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HomeMy WebLinkAbout03-5334JEFFREY L. PROWELL, as Executor of the ESTATE OF JESSIE M. PROWELL, Plaintiff AWI CORPORATION, a/k/a SHURF1NE FAMILY FOOD STORES, t/d/b/a ENOLA SHURF1NE MARKET, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. g-. q CIVIL ACTION -- LAW NOTICE YOU HAVE BEEN SUED 1N 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 Complain! or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE; SET FORTH BELOW. THIS OFFICE CAN PROVDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 JEFFREY L. PROWELL, as Executor of the ESTATE OF JESSIE M. PROWELL, Plaintiff AWl CORPORATION, adk/a SHURFINE FAMILY FOOD STORES, t/d/b/a ENOLA SHURFINE MARKET, Defendants 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. CIVIL ACTION - LAW AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mils adelante en las siguientes plginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despubs de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclan~ada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mils aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGJd)O 1NMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUAL1FICAN. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 JEFFREY L. PROWELL, as Executor of the ESTATE OF JESSIE M. PROWELL, Plaintiff AWI CORPORATION, a/k/a SHURFINE FAMILY FOOD STORES, t/dPo/a ENOLA SHURF1NE MARKET, Defendants IN THE COURT ,OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. tC 3 -,.C'.33 q CIVIL ACTION - LAW COMPLAINT AND NOW, comes the Plaintiff, by and through his attorneys, CALDWELL & KEARNS, and files the within Complaint and in support thereof avers the following: 1. Plaintiff, Jeffery L. Prowell, as Executor of the Estate of Jessie M. Prowell, is the son of the deceased Jessie M. Prowell, and is an adult individual residing at 573 6th Avenue, Menlo Park, California 94025. 2. At all times relevant to this litigation, Jessie M. Prowell was an adult individual residing at 413 4~h Street, New Cumberland, Pennsylvania 17070. Mrs. Prowell subsequently passed away from causes not related to the within injuries. 3. Defendant AWl Corporation, also known as Shurfine Family Food Stores (hereinafter "AWl"), is a corporation licensed to do business in the Commonwealth of Pennsylvania, with a principal place of business at Route 422, P.O. Box 67, Robesonia, Pennsylvania 19551. 4. Defendant Enola Shurfine Market, a subsidiary of', or otherwise affiliated with Defendant AWl, is a corporation licensed to do business in the Commonwealth of Pennsylvania, -1- with a principal place of business at 429 North Enola Road, Enola, Pennsylvania 17025. 5. On or about October 16, 2001, Jessie M. Prowell ,entered Defendants' Enola Shurfine Market for the purpose of grocery shopping. 6. Following the purchase of her goods, Jessie M. Prowell attempted to exit the Enola Shurfine Market through the automatic door at the main entrance in the front of the store. 7. While passing through the automatic doors with l~ter shopping cart, several persons exiting in front of Jessie M. Prowell stopped, so that Mrs. Prowell was standing in the path of the automatic doors of Defendants' entrance/exit. 8. The automatic doors then proceeded to close directly on Jessie M. Prowell, pinning her between the door and a brick wall, and causing injuries as averred herein. 9. This incident occurred as a result of the negligence of Defendants AWI and Enola Shurfine Market and was due in no manner to any act, or failure to act, on the part of Jessie M. Prowell. 10. The recklessness, negligence and carelessness of Defendants AWI and Enola Shurfine Market consisted of, but is not limited to, the following: (a) Negligently permitting a dangerous condition, specifically the operation of (b) (c) (d) (e) an improperly functioning automatic doorway; Failure to properly supervise and maintain the automatic doorway which struck Jessie Prowell; Failure to warn of the dangerous condition of the automatic doorway; Failure to exemise a reasonable degree of care owed to Jessie Prowell; and Failure to exercise due care under the circumstances. -2- 11. Defendants had at all times a duty to maintain a safe operation of their grocery store, including the entrance/exit with the automatic doors. 12. Defendants had at all times a duty to perform safety checks on the automatic doors. 13. Defendants had at all times a duty to prevent ham~ to their customers by maintaining a safe operation of their store and entrances/exits. 14. Defendants breached these duties by failing to maintain a safe operation of their store and allowing one of their customers, Jessie M. Prowell, to become injured by Defendants' automatic doors. 15. As a result of the above-described occurrence and the negligence of Defendants, Jessie M. Prowell sustained serious and permanent injuries in and about her body, including, but not limited to, injuries to her spine and back. 16. Also as a result of the negligence of Defendants, Jessie M. Prowell incurred medical bills and expenses, physical pain and suffering, mental anguish and a limitation in her pursuit of daily activities, all to her great loss and detriment. 17. The aforementioned injuries to Jessie M. Prowell were a direct and proximate result of the negligence of Defendants. WHEREFORE, for all the foregoing reasons, Plaintiff Jeffrey L. Prowell, as Executor of the Estate of Jessie M. Prowell, demands judgment against Defendants AWl Corporation, also known as Shurfine Family Food Stores, trading and doing business as Enola Shurfine Market, for a sum not in excess of twenty-five thousand dollars ($25,000.00). -3- Dated: to [ ~ l o 3 01-777/61844 Respectfully submitted, CALDWELL & KEARNS '~-~ctW[. Woodbum, Esquire Attorney I.D. #81786 3631 North Front Street Harrisburg, Pennsylvania 17112 (717) 232-7661 Attorney fox' Plaintiff -4- VERIFICATION The undersigned, Jeffrey L. Prowell, Executor of the Estate of Jessie M. Prowell, hereby verifies that the facts set forth in the COMPLAINT are tree and correct to the best of his knowledge, information and belief and further states that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom fhlsification to authorities. P OWELI -5- LAW OFFICES ROBERT F. CERINO BY: HARRY J. KANE, JR., ESQUIRE I.D. NO.: 52610 Centre Square West, 12th Floor 1500 Market Street Philadelphia, PA 19102 (215) 246-9628 Attorney for Defendant JI~FFREY L. PROW~LL, as Executor of The ESTATE OF JESSIE M. PROWELL, Plaintiff, AW1 CORPORATI£ FAMILY FOOD ST~ ENOLA SHURFINE TO THE PROTHO~ Kindly enter n ~q, a/k/a SHURFINE ~RES, t/d/b/a MAKET, Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 03-5334 C1V CIVIL ACTION - LAW ENTRY OF APPEARANCE [OTARY: y appearance on behalf of the Defendant in the above-captioned matter. Respectfully, LAW OFFICES ROBER~r F. CERINO .l~'~r~. ~a-NE .~, E S QUiRE Attorney for Defendant Notice to Plead To: Plaintiff(s) You are hereby notified to file a written., Response to the enclosed~~__,,~ witl~dn twenty (20) days from service hereof or a judgment may be entered against you. LAW OFFICES ROBERT F. CERINO BY: HARRY J. KANE, ~., ESQU~E I.D. NO.: 52610 1 Cen~e Square West, 1Cth Floor 1500 Market Street Philadelphia, PA 191{ (215) 246-9628 JEFFREY L. PROWE The ESTATE OF JE! ,2 ,L, as Executor of : lie M. PROWELL, : ~laintiff, : : , a/k/a SHURF1NE : [ES, t/d/b/a : IAKET, : )efendant. : AWI CORPORATIOI, FAMILY FOOD STOl ENOLA SHURFINE ~ ANSWER OF DE Answering Def their answer to Plaintif 1. Upon re or information to form I hereby ce~ify that I have served a copy of this paper upon all other parties or their attorneys by: X regular mail certified mail __other~ Date: By: Attorney for Defendants COURT OF COM/VlON PLEAS OF CUMBERLAND COUNTY NO. 03-5334 CIV CIVIL ACTION - LAW FENDANT PLAINTIFF'S COMPLAINT WITH NEW MATTER ~ndants, by and through their attorneys, Law Offices Robert F. Cerino, for 7s Complaint respectfully aver as follows: ~sonable investigation Answering Defendants lack sufficient knowledge ~ belief as to the truth of the allegations in paragraph 1 and based thereon deny same. Strict proo{, if deemed relevant, will be demanded at the time of trial. 2. Upon re tsonable investigation Answering Defendants lack sufficient knowledge or information to form t belief as to the troth of the allegations in paragraph 2 and based thereon deny same. Strict proof, if deemed relevant, will be demanded at the time of trial. 3. Admitted. 4. Admitted. 5. Upon reasonable investigation Answering Defendants lack sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 5 and based thereon deny same. Strict pro~f, if deemed relevant, will be demanded at the time of trial. 6. Upon rgasonable investigation Answering Defendants lack sufficient knowledge or information to for~ a belief as to the truth of the allegations in paragraph 6 and based thereon deny same. Strict pro!f, if deemed relevant, will be demanded at the time of trial. 7. Upon r~asonable investigation Answering Defendants lack sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 7 and based thereon deny same. Strict proc f, if deemed relevant, will be demanded at the time of trial. 8. Denied. Answering Defendants specifically denies the allegations in paragraph 8. Strict proof, if deemed relevant, will be demanded at the time of trial. 9. Denied. It is specifically denied that any time material hereto the Answering Defendants were negliIent or that any actions of the Answering Defendants caused any injury to the Plaintiff. Strict pro~f, if deemed relevant, will be demanded at the time of trial. 10. Denied. [ It is specifically denied that any time material hereto the Answering Defendants were reckl!ss, negligent or careless or that any actions or failures to act on the part of the Answering Defendants caused any injury to the Plaintiff. By way of further response, Answering Defendants ~pecifically denies the allegations in subparagraphs 10(a) through 10(e). Strict proof, if deemed: elevant, will be demanded at the time of trial. 11. To the, :tent the allegations in paragraph 11 constitute conclusions of law, they 2 are deemed denied and require no responsive pleading. Strict proof, if deemed relevant, will be demanded at the time of trial. 12. To the extent the allegations in paragraph 12 constitute conclusions of law, they are deemed denied and require no responsive pleading. Strict proof, if deemed relevant, will be demanded at the time of trial. 13. To the iextent the allegations in paragraph 13 constitute conclusions of law, they are deemed denied an~ require no responsive pleading. Strict proof, if deemed relevant, will be demanded at the time ~)ftrial. 14. Denier[ It is specifically denied that any time material hereto Answering Defendants breached ~any duty to any patron including without limitation the Plaintiff. Strict proof, if deemed relex 15. Denie~ Defendants were negl Defendants caused an demanded at the time 16. Denied ant, will be demanded at the time of trial. It is specifically denied that any time material hereto the Answering gent or that any actions or failures to act on the part of the Answering ? injuries to the Plaintiff. Strict proof, if deerned relevant, will be ~ftrial. It is specifically denied that any time material hereto the Answering Defendants were negl!gent or that any actions or failures to act on the part of the Answering Defendants caused any injuries to the Plaintiff. Strict proof, if deemed relevant, will be demanded at the time ~ftrial. 17. Deniedi It ~s specifically denied that any time material hereto the Answering Defendants were negl!gent or that any actions or failures to act on the part of the Answering Defendants caused an', injuries to the Plaintiff. Strict proof, if deemed relevant, will be demanded at the time )ftrial. WHEREFORE, Answering Defendants demand judgment in their favor and against the Plaintiff, dismissing Plaintiff's Complaint with prejudice together with attorney's fees and the costs of suit. NEW MATTER DIRECTED TO PLAINTIFF 18. Answering Defendants hereby incorporates their responses to paragraphs 1 through 17, inclusive, las though fully set forth herein at length. 19. The C~mplaint fails to state a claim upon which relief can be granted. 20. If it is ~ [etermined at the time of trial that Plaintiffis entitled to recover money damages upon proof e ~ any or ail of the allegations in Plaintiff's Complaint, which allegations and entitlement are he 'eby specifically denied, then in that event any such recovery must be reduced and or barred by contributory negligence and/or the applicable provisions of the Pennsylvania Compar~ ~tive Negligence Act, 42 Pa.C.S.A. § 7102. 21. Plaintif ?s causes of action are barred and/or limited by the doctrine of the assumption of the risl~ inasmuch as the Plaintiff knowingly and voluntarily did assume the risk of this accident and an ~ injuries. 22. If the at cident occurred as alleged, then the condition complained of did not create a reasonably foreseeable risk of injury proximate to the Plaintiff. 23. The acctdent described in Plaintiffs complaint, and injuries and damages which allegedly resulted to Plaintiff, were caused solely, or substantiaily contributed to, by the negligence, carelessness, recklessness, and other liability-producing conduct of persons and/or entities other then Ans~ or right or duty ofcon~ 24. Answer/ vering Defendants and over which Answering Defendants had no control ol. ag Defendants owed no duty to the Plaintiff. 25. Answering Defendants breached no duty that it may have owed to Plaintiff. 26. No act, omission or premises of Answering Defendants caused, or was a substantial factor in causing, any of the injuries of which Plaintiff complain. 27. 28. 29. 30. Plaintiff suffered no compensable injuries. The applicable statute of limitations may bar Plaintiff's claims. The do~trine of latches may bar Plaintiff's claims. The do!trine of collateral estoppel may bar Plaintiff's claims. 31. The collateral source role does not apply such that if Plaintiff should be awarded money damages, then ~e amount of said damages must be reduced by the total amount of any and all payment that tile Plaintiff received fi.om any and all collateral sources on account of any injuries and/or damag~ 32. Answe~ alleged condition as d~ to any claims Plaintiff :s that the Plaintiff allegedly incurred in this matter. lng Defendants avers that Plaintiff knew or should have known of any :scribed by Plaintiff and that said actual and/or constructive notice is a bar may otherwise have had. 33. No dan possessed, managed, c 34. If it is C which is denied, then actual or constructive ~ 35. Ifitis d which is denied, then t and Answering Defenc 36. If there erous, hazardous or defective condition existed on any premises owned, ~ntrolled and/or maintained by Answering Defendants. etermined that a dangerous, hazardous or defective condition did exist, ae condition was unknown to Answering Defendants, it did not have totice of it, and it could not have reasonably known of it. etermined that a dangerous, hazardous or defective condition did exist, he condition was obvious, Plaintiff had actual or constructive notice of it, ants was not required to provide additional notice to the Plaintiff. is a judicial determination that Pa. R.C.P. §238 is constitutional, said 37. 38. additional defenses or t definite facts during an, WHEREFOR~ solely and/or jointly an~ with the cost of their de constitutionality being placed at issue herein, the liability of any interest imposed by the Court should be suspended during the period time that the Plaintiffdelay in responding to discovery or otherwise delay the trial of this matter. Answering Defendants raises all available affirmative defenses available to it. Answering Defendants reserves the right to amend this Answer and to assert > supplement, alter or change this Answer upon ascertaining more upon completion of discovery. Answering Defendants deny that they are liable to the Plaintiff, either severally, and demand that judgment be entered in their favor along 'ense, including attorney's fees. DATED: LAW OFFICES ROBERT~F. CERINO HARRY J./I~NE, JRt, ESQUIRE Attorney IBr Defenf/a~ VERIFICATION I, Harry J. Kane, Jr., Esquire, attorney for Defendants do hereby certify and verify that the statements and representations in the foregoing Answer to Plaintiff's Complaint with New Matter, are tree and correct to the best of my knowledge, information and belief. I understand that false statements h~rein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unswom falsification t6 authorities. DATED: LAW OFFICES ROBERT F~CEI~[NO Attorney for.Defenda~s Prowell 7 CROWN AMERICA CAPITAL CITYASSOCIATION, Plaintiff, vs. CARDS PLUS and ART 1THURAU, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNIY, PENNSYLVANIA CASE NO. 03-5459 Crown America CaF 3506 Capital Cily M, Camp Hill, PA 1701 CERTIFICATE OF SERVICE ~, the undersigled, certified that I served, or caused to be served, on the 20th day of October, 2003, a COpy of the Notice of Appeal and Rule to File Complaint upon each of the following perslns and parties in interest at the address shown below: Via Certified Mail, Re,turn Receipt Requested: ,ital Cily Association ]11 Drive Honorable Charles Old Towne Commc 400 Bridge Street, S~ New Cumberland, ~sClement, Jr. lite 3 'A 17070 Atiached heleto is the Domestic Return Receipts from that mailing showing that both parties receivld the mail on October 22, 2003. RESPECTFULLY SUBMITTED, Shapira, Hutzelman, Berlin, & May Stephen H, Hulzelman, Esquire 305 West Sixth Street Erie, PA 16507 [814)452-6800 Facsimile: (814)456-2227 E-Mail: aflyshh@3051aw.net · Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · pdnt your name and address on the reverse at we can return the card to you. so th -~ ,- ~-e back of the mailpiece, · Attach th s car~ ,v ,- or on the front if space permits. 1. Article Addre~ed to: Agent ). Is delivery address d~fferent from tern 1 ,' F'~ No If YES, enter delivery address below: HonOrC~Dte ChOrtles A. clement, Jr. old 'fowne commOnS 400 Bridge street, Suite 3 New cumbertond, PA 17070 Certified Mail F1 Express Mail F'[ Registered r-i Return Receipt for Merchandise Restricted Delivery? (Extra Fee) r-I Yes PS Form 3811, Augus~ · Sender: Please pdnt y~ul?nam~ ~,~,~ ......... -' Y De~e, address, and ZIP+4 in this box · Stephen H. Hu~zelman, Esquire Shapira, Hutzelman, Berlin, & May 305 West Sixth St~et Erie, PA 16507 i"'tl'li'"t'hlh,,i,,,i,,,li,,I,ht.hi,,lli,,,,hi,,i,i,l item 4 if Restricted Oetivery is des[red. · print your name and address on the reverse e can return the card to you. so that w ~ · ~-~ back of the mailpiece, Attach this ~ to ..~ · or on the flo~t if space permits. 1. Article Addre~ed to: Crown America CaP'S'al Cily Ass. 3506 Capital Cily Mall Drive Camp Hitt, PA 17011 If yES, enter Restricted De[Ive~? (Extra Fee) r-I yes _-~a~ A~nust 2001 Stephen H. Hufzelman, Esquire Shapira, Hulzelman, Berlin, & May 305 West Sixth Street Erie, PA ]6507 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-05334 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PROWELL JEFFREY L EXEC EST OF VS AWI CORPORATION AKA SHURFINE F R. Thomas Kline duly sworn according to law, and inquiry for the within named DEFENDANT AWI CORPORTION AKA SHURFINE but was unable to locate Them deputized the sheriff of BERKS , Sheriff or Deputy Sheriff who being says, that he made a diligent search and , to wit: FAMILY STORES TDBA ENOLA SHURF in his bailiwick. He therefore County, Pennsylvania, serve the within COMPLAINT & NOTICE to On November 4th , 2003 attached return from BERKS Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Berks County 31.08 .00 68.08 1 /04/2003 CALDWELL & KEARNS Sworn and subscribed to before me this /~ day of 7/~z~ A.D. Prothonot a~ry~ this office was in receipt of the R. Thomas Kli~ Sheriff of Cumberland County In The Court of Common Pleas of Cumberland County, Pennsylvania Jeffrey L. Prowell as exec of estate of Jessie M. Prowell VS. AWI Corporation aka Shurfine Family Food Stores tdba Enola Shurfine Market SERVE: same No. 03-5334 civil Now, October 10, 2003 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Eerks County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Curaberland County, PA Now, within upon at by handing to a and made known to Affidavit of Service ,20 ,at o'clock copy of the original So answers, · M. served the the contents thereof. Sworn and subscribed before me this __ day of ,20 Sheriffof COSTS SERVICE MILEAGE AFFIDAVIT County, PA SHERIFF OF BERKS COUNTY 633 Court Street, Reading, PA 19601 Phone:610-478-6240 MainFax:610-478-6222 Sheriff Fax:610-478-6072 Barry Jozwiak, Sheriff Eric d. Weaknecht, Chief Deputy AFFIDAVIT OF SERVICE DOCKET NO. 03-5334 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF BERKS Personally appeared before me, RICKY SCHLOUCH, Deputy for Barry J. Jozwiak, Sheriff of Berks County, 633 Court Street, Reading, Pennsylvania, who being duly sworn according to law, deposes and says that on OCTOBER 21, 2003 at 10:55 AM, he served the annexed COMPLAINT iN CIVIL ACTION upon AWI CORPORATION, A/K/A SHURF1NE FAMILY FOOD STORES, T/D/B/A ENOLA SHURFINE MARKET, within named defendant, by handing a copy thereof to THOMAS TEETER, CORP. TREASURER, at RT 422, ROBESONIA, HEIDLEBERG TOWNSHIP, Berks County, Pa., and made known to defendant the contents thereof.~D~EP~TY~S d ~") . .RI /]~ Swom,~nd subscribed before me aday of OCTOBER, 2003 NOTARIAL SEAL Tammy Rodriguez, Notary Public Reading, Bcrks County My commission cxpires 0~tobcr 6, 2007 Service made as set forth above. ~o'~wers' ~ ~ SHERIFF OF BERKS COUNTY, PA Sheriff's Costs in Above Proceedings $ 75.00 DEPOSIT $ 31.08 ACTUAL COST OF CASE $ 43.92 AMOUNT OF REFUND All Sheriff's Costs shall be due and payable when services are performed, and it shall be lawful for him to demand and receive from the party instituting the proceedings, or any part liable for the costs thereof, all unpaid sheriff's fees on the same before he shall be obligated by law to make return thereof. Sec. 2, Act of June 20, 1911, P.L/1072 JEFFREY L. PROWELL, as Executor of the ESTATE OF JESSIE M. PROWELL, Plaintiff AWI CORPORATION, a/k/a SHURFINE FAMILY FOOD STORES, t/d/b/a ENOLA SHURFINE MARKET, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 03-5334- Civil Term CiVIL ACTION - LAW REPLY TO NEW MATTER AND NOW, comes the Plaintiff, Jeffrey L. Prowell, as Executor of the Estate of Jessie M. Prowell, by and through his attorneys, Caldwell & Keams, and files the within Reply to New Matter; and in support thereof, avers as follows: 18. Plaintiff incorporates by reference all allegations set forth in his Complaint, as if set forth herein in full. 19. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. 20. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. 21. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. 22. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. 23. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. 24. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. 25. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. 26. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. 27. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. 28. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. 29. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. 30. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. 31. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. By way of further answer, Plaintiff has not received any money damages for the injuries claimed in this action. 32. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. 33. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. 4 34. 35. 36. 37. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time oft'rial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. 38. Denied. The averments in this paragraph are conclusions of law to which no response is deemed necessary, and strict proof thereof is demanded at time of trial. By way of further answer, and to the extent that the averments to this paragraph are deemed to be factual, the same are hereby denied with strict proof thereof demanded at time of trial. WHEREFORE, for all the foregoing reasons, Plaintiff Jeffrey L. Prowell, as Executor of the Estate of Jessie M. Prowell, demands judgment against Defendant AW1 Corporation, also known as Shurfine Family Food Stores, trading and doing business as Enola Shurfine Market, and for the Plaintiff, in an amount less than $25,000.00. Dated: t/tgi~o'{ 01-777/67248 Respectfully submitted, CALDWELL & KEARNS 3631 North Front Street Harrisburg, Pennsylvania 17112 (717) 232-7661 Attorney for Plaintiff 6 CERTIFICATE OF SERVICE AND NOW, this / ~/ day of ~, 2004, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Harry J. Kane, Jr., Esquire Law Offices of Robert F. Cerino Centre Square West, 12th Floor 1500 Market Street Philadelphia, PA 19102 CALDWELL & KEARNS By_. ,~b'~.,c/~ C. Philip L. Gazan, Esquire Attorney I.D. #29570 PHILIP L. GAZAN & ASSOCIATES, P.C. 25 East Marshall Street Norristown, PA 19401 (610) 272-4455 Attorney for Defendant, AWI Corporation a/k/a Shurfine Family Food Stores t/d/b/a Enola Shurfine Market JEFFREY L. PROWELL, as Executor of The ESTATE OF JESSIE M. PROWELL, Plaintiff VS. AWI CORPORATION, a/k/a SHURF1NE FAMILY FOOD STORES t/d/b/a ENOLA SHURFINE MARKET, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 03-5334 CIV JURY TRIAL DEMANDED CIVIL ACTION - LAW PRAECIPE FOR APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of defendant, AWI Corporation a/k/a Shurfine Family Food Stores tYd/b/a Enola Shurfine Market, in the above case. DATE: /~/~',q' Signat~ure ~y(omey~) Philip L. Gazan, Esquire Print Name 25 East Marshall Street Address Norristown, PA 19401 29570 LAW OFFICES ROBERT F. CERINO BY: HARRY J. KANE, JR., ESQUIRE I.D. NO.: 52610 Centre Square West, 12th Floor 1500 Market Street Philadelphia, PA 19102 (215) 246-9628 JEFFREY L. PROWELL, as Executor of The ESTATE OF JESSIE M. PROWELL, Plaintiff, AWI CORPORATION, a/k/a SHURFINE FAMILY FOOD STORES, t/d/b/a ENOLA SHURF1NE MAKET, Defendant. Attorney for Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 03-5334 CIV C1VIL ACTION - LAW WITHDRAWAL OF APPEARANCE To THE PROTHONOTARY: Kindly withdraw my appearance on behalf of defendant, AWI CORPORATION, a/k/a SHURFINE, FAMILY FOOD STORES, ffd]b/a ENOLA SHURFINE MAKET, in the above- captioned matter. LAW OFFICES ROBERT F. CERINO DATE: /'~7- Pt/ BY: HARRy~E, JR.,.'E,gQUIRE L/ JEFFREY L. PROWELL, as Executor of the ESTATE OF JESSIE M. PROWELL, PENNSYLVANIA Plaintiff vi. AWI CORPORATION, a/k/a SHURF1NE FAMILY FOOD STORES, t/d/b/a ENOLA SHURF1NE MARKET, Defendant : 1N THE COURT OF COMMON PLEAS OF' : CUMBERLAND COUNTY, : No. 03-5334- Civil Term : CIVIL ACTION - LAW _MOTION OF PLAINTIFF TO COMPEL I~:EPSONSES .TO PRODUCTION OF DOCUMENTS AND NOW comes the Plaintiff, Jeffrey L. Prowell, as Executor for the Estate of Jessie M. Prowell, by and through his attorneys, Caldwell & Kearns, and files thc within Motion to Compel responses to Plaintiff's Request for Production of Documents; and in support thereof, avers as follows: 1. The above captioned matter arises out of an accident w]hich occurred on October 16, 2001 at Shurfine Market in Enola, Pennsylvania. 2. On or about October 8, 2003, Plaintiff Jeffrey L. Prowell, as Executor of the Estate of Jessie M. Prowell, ("Plaintiff"), filed a Complaint against Defendants AW1 Corporation, a/k/a Shurfine Family Food Stores, t/d/b/a Enola Shurfine Market, ("Defendant"). 3. On or about October 28, 2003, Defendant filed an Answer with New Matter. 4. Plaintiff subsequently filed his Reply to New Matter on ,or about January 14, 2004. 5. On or about January 14, 2004, Plaintiff served Defendant with request for Production of Documents. A true and correct copy is attached as Exhibit "A". 6. Defendant's Responses to Plaintiff's Request for Production of Documents was due on or about February 12, 2004. 7. In a letter dated April 5, 2004, Plaintiff's counsel requested that discovery be answered. Se~e, Exhibit "B". 8. In a letter dated April 28, 2004, Defense counsel responded indicating that they were' reviewing their file with respect to PlaintifFs Request for Production of Documents. Se~e, Exhi ........ 9. To date, Defendant has not responded to Plaintiff's Request for Production of Documents. 10. Pennsylvania Rule of Civil Procedure 4009.11 authorizes a party in an action to request Production of Documents. 11. Pennsylvania R.C.P 4009.12 requires that production of documents and, if necessary, objections be served upon the requesting party within 30 days of the answering party's receipt of Request for Production of Documents. 12. More that six months have passed since the discovery request was served and, to date Defendant has not responded to or filed objections to Plaintiff's discovery requests. 13. Any objections to PlaintifFs Request for Production of Documents are hereby noted as untimely. 14. Accordingly, the Plaintiff is entitled to have his Request for Production of Documents answered without objection. WHEREFORE, Plaintiff respectfully requests that this Honorable Court GRANT Plaintiff's Motion to Compel Discovery Responses and ORDER Defendant to answer these requests within twenty (20) days of the date of this ORDER or suffer sanctions and such other relief as are deemed just under the circumstances. Dated:~//f6/0~/ 01-777/74659 Respectfully submitted, CALDWEI}L & KEARNS ~. Wood'm, Esqu]-re A~mey I.D. # 81786 3631 N. Front Street Harrisburg, PA 17110 (717) 232-7661 Attorney for Plaintiff _CERTIFICATE OF SERVICI~ I hereby certify that I am this day serving a copy of the foregoing document upon the persons in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first- class postage, prepaid, as follows: Philip Gazan, Esquire Philip Gazan & Associates 25 E. Marshall Street Norristown, PA 19401 CALDWELL & KEARNS By: Dated: JEFFREY L. PROWELL, as Executor of the ESTATE OF JESSIE M. PROWELL, Plaintiff AWl CORPORATION, a/k/a SHURF1NE FAMILY FOOD STORES, t/d/b/a EN©LA SHURF1NE MARKET, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 03-5334- Civil Term : CIVIL ACTION - LAW TO: REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT - FIRST REQUEST AWl CORPORATION, a&/a SHURFINE FAMILY FOOD STORES, /]d/b/a ENOLA SHURF1NE MARKET c/o Harry J. Kane, Jr., Esquire Law Offices of Robert F. Cerino Centre Square West, 12~h Floor 1500 Market Street Philadelphia, PA 19102 PLEASE TAKE NOTICE THAT PURSUANT TO Pa.R.C.P. 4009, you are required to furnish at our office, on or before thirty (30) days of sep,,ice hereof, a photostatic copy or like reproduction of the materials enumerated below concerning this action or its subject matter which are in your possession, custody or control and which are not protected by the attorney~client privilege; or, in the alternative, produce the said matter at said time to permit inspection and copying thereof. This request should be deemed continuing, and any response should be supplemented upon receipt of additional information. 1. The entire contents of any investigation file(s) and any other documentary materials m your possession which support or relate to the allegations contained in Plaintiffs Complaint (exchlding references to mental impressions, conchlsions or opinions representing strategy or tactics and privileged communications from and to counsel). 2. Any anti all statements concerning this action, as defined by Rule 4003.4, from all wimesses including any statements from the parties herein, or their respective agents, servants or employees. 3. All photographs taken or diagrams prepared of the scene: of the accident or any instrumentality involved therein. 4. Any and all documents containing the names and home and business addresses of all individuals contacted as potential witnesses. 5. All expert opinions, expert reports, expert Summaries or other writings of experts in your custody or control or in custody or control of your attorney, your insurer, or in the custody or control of anyone else acting on your behalf, which relate to any aspect of the subject matter of this litigation. 6. All documents prepared by you or by any insnrer, representative, agent or anyone else acting on your behalf, except your attorney, during or as part of an investigation of the incident in question which is the subject matter of this litigation. Such documentation shall include any documents made or prepared up throngh the present time, with the exclusion of the menial impressions of your attorney, or his conclusions, opinion, memoranda, notes or summaries, legal research or legal theories, and those documents prepared in anticipation of litigation by your representatives which would disclose the representative's mental impressions, conclusions or opinions respecting the value or merit ufa claim. All documents, not responsive to any of the above requests, which relate in any way to any claimed injuries, losses, damages, or defenses. All documents or exhibits which you intent to offer at the tr/al of this matter. 9. Copies of any and all training tapes regarding safety, installation, maintenance, hazards, dangers, defects, replacements or repairs of automatic doors, produced by any of the named Defendants, or provided to any of the named Defendants by any company, organization, individual or group. 10. Any and all documents that reflect, record or otherwise evidence the frequency, nature and extent of safety or maintenance inspections performed on the automatic doors. 11. Any and all documents, manuals, procedures or guidelines that pertain, discuss or otherwise address the maintenance, upkeep, installation, replacement, repair, calibration and/or safety of the automatic doors and motion detectors and/or sensors. 12. Copies of any and all accident or incident reports, or any other complaints, documents or otherwise, evidencing injuries, damage, or ay other incident pertaining to automatic doors within the preceding five years. 13. All documents required to be identified in your answers to the Interrogatories addressed to Defendant. Dated: Respectfi~lly submitted, CALDWELL & KEARNS Woo, CEs e Attorney I.D. ~81786 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 01-777/67278 CERTIFICATE OF SERVICE AND NOW,this/~/#~ day of ~-~V.C~¢~, 2004, i hereby certify that i have served a copy of the within document on the following by depositing a tree and correct copy of the same in the U.S. Mails at Hamsburg, Pennsylvania, postage prepaid, addressed to: Harry J. Kane, Jr., Esquire Law Offices of Robert F. Cerino Centre Square West, 12~h Floor 1500 Market Street Philadelphia, PA 19102 CALDWELL & KEARNS CALDWELL (~ KEARNS ATTORNEYS AT LAW HARRISBURG, PENNSYLVANIA 17110-1533 April 5, 2004 thefirm@caldwellkearns corn Philip Gazan, Esquire PHILIP GAZAN & ASSOCIATES 25 E. Marshall Street Norristown, PA 19401 Dear Mr. Gazan: Please allow this letter to follow up on the last correspondence to Attorney Harry J. Kane dated January 14, 2004, at which time I served him with Plaintiff's Request for Production of Documents. By now, you should have received the entire file and had an opportunity to familiarize yourself with the allegations and my discovery requests. My client remains willing to discuss a prompt and fair resolution of this matter. However, an offer to settle this claim for $1,000 suggests that your client does not take this matter serionsly. Therefore, I must ask you to promptly respond to the outstanding discovery requests. If you would like to discuss this matter in greater detail, please do not hesitate to contact me al your convenience. I can be reached by telephone or through e-mail at hwoo~dhurnr~caldxx ellkeams.com. Very truly yours, BMW/hb cc: Jesse Prowell 01-777/71045 13rett M. Woodburn CALDWELL & KEAR:NS PHILIP L. GAZAN & ASSOCIATES A PROFESSION kl. CORI>O [L~ Philip L Gazan Michael A. John Judith Stutman lzes DonMd F. Copeland, Jr.t ~'LLM in Taxation ATFORN EYS AT-LA\V 25 EAST ~L'\RSt IALL STREET NOPd~.ISTOWN, PA 19401 Telephone: (610) 272 4455 Facsimile: (610) 272-2242 Brett M. Woodburn, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110-1533 Jesse L. Prowell, Executor of the Esta~te of Jessie M. Prowell vs. AWI Corporation a/k/a Shurfine Family Food Stores t/d/b/a Enola Shurfine Market CCP Cumberland Co. No. 03-5334 CIV Our File No. 7444-GI-04 Dear Mr. Woodburn: I am in receipt of your most recent correspondence rejecting our offer for settle~nent in the amount of $1,000.00. Please be advised that is a final offer and it will remain open at this time. Pursuant to your request, I am revie~ving our file with respect to your request for production of documents. I thank you for your patience and courtesies ih that regard. Very truly yours, MAJ/elmV PHILIP L. GAZAN & ASSOCIATES, P.C: Michael A John\, EXHIBIT JEFFREY L. PROWELL, as Executor of the ESTATE OF JESSIE M. PROWELL, Plaintiff AWl CORPORATION, a/k/a SHURFINE FAMILY FOOD STORES, t/d/b/a ENOLA SHURFINE MARKET, Defendants : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 03-5334 Civil Term : CIVIL ACTION LAW ORDER AND NOW, this __~ -~g day of /~.~' 2004, upon consideration of the Motion to Compel of Plaintiff, Jeffrey L. l~owell, as Executor of the Estate of Jessie M. Prowell, it is hereby Ordered and Decreed that the Motion is granted. This Court Orders that Plaintiff rest~om:t to Defendant's Request for Production within twen t5 (20) days of the date o~this Order or suffer s~h sm~ctions as the court deems just and proper. BY THE COURT: Jeffrey Prowell, as Executor of the Estate of Jessie M. Prowell. Plaintiff Vo AWI Corporation, a/k/a Shurfine Family Food Store, t/dPo/a Enola Shurfine Market, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 03-5334-Civil Term CIVIL ACTION - LAW PRAECIPE TO SETTLE, DISCONTINUE AND WITHDRAWN TO THE PROTHONOTARY: Please mark the above-captioned matter settled, discontinued and withdrawn with prejudice. Respectfully submitted, CALDWELL & KEARNS '~gZ:>~oodburn, Esquire Attorney I.D. #81786 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 01-777/82126 CERTIFICATE OF SERVICE I hereby certify that on this I[a dayof ~"~('(}~J~/~ ,2004, Iamservinga copy of the foregoing document upon the person in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first- class postage, prepaid, as follow: Michael John, Esquire Philip Gazan & Associates 25 East Marshall Street Norristown, PA 19401