. Past and future medical a 'p F. Embarrassment end hum Is G. Disfigurement WHEREFORE, Plaintiff requests this H n the Defendant in an amount in excess of 525,~D 26. Paragraphs 1-25 are hereby their full text. 27. The Defendant, Burger King of S duty to provide a non.dtifeCtive produG into th 2B. At all times relevant hereto. Plain and normal use and that's were no substantial left control of the pefendant until the time of th Zg. PlainGf('s injuries were the direct Defendant, Burger King of Shippensburg, and the produce sold to the Plaintiff at said tune arN A_ Tha defective design and B. The defective design end C. The defective manufactur p. The defective design and such a way to pnsvent exi of spillage which was t<xe and la Court to enter judgment against plus cost and Interest. by reference as if set forth in breached i4a norndelegable stream of commerce. f was using the product for its intended hanger to the product from the time it accident. nd proxirnata result of the Conduct of the rat the following defects we-e present in place: of the cup; nufacture of the lid: ' the product cotieB in the cup; nufacture of the coffee entl wp in rive injuries to the Plaintiff in the caso end normal; and taUG-06-001 10 14 8777526238 97i P. 10 IIOI VV~LVO1 l~J ,Aug-41-O1 07/31/2001 V/ 1llA VIIIVLV LVV V(luu/lVdluY~ YR4JUd vua~. dvu 01=ZZP Russr i Enterprises 1 7 763 7172 18'21 !1 lyjn! S a~,l uoua anlrruc ru E. The defective design snc such a way es to fail to a vehicles in the case of a herein. 30. The conditions referenced of the product to the Plaintiff and st the Utne tl these detects were a substantial factor in cau, 31. Defendant; t3Ulger King of Ship{ of the safety of its product in that N faNed to m every element necessary to make it safe For u apecifir:ally by PI alnfiff Brenda L. Martin. 32. The Defendant preached ICti dui design and manufacture of Ifs ootTee by fallint 1nfoTmaGon to protect against the foreseeable 33. The Defendant is strictly liable fi the coffee. cup-and lid due to the occurrence were to occur during normal use. 34. As a result of the accident eaus' duty as a manufacturer and producer of ouch sustain the lotlowing damages: A. Past and future pain and t3. Past and future loss of itl C. Past and future inctdentE D. Past and fub,ue n~ntal a E. Past and future rtnedlts3l F. Embarrassment and hun G. Disfigurement WHEREFORE. Plaindff requests this the Defendant in an amount in excess of P.48 manufacture of the coffee and cup in bid serious injury by occupants in tn1t similar to the one which occurred were in existence at the time of the sale product left Defendant's control and ng f?iaintiffs injuries. rnsburg, felled in its duly as,a guarantor nufacture its coffee, cup and I'id with e by the consuming public and to wam, pbst sale of the defective o provide complete and accurate sk of harm that this defect presented. the defective design and manufacture of a foreseeable accidental spill, which solely by the t7efendanYs breach of its Plaintiff has sustained or may •s enjoyment; OOSt; and Court to enter judgment against plus costs and Interest. AUG-0b-2001 10 14 877762b238 98% P. 11 Un!Uti%,°LUUl Uy:ll'/ YaA b/!/ULti:Jb taALLifbrit,tC raaaai annva~z 'Aug-D1-Q1 O1:Z3P Russt i EnteY^pYSSes~l~ny~ mil r~ V`~~ 63 7172 07/31 /'L []Hl 18: Y1 /l ibsGb.. .a 44J. U1L/ 1114 P-OB 35. Paragraphs 1-34 above are here~llry re-sllegeii and incorporated as if set forth in their full text. ~ 36- The Defendant, at all times ralav~nt hereto, was engaged in trade In commerce as defined in e+e Pennsylvania Unf~irTrade Practices Act, 73 P.S. §2D1-1 et Seq. j . 37. The Defendant was, at all Imes felevant hereto, engaged In unfair or deceptive acfs or practices es set forth more f~lily in the said lJnfair Tradt: Practices Act. 38. As a direct result of Ute actions 9I~, the Defendant, aN in violation of the Unfelr Trade Practices Atx, the Plaintiff has su~fered a loss in excess of $25.000.00 and, are therefore. is entitled, pursuant to the provi#ibns of the Act, to an award of actual damages, treble damages, costs and reasoha~le attomey fees- WHEREFORE, for all the above reasonls, the Plaintiff requests Judgment (n her favor in an amount in excess. of $25,OD0.00 pl~e treble damages, plus COStS and i reasonable attomey fees. Resp$Ctfully Submitted 7URQ lAW OFFICES 07 ~~ Da RUG-06-2001 10 14 8777626238 97i C' CaroI:L. Cirigranelli, Esq ` 28 th Pitt Street Cali e, PA 17013 (717) 45.9868 Attorri®v for Plaintiff tIRL4 ~:t;:~v t<a~~~~ iECQS~G ~n l~estirnolty WtME'POt, 1119f6 uflo ~- ~ n0 ana the xst of seaCourt ri fh ~ - ~ wotnorK+ca- P. 12 .. ~ .._ .. _ . ~ ~ ....... , . , ._ ~ _. , .....,.,... ...................,.......,.. ~, ~~~ ..~Y FAUg-O~1-01 O1:23P Russc i Enterprises 1 7 763 7172 m` P_1O 07/31 /i001 -18:21 it /bJ~7b. 6 nn•oo.a nni~~w>.~u+ ' I verffy that the statements. made In U 1 understonC that false statements herein Pa.C.S. §4904 -91ffiinA to untrwom falsrfic~i foreAoine Complaint are true and correct, e made subject to the penalties of 16 io outhorities. AUG-06-2001 10 14 8777526238 87: P. 13 Aug-~O1 -O1 O1 :23P Russi -1 Enterer i ses~y~uy~ ~„`?, `~~. 763 7172 , ..__ _P. 11 07/31/2bb1 lti:-Y it i~snr. 3 I i CERTIFIC TE F SERVICE I hereby, candy that I sensed a true Burger King of Shippensbun9 by Curntied day of -~ 2091 Burger Klns of 3B Wslnut6 coned copy of the Complaint upon County Sheriffs RepaRment on the essed as follows: iom Road F'A 17257 TUR~ LAW OFFICES ',',t~ -ty~, Caro l_. Cingranelli, Es 28 S th Pitt Street Car11 e. PA 77013 (T17)II2459&88 Attor~hev for RUG-05-2001 10 14 877762628 97~ P. 14 (717) 237-7119 ~ I E-Mail: seg@tthlaw.com R bb October pool Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 19013 Re: Martin v. Burger King Restaurant Cumberland County No. 041-4503 Dear Attorney Cingranelli: Enclosed please find a deposition notice for your client for November 9, 2001, starting at 9: oo a.m. in our office. As you can see, I have contacted the court reporter. Very truly yours, THOMAS, THOMAS & HAFER, LLP By: Stephen E. Geduldig SECi~tk :139829.4 Enclosure cc: Hughes, Albright (with enclosure) Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS &HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17106 (717) 237-7100 Attorneys for Defendant: E-Mail: Seq(O7tth12w.COfTt Burger King Restaurant BRENDA L. MARTIN, IN THE COURT OE COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-4503 CIVIL TERM BURGER KING RESTAURANT, Defendant JURY TRIAL DEMANDED DEPOSITION NOTICE T0: All parties and their counsel: PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Cavil 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 & HAFER, 305 NORTH FRONT STREET, 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 By: 144138.1 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 TURD LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania 17013 Attorneys for Plaintiff THOMAS, THOMAS & HAFER, LLP :139819.1 Stephen E. Geduldig, Esquire (717) 237-7119 E-Mail: seg@tthlaw.com November 2t, 2oot Cazol L. Cingranelli, Esquire '1'URO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania r~or~ Re: Martin v urger King Restaurant v Bur eg r King Corporation et al Cumberland County No. 01-4503 Dear Attorney Cingranelli: I am following-up on the Plaintiffs deposition at which we requested the following: Please provide color photocopies of all documents, photos, receipts and so forth 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, if 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. 2. Please provide the name of the manufacturer of your client's coffee maker, the model number and the place and date of purchase. 3. Please produce the log your client compiled of comparative coffee temperature readings, which she discussed at her deposition. 4. Also, identify the manufacturer and the numbers on the bottom of the coffee cup, along with any numbers and identifying features on the lid. 5. Please preserve for future inspection the lid and the coffee cup. 6. Please advise when the candy thermometer your client referenced in her deposition can be tested. Carol L. Cingranelli, Esquire Re: Martin v. Burger King Restauran Cumberland County No. of-45o3 November 2r, 2oot 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 By: SEG/tk:~3ss2s.~ cc: Robert A. Lerman, Esquire Guy Mercogliano, Esquire Stephen E. Geduldig bc: Ms. Vicky Strickler (Gallagher Bassett Claim No. oor393-o0o866-PA-oi) Mr. Gary Pruett (Claim No. soot-25452-CC) (717) 237-7119 E-Mail: seg@tthlaw.com December 26, 2001 Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pennsylvania r~or3 Re: Marlin v. Burger Kine Restaurant v. Burger King Corporation_ , et al Cumberland County No. of-4503 Dear Attorney Cingranelli: Enclosed please find a copy of my letter to you of November 2r, 2oor, 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, LLP By: Stephen E. Geduldig SEG/tk:~asa2s.s Enclosure cc: RobertA Lerman, Esquire (with enclosure) Guy Mercogliano, Esquire (with enclosure) bc: Ms. Vicky Strickler (Gallagher Bassett Claim No. oor393-o0o866-PA-or) (with enclosure) Mr. Gary Pruett (Claim No.2oor-25452-CC) (with enclosure) BRENDA L. MARTIN, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4503 CIVIL CIVIL ACTION -LAW BURGER KING RESTAURANT, Defendant vs. JURY TRIAL DEMANDED BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC., AND DOUWE EGBERTS SUPERIOR COMPANY Additional Defendants IN RE: DEFENDANTS' MOTION TO COMPEL PSYCHOLOGICAL 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, ~' A. Hess, J. ~ol L. Cingranelli, Esquire For the Plaintiff ~ephen Geduldig, Esquire ) /For the Defendant / Ann Margaret Grab, Esquire For Additional Defendant Egberts C~ b ~ -05-0 a 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 `~j 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 Hafer LLP, or any experts retained by said law firm in connection with this case. 2. The record can reflect that counsel for the plaintiff has 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. Geduldig's November 21St letter ~T~~'v'~~1~In~l"~h~~"~ ~ Z 1 ~6 ~tl ",- ~rl'~ ~~~ either have never existed or cannot be found. BY THE COURT, azol L. Cingranelli, Esquire For the Plaintiff ~en Geduldig, Esquire ~ For the Defendant inn Mazgaret Grab, Esquire / For Additional Defendant Egberts ~~ Kevin .Hess, J. '" !- ~ ~ ~~5 ~~ ~J~O~ :rlm IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRENDA L. MARTIN, Plaintiff, v. BURGER KING RESTAi7RANT, Defendant, v. BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC. AND DOi.?WE EGBERTS SLIPERIOR COMPANY, Additional Defendants. PRAECIPE TO THE PROTHONOTARY: CIVIL ACTION -LAW NO.Ol-4503 JURY TRIAL DEMANDED. 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 Judgment~On-pros. GRIFFTT~Ii, STRICKLER, LERMAN, SOL 03~ & CALKINS /~ ~,,~g s ~COBERT A. LERMAN, LD. #07490 Attorney for Defendants, Douwe Egberts Coffee Service, Inc. and Douwe Egberts Superior Company 110 South Northern Way York, Pennsylvania 17402 Date:_ T~ p` ~ ~ ~_~ (7171757-7602 NOW, (~g„~ d `~. a y o.L , 2002, RULE ISSUED AS ABOVE. klr/douwe-rule.z C~,a ~ ~ ~. PROTHONOTARY BY: Q. ./. PUTY ~% (~ {_ ~~+r3 ~~ 'c'. _ i~J. _ L-~ i,.. - ~-.~ ~r~' SWEENEY & SHEEHAN, P.C. By: Guy Mercogliano, Esquire Identification No. 39766 1515 Market Street, 19`" Floor Philadelphia, PA 19102 (215) 563-9811 BRENDA L. MARTIN v. BURGER KING RESTAURANT v. Plaintiff Defendant Attorney for: Defendant, Burger King Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 01-4503 CIVIL TERM BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC. and DOUWE EGBERTS SUPERIOR COMPANY Additional Defendants TO THE PROTHONOTARY: JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT 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 Mez ogliano RULE TO FILE COMPLAINT AND NOW, this ~(e 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. D // ROTHONO ARY DATE: ~ a~. o7[`~aZ - `.i. -J G~. R3 r` ' ~~ -- [. _. c'{ _, `' `_ J ,} `- ., .. ~ ~ y:. /~~~ , /J (/ ,_, . . SWEENEY & SHEEHAN, P.C. By: Guy Mercogliano, Esquire Identification No. 39766 1515 Market Street, 19t° Floor Philadelphia, PA 19102 (215)563-9811 Attorney for: Defendant, Burger King Corporation BRENDA L. MARTIN v. BURGER KING RESTAURANT Defendant v. BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC. and DOUWE EGBERTS SUPERIOR COMPANY Additional Defendants NO. 01-4503 CNIL 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, Shippensburg, PA 17257, via First Class Mail. Sworn to and subscribed before me thisday of 2002 /// NOTARY PUBLIC NOTARIAL SEAL SUZANNE Pd. DIGATI, Notary Public Clly of Philadelphia, Phila. Counb Gt4Yt n ExFlres Ma 3, 2Q04 COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA C=UY C IANO SWEENEY & SHEEHAN, P.C. By: Guy Mercogliano, Esquire Identification No. 39766 1515 Market Street, 19'" Floor Philadelphia, PA 19102 (215)563-9811 ~ ~~ J in ?ea'::, , ~:^,erz~i; ; Irre u;~t~ sit my anc and tke sea o~ sa!d Court at Carlisle, Fa. -~ a~ i~,:s ......[~........ aay of.... ........ate...... Attorney for: Defendant, Prothonotary Burger King Corporation BRENDA L. MARTIN Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA BURGER KING RESTAURANT v. Defendant NO.OI-4503 CNIL TERM BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC. and DOUWE EG$ERTS SUPERIOR COMPANY Additional Defendants TO THE PROTHONOTARY: NRY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT 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 Gu-d Guy Mei~ogliano RULE TO FILE COMPLAINT AND NOW, Otis o~~ 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. D PROTHONOTARY DATE: al~.,aZf~a ~ ~, N U n~ T; ~° -, ->r- c.., O7 .- c, , '„ t:, c: , . ~~ `. 's~, y' ni L w `- ;; ~' ®®~ison®o qlM'.:4W~~EiTP~V}y^~~Ag(pltlSPiR:N~'PFRM 'gi~A ... ~ Ms IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRENDA L. MARTIN, Plaintiff, v. BiJRGER 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. 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 true 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~yi requested, and a copy of the return receipt card evidencing service is attached hereto ~fid marked ~~ SWORN and SUBSCRIBED to befo're~m~e this /~~"~ day oI /~{,(~- , 2002 )c~.~-- Notary Public My Commission Expires: T NOTARIAL SEAL Catherine N. Byerts, Notary Public Springettsbury Township, County of York My Commission Expires Jul. 21, 2003 A. ^ Complete items 7, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ^ Print your name and address on the reverse 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. 7. Article Addressed to: - ~-e~hen 6ed~~t~ ~5~ ~ ~:~~ ~ ~~ 305n,~~+ 5t~ee-~f (~d'~~ o~fZ -N-a~r-~sbu~ , Pt4- I ~1) ~ • ^ Agent ^ Addressee ~ C. Date of Delivery If YES, enter delivery address below: ^ No 3. Service Type ~ertifletl Mall ^ Express Mall //^ Registered ^ Retum Receipt fa Merchandise D Insured Mail ^ C.O.D. 4. Restdcted DelivegA (Ertl Fee) - ^ yes 2. Article Number -- (frans/erfromservlcelabep 7OO7r D320 X003 463.0 $57.9 PS Farm 3811, August 2001 Domestic Retum Recelpt; ;, EXHIBIT / . 102595-01-M~25c9 C tv ~-~ - n r~~T +~+ ~ ~ <-~ U~ J', PJ --r 1 -' _: ',. L . ~-i - ~, G _ Ji ~~ ~i Z '~ ~ ~r„ ~'ri _ ~( i ~ CJ C. J =~! rl G -i _ y -C _J :7J ~~ 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.O1-4503 JURY TRIAL DEMANDED. PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS PURSUANT TO Pa. RC.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 ofDefendant, Burger King Restaurant, to file a Complaint within 20 days after service ofthe Rule. Attached hereto and marked Exhibit 1 is a true 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. // BY: Dated: ~~ ~,~o~ ,YMOS & Robert A. Lerman, Esq 'r ,1.D~#07490 Attorney for Additional Defend ts, Douwe Egberts Coffee Service, Inc. and Douwe Egberts Superior Company 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 IN TI3E COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRENDA L. MARTIN, Plaintiff, v. CIVII: ACTION -LAW NO.OI-4503 BURGER KING RESTAURANT, Defendant, v. NRY TRIAL DEMANDED BURGER KING CORPORATION, DOUWE EGBERTS COFFEE SERVICE, INC. AND DOUWE EGBERTS SUPERIOR COMPANY, Additional Defendants. 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 WITHOUT A HEARING 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: Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-316 klr/douwe-default.z GRIFFITH, CKLER, LE 1 SOL OS & CALKINS I ROBERT A. LERMAN, ~~sQUrI~, ID #07490 .bttorney for Additional Defendants, Douwe Egberts Coffee Service, Inc. and Douwe Egberts Superior Company 110 South Northern Way York, Pennsylvania 17402 (717)757-7602 ~; , ~IC+HIB'IT `' ~ l ~.~ ~~ 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. CERTIFICATE OF SERVICE Gaetano Mercogliano, Esquire Sweeney & Sheehan 19th Floor AND NOW, this ~' '" day of L~U=~~` , 2002, I, Robert A. Lerman, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have, this date, served a copy of Praecipe 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: Caro] 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•D. Box 999 Harrisburg, PA 17108 (Counsel for Burger King Restaurant) klr/douwe-prp.z 1515 Market Street Philadelphia, PA 19102-1983 (Counsel for Burger King Corporation) CIVII. ACTION -LAW NO.Ol-4503 JURY TRIM. DEMANDED. BY y~ /9 I R BERT A. LERMAN, I. 749 Attorney for Additional Defendant Douwe Egberts Coffee Service, Inc. and Douwe Egberts Superior Company 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 ~~ 7v ~ ~ ~. ~ ~~ ~ (~ ~ ~ ~cJ `~~J ~ ~- r / ~-~ << 'r, ,,_, ~ j7.. ,; ~~, ~.: a} ~.~; rv~ -, ..~, ,, ~! -~ BRENDA L. MARTIN, Plaintiff v. BURGER KING RESTAURANT, et al Defendants TO THE PROTHONOTARY: :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4503 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE Please settle, withdraw and discontinue the above-captioned matter on behalf of the Plaintiff. to .~ ~~~ Respectfully Submitted TURD LAW OFFICES 1~~~ Carol L. Cingranelli, Esc~ffire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff ~L 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 Glass mail addressed as follows: Stephen E. Geduldig, Esquire Thomas, Thomas & Hafer 305 N. Front Street, 6th 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 TURD LAW OFFICES ~~~~ Carol L. Cingranelli, E'~quire 28 South Pitt Street Carlisle, PA 17013 (717)245-9688 Attorney for Plaintiff ~.