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Home My WebLink About08-0107b8- 101 DUGAN, BRINKMANN, MAGINNIS AND PACE BY: STEPHEN M. WINNING, ESQUIRE ATTORNEY ID # 202947 1880 John F. Kennedy Boulevard, 14th Floor Philadelphia, PA 19103 (215) 563-3500 Phone (215) 563-5610 Fax 0,w;I Term rr*- 'T'r,: .. , 2 M7 or Caasee 30_ Jay'`r?17 COUNSEL FOR PLAINTIFFS BARBARA BRINTON and JEFFERY BRINTON, h/w Plaintiffs, vs. : WAL-MART STORES, INC. Defendant. PHILADELPHIA COUNTY COURT OF COMMON PLEAS AUGUST TERM, 2007 NO. 002260 PRAECIPE TO TRANSFER VENUE TO THE PROTHONOTARY: 3-? .-w N J Kindly transfer the above-captioned action to the Cumberland County Court of Common Pleas. A copy of Judge Manfredi's Order executed on October 16, 2007 is attached hereto as Exhibit "A." DUGAN, BRINKMANN, MAGINNISAND PACE Fn2pR99 ` ?-. cnr-mm:? BY: ti--a Stephen M. Winning, Esquire -_9 Attorney for Plaintiffs, ?. ?• 9? Barbara Brinton and Jeffery Brinton, b/w m '2 r. to ?r•?,,?7 Ln l7 ? rfi T C7 a7 rt7 CERTIFICATION I, Stephen M. Winning, Esquire, attorney for plaintiffs, hereby certify that I am duly authorized to make this certification; that on the 30' day of November, 2007, I did cause a true and correct copy of the foregoing Praecipe to Transfer Venue to be mailed by United States regular mail to counsel addressed as follows: John M. Guthrie, Esquire McDONNELL & ASSOCIATES, P.C. 500 Route 70 West Cherry Hill, NJ 08002 DUGAN, BRINKMANN, MAGINNIS AND PACE BY: '4 - 4?.? "I Stephen M. Winning, Esquire f. -11 CU?a?-??o PAGE 1 REPORT : ZDRDOCT First Judicial District RUN DATE 11/30/07 USER ID: BTP CIVIL DOCKET REPORT RUN TIME 03:18 PM CASE ID 070802260 ------------------ ------------------------------------------------------------- CASE NUMBER CASE CAPTION 070802260 BRINTON ETAL VS WALMART STORES INC FILING DATE COURT LOCATION JURY 21-AUG-2007 JE CH J CASE TYPE: PREMISES LIABILTY, SLIP/FALL STATUS: TRANSFER TO OTHER JURISDICTION Seq # Assoc Expn Date 1 2 1 3 1 4 6 5 6 Type ID Party Name / Address & Phone No. APLF A202947 WINNING, STEPHEN M DUGAN BRINKMANN MAGINNIS AND PACE 1880 JOHN F KENNEDY BLVD 14TH PHILADELPHIA PA 19103 (215)563-3500 PLF @5852165 BRINTON, BARBARA 18 PEACH TREE LANE BOILING SPRINGS PA 17007 PLF @5852166 BRINTON, JEFFREY 18 PEACH TREE LANE BOILING SPRINGS PA 17007 DFT @5852168 WAL-MART STORES,INC 1515 MARKET STREET SUITE 1210 PHILADELPHIA PA 19102 AKA- C/0 CT CORPORATION SYSTEM TL J280 MANFREDI, WILLIAM J. 510 CITY HALL PHILADELPHIA PA 19107 (215)686-4216 ADFT A94972 GUTHRIE, JOHN M MCDONNELL & ASSOCIATES PC 500 ROUTE 70 WEST CHERRY HILL NJ 08002 (856)429-5300 (856)429-5314 - FAX Filing Date / Time Docket Entry 21-AUG-07 14:46:31 COMMENCEMENT CIVIL ACTION JURY Date Entered 23-AUG-07 WINNING, STEPHEN M REPORT : ZDRDOCT First Judicial District USER ID: BTP CIVIL DOCKET REPORT CASE ID 070802260 Filing Date / Time Docket Entry 21-AUG-07 14:46:31 JURY TRIAL PERFECTED PAGE 2 RUN DATE 11/30/07 RUN TIME 03:18 PM Date Entered 23-AUG-07 WINNING, STEPHEN M 21-AUG-07 14:46:31 COMPLAINT FILED NOTICE GIVEN 23-AUG-07 WINNING, STEPHEN M COMPLAINT WITH NOTICE TO DEFEND WITHIN TWENTY (20) DAYS AFTER SERVICE IN ACCORDANCE WITH RULE 1018.1 FILED. 21-AUG-07 14:46:31 SHERIFF'S SURCHARGE 1 DEFT 23-AUG-07 WINNING, STEPHEN M 21-AUG-07 14:46:31 WAITING TO LIST CASE MGMT CONF 23-AUG-07 WINNING, STEPHEN M 21-AUG-07 15:51:12 ACTIVE CASE 21-AUG-07 05-SEP-07 11:14:33 AFFIDAVIT OF SERVICE FILED 10-SEP-07 OF COMPLAINT BY PERSONAL SERVICE UPON WALOMART STORES, INC. ON 08-24-07. 18-SEP-07 09:37:00 ENTRY OF APPEAR/JURY DEMAND 19-SEP-07 GUTHRIE, JOHN M ENTRY OF APPEARANCE OF JOHN M. GUTHRIE ESQ. FILED ON BEHALF OF DFT WAL-MART STORES. 18-SEP-07 09:37:02 JURY TRIAL PERFECTED 19-SEP-07 WAL-MART STORES,INC, 18-SEP-07 09:37:03 ANSWER TO COMPLAINT FILED 19-SEP-07 GUTHRIE, JOHN M ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER FILED BY DEFENDANT WAL-MART STORES INC. 19-SEP-07 10:48:12 MOTION TO TRANSFER 24-SEP-07 WAL-MART STORES,INC, 09-07091309 REPONSE DATE 10/9/07. 27-SEP-07 15:37:00 PLTF REPLY TO NEW MATTER FILED 28-SEP-07 WINNING, STEPHEN M PLAINTIFF(S) REPLY TO NEW MATTER OF DEFENDANT(S) FILED. 01-OCT-07 10:06:58 ANSWER (MOTION/PETITION) FILED 02-OCT-07 09-07091309 ANS FILED TO MOTION TO TRANSFER VENUE. FILED BY PLAINTIFF, BRINTON, JEFFREY AND BARBARA. 11-OCT-07 15:01:56 MOTION ASSIGNED 11-OCT-07 09-07091309 MOTION TO TRANSFER ASSIGNED TO JUDGE MANFREDI ON 10-12-07. a , -1 REPORT : ZDRDOCT First Judicial District USER ID: BTP CIVIL DOCKET REPORT CASE ID 070802260 PAGE 3 RUN DATE 11/30/07 RUN TIME 03:18 PM Date Entered 18-OCT-07 13:22:08 ORDER ENTERED/236 NOTICE GIVEN 18-OCT-07 MANFREDI, WILLIAM J. 09-07091309 IT IS ORDERED THAT THE DEFENDANT, WAL-MART STORES EAST, LP'S PRELIMINARY OBJECTIONS IS GRANTED. ...BY THE COURT; MANFREDI, J. 10-16-07 24-OCT-07 11:18:38 LISTED FOR CASE MGMT CONF 24-OCT-07 Filing Date / Time Docket Entry 26-OCT-07 00:01:26 NOTICE GIVEN 26-OCT-07 30-NOV-07 14:20:16 TRANSFER TO OTHER JURISDICTION 30-NOV-07 MANFREDI, WILLIAM J. THE ORDER DATED 10/16/07 TRANSFERRED THIS MATTER TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY.... 30-NOV-07 14:20:17 NOTICE GIVEN UNDER RULE 236 30-NOV-07 30-NOV-07 14:27:00 PRAECIPE/TRNSFER OUT OF COUNTY 30-NOV-07 WINNING, STEPHEN M PRAECIPE TO TRANSFER THE ABOVE CAPTIONED MATTER TO CUMBERLAND COUNTY COURT FILED. * * * End of Docket * * * ??;zR? a? ?3uv os DEC 2 8 2007 40SEPH H. EVERS PRMOa "OT&RY Or= PHILAD LMAC OUNTY ' EJ! ? BARBARA BRINTON and PHILADELPHIA COUNTY JEFFERY BRINTON, h/w COURT OF COMMON PLEAS Plaintiffs, AUGUST TERM, 2007 VS. NO. 002260 WAL-MART STORES, INC. Defendant. ORDER ?n AND NOW, this day of Oe- , 2007, upon consideration of Defendant Wal-Mart Stores East, LP's Petition to Transfer Venue and Plaintiffs' Respon thereto, it is hereby ORDERED and DECREED that Defendant's Petition is ?Ij J. PURSUArw; w. ".r.23?(b) OCT 1 sriJ- i FIRSTJUu'I ; f OF PA DAY FORWARD USER I.D.:--- ?„? Court of Common Pleas of Philadelphia County Trial Division Civil Cover Sheet nV all h For I mf notary Use Onty (Docket AUGUST2007 PLAINTIFF'S NAME I DEFENDANTS NAME Barbara Brinton Wal-Mart Stores, Inc. PLAINTIFF'S ADDRESS DEFENDANT'S ADDRESS 18 Peach Tree Lane Go CT Corporation System 11515 Market Street, Suite 1 210 Boiling Springs, PA 17007 !Philadelpb1a, PA 19102 PLAINTIFF'S NAME DEFENDANT'S NAME Jeffery Brinton PLAINTIFF'S ADDRESS I DEFENDANT'S ADDRESS 18 Peach Tree Lane Boiling Springs, PA 17007 PLAINTIFF'S NAME DEFENDANT'S NAME PLAINTIFF'S ADDRESS DEFENDANT'S ADDRESS TOTAL NUMBER OF PLAINTIFFS TOTAL NO. OF DEFENDANTS COMMFVCEMENT OF ACTION ? C mplamt ? Petition Action ? Notice of Appeal 2 1 ? W t of Summons ? Transfer From Other Jurisdictions i AMOUNT IN CONTROVERSY COURT PROGRAMS i ? $50,000.00 or less ? Arbitration ? Mass Mxt ? Commerce ? Settlement j 0 More than 550,000.00 0 Jury ? Savings Actior ? Minor Court Appeal ? Minors ? Non-Jury ? Petition ? Statutory Appeals ? W/D/Survival ? Other: i CASE TYPE AND CODE (SEE INSTRUCTIONS) 2S STATUTORY BASIS FOR CAUSE OF ACTION (SEE INSTRUCTIONS) RELATED PENDING CASES (LIST BY CASE CAPTION AND DOCKET NUMBER) IS CASE SUBJECT TO COORDINATION ORDER? Yes No None ? 0 ? ? ? ? TO THE PROTHONOTARY. Kindly enter my appearance on behalf of Plaintiff/Petitior,e `k ellant: Papers may be served at the address set forth below. NAME OF PLAINTIFF'S/PETITIONER'S/APPELLANT'S ATTORNEY ADDRESS SEE INSTRUCTIONS Stephen M. Winning, Esquire Dugan, Brinkmann, Maginnis and Pace PNONE NUMBER I FAX NUMBER - 1880 JFK Blvd., 14th Fl. (215) 563-3500 (215) 563-5610 Philadelphia, PA 19103 SUPREME COURT IDENTIFICATION NO. ?:-MAIL ADDRESS 202947 swinning@dbmplaw.com SIGNATURE LASE august 21.2007 C/ Instructions for Com,,, I ez ing Civil Cover Sheet Rules of Court require that a Civil Cover Sheet be attached to any document commencing an action (whether the action is commenced by Complaint, Writ of Summons, Notice of Appeal, or by Petition). The information requested is necessary to allow the Court to properly monitor, control and dispose cases filed. A copy of the Civil Cover Sheet must be attached to service copies of the document commencing an action. The attorney or non- represented party filing a case shall complete the form as follows: A. Parties i. Plaintiffs/Defendants Enter names (last, first, middle initial) of plaintiff, petitioner .:r appellant ("plaintiff') and defendant. If the plaintiff or defendant is a government agency or corporation, use the full name of the agen,:y or corporation. In the event there are more than three plaintiffs and/or three defendants, list the additional parties on the Supplemental Perties Form. Husband and wife are to be listed as separate parties. ii. Parties' Addresses Enter the address of the parties at the time of filing of the action. If any party is a corporation, enter the address of the registered office of the corporation. iii. Number of Plaintiffs/Defendants: Indicate the total number of plaintiffs and total number of defendants in the action. B. Commencement Type: Indicate type of document filed to comment; the action. C. Amount in Controversy: Check the appropriate box. D. Court Program: Check the appropriate box. E Case Types: Insert the code number and type of action by consulting, the list set forth hereunder. To perfect a jury trial, the appropriate fees must be paid as provided by rules of court. Proceedings Commenced by Appeal Minor Court 5M Money Judgment 5L Landlord and Tenant 5D Denial Open Default Judgment 5E Code Enforcement Other: Local Agency 5B Motor Vehicle Suspension - Breathalizer 5V Motor Vehicle Licenses, Inspections, Insurance 5C Civil Service 5K Philadelphia Parking Authority 5Q Liquor Control Board 5R Board of Revision of Taxes 5X Tax Assessment Boards 5Z Zoning Board 52 Board of View 51 Other: Other: Proceedings Commenced by Petition 8P Appointment of Arbitrators 8C Name Change - Adult 81, Compel Medical Examination 8D Eminent Domain 8E Election Matters 8F Forfeiture 8S Leave to Issue Subpoena 8M Mental Health Proceedings 8G Civil Tax Case - Petition Oth er: Actions Comme ,ced by Writ of Summons or Complaint Contract Professional Malpractice 1C Contraci 2D Dental IT Construction 4L Legal 10 Other: 2M Medical Tort 4Y Other: 2B Assault A id Battery 1G Subrogation 2L Libel and Slander Equity 4F Fraud E 1 No Real Estate 1J Bad Faith E2 Real Estate 2E Wrongful '.'se of Civil Process 1 D Declaratory Judgment Other: MI Mandamus Negligence Real Property 2V Motor Vet cle Accident 3R Rent, Lease, Ejectment 2H Other Tra ?ic Accident Q1 Quiet Title IF No Fault U-mefits 3F Mortgage Foreclosure 4M Motor Veibt le Property Damage 1 L Mechanics Lien 2F Personal Injury - FELA P 1 Partition 20 Other Personal Injury Prevent Waste 2S Premises Lic.bility - Slip & Fall 1V Replevin 2P Product Liability 1HCivil Tax Case - Complaint 2T Toxic Tc.-t Other: T1 Ashestos TZ DI:3 T2 In`4ant 3E Toxic 't'aste Other: F. Commerce Program Commencing January 3, 2000 the First Judicial District instituted a Cc: imerec Program for cases involving corporations and corporate law issues, in general. If the action involves corporations as litigants or is deemed a C.,;mmerce Program case for other reasons, please check this block AND complete the information on the "Commerce Program Addendum". For further i. itructions, see Civil Trial Division Administrative Docket 01 of 1999. G. Statutory Basis for Cause of Action If the action is commenced pursuant to statutory authority ("Petition Action'% the specific statute must be identified. H. Related Pending Cases All previously filed related cases, regardless of whether consolidated bN Order of Court or Stipulation, must be identified. 1. Plaintiff's Attorney The name of plaintiffs attorney must be inserted herein together with c!acr required information. In the event the filer is not represented by an attorney, the name of the filer, address, the phone number and signature is required. The current version of the Civil Cover Sheet;ln tay be downloaded from the FJD's website http:Hcourt% phila.gov 01-101 (Rev. 2100) (Reverse) DUGAN, BRINKMANN, MAGINNIS AND PACE BY: STEPHEN M. WINNING, ESQUIRE ATTORNEY ID # 202947 1880 John F. Kennedy Boulevard, 14th Floor Philadelphia, PA 19103 (215) 563-3500 Phone (215) 563-5610 Fax COUNSEL FOR PLAINTIFFS BARBARA BRINTON and JEFFERY BRINTON, h/w 18 Peach Tree Lane Boiling Springs, PA 17007 Plaintiffs, VS. WAL-MART STORES, INC. Major Case - Jury Trial PHILADELPHIA COUNTY COURT OF COMMON PLEAS AUGUST 2007 NO. TERM, 2007 c/o CT Corporation System JURY TRIAL DEMANDED 1515 Market Street, Suite 1210 Philadelphia, PA 19102 Defendant. .? FEE P/?IG} COMPLAINT - CIVIL ACTION 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 (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 or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral & Information Service 1101 Market Street, 11th Fir. Philadelphia, PA 19107 (215) 238-1701 AVISO Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las pfiginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificaci6n. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que siusted no se defiende, la corte tomard medidas y puede continuar la demanda en contra suya sin previo aviso o notificaci6n. A demos, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisioner de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Asociacion De Licenciados De Filadelfia Servicio De Referencia E Informacion Legal Filadelfia, Pennsylvania 19107 Telefone: (215) 238-1701 DUGAN, BRINKMANN, MAGINNIS AND PACT: BY: STEPHEN M. WINNING, ESQUIRE ATTORNEY ID # 202947 1880 John F. Kennedy Boulevard, 14th Floor Philadelphia, PA 19103 (215) 563-3500 Phone (215) 563-5610 Fax COUNSEL FOR PLAINTIFFS BARBARA BRINTON and JEFFERY BRINTON, h/w 18 Peach Tree Lane Boiling Springs, PA 17007 Plaintiffs, VS. WAL-MART STORES, INC. c/o CT Corporation System 1515 Market Street, Suite 1210 Philadelphia, PA 19102 Defendant. Major Case - Jury Trial PHILADELPHIA COUNTY COURT OF COMMON PLEAS TERM, 2007 NO. JURY TRIAL DEMANDED COMPLAINT - CIVIL ACTION Plaintiffs, Barbara Brinton and Jeffery Brinton, husband and wife, by and through their attorneys, Dugan, Brinkmann, Maginnis and Pace, by way of Complaint against the Defendant, aver as follows: 1. Plaintiffs, Barbara Brinton and Jeffery Brinton, husband and wife, are adult individuals and residents of the Commonwealth of Pennsylvania, residing at 18 Peach Tree Lane, Boiling Springs, PA 17007. 2. Defendant, Wal-Mart Stores, Inc., is, upon information and belief, a Delaware Corporation with a national headquarters located at 702 Northwest 8'' Street, Bentonville, Arkansas, and an address for service in Pennsylvania c/o CT Corporation System, 1515 Market Street, Philadelphia, PA 19102. 3. At all times material hereto, Defendant, Wal-Mart Stores, Inc., has owned and maintained several stores located within Philadelphia County, and conducts continuous and systematic business within Philadelphia County. 4. At all times material hereto, Defendant, Wal-Mart Stores, Inc., owned, operated and maintained a store located at 60 Noble Boulevard, Carlisle, PA 17013. 5. At all times material hereto, Defendant Wal-Mart Stores, Inc., acted by and through its employees, agents, servants and/or workmen. 6. On June 22, 2006, plaintiff Barbara BnInton was a customer and business invitee on the premises of the Wal-Mart store in Carlisle, PA, when she slipped and fell on a wet floor near the fresh cut flower section of defendant Wal-Mart. 7. The wet floor, unaccompanied by any warnings to customers, represented a dangerous condition existing on the defendant's premises. 8. The defendant Wal-Mart Stores, Inc. had both actual and constructive notice of this dangerous condition existing on their premises. 9. The plaintiff, Barbara Brinton, fell hare onto the Wal-Mart floor and suffered severe and disabling injuries which will be describq+d in greater particularity in the following paragraphs of this Complaint. 10. The injuries sustained by the plaintiff were due to the negligence and carelessness of the defendant and were due in no manner whatsoever to any act or failure to act on the part of the plaintiff. COUNT I - NEGLIGENCE PLAINTIFF. BARBARA BRINTON V. DEFENDANT. WAL-MART STORES. INC. 11. Plaintiffs, Barbara Brinton and Jeffery Brinton, incorporate paragraphs one through ten of the Complaint as though fully set forth herein. 12. Plaintiff Barbara Brinton's injuries were caused by the negligence and/or carelessness of defendant Wal-Mart Stores, Inc., which consisted of the following: (a) failing to maintain the floor of their premises in a safe condition for business invitees such as the plaintiff, Barbara Brinton; (b) failing to reasonably inspect their premises to ascertain the existence of the dangerous condition which caused the plaintiff's fall, namely a wet and slippery floor; (c) failing to act on either the actual or constructive notice they possessed that a dangerous condition existed witbin their premises; (d) failing to place signs or other warning devices regarding the dangerous condition existing on their premises; (e) failing to properly and adequately rectify the dangerous condition existing within their premises; (f) negligently allowing the floor of their premises to remain in a wet and slippery condition. (g) failing to adequately employ and train store employees to maintain the floor of their premises in a safe condition. 13. As a result of her slip and fall on June 22, 2006, which is the subject of this lawsuit, plaintiff Barbara Brinton suffered injuries which are severe and may be permanent in nature, including but not limited to a torn tendon in her left ankle, soft tissue damage to her left ankle, and other injuries to the nerves, tendons, skeletal system, and muscles throughout her body. 14. As a further result of the accident of June 22, 2006, plaintiff Barbara Brinton has suffered severe physical pain, suffering, disability, humiliation, inconvenience, embarrassment and mental anguish which will continue into the future. 15. As a further result of the accident of June 22, 2006, plaintiff Barbara Brinton has in the past, and may continue in the future, to suffer limitations in her daily life activities, recreational or otherwise, that she participated in prior to the incident of June 22, 2006. 16. As a further result of the accident of June 22, 2006, plaintiff Barbara Brinton sustained the injuries set forth above and has been in the past, and will be required in the future, to undergo medical treatment and care, and has been, and will be, required in the future to expend sums of money for medical treatment related to the accident of June 22, 2006. 17. As a further result of the accident of June 22, 2006, plaintiff Barbara Brinton has suffered a loss of earnings and earnings capacity, which will continue into the future. WHEREFORE, plaintiff Barbara Brinton demands judgment against the defendant in an amount in excess of $50,000.00 together with interest and costs of this lawsuit. COUNT II - LOSS OF CONSORTIUM 18. Plaintiffs incorporate by reference the averments contained in paragraphs one through seventeen of this Complaint as though the same were fully set forth herein at length. 19. As a direct, proximate, and legal result of the aforementioned accident, plaintiff Jeffery Brinton has been deprived of the society, companionship, and consortium of his wife, plaintiff Barbara Brinton, and continues to be deprived of the same, and will be deprived of the same for an indefinite time in the future to his great detriment and loss. WHEREFORE, plaintiff Jeffery Brinton demands judgment against the defendant in an amount in excess of $50,000.00 together with interest and costs of this lawsuit. DUGAN BRINKMANN.MAGINNIS AND PACE BY: STEPHEN M. WINNING, ES UIRE Counsel for Plaintiffs AUG-21-2007 11:19 From:BSAH 7172580672 To:2155635610 P.2/2 08120/2007 14:06 b155635610 DUGAN RRINW MAG PACE' PAGE 08/38 3MMICA' ON Barbam Brinton avers that the allegations contained in the fore804 Complaint are true and covert to the best of her knowledge, information and belief; and that the statements in said Complaint. are made subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsifications to authoritics. BARBARA B&ON verified thus a_Z day of _ v ?? 2007. v { C\I ti r o = N LU Q M -? 0- 0 aj a Qc2q N j Q MWISU ut_-IIe* 4Se3 -SMISM 01 -83IHWO H3 UZ Z J84sT688 -831SIS38 OV EM $ Uwv "Viol 09ZZOM '-ON 3SV3 r MbET -ON 134311 DO:bO :3WI1 LOITZ180 :31W Noilvai-ft BRESLIN SPECIALIZED SERVICES " - National P.O. Box 325 S Association of Professional Uppcr Darby, PA 19082 Process Servers (610) 734-1647 AFFIDAVIT OF SERVICE XX XMvil Action soml t a in t ? Subpoena ? Summons ? Other_ ? writ of =ILE0 o,Ro ock i "" PLAINTIFF(S) COURT TERM a NO. COUNTY Barbara Brinton & Jeffrey Brinton Aug 07 # 2260 Phila DEFENDANT(S) DATE RECEIVED SERVE BY WAL-MART STORES, INC 8-22-07 9-19-07 SERVE AT c/o CT Corporation Systems 1515 Market Street Suite 1210 Phila.,PA 19102 SPECIAL INSTRUCTIONS 5E Served and made known to 7P .SQL. z- on the _ day of , 20at I, c>7 o'plgck, M., at /tom/s- County of Commonwealth of Pennsylvania, in the manner described below: O Defendant(s) personally served. O Adult family member with whom said Defendant(s) reside(s). Relationship is O Adult In charge of Defendant's residence who refused to give name or relationship. O Manager/Clerk of place of lodging in which Defendant(s) reside(s), authorized to accept deliverie&of U.S. Mail. O Agent or pemoe in charge of Defendant's office or usual place of business. - - O r endant company. %Other DESCRIPTION AGES "-47- HEIGHT1f'e WEIGHT/J" RACE r? SEX OTHER On the day of -,20 at o'clock, M., Defendant not found because: O Moved O Unknown O No Answer O Vacant O Other NAME OF SERVER Swom ro 8 sub?wibsd testae me this Boyd A. Breslin being duly sworn according to law, certify that C:U1PDPN!,6rDarby ? d ? I am eighteen years of age or older and that I am not a party to the action or an employee or relative of a party. E M. Al'iLLEY, Notary Pub' I verify that the statements made in this affidavit and return of service are true and correct. I understand that false statements herein are made subject to Ttrrp., Delaware Cotinry the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities ires July 24, 2009 Sheriff Process Server/ Competent Adu DEPUTIZED SERVICE 10 Now, this day of 20____, 1 do hereby deputize a Sheriff of County. to serve this O Summons O Complaint O Other and make return thereof and according to Law. By (Competent Adult) County Sheriffs Check $ Law Firm Dugan, Brinkmann, Maginnis & Pace ATTEST Stephen M. winning Plaintiffs Attorney's Name For Address 1880 John F. Kennedy Blvd - 14th fl Philadelphia, Pa 19103 215-563-3500 Telephone # Identification # 01990 Philadelphia Assoc. of Professional Process Servers 202947 Philadelphia Association of Professional Process Servers PRO PROTHY Brinton Etal Vs Walmart Stores Inc-AFDVT VIII II IIIIIIIIIIIIIIII HIM III 07080226000007 PHILADELPHIAr4DUW OF COMMON PLEAS CONTROL NUMBER: PETITION/MOTION COVER SHEET 091309 FOR COURT USE ONLY ASSIGNED O JUD (ANSWER/RESPONSEDATE: E D ge cou sy copy of Petitiot t/Motion/Answe /Response. btained nline at http://courts.phila.gov Barbara and Jeffrey Brinton VS. Wal-Mart Stores, Inc. INDICATE NATURE OF DOCUMENT FILED: ?? Petition (Attach Rule to Show Cause) ? Motion ? Answer to Petition ? Response to motion (RESPONDING PARTIES MUST INCL UDE THIS NUMBER ON ALL FILINGS) August Month No. 2260 Name of Filing Party: Wal-Mart Stores, Inc. (Check one) ? Plaintiff I] Defendant (Check one) ?? Movant ? Respondent Has another petition/motion been decided in this case? ? Yes ? No Is another petition/motion pending? ? Yes ? No If the answer to either question is yes, you must identify the judge(s): TYPE OF PETITION/MOTION (see list on reverse side) PETITION/MOTION CODE (see list on reverse side) Petition to Transfer Venue (Motion to Transfer) MTTFR ANSWER/RESPONSE FILED TO (Please insert the title of the corresponding petition/motion to which you are responding): I. CASE PROGRAM II. PARTIES (required for proof of service) Is this case in the (answer all questions): (Name, address and telephone number of all counsel of record and unrepresented parties. Attach a stamped addressed envelope for each A. COMMERCE PROGRAM attorney of record and unrepresented party.) Name of Judicial Team Leader ........... ....... ..... . Stephen M. Winning, Esq. Applicable Petition/Motion. Dc.adlmc: DUGAN BRINKMANN MAGINNIS & PACE Has deadline been previously extended by the Court? 1880 JOHN F KENNEDY BLVD 14TH El Yes ? No B. DAY FORWARD/MAJOR JURY PROGRAM - Year 2007 f di Willi J M PHILADELPHIA PA 19103 1 563 3500 ' ?? , a3 an re am . Name of Judicial Team Leader: .___-- - - 2 5- Applicable Petition/Motion Deadline: 20 days O ?? Has deadline been previously extended by the Court? John M. Guthrie i t ? Yes p No McDonnell & Assoc a es S F 36 C. NON JURY PROGRAM t Listed: D 500 Route 70 West 1% NJ 08002 I? 4 Hill Ch a e ARBITRATION PROGRAM D , erry Q 5300 eo 429 . 856- - Arbitration Date: E ARBITRATION APPEAL PROGRAM Date Listed: F. OTHER PROGRAM: Date Listed: III. OTHER By filing this document and signing below, the moving party certifies that this motion, petition, answer or response along with all documents filed, will be served upon all coun• d epresented parties as required by rules of Court (see PA. R.C.P. 206.6, Note to 208.2(a), and 440). Furthermore, moving party verifies at th ers ade herein are true and correct and understands that sanctions may be imposed for inaccurate or incomplete answers. John M. Guthrie 94972 (Attorney Signature/Unrepresented Party) (Date) (Print Name) (Attorney I.D. No.) The Petition, Motion and Answer or Response, if any, will be forwarded to the Court after the Answer/Response Date. No extension of the Answer/Response Date will be granted even if the parties so stipulate. Term, 2007 Year 30-1051 B I ? IN THE COURT OF COMMON PLEAS OF PHILADELPHIA FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION BARBARA BRINTON and JEFFREY BRINTON, h/w v. WAL-MART STORES, INC. PETITION TO TRANSFER VENUE NO.: 002260 August 2007 Term RULE TO SHOW CAUSE ORDER AND NOW, this day of , 200 , upon consideration of the foregoing Petition, it is hereby ordered that: (1) a Rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; (2) the respondent shall file an answer to the Petition within twenty days; (3) A Hearing or Argument shall be scheduled at the discretion of the Assigned Judge; (4) Notice of the entry of this order shall be provided immediately to all parties by the petitioner. BY THE COURT: J. f J .1 LAW OFFICES OF McDONNELL & ASSOCIATES, P.C. BY: John M. Guthrie 500 Route 70 West Cherry Hill, New Jersey 08002 Tel. No. (856) 429-5300 Attorneys for Wal-Mart Stores East, LP (incorrectly sued herein as Wal-Mart Stores, Inc.) BARBARA BRINTON and JEFFREY BRINTON, h/w v. WAL-MART STORES, INC. COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA NO.: 002260 August 2007 Term CERTIFICATION OF COUNSEL IN SUPPORT OF DEFENDANT WAL-MART'S PETITION TO CHANGE VENUE JOHN M. GUTHRIE, an attorney duly admitted to practice in the Courts of this Commonwealth, certifies the following: 1. I am an associate of the law form McDonnell & Associates, PC, counsel for defendant Wal-Mart Stores East, LP (incorrectly sued herein as "Wal-Mart Stores, Inc." hereinafter referred to as "Wal-Mart") 2. This certification is submitted in support of Wal-Mart's petition to transfer the venue of this matter from Philadelphia County to Cumberland County pursuant to Pa.R.C.P. 1006(d) (forum non conveniens). 3. This is a personal injury action arising from a slip and fall at a Wal-Mart Store in Carlisle, Cumberland County, Pennsylvania. More specifically, plaintiff Barbara Brinton, a resident of Boiling Springs, Cumberland County, Pennsylvania alleges she slipped and fell on a wet floor at the Carlisle, Cumberland County, PA store on June 22, 2006. Plaintiff Jeffrey ' Z a Brinton, also a Cumberland County, PA resident has made a claim for loss of services. (See the Complaint annexed hereto as Exhibit A). 4. While petitioner does not dispute that its registered agent, CT Corporation Systems maintains an office in Philadelphia County and that petitioner operates retail stores within Philadelphia County, this matter has no other connection with this county. 5. Because plaintiffs' residence and the location of the incident giving rise to this litigation are all located in Cumberland County, there can be no dispute that this matter could have been filed there. 6. Furthermore, when deciding a Pa.R.C.P. 1006(d), a court is allowed to consider the whether the relevant parties, witnesses and accident site are located in a particular county as well as the distance and travel time between it and the venue county. 7. As stated earlier, plaintiffs, the accident site and defense witnesses (employees) are all located in Cumberland County or neighboring counties. There can also be no dispute that Cumberland County is approximately 120 miles from Philadelphia County. 8. It is quite apparent that requiring the parties to travel to the Cumberland Court of Common Pleas would be less burdensome than traveling to the Philadelphia Court of Common Pleas. 9. Enforceability of a judgment in Cumberland County would be no different in Philadelphia County as defendant operates retail stores in both counties. In fact, it would be preferable and less costly for plaintiffs to enforce a judgment in their home county than Philadelphia County. 10. This court is also allowed to consider the public interest in either retaining jurisdiction in this case or transferring it to Cumberland County. Litigation should not be piled A up in congested centers rather than being handled at its origin and jury duty should not be imposed on the people of a community which has no relation to the litigation. 11. The Philadelphia Court of Common Pleas has a large backlog of cases and only cases in which the county has a substantial relation to it should remain on its docket. This court should not be burdened with matters that have no connection to Philadelphia County and that can be heard in a more appropriate county. 12. Furthermore, the jury pool of Cumberland County, consisting of residents familiar with the store location and condition would be better equipped to hear and decide this matter as opposed to the residents of Philadelphia County. The residents of Philadelphia County should not be burdened with litigation that affects a very distant Cumberland County. 13. Further discovery such as depositions are not needed to decide this motion. Plaintiffs' allegations set forth in the complaint alone are sufficient enough to decide this motion. WHEREFORE, Based on the foregoing, defendant Wal-Mart respectfully requests that this Court issue an Order pursuant to Pa.R.C.P. 1006(d) transferring the venue of this matter from Philadelphia County to Cumberland County, together with such other and further relief this Court deems just, proper and necessary. LAW OFFOCIATES, P.C. Dated: September 11, 2007Attorneys for Defendant Wal-Mart Stores East LP i A LAW OFFICES OF McDONNELL & ASSOCIATES, P.C. BY: John M. Guthrie 500 Route 70 West Cherry Hill, New Jersey 08002 Tel. No. (856) 429-5300 Attorneys for Wal-Mart Stores East, LP (incorrectly sued herein as Wal-Mart Stores, Inc.) BARBARA BRINTON and JEFFREY BRINTON, h/w v. WAL-MART STORES, INC. COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA NO.: 002260 August 2007 Term DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF ITS PETITION TO TRANSFER VENUE Factual and Procedural Background This is a personal injury action arising from a slip and fall at a Wal-Mart Store in Carlisle, Pennsylvania. More specifically, plaintiff Barbara Brinton, a resident of Boiling Springs, Cumberland County, Pennsylvania alleges she slipped and fell on a wet floor at the Carlisle, Cumberland County, PA store on June 22, 2006. Plaintiff Jeffrey Brinton, also a Cumberland County, PA resident has made a claim for loss of services. This matter was filed in the Philadelphia Court of Common Pleas on August 21, 2007. Defendant was served on August 24, 2007. Defendant now makes this petition to transfer venue pursuant to Pa.R.C.P. 1006(d). TRANSFER OF VENUE IS PROPER FOR THE CONVENIENCE OF THE PARTIES AND WITNESSES TO THIS ACTION Pa.R.C.P. 1006(d)(1) empowers a court, upon petition of any party, to transfer the venue of an action to another county where the action could have originally been brought for the convenience of the parties and witnesses. Borger v. Murphy, 797 A.2d 309, 312 (PA Super. Ct. 2002). The Rule vests considerable discretion in the trial judge to determine whether to grant a petition for a change of venue. Fox v. Pennsylvania Power & Light Co., 315 Pa. Super. 79, 91, 461 A.2d 805, 806 (1983) (citing Plum v. Tampax, Inc., 399 Pa. 553, 560, 160 A.2d 549, 553 (1960). The factors which should be considered by the trial court fall into three categories. First, the plaintiff's choice of forum should be given significant weight. Second, the interests of the parties should be considered, including relative ease of access to sources of proof, availability of compulsory process for the attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of a view of premises, if appropriate, enforceability of a judgment, and any other problem which affects the ease, celerity or expense of the litigation. The third category is the public interest; litigation should not be piled up in congested centers rather than being handled at its origin; jury duty should not be imposed on the people of a community which has no relation to the litigation. Brown v. Delaware Valley Transplant Program, 371 Pa.Super. 583, 586-587, 538 A.2d 889, 891 (1988), Plum v. Tampax, Inc., supra. 1. Plaintiffs choice of forum and interests of the parties Defendant acknowledges that it has stores in Philadelphia County and that its registered agent, CT Corporation, also maintains an office in Philadelphia County. However, these are the only connections this matter has with Philadelphia County. There is no dispute that both plaintiffs reside in Cumberland County, the store and location of this incident is in Cumberland County. While defendant is a Delaware corporation with its headquarters in Bentonville, Arkansas, defendant's employees with knowledge of this incident are residents of Cumberland or its neighboring counties. Where the relevant parties, witnesses and accident site are located in a particular county, the distance and travel time between it and the venue county are factors which a court is allowed to consider. Borger v. Murphy, 797 A.2d at 312-313 (transferring matter from Philadelphia to Lehigh County, 80 miles and 1 '/2 hour commute away); Brown v. Delaware Valley Transplant Program, 371 Pa.Super. at 891 (transferring matter from Philadelphia to Chester County, 31 miles away); Fox v. Pennsylvania Power & Light Co., 315 Pa. Super. 79 (transferring matter from Philadelphia to Luzerne County, 100+ miles away); Jennings v. Sears Roebuck & Co., 16 Pa. D&C 4th 476 (Phila. CCP 1993)(transferring venue from Philadelphia to Montgomery County); Vogel v. Nat'l Railroad Passenger Corp., 370 Pa. Super. 315, 536 A.2d 422 (1988)(transfer of matter from Philadelphia to Lancaster County, 70+ miles away); Ernest v. Fox Pool Corp., 341 Pa. Super. 71, 491 A.2d 154 (1985)(transferring matter from Dauphin County to Northumberland County, 40+ miles away). It is apparent that the locus of the parties and all likely witnesses are located in Cumberland County and transferring the matter to Cumberland would be far more convenient for all pertinent individuals than Philadelphia County. Furthermore, it would be far more convenient for any unwilling witnesses to appear for proceedings in Cumberland County instead of Philadelphia County, over 120 miles away. The burden of the parties and witnesses to travel this distance for necessary proceedings would be great. Finally, enforceability of a judgment in Cumberland County would be no different in Philadelphia County as defendant operates retail stores in both counties. In fact, it would be preferable and less costly for plaintiffs to enforce a judgment in their home county than Philadelphia County. 2. Public interest In Dallas v. Orthopedic Assoc. et al.., 22 Phila. 286 (1991), the Philadelphia Court of Common Pleas acknowledged that it has a substantial backlog of cases. It stated the following: Perhaps the most compelling factor at this point in time is the public interests that have to be considered when a case is transferred for having insufficient contacts with a jurisdiction. If we were to allow these types of actions to be brought in Philadelphia's already congested courts instead of being handled where they originated, it will compound an already overwhelmed legal system. Also, jury duty is a burden that ought not be imposed on people of a community which has no relationship to the litigation. (citations omitted) It is impossible to ignore the overwhelming burden that presently exists in the Philadelphia Court of Common Pleas with approximately 45,000 civil cases pending. Boyle v. Chester County Mut. Insurance Co. et al., 21 Phila. 1 (1990)." Id. at 292. Transfer of this case alone will not alleviate the backlog that now exists in the Philadelphia Courts of Common Pleas, but it is a step that must be taken. See also Jennings v. Sears Roebuck & Co., 16 Pa. D&C 4t" 476, 480. Allowing this matter to remain in Philadelphia County serves no purpose but to further burden the court's docket with a matter that has a more appropriate forum. As stated earlier, other than having stores in Philadelphia -- of which were not the site of the incident giving rise to this action - all relevant locations and witnesses are located in Cumberland County, over 120 miles away. More importantly, the jury pool of Cumberland County, consisting of residents familiar with the store location and condition would be better equipped to hear and decide this matter as opposed to the residents of Philadelphia County. Using the analogy of the Supreme Court in Plum, the residents of Philadelphia County should not be burdened with litigation that affects a very distant Cumberland County. • 3. Other factors It is anticipated that plaintiffs may allege that a transfer of this action would be prejudicial to them. Such an assertion would not be the case. This petition is brought at the genesis of this litigation as this matter was filed on August 21, 2007. In Vogel v. Nat'l Railroad Passenger Corp., the Superior Court stated that Rule 1006(d) imposes no limit upon a party who seeks to transfer venue, that discovery can be conducted during the pendency of the petition and that defendant Amtrak's filing of its petition 58 days after the filing of the suit was not improper and did not constitute a waiver. Id., 370 Pa. Super at 321, 536 A.2d at 425-426. It is also anticipated that plaintiff will argue that this petition is premature and that discovery and depositions must be conducted prior to the filing of this petition. Such is not the case. In Vogel, the Superior Court stated-that while depositions were not taken in support of defendant Amtrak's petition for change of venue, this alone is not fatal to the trial court's exercise of discretion to transfer venue. Depositions are necessary only when the facts essential to a decision are in dispute. Id., 370 Pa. Super at 320, 536 A.2d at 425 (citing DiNardo v. Central Penn Air Services, Inc., 358 Pa. Super 75, 79, 516 A.2d 1187, 1189 (1986); Urban v. Urban, 332 Pa. Super. 373, 380, 481 A.2d 662, 666 (1984). Where there are a plethora of undisputed facts sufficient to enable a trial court to determine that it would be more convenient to transfer venue, depositions are not necessary. Vogel, 370 Pa. Super at 320, 536 A.2d at 425. One does not have to look further than the four corners of plaintiffs' complaint to see that both plaintiffs, the location of and store involved in this incident are all in Cumberland County. Furthermore, other than alleging that defendant conducts business in Philadelphia County, there is no other connection between these plaintiffs and the store involved with Philadelphia. a 10 Depositions for the purposes of this petition will serve no purpose other than restating undisputed facts. As such, this petition is timely and not premature. Conclusion Based on the foregoing, defendant Wal-Mart Stores, Inc. respectfully requests that this Court issue an Order pursuant to Pa.R.C.P. 1006(d) transferring the venue of this matter from Philadelphia County to Cumberland County, together with such other and further relief this Court deems just, proper and necessary. LAW OFFICES OF MCDONNELL ASSOCIATES, P.C. Dated: September 11, 2007 John M. Guthrie Attorneys for Defendant Wal-Mart Stores East LP DUGAN, BRINICMANN, MAGINNIS AND PACE BY: STEPHEN M. WINNING, ESQUIRE ATTORNEY ID # 202947 1880 John F. Kennedy Boulevard, 14th Floor Philadelphia, PA 19103 (215) 563-3500 Phone (215) 563-5610 Fax COUNSEL FOR PLAINTIFFS BARBARA BRINTON and JEFFERY BRINTON, h/w 18 Peach Tree Lane Boiling Springs, PA 17007 Plaintiffs, Vs. WAL-MART STORES, INC. Major Case - Jury Trial ATTEST AUG 2 1 2007 J. COURTNEY PHILADELPHIA COUNTY COURT OF COMMON PLEAS AUGUST 2007 TERM, 2007 NO. c/o CT Corporation System JURY TRIAL DEMANDED 1515 Market Street, Suite 1210 Philadelphia, PA 19102 Defendant. .It1A`1?PA1 COMPLAINT - CIVIL ACTION 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 (20) days after this complaint and notice are served, by enteringa written appearance personally or by attorney and filing in writing with the court yourdefenses 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 or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral & Information Service 1101 Market Street, 11th Mr. Philadelphia, PA 19107 (215) 238-1701 AVISO Le han demandado a usted on Is torte. Si usted quiere defenderse de estas demandas expuestas on las pgginas siguientes, usted tiene veinte (20) dias de platy al partir de la fecha de la demands y la notificaci8n. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la torte on forma escrita sus defenses o sus objeciones a las demandas en contra de su persona. Sea avisado que siusted no se defiende, la torte tomarti medidas y puede continuar Is demands en contra suya sin previo aviso o notificacidn. A demds, la torte puede decidir a favor del demandante y requiere quo usted cumpla con todas las provisions de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes pars usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 ST NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Asociacion De Licenciados De Filadeltia Servicio De Referencia E Information Legal Filadelfia, Pennsylvania 19107 Telefone: (215) 238-1701 A DUGAN, BRINKMANN, MAGINNIS AND PACE BY: STEPHEN M. WINNING, ESQUIRE ATTORNEY ID # 202947 1880 John F. Kennedy Boulevard, 14th Floor Philadelphia, PA 19103 (215) 563-3500 Phone (215) 563-5610 Fax COUNSEL FOR PLAINTIFFS BARBARA BRINTON and JEFFERY BRINTON, h/w 18 Peach Tree Lane Boiling Springs, PA 17007 Plaintiffs, vs. Major Case - Jury Trial PHILADELPHIA COUNTY COURT OF COMMON PLEAS TERM, 2007 NO. WAL-MART STORES, INC. c/o CT Corporation System 1515 Market Street, Suite 1210 Philadelphia, PA 19102 Defendant. JURY TRIAL DEMANDED COMPLAINT - CIVIL ACTION Plaintiffs, Barbara Brinton and Jeffery Brinton, husband and wife, by and through their attorneys, Dugan, Brinkmann, Maginnis and Pace, by way of Complaint against the Defendant, aver as follows: 1. Plaintiffs, Barbara Brinton and Jeffery Brinton, husband and wife, are adult individuals and residents of the Commonwealth of Pennsylvania, residing at 18 Peach Tree Lane, Boiling Springs, PA 17007. 2. Defendant, Wal-Mart Stores, Inc., is, upon information and belief, a Delaware Corporation with a national headquarters located at 702 Northwest 8s` Street, Bentonville, Arkansas, and an address for service in Pennsylvania c/o CT Corporation System, 1515 Market Street, Philadelphia, PA 19102. 3. At all times material hereto, Defendant, Wal-Mart Stores, Inc., has owned and maintained several stores located within Philadelphia County, and conducts continuous and systematic business within Philadelphia County. 4. At all times material hereto, Defendant,'Wal-Mart Stores, Inc., owned, operated and maintained a store located at 60 Noble Boulevard, Carlisle, PA 17013. 5. At all times material hereto, Defendant Wal-Mart Stores, Inc., acted by and through its employees, agents, servants and/or workmen. 6. On June 22, 2006, plaintiff Barbara Brinton was a customer and business invitee on the premises of the Wal-Mart store in Carlisle, PA, when she slipped and fell on a wet floor near the fresh cut flower section of defendant Wal-Mart. 7. The wet floor, unaccompanied by any warnings to customers, represented a dangerous condition existing on the defendant's premises. 8. The defendant Wal-Mart Stores, Inc. had both actual and constructive notice of this dangerous condition existing on their premises. 9. The plaintiff, Barbara Brinton, fell hard onto the Wal-Mart floor and suffered severe and disabling injuries which will be described in greater particularity in the following paragraphs of this Complaint. 10. The injuries sustained by the plaintiff were due to the negligence and carelessness of the defendant and were due in no manner whatsoever to any act or failure to act on the part of the plaintiff. COUNT I - NEGLIGENCE PLAINTIFF, BARBARA BRINTON V. DEFENDANT, WAL-MART STORES, INC 11. Plaintiffs, Barbara Brinton and Jeffery Brinton, incorporate paragraphs one through ten of the Complaint as though fully set forth herein. 12. Plaintiff Barbara Brinton's injuries were caused by the negligence and/or carelessness of defendant Wal-Mart Stores, Inc.,.which consisted of the following: (a) failing to maintain the floor of their premises in a safe condition for business invitees such as the plaintiff, Barbara Brinton; (b) failing to reasonably inspect their premises to ascertain the existence of the dangerous condition which caused the plaintiffs fall, namely a wet and slippery floor; (c) failing to act on either the actual or constructive notice they possessed that a dangerous condition existed within their premises; (d) failing to place signs or other warning devices regarding the dangerous condition existing on their premises; (e) failing to properly and adequately rectify the dangerous condition existing within their premises; (f) negligently allowing the floor of their premises to remain in a wet and slippery condition. (g) failing to adequately employ and train store employees to maintain the floor of their premises in a safe condition. 13. As a result of her slip and fall on June 22, 2006, which is the subject of this lawsuit, plaintiff Barbara Brinton suffered injuries which are severe and maybe permanent in nature, including but not limited to a torn tendon in her left ankle, soft tissue damage to her left ankle, and other injuries to the nerves, tendons, skeletal system;and muscles throughout her body. 14. As a further result of the accident of June 22, 2006, plaintiff Barbara Brinton has suffered severe physical pain, suffering, disability, humiliation, inconvenience, embarrassment and IL t mental anguish which will continue into the future. 15. As a further result of the accident of June 22, 2006, plaintiff Barbara Brinton has in the past, and may continue in the future, to suffer limitations in her daily life activities, recreational or otherwise, that she participated in prior to the incident of June 22, 2006. 16. As a further result of the accident of June 22, 2006, plaintiff Barbara Brinton sustained the injuries set forth above and has been in the past, and will be required in the future, to undergo medical treatment and care, and has been, and will be, required in the future to expend sums of money for medical treatment related to the accident of June 22, 2006. .17. As a further result of the accident of June. 22, 2006, plaintiff Barbara Brinton has suffered a loss of earnings and earnings capacity, which will continue into the future. WHEREFORE, plaintiff Barbara Brinton demands judgment against the defendant in an amount in excess of $50,000.00 together with interest and costs of this lawsuit. COUNT II - LOSS OF CONSORTIUM 18. Plaintiffs incorporate by reference the averments contained in paragraphs one through seventeen of this Complaint as though the same were fully set forth herein at length. 19. As a direct, proximate, and legal result of the aforementioned accident, plaintiff Jeffery Brinton has been deprived of the society, companionship, and consortium of his wife, plaintiff Barbara Brinton, and continues to be deprived of the same, and will be deprived of the same for an indefinite time in the future to his great detriment and loss. WHEREFORE, plaintiff Jeffery Brinton demands judgment against the defendant in an amount in excess of $50,000.00 together with interest and costs of this lawsuit. 1.11 • . • r DUGAN BRINKMANN MAGINNIS AND PACE BY: STEPHEN M. WINNING, ES DIRE Counsel for Plaintiffs • AUG-21-2007 11:19 From:BSRH X155635619 .. 09/28/2007 14:8b 7172580672 To:2155635610 DUGAN BRIW MAC PACT P.2,2 PAGE 08/08 Barbara 13haton avers that the allegations contained in the foregoWS Complaint are true and C rteol to the best of her kmowiedge, infbrmation and belief; and that the statements in said Complaint are made subject to the-penalties of Is Pa. C.S. §4904 telating to unsworn falaosdow to authorities. Veriffod this _..? day of k, s e.---, 2007. r BARBARA TON McDONNELL & ASSOCIATES By: John M. Guthrie, ID#94972 500 Route 70 West Cherry Hill, NJ 08002 (856) 429-5300 NOTICE OF NEW MATTER This Answer contai a New Matter to which a response mus be d with the Court within Twenty d John Attorneys for Defendant Wal-Mart Stores East, LP (incorrectly sued herein as "Wal-Mart Stores, Inc.") BARBARA BRINTON and JEFFREY BRINTON, h/w COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA V. WAL-MART STORES, INC. NO.: 002260 / August 2007 Term '° S ccy ?_ ? ANSWER WITH NEW MATTER ®p? -? w m RR Q? Zj 1. Admitted upon information and belief. 2. Admitted. R.w ss 3. Denied except admits that Answering Defendant operates retail stores in Philadelphia County, Pennsylvania. 4. Denied except admits that Answering Defendant operates retail stores at 60 Noble Boulevard, Carlisle, Cumberland County, Pennsylvania. 5. Admitted upon information and belief 6. Denied. Furthermore, plaintiff's alleged status as a "business invitee" 0 Y• A rl r?i conclusion to be determined by the Court. z w 7. Denied. 8. Denied. 9. Denied. 10. Denied. COUNT I - NEGLIGENCE PLAINTIFF, BARBARA BRINTON V. DEFENDANT, WAL-MART STORES, INC. 11. Answering Defendant hereby incorporates paragraph 1-10 inclusive, as if same were fully set forth at length. 12. (a) through (g). Denied. 13. Denied. 14. Denied. 15. Denied. 16. Denied. 17. Denied. WHEREFORE, Defendant Wal-Mart Stores East, LP and all employees thereof, demands judgment in its favor and against Plaintiffs, together with costs, reasonable attorneys' fees and such other relief as this Court deems proper. COUNT II: LOSS OF CONSORTIUM 18. Answering Defendant hereby incorporates paragraph 1-17 inclusive, as if same were fully set forth at length. 19. Denied. WHEREFORE, Defendant Wal-Mart Stores East, LP and all employees thereof, demands judgment in its favor and against Plaintiffs, together with costs, reasonable attorneys' fees and such other relief as this Court deems proper. NEW MATTER 1. Plaintiff's claims and causes of action are barred because Plaintiff Barbara Brinton was injured as a result of a known risk which she assumed. 2. Plaintiff's claims and causes of action are barred by reason of Plaintiff's own contributory negligence, or alternatively, are reduced by the percentage of Plaintiff's own comparative negligence. 3. Plaintiff's claims and causes of action are barred as they failed to mitigate damages. 4. If Plaintiff sustained damages, such damages were caused by the negligence of a third-party over which Answering Defendant exercised no control. 5. If Plaintiff sustained damages, such damages were caused by intervening or superseding events or factors over which Answering Defendant exercised no control. 6. If Plaintiff executed a Release releasing any person or entity from liability from the accident or occurrence described in Plaintiff's Complaint, Answering Defendant is similarly released from any such liability. 7. If Plaintiff seeks compensatory damages for expenses related to medical tests, medications, and treatment, such damages are reduced pursuant to the holding in Moorehead v. Crozer Chester Medical Center, 564 Pa. 156 [2001], to the amounts actually due and payable. 8. At all relevant times, Answering Defendant was operating the above-referenced premises in accordance with the standard of care owed to plaintiff and others similarly situated. 9. At all relevant times, Answering Defendant had no notice of any alleged defective condition upon its premises. WHEREFORE, Defendant Wal-Mart Stores East, LP and all employees thereof, demands judgment in its favor and against Plaintiff, together with costs, reasonable attorneys' fees and such other relief as this Court deems proper. LAW OFFICES OF McDONNELL & ASSOCIATES By: John M. Guthrie Attorneys for Defendant Wal-Mart Stores East, L.P. (improperly pled as "Wal-Mart Stores, Inc.") Dated: September 11, 2007 McDONNELL & ASSOCIATES By: John M. Guthrie, ID#94972 500 Route 70 West Cherry Hill, NJ 08002 (856) 429-5300 Attorneys for Defendant Wal-Mart Stores East, LP (incorrectly sued herein as "Wal-Mart Stores, Inc.") BARBARA BRINTON and JEFFREY BRINTON, h/w v. WAL-MART STORES, INC. COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA NO.: 002260 August 2007 Term VERIFICATION I, JOHN M. GUTHRIE, am an attorney who represents Defendant Wal-Mart Stores East, LP improperly pled as "Wal-Mart Stores, Inc.", in this matter and make this Verification pursuant to Rule 1024(c)(2) in that defendant is out of the jurisdiction of the Court and the Verification of the Answer with New Matter cannot be obtained within the time allowed for filing the within Answer. JOHN M. GUTHRIE Date: September 11, 2007 McDONNELL & ASSOCIATES By: John M. Guthrie, ID#94972 500 Route 70 West Cherry Hill, NJ 08002 (856) 429-5300 Attorneys for Defendant Wal-Mart Stores East, LP (incorrectly sued herein as "Wal-Mart Stores, Inc.") BARBARA BRINTON and JEFFREY BRINTON, h/w v. WAL-MART STORES, INC. COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA NO.: 002260 August 2007 Term DEMAND FOR JURY TRIAL Defendant, Wal-Mart Stores East, LP (improperly pled as "Wal-Mart Stores, Inc."), by and through its undersigned counsel, hereby demands a trial by jury in the above-captioned matter. LAW OFFICES OF McDONNELL & ASSOCIATES By: ohn M. Guthrie Attorneys for Defendant, Wal-Mart Stores East, LP DATED: September 11, 2007 McDONNELL & ASSOCIATES By: John M. Guthrie, ID#94972 500 Route 70 West Cherry Hill, NJ 08002 (856) 429-5300 Attorneys for Defendant Wal-Mart Stores East, LP (incorrectly sued herein as "Wal-Mart Stores, Inc.") BARBARA BRINTON and JEFFREY BRINTON, h/w v. WAL-MART STORES, INC. COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA NO.: 002260 August 2007 Term ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendants, Wal-Mart Stores, Inc., Wal-Mart Stores East, LP, in connection with the above-referenced matter. LAW OFFICES OF McDONNELL & ASSOCIATES By: John M. Guthrie Attorneys for Defendant, Wal-Mart Stores ast, LP DATED: September 11, 2007 f CERTIFICATE OF SERVICE I, John M. Guthrie, hereby certify that on September 11, 2007 I caused a true and correct copy of the foregoing Answer with New Matter, Verification, Entry of Appearance and Demand for Jury Trial to be served, via United States first-class mail, postage prepaid upon: Dugan, Brinkman, Maginnis & Pace 1880 JFK Boulevard, Suite 1400 Philadelphia, PA 19044 Attention: Stephen M. Winning, Esq. I certify the above statements are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. LAW OFFICES OF McDONNELL & ASSOCIATES r DUGAN, BRINKMANN, MAGINNIS AND PACE BY: STEPHEN M. WINNING, ESQUIRE ATTORNEY ID # 202947 1880 John F. Kennedy Boulevard, 14th Floor Philadelphia, PA 19103 (215) 563-3500 Phone (215) 563-5610 Fax COUNSEL FOR PLAINTIFFS BARBARA BRINTON and JEFFERY BRINTON, h/w Plaintiffs, 2097 ?r-, - / Major Case - Jury Trial "C L / 1" 3: U pf)() J), C -,I '/, PHILADELPHIA COUNTY COURT OF COMMON PLEAS AUGUST TERM, 2007 VS. NO. 002260 FILED WAL-MART STORES, INC. PRO PRbTw Defendant. $EP 2 g 2007 E. HUSTON PLAINTIFFS' RESPONSE TO DEFENDANT'S NEW MATTER L-9. Denied. The allegations contained in Paragraphs 1 through 9 of Defendant's New Matter are denied as conclusions of law to which no response is required. WHEREFORE, Plaintiffs demand judgment in their favor and against defendant. DUGAN, BRINKMANN, MAGINNIS AND PACE BY: I*,*,?,,...,r Stephen M. Winning, Esquire Brinton Etal Vs Walmart Stores Inc-RPNMP 111111111111111111111111111111 07080226000012 CERTIFICATION I, Stephen M. Winning, Esquire, attorney for plaintiffs, hereby certify that I am duly authorized to make this certification; that on the 27`' day of September, 2007, I did cause a true and correct copy of Plaintiffs' Response to Defendant's New Matter to be mailed by United States regular mail to counsel addressed as follows: DUGAN, BRINKMANN, MAGINNIS AND PACE BY: /Iila Stephen M. Winning, Esquire I VERIFICATION STEPHEN M. WINNINGS ESQUIRE avers that the allegations contained in the foregoing Plaintiffs' Response to Defendant's New Matter are true and correct to the best of his knowledge, information and belief; and that the statements in said response is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications to authorities. DUGAN, BRINKMANN, MAGINNIS AND PACE BY: .??'GLv? ??.rvwwy, STEPHEN M. WINNINGS ESQ IRE DATE: 9 PHILADELPHIA COURT OF COMMON PLEAS PETITION/MOTION COVER SHEET FOR COURT USE ONLY ASSIGNED TO JUDGE: ANSWER/RESPONSE DATE: I Do not send Judge courtesy copy of Petuion/Motion/Answer/Response. I Status maybe obtained online at http://Courts.phila.gov Barbara Brinton and Jeffery Brinton, h/w CONTROL NUMBER: 09-07091309 (RESPONDING PARTIES MUST INCLUDE THIS NUMBER ON ALL FILINGS) August Month No. 2260 Name of Filing Party: Plaintiffs, Barbara and Jeffery Brinton, h/w VS. (Check one) ? Plaintiff ? Defendant Wal-Mart Stores, Inc. (Check one) ? Movant 0 Respondent MICATENATUREOFDOCUMENTFII.ED: Has another petition/motion been decided in this case? ? Yes 0 No Is another petition/motion pending? ? Yes 0 No ? Petition (Attach Rule to Show Cause) ? Motion ]/'the answer to either question is yes, you must identify the judge(s): ? Answer to Petition ? Response to Motion TYPE OF PETITION/MOTION (see list on reverse side) PETITION/MOTION CODE (see list on reverse side) MTTFR ANSWER/RESPONSE FILED TO (Please insert the title of the corresponding petition/motion to which you are responding): Response to Defendant's Petition to Transfer Venue I. CASE PROGRAM H. PARTIES (required for proof of service) Is this case in the (answer all questions): (Name, address and telephone number of all counsel of record and I unrepresented parties. Attach a stamped addressed envelope for each I A. COMMERCE PROGRAM attorney of record and unrepresented party.) Name of Judicial Team Leader: -...__._____._..-__- John M. Guthrie, Esquire Applicable Petition/Motion Deadline:. McDONNELL & ASSOCIATES, P.C. Has deadline been previously extended by the Court? 500 Route 70 Wee ? Yes ? No B. DAY FORWARD/MAJOR JURY PROGRAM - Year 2007 I Cherry Hill, NJ 0 Name of Judicial Team Leader: -William J. Manfredi (856) 429_53?j?G T - 1 2W w Applicable Petition/Motion Deadline: 20 days Has deadline been previously extended by the Court'? GMAft! ? Yes ? No C. NON JURY PROGRAM Date Listed: ------_._-- D. ARBITRATION PROGRAM Arbitration Date: E. ARBITRATION APPEAL PROGRAM Date Listed: .--------------------.--.._.__-- -- F. OTHER PROGRAM: Date Listed: 111. OTHER By filing this document and signing below, the moving party certifies that this motion, petition, answer or response along with all documents filed, will be served upon all counsel and unrepresented parties as required by rules of Court (see PA. R.C.P. 206.6, Note to 208.2(a), and 440). Furthermore, moving party verifies that the answers made herein are true and correct and understands that sanctions may be imposed for inaccurate or incomplete answers. -,?- Stephen M. Winning, Esquire; #202947 (Attorney Signature/Unrepresented Party) (Date) (Print Name) (Attorney J.D. No.) The Petition, Motion and Answer or Response, if any, will be forwarded to the Court after the Answer/Response Date. No extension of the Answer/Response Date will be granted even if the parties so stipulate. Term, 2007 Yea r 30-10618 Instructions for Completing Petition/Motion Cover Sheet A Petition/Motion Cover Sheet must be attached to all Petitions, Motions, Answers or Responses filed, except for Discovery Motions and Motions for Extraordinary Relief. Sanctions will be imposed if the Cover Sheet is inaccurately completed. Please Note the following: 1. ANSWER or RESPONSE DATE. The Motion Clerk shall enter the "Answer" or "Response" Date on the Cover Sheet. All Responses to Motions and Answers to Petitions must be filed with the Prothonotary and submitted to the Motion Clerk on or before the Response Date. Note: Summary Judgment Motions have a 30 day Response period. Except for those Motions identified in Phila.Civ.R. '208.3(a) and (b), all other Motions have a 20 day Response period. 2. ARGUMENT DATE. The Motion Clerk shall enter the Argument Date and location on the Cover Sheet, as appropriate. 3. CONTROL NUMBER. The Motion Clerk shall assign a Control plumber to all Petitions and Motions. The Responding parties must enter this Control Number on the Cover Sheet accompanying their Answer or Response. 4. NATURE OF DOCUMENT FILED. The filing party must check whether the document being filed is a Petition (in which case a Rule to Show Cause Order must be attached), a Motion, an Answer to a Petition, or a Response to a Motion. The parties must indicate whether another Petition or Motion is outstanding or has been decided and, if so, must identify the Judge(s) to whom such prior Petitions or Motions had been assigned. 5. PETITION OR MOTION TYPES. The parties must utilize the following Petition or Motion Codes and Types (and the Motion Clerk is authorized to change a filing party's designation to reflect the correct Petition or Motion Code and Type): CODE MOTIONS MTSAL Motion for Additional Distribution of Sale Proceeds MTPHV Motion for Admission Pro Hac Vice MTSVR Motion for Alternative Service MTAMJ Motion to Amend Judgment MTAMD Motion to Amend Pleading MTGAL Motion to Appoint Guardian Ad Litem MTAPC Motion for Appointment of a Conservator MTMCF Motion for Approval and Distribution of Minor's Compromise MTWRD Motion for Approval & Distribution of Wrongful Death & Survival Action MTAPS Motion to Approve Transfer of Structured Settlement MTADH Motion for Assessment of Damages Hearings MTAMV Motion to Auction Motor Vehicles MTBIF Motion to Bifurcate MTCIA Motion to Certify Order for Interlocutory Appeal MTCNM Motion to Change Name MTCLC Motion for Class Action Certification MTCMP Motion to Compel Discovery MTCPS Motion to Compel Payment of Settlement MTCOM Motion to Complete Terms of Sheriffs Sale MTCPT Motion to Confirm Settlement MTCNS Motion to Consolidate Actions MTOON Motion for Continuance MTCOR Motion for Coordination of Actions MTCRT Motion to Correct Record MTCNF Motion for Counsel Fees PTDOM Motion for Delay Damages MTDJT Motion to Demand Jury Trial DPROB Motion to Determine Preliminary Objections MTDSC Motion to Discontinue Case MTDIS Motion to Dismiss for Forum Non Conveniens MTDCN Motion to Disqualify Counsel MTEMG Emergency Motion MTEST Motion to Enforce Settlement MTJDG Motion for Entry of Default Judgment CODE MOTIONS MTJNP Motion for Entry of Judgment of Non Pros MTSUP Motion for Entry of Supersedeas MTEXP Motion for Expungement of Record MTEOT Motion for Extension of Time to file Certificate of Merit MTEXT Motion for Extension of Time to answer/ respond) PTEXR Motion for Extraordinary Relief MTNPT Motion to File Nunc Pro Tunc MTFUS Motion to File Under Seal PTFMV Motion to Fix Fair Market Value MTINT Motion for Interpleader MTINV Motion to Intervene MTIOP Motion to Invalidate Opt-Outs (Class Action cases) MTJAD Motion to Join Additional Defendant MTJPL Motion for Judgment on the Pleadings MTJUR Motion for Jury Out of Time MTLIM Motion in Limine MTM1,S Motion to Mark Judgment Satisfied MTMVR Motion to Obtain Motor Vehicle Records MTOPN Motion to Open/Strike Confessed Judgment MTPAR Motion for Partition MTPIC Motion for Payment into Court MTPAE Motion to Pay Rent into Escrow Account MTSYS Motion to Postpone Sheriff's Sale PTTMF Motion for Post Trial Relief MTPCD Motion for Pre-Complaint Discovery PRINJ Motion for Preliminary Injunction MTPAA Motion for Preliminary Settlement Approval (Class Action Cases) MTPDE Motion to Preserve Documents and Evidence MTIFP Motion to Proceed In Forma Pauperis MTPRO Motion for Protective Order MTOSH Motion to Quash MTRCS Motion for Reconsideration MTPPR Motion to Redeem Premises MTREF Motion to Release Escrow Funds MTOPT Motion to Remove Opt-Out of the Proposed Settlement Agreement (Class Action Cases) OODE MOTIONS MTRWT Motion to Return Writ of Possession or Execution MTSAN Motion for Sanctions MT229 Motion for Sanctions for Failure to Deliver Settlement Funds MTSAS Motion to Set Aside Sheriff's Sale MTSAA Motion to Set Aside Award MTIPP Motion to Settle Incompetent/ Incapacitated Person's Estate MTSPR Motion to Stay Proceedings MTWOE Motion to Stay Writ of Execution MTSTK Motion to Strike Pleading MTJJD Motion for Summary Judgment (30 day hold) MTRAE Motion for Supplementary Relief in Aid of Execution MTRDM Motion to Reassess Damages MTREF Motion for Reimbursement of Fees MTREL Motion to Release Bond MTRDS Motion to Remove Case from Deferred Status MTSRC Motion to Seal Record MTSEV Motion to Sever Cases MTSPP Motion for Specific Performance MTTFR Motion to Transfer MTTRJ Motion to Transfer Judgment MTFTV Motion for Title to Vehicle MTWDA Motion to Withdraw Appearance MTWPS Motion for Writ of Possession MTWRS Motion for Writ of Seizure MTMIS Miscellaneous Motion PTAAR Petition to Appoint Common Law Arbitrator PTARC Petition to Appoint a Receiver PTCAR Petition to Compel Arbitration PTCAW Petition to Confirm Arbitration Award PTCST Petition to Confirm Settlement PTFCT Petition for Contempt PTOJD Petition to Open Default Judgment PTSNP Petition to Open Judgment of Non Pros PTEMG Emergency Petition 6. CASE PROGRAM. The party shall check the program to which the case is assigned and provide the requested program data. 7. PARTIES. The filing parties shall set forth the name, address and telephone number of all counsel of record and unrepresented parties, and must attach a stamped addressed envelope for each attorney of record and unrepresented party. 8. OTHER. The parties shall enter other relevant important information in this box - such as request for stay, emergency designation etc. - placing the Motion Clerk on notice of special handling or request. 9. SIGNATURE LINE. The Cover Sheet must be signed, dated and, if applicable, the attorney ID number must be provided. 10. SERVICE. A copy of the file-stamped Petition, Motion, Answer, Response and attachments must be served on all parties of record immediately after filing as required by Pa.R.C.P. 206.6, and Pa.R.C.P. 440. The Current Version of the Petition/Motion Cover Sheet May Be Downloaded From The First Judicial District's Website: http://couns.phila.gov. DUGAN, BRINKMANN, MAGINNIS AND PACE BY: STEPHEN M. WINNING, ESQUIRE ATTORNEY ID # 202947 1880 John F. Kennedy Boulevard, 14th Floor Philadelphia, PA 19103 (215) 563-3500 Phone (215) 563-5610 Fax COUNSEL FOR PLAINTIFFS BARBARA BRINTON and JEFFERY BRINTON, h/w Plaintiffs, Major Case - Jury Trial PHILADELPHIA COUNTY COURT OF COMMON PLEAS AUGUST TERM, 2007 VS. NO. 002260 WAL-MART STORES, INC. Defendant. PLAINTIFFS' RESPONSE TO DEFENDANT'S PETITION TO TRANSFER VENUE Plaintiffs, Barbara Brinton and Jeffery Brinton, by and through their attorneys, Dugan, Brinkmann, Maginnis and Pace, hereby respond to Defendant's Petition to Transfer Venue as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. By operating retail stores within Philadelphia County, defendant Wal-Mart subjects itself to the jurisdiction of the Courts of Philadelphia County pursuant to Pa.R.C.P. 2179 as well as Pa.R.C.P. 1006(c)(1). 5. Admitted only to the extent that this motion could have been filed in Cumberland County. However, venue in Philadelphia County is also proper, and the plaintiff's choice of forum is entitled to weighty consideration and shall not be disturbed lightly. Zappala v. Brandolini Property Management, Inc., 509 Pa. 516, 909 A.2d 1272 (2006). 6. Admitted that a Court may consider these factors enumerated in paragraph 6, but the defendant must show that the plaintiff's chosen forum is oppressive or vexatious, not merely inconvenient. Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200, 701 A.2d 156 (1997). 7. Admitted only that the plaintiffs' residence and accident site are located in Cumberland County. Plaintiffs have yet to identify or take any depositions of defense witnesses, and any averments as to their current location are denied. 8. Denied as inapplicable. The defendant is required to prove, with detailed evidence on the record, that the plaintiffs choice of forum is oppressive or vexatious; asserting that trial in another county may be closer in distance to the residence of the parties is irrelevant. Cheeseman, 701 A.2d 156. 9. Denied as inapplicable. The cost of entering a judgment for the plaintiffs is not a proper consideration in determining whether venue is proper. See Zannala, 909 A.2d 1272, and Cheeseman, 701 A.2d 156. 10. Denied as inapplicable. In filing a Petition to Transfer Venue, the defendant must demonstrate, with detailed information on the record, that the plaintiffs chosen forum is oppressive or vexatious to the defendant. Cheeseman, 701 A.2d 156. 11. Denied. The convenience of the Court is not mentioned in Rule 1006(d)(1) and is not an appropriate consideration for a Rule 1006(d)(1) inquiry. Id. 12. Denied as inapplicable. In filing a Petition to Transfer Venue, the defendant must demonstrate, with detailed information on the record, that the plaintiffs chosen forum is oppressive or vexatious to the defendant. Id. 13. Admitted to the extent that further discovery is not necessary to decide this motion. The defendant has failed to demonstrate, as required by Rule 1006(d)(1), that trial of this matter in Philadelphia County is oppressive or vexatious. WHEREFORE, Plaintiffs respectfully request that defendant's Petition to Transfer Venue be denied with prejudice. DUGAN, BRINKMANN, MAGINNIS AND PACE BY: Stephen M. Winning, Esquire CERTIFICATION I, Stephen M. Winning, Esquire, attorney for plaintiffs, hereby certify that I am duly authorized to make this certification; that on the 'S` day of October, 2007, I did cause a true and correct copy of Plaintiffs' Response to Defendant's Petition to Transfer Venue to be mailed by United States regular mail to counsel addressed as follows: John M. Guthrie, Esquire McDONNELL & ASSOCIATES, P.C. 500 Route 70 West Cherry Hill, NJ 08002 DUGAN, BRINKMANN, MAGINNIS AND PACE BY: A? , Stephen M. Winning, Esquire VERIFICATION STEPHEN M. WINNING, ESQUIRE avers that the allegations contained in the foregoing Plaintiffs' Response to Defendant's Petition to Transfer Venue are true and correct to the best of his knowledge, information and belief, and that the statements in said response is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications to authorities. DUGAN, BRINKMANN, MAGINNIS AND PACE BY: '04t o'er- T STEPHEN M. WINNING, ESQUI DATE: /a/?j DUGAN, BRINKMANN, MAGINNIS AND PACE BY: STEPHEN M. WINNING, ESQUIRE ATTORNEY ID # 202947 Major Case - Jury Trial 1880 John F. Kennedy Boulevard, 14th Floor Philadelphia, PA 19103 (215) 563-3500 Phone (215) 563-5610 Fax COUNSEL FOR PLAINTIFFS BARBARA BRINTON and : JEFFERY BRINTON, h/w : Plaintiffs, VS. WAL-MART STORES, INC. Defendant. PHILADELPHIA COUNTY COURT OF COMMON PLEAS AUGUST TERM, 2007 NO. 002260 MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S PETITION TO TRANSFER VENUE 1. FACTS On June 22, 2006, plaintiff Barbara Brinton was a business invitee of defendant Wal-Mart, when she slipped and fell on a wet floor inside of the Wal-Mart store in Carlisle, PA. Wal-Mart's registered agent is located in Philadelphia, and Wal-Mart operates several retail stores within Philadelphia County. Plaintiffs filed suit against defendant Wal-Mart in Philadelphia County for the bodily injuries sustained by Barbara Brinton. The plaintiffs hereby respond to the petition to transfer venue filed by defendant Wal-Mart. II. ARGUMENT The plaintiffs' choice of venue in Philadelphia County is proper pursuant to Pa.R.C.P. 2179, which provides: (a) Except as otherwise provided by an Act of Assembly, by Rule 1006(a.1) or by subdivision (b) of this rule [regarding an action against an insurance company], a personal action against a corporation or similar entity may be brought in and only in (1) the county where its registered office or principal place of business is located; (2) a county where it regularly conducts business; (3) the county where the cause of action arose; (4) a county where a transaction or occurrence took place out of which the cause of action arose, or (5) a county where the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property. The defendant has challenged venue in Philadelphia County pursuant to Rule 1006(d)(1), which provides that: ("For the convenience of the parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.") A Petition to Transfer Venue pursuant to 1006(d)(1) should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff's chosen forum is oppressive or vexatious to the defendant. Zappala v. Brandolini Property Management, Inc., 509 Pa. 516, 909 A.2d 1272 (2006), Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200, 701 A.2d 156 (1997). The plaintiff's choice of forum is entitled to weighty consideration and should not be disturbed lightly. Zappalla, 909 A.2d 1272. The Supreme Court's intent is that the plaintiff's choice of forum should rarely be disturbed by the grant of a Rule 1006(d)(1) petition. Cheeseman, 701 A.2d 156. The convenience to the Court is not material in Rule 1006(d)(1) and is not an appropriate consideration for a Rule 1006(d)(1) inquiry. Id. The trial court, even if congested, must give deference to the plaintiff's choice of forum in ruling on a Petition to Transfer Venue. Id. The residence of the plaintiffs is irrelevant to a 1006(d)(1) petition. Id. In this case, the defendant operates retail stores within Philadelphia County. Further, its registered agent maintains an office in Philadelphia County. Venue of this action is therefore proper in Philadelphia County. The defendant has presented no evidence that this choice of forum is oppressive or vexatious. The defendant has asserted that it may be more convenient for the parties to drive to Cumberland County as opposed to Philadelphia County. At this time, the only witnesses identified are the plaintiffs. As stated above, the plaintiff's residency is irrelevant to a 1006(d)(1) petition. III. CONCLUSION The law is clear that the defendant must prove the plaintiff's choice of forum is oppressive or vexatious. The defendant must show more than potential inconvenience created by the chosen forum. Wal-Mart, Inc. has failed to do so. Therefore, their Petition to Transfer Venue should be denied. WHEREFORE, Plaintiffs respectfully request that defendant's Petition to Transfer Venue be denied with prejudice. DUGAN, BRINKMANN, MAGINNIS AND PACE BY: 44r t. Stephen M. Winning, Esquir ro ? ? o p O 00 ? V O b W C`:E,7 i4ial r - GJ LAW OFFICES OF McDONNELL & ASSOCIATES, P.C. BY: Robert M. Dunn 500 Route 70 West Cherry Hill, New Jersey 08002 Tel. No. (856) 429-5300 Attorneys for Wal-Mart Stores East, LP (incorrectly sued herein as Wal-Mart Stores, Inc.) BARBARA BRINTON and COURT OF COMMON PLEAS JEFFREY BRINTON, h/w OF CUMBERLAND COUNTY, PENNSYLVANIA V. WAI.-MART STORES, INC. NO.: 08-107 PRAECIPE TO SETTLE DISCONTINUE AND END TO THE PROTHONOTARY: Date: By: Kindly mark the above matter settled. McDonnell & Associates, P.C. Robert M. Dunn, Esquire Attorneys for Defendants By: Stephen M. Winning, Esquire Attorney for Plaintiffs r n.? ... 3 5