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Home My WebLink About08-49167".. VERN F. CAMPBELL VS. Plaintiff GIANT FOOD STORE and D.F. STAUFFER BISCUIT CO. Defendants ! IN THE COURT OF COM** PtxM OF CUMBERLAND COUNTY, PENNSYLVANIA ! CIVIL ACTION-LAW • NO. 08 - y91(o 0 ivy l?crw? ! JURY TRIAL DEMANDED - NOTICE - YOU HAVE BEEN SUED IN COURT: If you Wish to defend againiAt the claims set forth in the foliowihq pAges; you tndst take uctibd Uithin twenty (20) days after this CompiAiht and Notice are servcdl by bhtering A iiritten appear- ance personally or by Attorney And filiho in %titing with the Coutt your defenses-or objectibhA to the cltlims §bt forth against you: Yod lire warned that if you fail to do so the cases mao proceed without you ind A judgment may be entered against you by the court without fdrihot hotite for any money claimed in the Complxidt or fot a?ny othet claim or relief regd6sted by the plaintiff, You may lose honey or property or other tights importatlt to you: YOU SHOULb TAKE THIS PAPER TO YOUR LAWYER AT ONCE; IF YOU Do NOT HAVE A LAWYER OR CANNOT APPORb ONE; GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717-249-3166 ;- N07ICIA - Le han demandado A fisted ed IA cbrte: Si uated gUiete dafenderatea de estas demandAs expUestas 60 las pAgibAs biguibntes; Usted tieni Viftnta (20) digs de plazo al partir do It fecht de 11 demAnd* y 1A , hotiflcAci6ti. listed debe presenter Una aparioncit[ escrita d Od persoha b pox Abogaldo y krchtvkt bn la Corte en forma escritA sus defensAb o ads obj6cfonad A leis dem utldAlf An contrA de su persona. Sex Avi sAdo quo at Us+bd ho *o d ofietide j It coatlf tonArA modidAA y puede entrar Uha Orden cofitrA ustod bid previd aviko b hotificAcibtt y por. cualquir queja o alivio quo es pedido sh lA petici6n dA demanda: Ustecl pueda perder dinero o sus propiodades d otros derechos importantte.pArA usted. LLEVE ESTA DEMANDA A UN ABODAGO IMNIEDIAT'E14ENTg; SI NO TIBNE ABOQAbO O SI NO TIM EL DINERO SOFICIENTE DE PAGO TAL SERVIC10i VAYA HN PERSONA 0 LLAME POP TELEFONO A LA OFICINA CUYA DIRECCION SH HNCUENTRA PSCRITA AWo PARA AVERIGUAR DONDE Se PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION #@ South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717-249-3166 Johtf Jf krAfsig; Jr:; Esquire Attorney fot Plaintiff 2921 North Profit Street Harrisburg; PennsyiVania 17110 (717-236-2109) John J. Krafsig, Jr., Esquire Attorney for Plaintiff Attorney's I.D. #0640 2921 North Front Street Harrisburg, Pennsylvania 17110 Telephone: 717-236-2109 VERN F. CAMPBELL, Plaintiff VS GIANT FOOD STORE and D. F. STAUFFER BISCUIT CO. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO . 8 - y 9iL CL.r 7711- JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the above mentioned Plaintiff, by his lawful counsel, John J. Krafsig, Jr., Esquire, who demands judgment in a sum in excess of Fifty Thousand ($50,000.00) Dollars, together with legal interest thereon from May 7, 2008, upon a certain cause of action, whereof the following is a statement: 1. The Plaintiff is an adult individual residing at 23 West Pine Street, Enola, Cumberland County, Pennsylvania 17025. 2. The Defendant, Giant Food Store, is a corporation registered to do business within the Commonwealth of Pennsylvania, with a store situate at 310 East Penn Avenue, Enola, Cumberland County, Pennsylvania 17025. - 1 - 3. The Defendant, D. F. Stauffer Biscuit Co., is a corporation, authorized to do business within the Commonwealth Pennsylvania, with an office at 5 Belmount Street, York, Penn- sylvania 17402. 4. On or about May 7, 2008, the Plaintiff purchased a package of Stauffer Coconut Cookies at the Giant Food Store and upon taking the product home and while eating one of the cookies, suffered the lodging of a plastic object in his throat. The said plastic object being several inches in size, causing him immediate pain and suffering and trauma of not being able to get his breath. 5. Due to this condition and trauma, he was required to be seen and treated at the Holy Spirit Hospital, Camp Hill, Pennsylvania, for distal esophagal tertiary contractions and was seen by Dr. Kiran Kapadia on May 8, 2008. Additionally, suffering from traumatic upset, was seen by Hampden Physician Associates and was examined for the ingestion of a foreign body into his throat area. He also suffered emotional distress and damage, that required medical treatment and has sustained con- tinual pain and suffering as hereinafter more particularly set forth in this Complaint, from the physical impact of the plastic object. COUNT I Claim Against Giant Food Store for Strict Liability 6. Paragraph 1 through 5 inclusive are expressly incorporated by reference and made a part hereof. - 2 - 7. Section 402(a) of Restatement II of Torts requires anyone who sells any product in a defective condition, unreasonably dangerous to the user or consumer, or to his property, is subject to liability for physical harm thereby caused. 8. The sale of the Stauffer Coconut Cookies with an embeded plastic object, is a defective condition unreasonably dangerous to the Plaintiff consumer; and said Defendant is liable for all physical harm thereby caused. 9. Further, the object sold was dangerous to an extent beyond that, which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community to its characteristics. 10. By reason of physical impact from partial swallow- ing of the defective plastic object in the Plaintiff's throat, under date of May 8, 2008, was required to have a double-contrast barium swallow. 11. There were distal esophageal tertiary contractions determined by Dr. Kiran Kapadia. 12. The Plaintiff upon returning to his home, for the next two (2) weeks, suffered extreme constipation, great discom- fort and continually to the date of this Complaint, has suffered severe anxiety and distress, mental suffering, that all of the plastic object may not have been removed from throat area and body and reasonably some vestiges remain, which can reasonably portend for future physical problems and disability. 13. Further, the Plaintiff has suffered the symptoms - 3 - of severe depression, stress and anxiety ongoing, together with emotional harm as a result of the said Defendant, for which he reasonably believes such condition will continue for a reason- able indefinite future period. 14. Additionally the cookie product was unreasonably dangerous due to its composition and concentration of plastic ingredients and said product malfunctioned. WHEREFORE, the Plaintiff demands judgment in a sum in excess of Fifty Thousand ($50,000.00) Dollars, together with legal interest thereon, from date of indecent. COUNT II Claim Against D.F. Stauffer Biscuit Co. for Breach of the Implied Warranty of Merchantability 15. Paragraphs 1 through 14 inclusive are expressly incorporated by reference and made a part hereof. 16. The Defendant, D.F. Stauffer Biscuit Co., was under the duty of care as set forth in 13 Pa. C.S.A. §2314: (1) the coconut cookie product was manufactured by the Defendant; (2) was placed for sale of that product in the Defendant, Giant Food Store; (3) that Plaintiff was a user or consumer of that product; (4) the product was defective, which made the product unreasonably dangerous, was to allow in the baking and manu- facturing, the ingredients of a plastic object of a size of several inches, that simply by swallowing, made the pro- duct unreasonably dangerous; (5) said defective product is specifically identified in this Complaint, and was the proximate - 4 - cause of the harm and damage to the Plaintiff, as set forth in paragraphs 11, 12 and 13, which are expressly incorporated by reference. 17. That this Defendant was required, as a matter of law, to see to it, that there was an inherent soundness which make the cookies suitable for the purpose for which they are designed, and that they be free from significant defects, that they preform in the way that goods of that kind should perform, and they be of reasonable quality within expected variations and for the ordinary purpose for which they are used, which duty was violated; and paragraphs 4, 5, 7, 8, 9 and 10 of the Complaint are expressly incorporated by reference. 18. The product manufactured by the said Defendant, causing the sale of that product in the Defendant food store to the Plaintiff and user and consumer and the product defect as specifically set forth, made the product unreasonably dangerous and that the product defect was the proximate cause of the harm as set forth in this Complaint and expressly incorporated by reference. 19. Further, the said defective cookie was unreason- ably dangerous in the context of §402(a) of the Restatement 2nd of Torts, in that the cookie sold was dangerous to an extent beyond that which was contemplated by an ordinary consumer, to wit, the Plaintiff. To the extent beyond that which would be contemplated by an ordinary consumer who purchased a product as the Plaintiff, with the ordinary knowledge of the Cumberland - 5 - County area to reasonable expectations of it's soundness. 20. Further, the said product was reasonably believed to be below accepted commercial standards and was not fit for the purpose of consumption. 21. Paragraph 4 of the Complaint is incorporated by reference. 22. Paragraph 5 of the Complaint is incorporated by reference. 23. Paragraph 10 of the Complaint is incorporated by reference. 24. Paragraph 11 of the Complaint is incorporated by reference. 25. Paragraph 12 of the Complaint is incorporated by reference. 26. Paragraph 13 of the Complaint is incorporated by reference. WHEREFORE, the Plaintiff demands judgment in a sum in excess of Fifty Thousand ($50,000.00) Dollars, together with legal interest thereon from the date of the said incident of May 7, 2008 and all costs of suit. COUNT III Claim for Negligence Against Defendant, D.F. Stauffer Biscuit Co. 27. Additionally and incorporating by reference, all of Count II, being a product liability suit, also based on negligence, the Defendant: (a) Owed a duty of care to the Plaintiff to see - 6 - to it that the product was sound and suitable for the purpose for which the cookies were designed, free from significant defects, such as the embedding of a plastic object and perform in a way that goods of that kind should perform and to be of reasonable quality, which it was not by the very defect of the plastic object and was not within expected variations and for the ordinary purpose for which said cookies are used or consumed; (b) The Defendant manufacturer breached that duty in paragraphs 4 through 13 of the Complaint which are expressly incorporated by reference; (c) Said breach was the proximate cause of the Plaintiff's injuries due to the manufacture and baking of this defective product, not only breached that duty as identified in paragraphs 4 through 13 of the Complaint, expressly incorporated by reference, as well as the proximate cause of the Plaintiff's injuries identified in paragraphs 10 through 13 of the Complaint incorporated by reference. WHEREFORE, the Plaintiff demands judgment against the said Defendant in a sum in excess of Fifty Thousand ($50,000.00) Dollars, together with legal interest thereon from May 7, 2008, together with all costs of suit. COUNT IV Claim for Damages for Negligent Infliction of Emotional Distress by Physical Impact Against Defendant, D.F. Stauffer Biscuit Co. 28. Paragraphs 1 through 27 inclusive are expressly - 7 - incorporated by reference and made a part hereof. 29. There was negligent infliction of emotional distress by physical impact, which was accompanied by the embedding of a plastic object, which entered the Plaintiff's throat and swallowed, and accompanied by mental suffering to the Plaintiff's peril created by the negligent placing and allowing the embedding plastic object in the said cookie, causing the Plaintiff mental suffering as set forth in paragraphs 12 and 13 of the Complaint, expressly incorporated by reference. WHEREFORE, Plaintiff demands judgment in a sum in excess of Fifty Thousand ($50,000.00) Dollars, together with legal interest thereon from May 7, 2008 and the costs of suit. Respectfully submitted, lz? K447?," 1?? 4!o n &J. ra sig, J qu e ttorney for Plaintiff 2921 North Front Street Harrisburg, Pennsylvania 17110 Telephone: 717-236-2109 Attorney's I.D. #06840 Dated: August 11, 2008 - 8 - VERIFICATION AND NOW, to wit, this /Lp day of August, 2008, I, Vern F. Campbell, the within Plaintiff, do hereby certify and state the facts as set forth in the foregoing Complaint, are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn verification to authorities. ern F. Camp Plai ff cy- V 1 Qe __ 17 F:\FILES\Chents\MAC9500\Cunmt\484\9500.484.pra l \mas Created: 9/20/04 0:06PM Revised: 9124/08 2:33PM 9500.484 George B. Faller, Jr., Esquire I.D. No. 49813 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Giant Food Store VERN F. CAMPBELL, IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 08-4916 CIVIL ACTION - LAW GIANT FOOD STORE and D. F. STAUFFER BISCUIT CO., Defendants. JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Enter the appearance of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER on behalf of Defendant Giant Food Store in the above matter. Defendant hereby demands a twelve juror jury trial in the above captioned action. LAW OFFICES 7 &XI By George B. Faller, Jr., Esquire I.D. No. 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: September 24, 2008 Attorneys for Defendant Giant Food Store CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John J. Krafsig, Jr., Esquire 2921 North Front Street Harrisburg, PA 17110 Counsel for Plaintiff D. F. Stauffer Biscuit Co. 5 Belmount Street York, PA 17402 Defendant MARTSON LAW OFFICES By' Melissa A. Scholly Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: September 24, 2008 C. ? ., y i S _ An F:\FILES\CGents\MAC9500\Cu rent\484\9500.484.ans I \mas Created: 9/20/04 0:06PM Revised: 9/26/08 11:29AM 9500.484 George B. Faller, Jr., Esquire I.D. No. 49813 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Giant Food Store VERN F. CAMPBELL, Plaintiff, V. GIANT FOOD STORE and D. F. STAUFFER BISCUIT CO., Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-4916 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT GIANT FOOD STORE'S ANSWER WITH NEW MATTER AND CROSS-CLAIM PURSUANT TO Pa.R.C.P. 1031.1 TO PLAINTIFF'S COMPLAINT TO: VERN F. CAMPBELL, Plaintiff, and his attorney, JOHN J. KRAFSIG, JR., ESQUIRE AND D. F. STAUFFER BISCUIT CO., Defendant YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER AND CROSS-CLAIMS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW comes Defendant Giant Food Store, by and through its counsel, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and hereby responds to Plaintiffs Complaint as follows: 1. After reasonable investigation, the Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of this averment. 2. Denied as stated. To the contrary, Giant Food Store, LLC, is a Delaware Limited Liability Company. It is admitted that Giant Food Store, LLC, operates a retail grocery store at 310 East Penn Avenue, Enola, Cumberland County, Pennsylvania. 3. Admitted. 4. Denied pursuant to Pa. R.C.P. 1029(e). 5. Denied pursuant to Pa. R.C.P. 1029(e). COUNTI Claim Against Giant Food Store for Strict Liability 6. The averments of Paragraphs 1 through 5 of this Answer are hereby incorporated by reference. 7. The averment of this Paragraph is a conclusion of law to which no response is required. To the extent a response may be deemed required, this averment is denied. To the contrary, Plaintiff s claims should be governed by the Restatement of Torts 3d, Section 402A. 8. Denied pursuant to Pa. R.C.P. 1029(e). 9. Denied. To the contrary, if there was in fact a "plastic object being several inches in size" as alleged in Paragraph 4, it is believed that the ordinary customer who purchased it and bit into it would realize this before the object became lodged in their throat. 10.44. Denied pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendant Giant Food Store demands judgment in its favor and dismissal of Plaintiff s Complaint against it with prejudice. COUNT II Claim Against D.F. Stauffer Biscuit Co. for Breach of the Implied Warranty of Merchantability 15. The averments of Paragraphs 1 through 14 of this Answer are hereby incorporated by reference. 16.-26. The averments of these paragraphs refer to a party other than the Answering Defendant and, therefore, no response is required. WHEREFORE, Defendant Giant Food Store demands judgment in its favor and dismissal of Plaintiffs Complaint against it with prejudice. COUNT III Claim for Negligence Against Defendant D.F. Stauffer Biscuit Co. 27. The averments of this paragraph refer to a party other than the Answering Defendant and, therefore, no response is required. WHEREFORE, Defendant Giant Food Store demands judgment in its favor and dismissal of Plaintiff's Complaint against it with prejudice. COUNT IV Claim for Damages for Negligent Infliction of Emotional Distress by Physical Impact Against Defendant, D.F. Stauffer Biscuit Co. 28. The averments of Paragraphs 1 through 27 of this Answer are hereby incorporated by reference. 29. The averments of this paragraph refer to a party other than the Answering Defendant and, therefore, no response is required. WHEREFORE, Defendant Giant Food Store demands judgment in its favor and dismissal of Plaintiff's Complaint against it with prejudice. NEW MATTER 30. Plaintiffs Complaint against Defendant Giant Food Store fails to state a claim upon which relief can be granted. NEW MATTER CROSS-CLAIM PURSUANT TO Pa. R.C.P. 1031.1 Giant Food Store v. D. F. Stauffer Biscuit Co. 31. The averments of Plaintiffs Complaint, which averments have been specifically denied, are hereby incorporated for the limited purpose of this cross-claim. 32. If Plaintiff is entitled to recover from any party, which is expressly denied, then the other Defendants are alone liable to Plaintiff or liable over to Defendant Giant Food Store by way of contribution and/or indemnity or are jointly and/or severally liable to Defendant Giant Food Store on account of their own negligence or other liability producing conduct as alleged in the pleadings. 33. If Defendant Giant is found liable to Plaintiff which liability is expressly denied, its liability is secondary and passive to the liability of the other co-Defendant whose liability is primary and active. WHEREFORE, Defendant Giant Food Store demands judgment against Defendant D. F. Stauffer Biscuit Co. for all sums that may be adjudged against Defendant Giant Food Store in favor of Plaintiff, in the alternative, Defendant Giant Food Store demands judgment against Defendant D. F. Stauffer Biscuit Co. for contribution and/or indemnity for the appropriate part of the amount of damages and costs awarded to Plaintiff, if any. MARTS LAW OFFICES By Geo a B. Her, r., Esquir I.D. No. 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: September 26, 2008 Attorneys for Defendant Giant Food Store VI,RIFICATION 1, LIZABETH CHRISTMAN, Director, Risk Management Department of Giant Food Stores, LLC, acknowledge that I have the authority to execute this Verification on behalf of Giant Food Stores, LLC, and certify that the foregoing Answer is based upon information which has been gathered by my counsel in the preparation of this lawsuit. The language of this Answer is that of counsel and not my own. I have read the document and to the extent that this Answer is based upon information which 1 have given to my counsel, it is true and correct and to the best of my knowledge, information and belief. To the extent that the content of this Answer is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Giant Food Stores, LLC XA-"aAs C.? A_k Liza et Christman Director-Risk Management Dated: A, 24,019 F*ILBxClkx.MAC9500\cum nt,4"9500.484..osl CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Defendant Giant Food Store's Answer with New Matter and Cross-Claims pursuant to Pa. R.C.P. 1031.1 ofPlaintiff s Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John J. Krafsig, Jr., Esquire 2921 North Front Street Harrisburg, PA 17110 Counsel for Plaintiff D. F. Stauffer Biscuit Co. 5 Belmount Street York, PA 17402 Defendant MARTSON LAW OFFICES BY 0 L4 Melissa A. Scholly Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: September 26, 2008 r? ?? ? L+'? t.? ...?. 5 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-04916 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CAMPBELL VERN F VS GIANT FOOD STORE ET AL R. Thomas Kline duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: D F STAUFFER BISCUIT CO but was unable to locate Them deputized the sheriff of YORK Sheriff or Deputy Sheriff who being in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On September 15th , 2008 , this office was in receipt of the attached return from YORK Sheriff's Costs: So answers ? Docketing 6.00 Out of County 9.00-- Surcharge 10.00 R. Thomas Kline Dep York County 34.70 Sheriff of Cumberland County Postage 1.52 61.22 ? gjj_4j0g 09/15/2008 JOHN KRAFSIG JR Sworn and subscribe to before me this day of A. D. SHERIFF'S RETURN - REGULAR CASE NO: 2008-04916 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CAMPBELL VERN F VS GIANT FOOD STORE ET AL JASON VIORAL , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon GIANT FOOD STORE the DEFENDANT at 1240:00 HOURS, on the 20th day of August , 2008 at 310 EAST PENN DRIVE ENOLA, PA 17025 by handing to RICK WARNER, MANAGER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 9lat((o7 18.00 15.00 .00 10.00 .00 43.00 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 09/15/2008 JOHN KRAFSIG JR By: D put Sheriff A.D. # 0 • • • • 0 • -a- • 0 PENNY PRESS OF YORK, INC. Ph (717) 8434078 Fax (717) 848-1360 COUNTY OF YORK OFFICE OF THE SHERIFF S(R )771- 01 45 N. GEORGE St, YORK, PA 17401 SHERIFF SERVICE 1"IMACII W$` PROCESS RECEIPT and AFFIDAVIT OF RETURN FICEAW TYM COLYU E 1 THEM 12 DO NOT MTMM AM C Si 1 PLAINTIFFlS/ Vern F. Campbell 2 COURT NUMBER 08-4916 civil 3. DEFENDANT/S/ 4. TYPE OF WRIT OR COMPLAINT Giant Food Store et al Notice and Complaint SERVE 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD D.F. Stauffer Biscuit Co 6. ADDRESS (STREET OR RFO WITH BOX NUMBER. APT NO., CITY, BORO. TWP., STATE AND ZIP CODE) AT S Pratrrhrvtot Rfrow& Y4)3*, _PA 1:740 3Vo 5. li'rlQyti4 _5 7. INDICATE SERVICE O PERSONAL O PERSON IN CHARGE DEPUTIZE O C RT. IL O 1ST CLASS MAIL 0 POSTED ? OTHER NOW August 18 2008 I, SHERIFF IIF COUNTY, PA, do hereby deputize the sheriff of York COUNTY to execute this return thereo ding to law. This deputization being made at the request and risk of the plaintiff., SHE F OF CO 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE. 0/C CUMNVIana Please mail return of service to Cumberland County Sheriff. Thank you. ADV FEE _100..00 P AY ATY NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment. without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss. destruction, or removal of any property before shenfrs sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11. DATE FILED JOHN J KRAFSIG JR ESQ 2921 N FRONT ST HARRISBURG PA 1711 717-236-210 8/15/08 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed 4 notice is to be mailed). CUMBERLAND COUNTY SHERIFF 1 COURTHOUSE SQUARE CARLISLE PA 17013 arrsa c tal61ti.v1? ;ram ux up it= s>n mrrr - W 'V%n Wfun tXL TM LM 13. 1 acknowledge receipt of the writ 14. GATE RECEIVED 15. Expiration/Hearing Date or complaint as indicated above. LTMMCGILL 8/19/08 9/14/08 16. HOW SERVED: PERSONAL ( ) RESIDENCE ( ) POSTED( ) POE %Q. SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW 17. O I hereby certify and r "n a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) 18. "AME op T OF MD L SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19. Date of Service 20 Time of Service T ID ??c ?co as -4 .ck01(-/ 4e8r 10 C 21. ATTEMPTS inn* Mi In .. Date Time Miles Int. Date Time Miles Int. Date Time Miles Int. Date Time Miles Int Date Time Miles Int . . 22. REMARKS: 23. Advance Costs 24. , ice Costs 25. N/F 26. Mileage 27. Postage 28. Sub Total 29. Pound 30. Notary 31. Surchg. 32. Tot. Costs 33 Costs Due orb" 100 00 1 ^/ S Q -k ILL k) 34. Foreign County Costs 35. Advance Costs 36. Service Costs 37. Notary bin. _31117 MileaWPostag&'W Found 39. Total Costs 40. Costs Due or 41. AFFIRMED and subscribed to bet a me this t SO ANS RS 42. day of ; 29K 44. Sign I P L iY 46. Signature of Y L L. PUBLIC ? County Sheriff I c ,:c ouNTY I RICHARD ork P. , ASH F ?.l! j 12, 200 48. Signature of Foreign :Y S. 0 47. DATE 9-5-2008 49 DATE • VERN F. CAMPBELL IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS CIVIL ACTION - LAW GIANT FOOD STORE and NO. 08-4916 D. F. STAUFFER BISCUIT CO. Defendants JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER AND NOW, comes the above mentioned Plaintiff, by his lawful counsel, John J. Krafsig, Jr., Esquire, who makes the following Reply: 30. Paragraph 30 of New Matter, is fully and completely denied. Section 403 A of Restatement of Torts 3rd, requires anyone who sells any product in a defective condition, unreasonably dangerous to the user or consumer, or to his property, is subject to liability for physical harm thereby caused. Additionally, paragraph 8 of the Complaint, is expressly incorporated by reference and paragraph 9 of the Complaint is expressly incoporated by reference. WHEREFORE, the Plaintiff demands judgment in favor of the Plaintiff and against the Defendant, Giant Food Store. Respectfully submitted, hn J. K fsig Jr. 4E?i/e ttorney f r Plainti 2921 Nort Front Street Harrisburg, Pennsylvania 17110 Telephone: 717-236-2109 Attorney's I.D. #06840 Dated: August 8, 2008 r VERIFICATION AND NOW this 8th day of October, 2008, comes John J. Krafsig, Jr., Esquire, Attorney for the within Plaintiff, Vern F. Campbell, who by reason of his peculiar knowledge of the allegation made by Defendant, Giant Food Store, does aver that the facts set forth in the foregoing Reply are true and correct according to the best of his recollection and knowledge. n J. a s'g, J q i e ttorney for Plain ff CERTIFICATE OF SERVICE AND NOW, to wit, this _- day of October, 2008, I, John J. Krafsig, Jr., Esquire, Attorney for the within Plaintiff, Vern F. Campbell, do hereby certify, that I am this day serving the foregoing document, i.e. Plaintiff's Reply to New Matter filed by Defendant Giant Food Store upon the following person or persons and in the manner indicated below, which service satisfies the requirements of Pa. R.C.P., to wit: Service by regular mail, through the United States Post office, postage prepaid to: George B. Faller Jr., Esquire Attorney for Giant Food Store 10 East High Street Carlisle, Pennsylvania 17013 David F. White, Esquire Attorney for Stauffer Biscuit Co. 620 Freedom Business Center - Suite 300 King of Prussia, Pennsylvania 19406 7 hn J. afsig, J' f , dire ttorney or Plain f 2921 North Front Street Harrisburg, Pennsylvania 17110 Telephone: 717-236-2109 Attorney's I.D..006840 C-D David F. White, Esquire Michele A. Krengel, Esquire I.D. No. 55738/204206 Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 610-354-8262/8453 Fax: 610-354-8299 d1'white0,)mdwcg coral makrengel(a),mdwcg com Attorney for D.F. Stauffer Biscuit Co. VERN F. CAMPBELL V. GIANT FOOD STORE AND D.F. STAUFFER BISCUIT CO. COURT OF COMMON xLE -?, CUMBERLAND COUP `I? CIVIL ACTION LAW Y NO. 08-4916 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance as attorneys for the Defendant D.F. Stauffer Biscuit Co. in this matter. VZ6'd? Q. V David F. White, Esquire Michele A. Krengel, Esquire Date: -444? CERTIFICATE OF SERVICE I, Michele A. Krengel , hereby certify that I did mail, by regular United States First Class Mail, a true and correct copy of Entry of Appearance to the below listed counsel: John J. Krafsig, Jr., Esquire 2921 N. Front Street Harrisburg, PA 17110 George B. Faller, Jr., Esquire Martson Law Offices 10 East High Streeet Carlisle, PA 17013 vq--'Ieej? 1"91 Michele A. Krengel, Esquire DATE: /e //?/ a- C ;? ?,, `?? ? c? ??,:`* ?? _I '°°4 t't7 ?'7 ? y ?. J '.'? -" } x(77 ?..? ? ti ? .:? TO: plaintiff YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. BY:'A?,",? David F. White, squir Michele A. Krengel, Esquire David F. White, Esquire I.D. No. 55738 Michele A. Krengel, Esquire I.D. No. 204206 Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 610-354-8262 Fax: 610-354-8299 dfwhite(o),mdwcg.com Attorney for D.F. Stauffer Biscuit Co. VERN F. CAMPBELL V. GIANT FOOD STORE AND D.F. STAUFFER BISCUIT CO. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION LAW NO. 08-4916 ANSWER AND NEW MATTER OF DEFENDANT D.F. STAUFFER BISCUIT CO. TO PLAINTIFF'S COMPLAINT 1. After reasonable investigation, Responding Defendants are without knowledge to admit or deny the allegations alleged in this paragraph. 2. Admitted. 3. Admitted. 4. After reasonable investigation, Responding Defendants are without knowledge to admit or deny the allegations alleged in this paragraph. 5. After reasonable investigation, Responding Defendants are without knowledge to admit or deny the allegations alleged in this paragraph. COUNTI 6. Paragraphs 1 through 5 of Defendant's Answer above are incorporated herein by reference as fully as though the same were set forth at length below. 7. Denied as a conclusion of law. No further response is required. 8. Denied as a conclusion of law. No further response is required. 9. Denied as a conclusion of law. No further response is required. 10. After reasonable investigation, Responding Defendants are without knowledge to admit or deny the allegations alleged in this paragraph. 11. After reasonable investigation, Responding Defendants are without knowledge to admit or deny the allegations alleged in this paragraph. 12. After reasonable investigation, Responding Defendants are without knowledge to admit or deny the allegations alleged in this paragraph. 13. After reasonable investigation, Responding Defendants are without knowledge to admit or deny the allegations alleged in this paragraph. 14. Denied as a conclusion of law. No further response is required. COUNT II 15. Paragraphs 1 through 14 of Defendant's Answer above are incorporated herein by reference as fully as though the same were set forth at length below. 16. Denied as a conclusion of law. No further response is required. 17. Denied as a conclusion of law. No further response is required. 18. Denied as a conclusion of law. No further response is required. 19. Denied as a conclusion of law. No further response is required. 20. Denied as a conclusion of law. No further response is required. 21. After reasonable investigation, Responding Defendants are without knowledge to admit or deny the allegations alleged in this paragraph. 22. After reasonable investigation, Responding Defendants are without knowledge to admit or deny the allegations alleged in this paragraph. 23. After reasonable investigation, Responding Defendants are without knowledge to admit or deny the allegations alleged in this paragraph. 24. After reasonable investigation, Responding Defendants are without knowledge to admit or deny the allegations alleged in this paragraph. 25. After reasonable investigation, Responding Defendants are without knowledge to admit or deny the allegations alleged in this paragraph. 26. After reasonable investigation, Responding Defendants are without knowledge to admit or deny the allegations alleged in this paragraph. COUNT III 27. Denied as a conclusion of law. By way of further response, all allegations of negligence contained in this paragraph and its subparagraphs are denied. COUNT IV 28. Paragraphs 1 through 27 of Defendant's Answer above are incorporated herein by reference as fully as though the same were set forth at length below. 29. Denied as a conclusion of law. No further response is required. NEW MATTER COUNTERCLAIM 1. Plaintiff assumed a known risk. 2. Plaintiffs claims may be barred by his comparative negligence. Marshall, Dennehey, Warner, Coleman & Goggin BY: David F. White, squi Michele A. Krengel, Esquire Attorney for Defendant D.F. Stauffer Biscuit Co. 26/118431 1.v1 VERIFICATION Michele A. Krengel, Esquire, being duly sworn according to law deposes and says that she is authorized as counsel for D.F. Stauffer to take this verification on behalf of D.F. Stauffer and that the facts set forth in the foregoing Answer to Plaintiffs Complaint are true and correct to the best of her knowledge, information, and belief. This verification is subject to 18 Pa.C.S. §4904 which provides for certain penalties for making false statements. Michele A. Krengel, Esquire DATE: CERTIFICATE OF SERVICE I, Michele A. Krengel , hereby certify that I did mail, by regular United States First Class Mail, a true and correct copy of D.F. Stauffer's Answer to Plaintiffs Complaint with New Matter to the below listed counsel: John J. Krafsig, Jr., Esquire 2921 N. Front Street Harrisburg, PA 17110 George B. Faller, Jr., Esquire Martson Law Offices 10 East High Streeet Carlisle, PA 17013 Michele A. Krengel, Esquire DATE: c S rr? m : a? David F. White, Esquire Michele A. Krengel, Esquire I.D. No. 55738/204206 Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 610-354-8262/8453 Fax: 610-354-8299 dfwhite(a mdwcg.com makrengel@mdwcg.com Attorney for D.F. Stauffer Biscuit Co. VERN F. CAMPBELL COURT OF COMMON PLEAS CUMBERLAND COUNTY V. CIVIL ACTION LAW GIANT FOOD STORE AND D.F. NO. 08-4916 STAUFFER BISCUIT CO. PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the verification of Clint Roberts, attached hereto as Exhibit "A", for the Verification filed with the Answer and New Matter of Defendant D.F. Stauffer Biscuit Co., in the above-captioned matter on or around October 16, 2008. 1 /ni l ?? "J'6 tl 6ru?d David F. White, Esquire Michele A. Krengel, Esqu"r Date: CERTIFICATE OF SERVICE I, Michele A. Krengel , hereby certify that I did mail, by regular United States First Class Mail, a true and correct copy of Praecipe to Substitute Verification to the below listed counsel: John J. Krafsig, Jr., Esquire 2921 N. Front Street Harrisburg, PA 17110 George B. Faller, Jr., Esquire Martson Law Offices 10 East High Streeet Carlisle, PA 17013 A Michele A. Krengel, Esquire3 DATE: MAA EXHIBIT "A" VERIFICATION Clint Roberts, being duly sworn according to law deposes and says that he is authorized to take this verification on behalf of D.F. Stauffer and that the facts set forth in the foregoing Answer to Plaintiff s Complaint are true and correct to the best of his knowledge, information, and belief. This verification is subject to 18 Pa.C.S. §4904 which provides for certain penalties for making false statements. e, V4 /2 Clint Roberts DATE: r" ? i't )r"?' r , -? r C, ? ? 1 S _.. ? w ? `+ l . C`? .`a ?.. ' -. ??i ?? :?? ?? ?. ? 4 John J. Krafsig, Jr., Esquire Attorney for Plaintiff Attorney's I.D. #0640 2921 North Front Street Harrisburg, Pennsylvania 17110 Telephone: 717-236-2109 VERN F. CAMPBELL IN THE COURT OF COMMON PLEAS OF Plaintiff VS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GIANT FOOD STORE and NO. 2008 - 4916 D. F. STAUFFER BISCUIT CO. Defendants JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANT'S, D.F. STAUFFER BISCUIT CO., NEW MATTER COUNTERCLAIM 1. Paragraph 1, is fully denied. By way of further reply, said allegation alleges the sale of Defendant's product of coconut cookies and consumption is a "known risk" for which the Defendant provided no conspicuous notice of a known risk to the Plaintiff. By way of further reply, that under the implied warranty of merchantability, it was a legal requirement of a duty of care by this Defendant owed to the Plaintiff as a consumer; and additionally, as a matter of law, this Defendant had a duty to see to it that there was an inherent soundness which made the cookie suitable for their purpose as designed and free from significant defects, such as the plastic object embedded in the cookies. And by way of further reply, it was the duty of care to have the cookie perform in the way that goods of that 4 kind should perform and not be dangerous to an extent beyond that which was contemplated by an ordinary consumer, such as the Plaintiff, within the ordinary knowledge of a person of the Cumberland County area and to reasonable expectations of its soundness. 2. Paragraph 2 is fully denied. By way of further reply, the answer to paragraph 1 is expressly incorporated by reference. By way of further reply, the very allegation of "comparative negligence" is an implied recognition and acknowledge- ment of the awareness of this Defendant of the manufacture and baking of this product, which the inherent potential of danger to a consumer is in direct violation of the mandate of law of the implied warranty of merchantability. Respectfully submitted, ohn J. ra ig, J ., E u re Attorne for Plain if Attorney I.D. #06840 2921 North Front Street Harrisburg, Pennsylvania 17110 Telephone: 717-236-2109 Dated: October 16, 2008 VERIFICATION AND NOW, to wit, this day of October, 2008, I, Vern F. Campbell, the within Plaintiff, do hereby certify and state the facts as set forth in the foregoing Plaitniff's Reply to Defendant's, D.F. Stauffer Biscuit Co., New Matter-Counterclaim,, are true and correct to the best of his information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn verification to authorities. 416r-n-F. Campbell, i ff S CERTIFICATE OF SERVICE AND NOW, to wit, this day of October, 2008, I, John J. Krafsig, Jr., Esquire, Attorney for the within Plaintiff, Vern F. Campbell, do hereby certify, that I am this day serving the foregoing document, i.e. Plaintiff's Reply to Defendant's, D.F. Stauffer Biscuit Co., New Matter-Counterclaim, upon the following person or persons and in the manner indicated below, which service satisfies the requirements of Pa. R.C.P., to wit: Service by regular mail, throught the United States Post Office, postage prepaid, to: David F. White, Esquire Attorney for Stauffer Biscuit Co. 620 Freedom Business Center - Suite 300 King of Prussia, Pennsylvania 19406 George B. Faller, Jr., Esquire Attorney for Giant Food Store 10 East High Street Carlisle, Pennsylvania 17013 J n J. Kr, torney f 2921 North Harrisburg Telephone: Attorney's Y ?/, sig, Jr., s re r Plaintif Front Street Pennsylvania 17110 717-236-2109 I.D. #06840 .? ? ? ` ? ft?r T.? ?? f ? ? t'S`; '? ???? ?, X. ?,.._l ? "???' f t'"t may'} '"?: ..{ I-. PILI.S-Cliruts`NJAC9i00,Currrnt',aSa`.9500.4S4.prt'Vnas Cremed. 9 20 04 0:06PM I.Rc-ed. 10 16 05 i:_'SP..M j _ 950G.JDJ George B. Faller, Jr., Esquire I.D. No. 49813 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 VERN F. CAMPBELL, IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. GIANT FOOD STORE and NO. 08-4916 D. F. STAUFFER BISCUIT CO., CIVIL ACTION-LAW Defendants. JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly withdraw the appearance of MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER on behalf of Defendant Giant Food Store in the above captioned matter. MARTSON W OFFICES ?r C By J George B. FalleOr., Esquire I.D. No. 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Enter the appearance of MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN on behalf of Defendant Giant Food Store in the above matter. MARSHALL, DENNEHEY, COLEMAN & GOQGIN/ By David F it , Esqui I. 0. 55738 Michele A. Krengel, Esquire I.D. Number 204206 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 Dated: ? 113 ?g (610)354-8262 Attorneys for Defendant Giant Food Store CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John J. Krafsig, Jr., Esquire 2921 North Front Street Harrisburg, PA 17110 Counsel for Plaintiff David F. White, Esquire Michele A. Krengel, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 Counsel for Defendants Giant Food Store and D.F. Stauffer Biscuit Co. MARTSON LAW OFFICES By LC W? 0, , 0. l JC? - & Melissa A. Scholly Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: November 3, 2008 ?? ?? ??,?a> ? ? -t ? t , -? rct ?.,.. ?-, t '?; i GJ ??,' t?7 ?-? ? ?"3 " Q David F. White, Esquire I.D. No. 55738 Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 610-354-8262 Fax: 610-354-8299 -com dfwhite.a,mdwc,p Attorney for D.F. Stauffer Biscuit Co. VERN F. CAMPBELL COURT OF COMMON PLEAS CUMBERLAND COUNTY V. CIVIL ACTION LAW GIANT FOOD STORE AND D.F. NO. 08-4916 STAUFFER BISCUIT CO. CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant, D.F. Stauffer Biscuit Co., certifies that: (1) a Notice of Intent to serve the subpoenas with a copy of the subpoenas attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoenas is sought to be served, (2) a copy of the Notices of Intent, including the proposed subpoenas, are attached to this certificate, (3) no objection to the subpoenas have been received, and (4) the subpoenas which will be served are identical to the subpoenas which are attached to the Notices of Intent to serve the subpoena. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: rG?? B David F. White, Esquire /09 Attorney for Defendant 2 DATE: 2 David F. White, Esquire I.D. No. 55738 Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 610-354-8262 Fax: 610-354-8299 dfwhit mdwcg.com Attorney for D.F. Stauffer Biscuit Co. VERN F. CAMPBELL V. GIANT FOOD STORE AND D.F. STAUFFER BISCUIT CO. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION LAW NO. 08-4916 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TOE PA.R.C.P. 4009.21 TO: Vern F. Campbell c/o John J. Krafsig, Esquire David White, Esquire, intends to serve a subpoena(s) identical to the one(s) attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena(s). If no objection is made, # subpoena(s) may be served. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: J/ ., DAVID F. WHITE, ESQUIR Attorney for Defendants David F. White, Esquire I.D. No. 55738 Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 610-354-8262 Fax: 610-354-8299 dfwhite(a,mdwcg com Attorney for D.F. Stauffer Biscuit Co. VERN F. CAMPBELL COURT OF COMMON PLEAS CUMBERLAND COUNTY V. CIVIL ACTION LAW GIANT FOOD STORE AND D.F. NO. 08-4916 STAUFFER BISCUIT CO. SUBPOENA FOR RECORDS OF DR. GEORGE HARHIGH WAIVER I waive the 20 day waiting period and do not object to the serving of the subpoena to produce documents and things for discovery regarding the above-mentioned provider. TO: Leigh Ann Mumber Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 Please provide copies of the records received in resppnse to the above-captioned subpoena. I understand that a reasonable copying cost will be charged. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND VERN F. CAMPBELL V. File No. 08-4916 GIANT FOOD STORE AND D.F. STAUFFER BISCUIT CO. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: DR. GEORGE HARHIGH (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: ANY AND ALL MEDICAL RECORDS, BILLS AND FILMS PERTAINING TO VERN CAMPB-LL. VERN CAMPBELL. DOB: 11/28/30. SSN: 190-22-3682. atMDWCG, 620 FREEDOM BUSINESS CENTER, SUITE 300, KOP, PA 19406 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: MICHELE A. KRENGEL, ESQUIRE ADDRESS: 620 FREEDOM BU CENTER SUITE 300 KING OF PRUSSIA, PA 19406 TELEPHONE: 610-354-8453 SUPREME COURT ID # 701,706 ATTORNEYFOR:n STAUFFE 814WrUlT,CO BY THE COURT: Prothonotary, Civil Division Date: 'Seal of the Court Deputy ti . i t David F. White, Esquire I.D. No. 55738 Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 610-354-8262 Fax: 610-354-8299 dfwhite(u,mdwcg.com Attorney for D.F. Stauffer Biscuit Co. } VERN F. CAMPBELL V. GIANT FOOD STORE AND D.F. STAUFFER BISCUIT CO. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION LAW NO. 084916 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO PA.R.C.P. 4009.21 TO: Vern F. Campbell c/o John J. Krafsig, Esquire David White, Esquire, intends to serve a subpoana(s) identical to the one(s) attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena(s). If no objection is made, the subpoena(s) may be served. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 13' `- Y DAVID F. WHITE, ESQUI E Attorney for Defendants David F. White, Esquire I.D. No. 55738 Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 610-354-8262 Fax: 610-354-8299 dfwhiteAmdwc .com Attorney for D.F. Stauffer Biscuit Co. VERN F. CAMPBELL COURT OF COMMON PLEAS CUMBERLAND COUNTY V. CIVIL ACTION LAW GIANT FOOD STORE AND D.F. NO. 08-4916 STAUFFER BISCUIT CO. -------------------- SUBPOENA FOR RECORDS OF DR. NAMRARA V. HALDIPUR WAIVER I waive the 20 day waiting period and do not object to the serving of the subpoena to produce documents and things for discovery regarding the above-mentioned provider. TO: Leigh Ann Mumber Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 Please provide copies of the records received in response to the above-captioned subpoena. I understand that a reasonable copying cost will be charged. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND VERN F. CAMPBELL V. File No. 08-4916 GIANT FOOD STORE AND D.F. STAUFFER BISCUIT CO. , SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: NAMRARA V. HALDIPUR, M.D. (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: ANY AND ALL MEDICAL RECORDS, BILLS AND FILMS PERTAINING TO VERN CAMPBELL. VERN CAMPBELL. DOB: 11/28/30. SSN: 190-22-3682. atMDWCG, 620 FREEDOM BUSINESS CENTER, SUITE 300, KOP, PA 19406 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: MICHELE A. KRENGEL, ESQUIRE ADDRESS: 620 FREEDOM BUSIN CENTER SUITE 300 KING OF PRUSSIA. PA 19406 TELEPHONE: 610-354-8453 SUPREME COURT ID # 9n1,906 ATTORNEY FOR: D. STAUF99 B4-WUIT,CO BY THE COURT: Date: 'Seal of the Court Prothonotary, Civil Division Deputy David F. White, Esquire I.D. No. 55738 Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 610-354-8262 Fax: 610-354-8299 dfwhite(&mdwcg com Attorney for D.F. Stauffer Biscuit Co. VERN F. CAMPBELL V. GIANT FOOD STORE AND D.F. STAUFFER BISCUIT CO. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION LAW NO. 08-4916 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO PA.R.C.P. 4009.21 TO: Vern F. Campbell c/o John J. Krafsig, Esquire David White, Esquire, intends to serve a subpoana(s) identical to the one(s) attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena(s). If no objection is made, the subpoena(s) may be served. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN -DAVID F. WHITE, ESQUIRE Attorney for Defendants David F. White, Esquire I.D. No. 55738 Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 610-354-8262 Fax: 610-354-8299 dfwhite(n),mdwcg com Attorney for D.F. Stauffer Biscuit Co. VERN F. CAMPBELL V. GIANT FOOD STORE AND D.F. STAUFFER BISCUIT CO. 6OURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION LAW NO. 08-4916 SUBPOENA FOR RECORDS OF HOLY SPIRIT HOSPITAL WAIVER I waive the 20 day waiting period and do not object to the serving of the subpoena to produce documents and things for discovery regarding the above-mentioned provider. TO: Leigh Ann Mumber Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 Please provide copies of the records received in response to the above-captioned subpoena. I understand that a reasonable copying cost will be charged. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND VERN F. CAMPBELL V. GIANT FOOD STORE AND D.F. STAUFFER BISCUIT CO. File No. 08-4916 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: HOLY SPIRIT HOSPITAL (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you arc ordered by the court to produce the following documents or things: ANY AND ALL MEDICAL RECORDS, BILLS AND FILMS PERTAINING TO VERN CAMPB'_-LL. VERN CAMPBELL. DOB: 11/28/30. SSN: 190-22-3682. atMDWCG, 620 FREEDOM BUSINESS CENTER, SUITE 300, KOP, PA 19406 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME; MICHELE A. KRENGEL, ESQUIRE ADDRESS: FREEDOM BU STN CENTER SUITE 300 K NG OF PRUSSIA, PA 19406 TELEPHONE: 6lo 394-8453 SUPREME COURT ID# 904-206 ATTORNEY FOR: n F,ST A L FLgER R T_4 U IT , CO BY THE COURT: Prothonotary, Civil Division Date: 'Seal of the Court Deputy N r ? t1 t?. c .. ss i John J. Krafsig, Jr., Esquire Attorney for Plaintiff Attorney's I.D. #06840 2921 North Front Street Harrisburg, Pennsylvania 17110 Telephone: 717-236-2109 VERN F. CAMPBELL IN THE COURT OF COMMON FLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS CIVIL ACTION - LAW GIANT FOOD STORE and NO. 08-4916 D. F. STAUFFER BISCUIT CO. Defendants JURY TRIAL DEMANDED PLAINTIFF'S MOTION UNDER R.C.P. §4006(a) TO DISMISS OBJECTIONS TO WRITTEN INTERROGATORIES TO THE HONORABLE, THE JUDGES OF CUMBERLAND COUNTY: No Judge has been involved as to any issue in this case. The Plaintiff through his undersigned counsel, moves this Court, pursuant to Pa. R.C.P. § 4006(a) for an Order dis- missing the Defendants' Objections to Plaintiff's Interrogatories and d-recting that the Interrogatories be answered fully within thirty (30) days and in support of this Motion, the Plaintiff represents as follows: 1. Under date of January 8, 2009, the Plain- tiff served Interrogatories upon the Defendants, a copy of the Interrogatories are attached as Exhibit "A." 2. Under date of March 12, 2009, the Defendant - 1 - W served an Answer and objections to Plaintiff's Interrogatories, a copy of which is attached as Exhibit "B." 3. The specific subject matter is in dispute, is the Defendants' responses to paragraphs 2, 3, 4, 5, 6, 7, and 12 and the specific Interrogatories in question have been set forth in Exhibit "A" attached tc: this Motion. 4. Under date of March 23, 2009, Plaintiff's counsel attempted to have Defendant,' counsel remc.,ve objections and make full and responsive answers, pursuant to R.C.P. §4003.1, a copy of which is attached hereto and marked as Exhibit "C". 5. Under date of March 30, 2009, the Defendants responded to Plaintiff's request of March 23, 2009, which is attached hereto and mi:.zke:d as Exhibit "D". 6. In view of the considerable and substantial time afforded to '.re Defendants to resp(.*:nd to the Interrogatories, and in the last attempt to prevail upon counsel for the Defendants to fully comply with the Rules of Discovery, a letter dated April 5, 2009 was sent, which specifically oul-lire,d all of the essential and factual information that the Plaintiff deems that he is entitled to as IM&tt-E!r of l aw, which is attached hereto and marked as Exhibit "E". 7. The Defendants' objections to the nunf rated specific Irterrogatories, are without basis under the Pennsylvania Rules of Civil Procedure ai:d should be di ,missed for the follow- ing reasons: V (a) Each and every assigned objection is totally without merit and is an unreasonable denial of providing factual information the Plaintiff is entitled to prior to trial. R.C.P. §4003.1 inter alia mandates discovery of any matter relevant to the subject matter, whether it relates to a claim or defense, or the location of any tangible things and the identity and location of persons having knowledge relating to such matters. (b) It is not grounds for objection, that the information sought involves an opinion or contention, as it relates to a fact or the application of law to fact. Further, the question of relevancy should be liberally construed in favor of the parties seeking discovery. Not only the assigned objections border on the frivolous and vexatious and devoid of merit. 8. The subject Plaintiff's Interrogatories are proper and the Defendants should be directed to answer the same within thirty (30) days from date of Court Order. WHEREFORE, the Plaintiff requests your Honorable Court to dismiss the Defendants' Objections to Plaintiff's Interrogatories 2, 3, 4, 5, 6, 7 and 12 and direct that the Defendants answer each and every enumerated Interrogatories, to meet the full substance of the Interrogatories involved within thirty (30) days from date of Court Order or suffer appropriate sanctions upon further application to this Court. Respectfully submitted, Date: agA , 2009 J n J. rafsig, quire ttorne for Plai tiav, Attorney's I.D. #06840 2921 North Front Street Harrisburg, Pennsylvania 17110 Telephone: 717-236-2109 - 3 - John J. Krafsig, Jr., Esquire Attorney for Plaintiff Attorney's I.D. #0640 2921 North Front Street Harrisburg, Pennsylvania 17110 Telephone: 717-236-2109 VERN F. CAMPBELL Plaintiff VS . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GIANT FOOD STORE and NO. 08-4916 D. F. STAUFFER BISCUIT CO. Defendants JURY TRIAL DEMANDED INTERROGATORIES TO: Giant Food Store D.F.Stauffer Biscuit Co. c/o Michele A. Krengel, Esquire PLEASE TAKE NOTICE that you are hereby required pursuant to the Pennsylvania Rules of Civil Procedure, Rules 4005 and 4006, as amended, to serve upon the undersigned within thirty (30) days A* from service hereof, your Answers in writing and under oath to the following Interrogatories and the time of trial of this case you or anyone acting on your behalf learns the identity and where- abouts of any other witnesses not identified in your Answers, or if you or anyone on your behalf obtains or becomes aware of additional requested information not supplied in your Answers, you shall promptly furnish the same to the undersigned by Supple- mental Answers. These Interrogatories are addressed to you as a party to this action and your Answers shall be based upon the PLAINTIFF'S EXHIBTT "A" r information known to you or to your attorney or other represent- ative. Objection will be made at the time of trial to any attempt to introduce evidence which is directly sought by these Interrog- atories and to which no disclosure has been made. If there is insufficient space to answer an Interrogatory, the remainder of the Answer shall follow on a supplemental sheet. Please attach written materials to any answer to which written materials are available. If they are not available, state where they may be obtained. Label the written materials with the number of Interrogatory to which they pertain. Respectfully submitted, ?tnorne-y afsig, J ire for Pff 29 21 North Front Street ' Harrisburg, Pennsylvania 17110 Telephone: 717-236-2109 Attorney's I.D. #06840 ' ? 2009 Dated: January I INTERROGATORIES 1. In paragraph 1 of New Matter-Counterclaim, Defendants asserted a claim of "assumed a known risk," and therefore set forth with specificity all persons contributing to the allegation in the New Matter-Counterclaim, P.e. names and address. Answer: 2. Set forth with specificity, all facts as to how an ordinary consumer or patron by purchasing D.F. Stauffer Coconut Cookies in a package would know of an assumed risk? Answer: 4 3. Identify with specificity all facts known by these Defendants and their representative, all conditions and subject matters that would create a "known risk." Answer: 4. Identify the names and addresses of all persons contributing to the answer to this Interrogatory; and specifically, set forth the knowledge of the Defendants, to identify all factual matters that would constitute and establish a "known risk" prior to this incident within a prior two (2) year period, prior to this occurrence of May 2008, reaming the customer or patron, who was known to have assumed a risk. t. Answer: 5. Set forth with specificity all facts that an average customer or patron would or should have ascertained to have know- ledge of a known risk. Answer: 6. The Defendants further asserted in paragraph 2 of New Matter-Counterclaim, that the Plaintiff's claim may be barred by "his comparative negligence." Again set forth the names and addresses of all persons contributing to the allegation in the New Matter-Counterclaim as to what negligence was involved and/or committed by either Defendantkin order to establish "comparative negligence;" and by what specific facts would this be established. Answer: 7. Set forth with specificity, all facts that places an ordinary customer and/or patron that would know of the possibility of the assuming of risk of eating these food products; and whether any conspicgous notice or warning was attached or made a part of the packaged products. Answer: 8. Set forth with specificity, what factory makes, manufactures or processes the subject coconut cookie products sold by Defendant Giant Food Store on or about May 8, 2008 and where the subject cookies were baked, manufactured and delivered to the Giant Store prior to May 2008; also for at least one year prior thereto, set forth the quantity and amount supplied to Defendant, s Giant Food Store. Answer: 9. Set forth with specificity, from the plant where the subject cookies were baked and/or manufactured, all procedu•Fes and steps from the inception to the completion for packaging and selling to the Defendant Giant Food Store; and identify the subject cookies, each procedural step and and identify persons involved in the process and inspections in the procedure from the inception to completion. Answer: 10. Set forth with specificity all industry, standards and regulations set forth in the Code%of Federal Regulations that govern the processing of food products fit for human consumption. Answer: 11. Set forth with specificity all know problems existing in the manufacturing, baking and processing of the subject cookies from in inception of the process to packaging and delivery; together with all materials utilized in the baking and manufacturing process. Answer: w ?. 12. State all conspicuous warnings, if any, placed on similar cookies that are the subject of this proceeding prior to May 7, 2008. Answer: N, 11 13. Set forth with specificity as to each of the named persons with their respective addresses who appeared on October 30, 2008, at the office of John J. Krafsig, Jr., Esquire, to examine the foreign object that is the subject of this litigation. Answer: 14. Set forth with all specificity the measurements, details and observations of the object viewed and examined by each of them on October 30, 2008 as to its0composition, its texture and the nature of the said object. Additionally, attach copies of all photographs and all notes and dimensions that were made by each of the three parties that identifies the substance of the.. said object. Answer: 15. The name and address of the Manager of Defendant, Giant Food Store, and the employee who took pictures of the cookies and the object personally shown by the Plaintiff to them in May 2008; and provide copies of the same, together with all statements taken, made and/or recorded. Answer: %. 16. Identify all witnesses, experts and fact witnesses who will testify at trial, setting forth their proffered testimony and the facts upon which it is based and the substance of the same. Answer: 17. What is the actual process in mixing, baking and packing the said cookies? Answer: 18. What precautions, if any, were taken to avoid any foreign substance or object to come in contact with the batter in mixing or baking the said product until it has been packaged for sale, prior to May 2008. Answer: 4. F hn J. a sig, 1: s ire ttorney for Plaiiff Attorney's I.D. #06840 2921 North Front Street Harrisburg, Pennsylvania 17110 Telephone: 717-236-2109 f CERTIFICATE OF SERVICE AND NOW, to wit, this dr- day of January, 2009, I, John J. Krafsig, Jr., Esquire, Attorney for the within Plaintiff, Vern F. Campbell, do hereby certify that two copies of the within Interrogatories and Motion to Produce Documents to the within Defendants, have been mailed this day through the United States Post Office, by regular mail, postage prepaid, to the office of Michele A. Krengel, Esquire 620 Freedon Business Center - Suite 300 King of Pressia, Pennsylvania 19406 attorney of record for the within Defendants, to reply to the said Interrogatories and Motion to Produce Documentswithin 30 days from the receipt thereof, pursuant to the Rules of Court. ? - A.%,-o -?& o J. ra r., uire Attorn4ly for Pla- ti Attorney's I.D. #06840 2921 North Front Street Harrisburg, Pennsylvania 17110 Telephone: 717-236-2109 26/1247482.vl David F. White, Esquire I.D. No. 55738 Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 610-354-8262 Fax: 610-354-8299 dfwhiteaa,mdwcg.com Attorney for D.F. Stauffer Biscuit Co. VERN F. CAMPBELL COURT OF COMMON PLEAS CUMBERLAND COUNTY V. CIVIL ACTION LAW GIANT FOOD STORE AND D.F. NO. 08-4916 STAUFFER BISCUIT CO. : DEFENDANT. D.F. STAUFFER BISCUIT COMPANY'S ANSWERS TO PLAINTIFF'S INTERROGATORIES 1. Objection. Answering Defendant objects to Request No. 1 on the grounds that it would cause unreasonable annoyance, embarrassment, oppression, burden or expense to Answering Defendant and/or is beyond the scope of discovery as set forth in Pa.R.C.P. 4003.1 F through 4003.7 and/or is sought in bad faith and/or require the making of an unreasonable investigation and/or is protected by the attorney client privilege and/or is attorney work product. Without waiving said objection and byway of further aflswer, Answering Defendant has submitted an Affirmative Defense in its Answer with New Matter to Plaintiff s Complaint. As noted by the Verification, which was submitted with the Answer to the Complaint and which is attached hereto, Answering Defendant representative, Clint Roberts, has participated in these responses. 2. Objection. Answering Defendant objects to this Interrogatory on the grounds that it would cause unreasonable annoyance, embarrassment, oppression, burden or expense to Answering Defendant and/or is beyond the scope of discovery as set forth in Pa. R.C.P. 4003.1 PLAINTIFF'S'EXHIBIT "B" through 4003.7 and/or is sought in bad faith and/or would require the making of an unreasonable investigation by Answering Defendant and/or is protected by the attorney client privilege and/or is attorney work product. Further, this information concerning the knowledge of an ordinary consumer or patron is equally accessible to Plaintiff. 3. Objection. Answering Defendant objects to this Interrogatory on the grounds that it would cause unreasonable annoyance, embarrassment, oppression, burden or expense to Answering Defendant and/or is beyond the scope of discovery as set forth in Pa. R.C.P. 4003.1 through 4003.7 and/or is sought in bad faith and/or would require the making of an unreasonable investigation by Answering Defendant and/or is protected by the attorney client privilege and/or is attorney work product. 4. Objection. Answering Defendant objects to this Interrogatory on the grounds that it would cause unreasonable annoyance, embarrassment, oppression, burden or expense to Answering Defendant and/or is beyond the scope of discovery as set forth in Pa. R.C.P. 4003.1 through 4003.7 and/or is sought in bad faith and/or would require the making of an unreasonable investigation by Answering Defendant and/or is protected by the- attorney client privilege and/or is attorney work product. Without waiving said objection and by way of further answer, Clint Roberts with the assistance of counsel. 5. Objection. Answering Defendant objects to this Interrogatory on the grounds that it would cause unreasonable annoyance, embarrassment, oppression, burden or expense to Answering Defendant and/or is beyond the scope of discovery as set forth in Pa. R.C.P. 4003.1 through 4003.7 and/or is sought in bad faith and/or would require the making of an unreasonable investigation by Answering Defendant and/or is protected by the attorney client privilege and/or is attorney work product. By way of further answer, information concerning the knowledge of an average customer or patron is equally accessible to Plaintiff. 6. Objection. Answering Defendant objects to this Interrogatory on the grounds that it would cause unreasonable annoyance, embarrassment, oppression, burden or expense to Answering Defendant and/or is beyond the scope of discovery as set forth in Pa. R.C.P. 4003.1 through 4003.7 and/or is sought in bad faith and/or would require the making of an unreasonable investigation by Answering Defendant and/or is protected by the attorney client privilege and/or is attorney work product. 7. Objection. Answering Defendant objects to this Interrogatory on the grounds that it would cause unreasonable annoyance, embarrassment, oppression, burden or expense to Answering Defendant and/or is beyond the scope of discovery as set forth in Pa. R.C.P. 4003.1 through 4003.7 and/or is sought in bad faith and/or would require the making of an unreasonable investigation by Answering Defendant. Further, the information concerning conspicuous notice or warning which may have been attached or made part of the packaged product is equally accessible to Plaintiff. Without waiver of the foregoing, see Response No. 5. 8. The product is manufactured by Stauffer Biscuit Company's Cuba, New York facility. s. From May 8, 2007 to May 8, 2008, Stauffer Biscuit Company shipped approximately 3,000 cases of the subject cookie to Giant Food Stores. Therefore, approximately 36,000 individual packages were sent to Giant Food Stores. 9. Objection. Answering Defendant objects to this Interrogatory on the grounds that it would cause unreasonable annoyance, embarrassment, oppression, burden or expense to Answering Defendant and/or is beyond the scope of discovery as set forth in Pa. R.C.P. 4003.1 through 4003.7 and/or is sought in bad faith and/or would require the making of an unreasonable investigation by Answering Defendant. By way of further answer, there are numerous individuals who are involved in the process and inspection procedure from inception to completion of the .subject cookies and it would be an unreasonable burden for Answering Defendant to identify each of the persons who were involved in the procedure at any one time. Without waiver of the foregoing, in general terms the process for packing and selling the subject cookie consists of the following: baking the cookies and inspecting them by hand in a tray. The tray is then overwrapped with packaging film, a code date is applied for traceability and the package is placed in a corrugate case. The case of product is then placed on a wooden pallet and shipped to Giant Foods or to a warehouse prior to being sent to Giant Foods. 10. Objection. Answering Defendant objects to this Interrogatory on the grounds that it would cause unreasonable annoyance, embarrassment, oppression, burden or expense to Answering Defendant and/or is beyond the scope of discovery as set forth in Pa. R.C.P. 4003.1 through 4003.7 and/or is sought in bad faith and/or would require the making of an unreasonable investigation by Answering Defendant and/or is protected by the attorney client privilege and/or is attorney work product. Without waiving said objection and by way of further answer, this information is equally accessible to Plaintiff. t. 11. Problems encountered during the baking process of the product include the fact that at times this product will be overbaked and consumers have complained of burnt product. The materials that are used to bake this product are: stainless steel dough trough, dough extruder with guillotine, plastic divided trays and printed film. Ingredients used to bake the product include the following: Shortening, High Fructose Corn Syrup, Vanilla Powder, Bro Egg, Salt, Corn Flour, Sodium Bicarbonate, Coconut Flavor, Soy Lecithin, Extra Fine Coconut, Butter Flavor, and Flour. 12. Objection. Answering Defendant objects to Request No. 12 on the grounds that it would cause unreasonable annoyance, embarrassment, oppression, burden or expense to Answering Defendant and/or it is beyond the scope of discovery as set forth in Pa.R.C.P. 4003.1 through 4003.7 and/or is sought in bad faith and/or would require the making of an unreasonable investigation by Answering Defendant and/or is protected by the attorney client privilege and/or is attorney work product. Without waiving said objection and by way of further answer, Answering Defendant does not understand to what Plaintiff refers by "similar cookies". 13. Clint Roberts and John Fletcher, D.F. Stauffer, 5 Belmont Street, York, PA 17402 and counsel for defendants. 14. Answering Defendant has previously provided copies of the photographs which were taken on October 30, 2008. The photographs speak for themselves. No other notes or dimensions were made concerning the subject object at this time. Those photographs were produced to counsel under cover of January 7, 2009. Further, counsel for Plaintiff is in possession of the subject cookie. 15. Unknown to Answering Defendant. Investigation is continuing. 16. Objection. Answering Defendant has not yet identified the witnesses and experts it s intends to introduce at call of trial. Answering Defendant reserves the right to supplement this response consistent with any Case Management Orders and the Pennsylvania Rules of Civil Procedure. 17. The baking process consists of the following: All ingredients are added to a large mixer and mixed for about 15 minutes. Product is transferred into a dough hopper. The dough hopper is then placed on top of the product extruder. The product is extruded through a 17 row serrated extruder head and cut into 2.625 inch long bars. Each cookie is baked for 11 Minutes and cooled for 35-Minutes. Testing is performed on each cookie every 60 minutes to determine if the correct color, moisture, flavor and packaging is used. After cooling the product is inspected and placed in a tray by hand. All products are run through a metal detector and placed in a corrugate container. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN ? BY David F. White, Esqu r Michele A. Krengel, Esquire Date: 4- VERIFICA,TIQN t, Clint Roberts, verifies that the facts set forth in the Defendant, D.P.'Stauffer Biscuit Company's Answers to plaintiffs Interrogatories are true to the best of his knowledge, information and belief. If the above statements arenot true, thedeponent is subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Clint Roberts I -,t `t>Q 1 CERTIFICATE OF SERVICE I, Michele A. Krengel , hereby certify that I did mail, by regular United States First Class Mail, a true and correct copy of Defendant's Answers to Plaintiffs Interrogatories to the below listed counsel: John J. Krafsig, Jr., Esquire 2921 N. Front Street Harrisburg, PA 17110 ?Mu IL k&,14qk Michele A. Krengel, Esqui' DATE: SjIIgoj JOHN J. KRAFBIGp JR., INC. ATTORNEY-AT-LAW HARRISBURG, PENNSYLVANIA 17110-1281 2921 N. FRONT STREET TEL: 717-298-2109 FAx: 717-288-0100 March 23, 2009 Michele A. Krengel, Esquire 620 Freedom Business Center - Suite 300 King of Prussia, Pennsylvania 4' 19406 In Re: Vern F. Campbell vs Giant Food Store and D.F.Stauffer Biscuit Co. No. 08-4916 (Cumberland County) Answers to Interrogatories Dear Attorney Krengel: M MEMSER PENNSYLVANIA BAP DISTRICT OR COLUMBIA BAR Under date of January 8, 2009, I mailed you Interroga- tories and a Motion to Produce. At your request for an exte sion, I extended to you and on or about March 13, 2009 I received our incredible responses. - Despite the fact that Rule 4003.1 of the Rules of Civil Procedure inter alia, expressly mandate discovery of any matter relevant to the subject flatter, whether it relates to a claim or defense, or the location of any tangible things and the identity and location of persons having knowledge relating to such matters. And further, sub-paragraphs (c)...it is not ground for objection that the information sought involves an opinion or contention as it relates to a fact or the applicatioli of law to fact! Despite the fact, that you no less was the affiant of the Answer and New Matter filed of record, i.e. in a public court- house, alleging defenses of assumption of the risk or comparative negligence, you are chargeable with knowledge that to prevail on a defense of assumption of a risk, a defendant in a negligence case, must establish both the Plaintiff's awareness of the risk and his voluntariness to proceed in the face of an obvious danger- ous condition, see Restatement 2nd of Torts, §496A, 496G. Further, the law is also clear from Restatement 2nd of Torts, when assumption of risk in an negligence action, can be proven only where it is beyond question, that the Plaintiff voluntarily and knowingly proceeded inthe face of an obvious and dangerous condition. PLAINTIFF'S EXHIBT_T "C" _1 2921 N. FRONT STREET TEL: 717-288-2109 FAx: 717-23" 100 JOHN J. KIIMPsia, JR., INC. ATTORNEY-AT-LAW HARRISBURG, PENNSYLVANIA 17110-1281 MEMBER .. PENNSYLVANIA BAR DISTRICT OF COLUMBIA BAR - Page 2 - Further, of our absolute right to know, all facts and all bases of any defenses, the facts upon which your alleged defenses are predicated beforeNgoing to trial, so we would have full opportunity to address the same. You have assigned inter alia, the following alleged excuses for the failure to answer Interrogatories further identified, to wit: Would cause unreasonable annoyance, embarrassment, oppression, burden or expense to answering Defendant and is beyond the scope of discovery, as set forth in Pa. R.C.P. 4003.1 thtough 4003.7 and/or sought in bad faith or requires the making of an unreasonable investigation and/or is pro- tective by the attorney/client privilege and/or his work product. I specific challenge you to support each and every one of these assigned excuses or reasons for not properly making answers thereto. You verified the Answer/New Matter under the penalty of 18 Pa. C.S.A. §4904 and are the actual affiant. It is a very serious matter to assert defenses in a legal proceeding that you cannot sustain, cannot support and should have known that before you asserted the same. Therefore, the following paragraphs of the Interroga- tories and your Answers, are in my opinion, border on frivolous and vexatious either set forth truthftklly and accurately all facts that you allege that support your defense or acknowledge that you do not have such facts or information to support such allegations to wit: Paragraph 2, set forth all facts how an ordinary consumer purchasing the Defendant's product package, would know of an assumed risk, is the questionable defense raised by you to assert that this knowledge is equally accessible to the Plaintiff, is frivolous and vexatious in our opinion. With regard to paragraph 3, request of all facts and conditions that would subject these matters to "a known risk", again calls for facts and if you have no facts, then comply with the candor that is required, both to the Court and the opposing party, to acknowledge the same. And further, as previously requested, to identify in your objection each JOHN J. Ku"1910P JR., ][No. ATTORNEY-AT-LAW HARRISBURG, PENNSYLVANIA 17110.1281 2821 N. FRONT STREET MUMBtR TEL.- 717-286-2109 PRNNWLVANIA BAR FAx: 717-288-0100 DIS"Wr OF COLUMBIA BAR Page 3 - and every assigned reason, how that allegedly applies to this Interrogatory. Likewise paragWph 5 of Interrogatories asked, what facts that a patron would or should have ascertained to have knowledge of a known risk, your answer, bearing the very fact, the assumption of the risk is a legal theory, is further frivolous and vexatious in our opinion, that this information or knowledge is accessible to an ordinary party. Paragraph 6 specifically relates to your alleged defense of comparative negligence, what facts from your defense that you allege would have to be done to establish such a defense. As previously stated, as t,o each and every reason assigned, it would be illuminating to know how allegedly your statements were protected by attorney/client privilege, and attorney work product. Paragraph 7 Interrogatories, when asked for all facts that would place an ordinary patron of knowledge of assuming the risk of eating it's food products and whether conspicuous notice or warning was attached, your response incorporating paragraph 5 is incredible and unacceptable. With regard to paragraph 12, the disclaimer that you do not know about" similar cookies,)which were obviously the same cookies that are the subject _of this proceeding and specifically told so by and for full and complete answers. Lastly this to give you notice of our intent of re- quiring full and complete answers 4s requested and if not received within 10 days from the receipt from this letter, a Motion will be filed with the Court requesting relief and your full compliance with the Rules of Discovery of Civil Procedure. You have been given an inordinate amount of time to respond and were afforded the opportunity to discuss the matter,.. which you totally failed to do. Very truly yours, 1 ohn J Krafsi , JJK/slsk A REGIONAL DEFENSE LITIGATION LAw FIRM MARsHALT., DENNEHEY, W.ARNEx, COLEMAN 8 Goc,Gnv PWMff LVAMA Betldehem D=AwAM W&,i ton Doylestown A P R O F E S S I O N A L C O R P O R A T I O N www.manhAdennehey.com $Harrisb ? Akron Klag o P iussia f F P jd* hia PLOWWA plttabmgh Ft. Lauderdale 620 Freedom Business Center, Suite 300 - King of Prussia, PA 19406 Scranton JOdiandoo nville (610) 354-8250 • Fax (610) 354-8299 NtwJsassx Tampa CheuryHill N$tvYoax Roseland New York Direct Dial: 610-354453 Email: makrengel@mdwcg.com Mar&30, 2009 John J. Krafsig, Jr., Esquire 2921 N. Front Street Harrisburg, PA 17110 RE: Campbell v. Giant Food Stores, et al Our File No. 13304.00130 Dear Mr. Krafsig: Please be advised that I am in receipt of your correspondence dated March 23, 2009. First, the Answer with New Matter was verified by our client, Clint Roberts on behalf of Stauffer Biscuit Company, on or about October 16, 2008. The verification was substituted by Praecipe and Mr. Roberts is the affiant. I encourage you to refer to the docket and your own correspondence file. Secondly, pursuant to Pa.R.C.P. 4003. 1, "a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved...." Further, pursuant to Pa.R.C.P. 4003.3, the "discovery shall not include disclosure of the mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or theories." Moreover, pursuant to Pa.R.C.P. 4011, no discovery is permitted which is sought in bad faith, would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party. Defendants have asserted assumption of the risk as a otential defense to the claims alleged by Plaintiff in his Complaint. Assumption of the risk is a legal doctrine which provides that if the plaintiff observed or should have observed a dangerous condition but proceeded forward regardless of that dangerous condition, then he assumed the risk of his act. Carrender v. Fitterer, 310 Pa. Super. 433, 456 A.2d 1013 (1983); Var ug s v. Pitman Mfg. Co., 510 F. Supp. 116, 118 (1981); Frey v. Harley Davidson,734 A.2d 1 (Pa. Super. 1999). In determining whether one assumed the risk of his activities, the jury will consider all the facts surrounding the incident to decide if one understood and appreciated the danger. These facts include the age, experience, knowledge, and understanding of the plaintiff as well as the obviousness of the danger. There need not be actual proof that he knew, understood, or appreciated the risk as assumption of the risk may be inferred from surrounding circumstances. Green v. Dansi, 478 F.2d 313, 315 (3d Cir. 1978); Fierro v. Ruesch Com., 610 F. PLAINTIFF'S'EXHTBTT "D" John J. Krafsig, Jr., Esquire March 30, 2009 Page 2 Supp. 778, 782 (E.D. Pa. 1985), affd, 782 F.2d 1027 (3d Cir. 1986); Frey v. Harley Davidson,734 A.2d 1 (Pa. Super. 1999). In support of this potential legal defense, we rely on the Complaint, the subject cookie, evidence of which you are in possession, and Plaintiffs testimony. With respect to Response 2, you have essentially requested that I regurgitate the print found on the packaging of the specific type of coconut cookie in question. Mr. Campbell may have retained the packaging from the subject cookie. If not, this information is available to you at any grocery store. With respect to Response 3, please refer to the subject cookie, evidence of which you are in possession, and Mr. Campbell's deposition testimony. With respect to Response 5, the information available to a "ordinary patron" is the same information that was available to Mr. Campbell as a purchaser of the coconut cookie. Therefore, you have this information at your fingertips. With respect to Response 6, as mentioned above, the legal theory behind asserting comparative negligence in D.F. Stauffer's New Matter is protected by the Pennsylvania Rules of Civil Procedure. The facts upon which Defendants rely are those alleged in the Complaint and Mr. Campell's deposition testimony. With respect to Response 7, once again, the package or container in which the coconut cookie was wrapped is available at your local grocery store. Further, you are seeking hypothetical theories upon which one may observe an alleged dangerous condition. You are not seeking actual facts upon which Mr. Campbell relied or observed with regard to the specific condition in the subject cookie, which again, is in your possession. The manner in which one could theoretically notice the alleged condition through visual or a touch inspection goes to one's common sense. With respect to Response 12, your allegation, to use your own language, is "incredible and unacceptable" and is "frivolous and vexatious". D.F. Stauffer Company makes a plethora of cookies. The company does not sell only coconut cookies.' If you would specify and "illuminate" my client as to which type(s) of cookies by name you consider to be "similar" rather than-forcing my client to guess as to which cookie or cookies, a supplemental response will be provided. Further, to require D.F. Stauffer to inspect each and every cookie product it currently has on the market or has ever had on the market, as your Interrogatory does not specify a time frame and is therefore unreasonable in scope, a response to this poorly framed Interrogatory would present an unreasonable. burden and expense to my client and is therefore further objectionable pursuant to Pa.R.C.P. 4011. If you should wish to discuss this fiu ther, feel free to contact me. Thank you. Very truly yours, f Pod Michele A. Krengel MAK:bh 26/1271264.v1 C i JOHN J. KRAFSIGV Jx., INC. ATTORNEY-AT-LAW HARRISBURG, PENNSYLVANIA 17110.1251 2821 N. FRONT STREET TEL: 717-298-2109 FAx: 717-298-0100 April 5, 2009 Michele A. Krengel, Esquire 620 Freedom Business Center -`Suite 300 King of Prussia, Pennsylvania 19406 In Re: Vern F. Campbell vs Giant Food Store and D.F.Stauffer Biscuit Co. No. 08-4916 (Cumberland County) Dear Attorney Krengel: W MEMBER PENNSYLVANIA SAl1 DISTRICT OF COLUMBIA BAIT You are requested within ten (10) days from the date hereof to confirm if your responses of March 30, 2009 are to be used as an exhibit upon sending our Motion to the Court, so all of your responses can accurately be presently to the Court; and in addition confirm who is the affiant for the statements of March 30, 2009.. Additionally, '*the,following comments are made necessary by your assertions and to afford you the opportunity to further amend or revise your responses to the Interrogatories in question. You lack comprehension that the point of record is that the New Matter was verified by you at4the time it was filed and then subsequently the affiant was Mr. Roberts by substitution. You have totally evaded the challenge I made to you, to offer factual proof of your many objections and to set forth with specificity, what allegedly was privileged etc., also knowing your alleged mental impressions etc., to specify how they are violated by any of the subject Interrogatories, and either spell this out with specificity or admit there was no basis to assert the same. Neither your comprehension fails to recognize that you asserted the defense of assumption of the risk, not as a potential defense, and if you took the simple time to review what you actually stated, you will see that you asserted the defense of the assumption of risk and that comparative negligence was so styled. Further again, it appears your lack of comprehension PI:ATNTTFF"S EXHIBIT "E" C JOHN J. KRAFBIG9 JRn INC. ATTORNEY-AT-LAW i HARRISBURG, PENNSYLVANIA 17110-1281 2921 N. FRONT STREET Tau 717-288-2109 FAX: 717-23" 100 Page 2 - MumeaR PKNNaYLVANIA BAR Dixmcr OR COLUMBIA BAR of the case law that you cite, in support of the assumption of the risk, that even if you allege proof by "surrounding circum- stances", even that of itself must be proof of "to know of the specific defect eventually cauging his injury and voluntarily proceeds to use the product with knowledge of the damage caused by the defect." We are entitled to facts not guess work, so demand is made to state, that either you do or you do not have any direct proof and if so, set forth with specificity. Otherwise if you are relying upon surrounding circumstances, then you are still required under the law, to provide us with all specific facts that you-allege that support proof by "surrounding circum- stances." Therefore, to support either allegation, you will be expected to comply with the law and provide all,necessary facts that you allege support the same. No more and no less. With regard to your response to Interrogatory No. 2, the assertion that I request you regurgitate the print found on the packaging, is frivolous and insulting in my opinion, not only is it a very clear request of facts for which the seller is responsible when they assert such a defense, but what print on on the packaging tells an ordinary patron of an assumed risk. To make this statemgnt that this information is available at any grocery store is frivolous and unacceptable. With regard to Interrogatory No. 3, which asked to identify all facts known by you, the Defendants and their repre- sentatives that would create a known risk. This request deals with the Defendants, not the Plaintiff. The reference to the Plaintiff's deposition testimony, without identifying any page, is blatant gamesmanship and unacceptable. Further, you asserted the defense and now you are being called on to back it up and prove it, since the very defense creates an implication of your knowledge of a risk to the ordinary consumer. Plain and simple. Interrogatory No. 4 was not fully and properly answered, i.e. what negligence was involved by the Defendants to establish comparative negligence and by what specific facts will this be established. Again, if you have no such facts, discharge your responsibility of candor to the tribunal and the opposing party. With regard to your response to Interrogatory No. 5, you should be able to comprehend that the test is an ordinary e JOHN J. SRAF 1G9 J3t.9 INC. ATTORNEY-AT-LAW HARRISBURG, PENNSYLVANIA 17110-1281 2921 N. FRONT STREET TEu 717-288-2109 FAx:717-288-0100 - Page 3 - rrleMSSR PRNNWLVANIA 9M Dirmiar or Couimbm BAR customer or patron and from your knowledge and your clients, now allegedly there was known risk and your allegation that this information was available to Mr. Campbell as a purchaser of a coconut cookie and we have th4 information "at your fingertips," is incredible, frivolous and insulting. This Interrogatory simply`. requests your knowledge and facts, not the Plaintiff's, which is a further pervasive pattern of evasion of the Rules. Your response to Interrogatory No. 6, is the same per- vasive evasion, which specific facts that you will attempt to prove at trial. We are not asking you for your legal theory; and again the blatant failure to assign a page of Mr. Campbell's Deposition testimony which you allege will support this, without gamesmanship to request us to search and guess what you are talking about. With regard to Interrogatory No. 7, despite the fact this Interrogatory clearly asked if are any conspicuous notice or warning attached to these package products, in which you have the superior knowledge, yet you persist to have us go to our local grocery store. We are not seeking hypothetical theories. We are seeking actual facts, in which you continue to actually attempt to evade your responaibi?ity'in discovery to refer to one's common sense, is further ?rivolou's and insulting and non-responsive. With regard to paragraph 12, despite the fact that you refer to similar cookies that are the "subject of this proceeding."- You were asked to illuminate what your client did with regard to the very same cookies which are t1te subject matter of this litigation, which could not.be any clearer; and then to engage in further gamesmanship to say this causes each and every cookie product, that it is your response that is poorly framed, not the Interrogatory propounded upon you. What don't you allegedly understand about the identity of similar cookies that are the subject of this proceeding? You are afforded this last opportunity to rethink your responses. 'Very truly yours, , ohn J. Krafsig JJK/slsk a • CERTIFICATE OF SERVICE AND NOW, to wit, this y? day of April, 2009, I, John J. Krafsig, Jr., Esquire, Attorney for the within Plaintiff, Vern F. Campbell, do hereby certify, that I am this day serving the foregoing document, i.e. Plaintiff's Motion under R.C.P. 4006(a) to Dismiss Written Interrogatories upon the following person or persons and in the manner indicated below, which service satisfies the requirements of Pa. R.C.P., to wit: Service by regular mail, through the United States Post office, postage prepaid to: Michele A. Krengel, Esquire Attorney for Defendants Marshall, Dennehey Warner, Colemen & Goggin 620 Freedom Business Center - Suite 300 King of Prussia, Pennsylvania 19406 Y V Aja-? ?J? n J. ig, Jr. squire ttorney for P1 ntif f Attorney s I.D. #06840 2921 North Front Street Harrisburg, Pennsylvania 17110 Telephone: 717-236-2109 FILED-1 1711T K29 AI`ti 27 H i2: I ? CU1r' ._ ,%y-Y ' VERN F. CAMPBELL IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. GIANT FOOD STORE AND D.F. STAUFFER BISCUIT CO. DEFENDANTS NO. 08-4916 CIVIL ORDER OF COURT AND NOW, this 30th day of April, 2009, upon consideration of Plaintiff's Motion Under Pa.R.C.P. §4006(a) to Dismiss Objections to Written Interrogatories, and after examination of the Interrogatories and the Defendants' Objections thereto; IT IS HEREBY ORDERED AND DIRECTED that Plaintiff's Motion is DENIED. Defendants need not answer Interrogatories 2, 3, 4, 5, 6, 7 and 12. By the Court, M. L. Ebert, Jr. J. -1" John J. Krafsig, Jr., Esquire Attorney for Plaintiff ? Michele A. Krengel, Esquire Attorney for Defendants bas FS rnw 6L ft 1V ,F... :.,U .N1 JCI