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Home My WebLink About01-2586 MARY SHEARER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 2001-,~'¥~ ~ THE GOLDEN M COMPANY, t/cl/b/a McDONALD'S RESTAURANT Defendant CIVIL ACTION - LAW NOTICE You have been sued in court. If you wish to defend against the claims set forth in thc following pages, you must take action within twenty (20) days after this Complaint and Notice arc served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by thc court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 MARY SHEARER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA .- v. : NO. 2001-,2.~?/,,, ~ : THE GOLDEN M COMPANY, t/d/b/a : McDONALD'S RESTAURANT : Defendant : CIVIL ACTION - LAW COMPLAINT AND NOW, comes Plaintiff Mary Shearer by and through her attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and aver the following: 1. Plaintiff Mary Shearer resides at 930 North College Street, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant, The Golden M Company, a franchisee of McDonald's, has a place of business at 905 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013. 3. Murray Levine is franchise owner. 4. On or about October 12, 1999, Plaintiffpurehasad a cheeseburger at The Golden M Company's Walnut Bottom Road location. 5. The cheeseburger Plaintiffpurchased contained a hard object. 6. While eating the cheeseburger, Plaintiffbit down on the hard object and fractured her tooth. 7. As a result from biting down on the hard object, Plaintiff's tooth was extracted. .COUNT ! Negligence 8. Paragraphs 1 through 7 above are incorporated herein by reference. 9. Plaintiff's injuries, as alleged herein, were a direct and proximate result of the negligence of The Golden M Company as set forth through paragraphs 11 through 13 below. 2 10. As a direct and proximate result of the negligence of The Golden M Company, as set forth through paragraphs 11 through 13 below, Defendant The Golden M Company is liable to Plaintiff for the injur/es alleged herein. 11. The Golden M Company prepared and served the cheeseburger involved in the aforesaid incident. 12. The Golden M Company prepared and served the cheeseburger involved in the aforesaid incident in such a fashion that it contained a hard object. 13. The Golden M Company failed to inspect the cheeseburger involved in the aforesaid incident to determine whether it was safe for human consumption. 14. Plaintiff was a foreseeable consumer of the cheeseburger. 15. As a direct and proximate result of the aforesaid injury, Plaintiff incurrod medical expenses. 16. As a direct and proximate result of the aforesaid injury, Plaintiffhas undergone great mental and physical pain and suffering, great inconvenience, and a loss of life's pleasures and enjoyment, and a claim is made therefore. WHEREFORE, Plaintiff demands judgment against Defendant in an amount less than $25,000 which is within the amount requiring compulsory arbitration. COUNT II Products Liability - 402(A) 17. Paragraphs I through 7 and Count I of this Complaint are incorporated herein by reference. 18. Defendant The Golden M Company is strictly liable to Plaintiff under the Restatement (Second) of Torts, § 402(A), by serving a defective product. 19. The Golden M Company cheeseburger involved in the aforesaid incident contained preparation defects as sd forth in paragraphs 11 through 13 of Count I, which are incorporated herein by reference. 20. The Golden M Company cheeseburger involved in the aforesaid incident was defective because it contained a hard object. 21. As a direct and proximate result of the defective nature of the cheeseburger as set forth above, Plaintiffsuffered serious injury including, but not limited to, the extraction ora tooth. 22. As a direct and proximate result of her injuries, Plaintiff has incurred medical expenses, and a claim is made therefore. 23. As a direct and proximate result of her injuries, Plaintiff has undergone great mental and physical pain and suffering, great inconvenience, and a loss of life's pleasures and enjoyment, and a claim is made therefore. 24. Defendant is strictly liable for damages caused by the defective product. WHEREFORE, Plaintiff demands judgment against Defendant in an amount less than $25,000 which is within the amount requiring compulsory arbitration. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO G orge Fa ler, Jr. /\ Attorney I.D. # 49813 t x Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiff Date: 0L~0.A.~ .x~, D 001 4 VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, ! have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if' I make knowinsly false averments, I may be subject to criminal penalties. ~FCEIVEL APR 1 6 MARY SHEARER, Plaintiffs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ¥$. NO. 2001 - 2586 - CIVIL THE GOLDEN M. COMPANY, t/d/b/a McDONALD'S RESTAURANT, Defendant. CIVIL ACTION-LAW PRAECIPE FOR APPEARANCE FILED ON BEHALF OF: DEFENDANT, THE GOLDEN M. COMPANY t/d/b/a McDONALD'S RESTAURANT COUNSEL OF RECORD FOR THIS PARTY: LINDA L. PRETZ, ESQUIRE A JURY TRIAL IS DEMANDED. PA ID $$30335 BASHLINE & HUTI'ON 1650 One PPG Place Pittsburgh, PA 15222 (412) 391-7008 Attorney's Firm ID #150 MARY SHEARER, Plaintiffs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THE GOLDEN M. COMPANY, t/d/b/a NO. 2001 - 2586 - CML McDONALD'S RESTAURANT, Defendant. CIVIL ACTION-LAW P~RAECIPE FOR APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Bashline & Hutton and Linda L. Pretz, Esquire as counsel for defendant, 77-/£ GOLZ)£N M. COMPAAI~, t/d/b/a Mc2~)ONALZ)~ RE~7'A U.~4dV~, in the above-captioned matter. Respectfully submitted, BASHLINE & HU2TON Id nda L. Pretz, E~ire Attorney for Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the within was forwarded to all counsel of rec°rd via U.S. Mail, postage prepaid on the ~day of ~y ,2001, as follows: George B. Failer, Jr., Esquire Ten East High Street Carlisle, PA 17013-3093 Lifida L. Pretz, Esquire' SHERIFF'S RETURN - REGULAR CASE NO: 2001-02586 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHEARER MARY VS GOLDEN M COMPANY THE ET AL RICHARD E. SMITH , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon GOLDEN M COMPANY THE ~MCDONALDS RESTALrRANT the DEFENDANT , at 1655:00 HOURS, on the 4th day of ~ay , 2001 at 905 WALNUT BOTTOM RO~_D CARLISLE, PA 17013 by handing to SUE HA~KERMANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing ~er attention to the contents thereof. Sheriff, s Costs: So A/%swers: Docketing 18.00 Surcharge 10.00 R. Thomas Kline .00 31.10 05/07/2001 --RTS ON D ~D O ~ W I~I ~S Sworn and Subscribed to before By: me this 23~ day of eriff Pgdthonot ary MARY SHEARER, IN THE COURT OF COMMON PLEAS Plaintiffs, OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 - 2586 - CIVIL THE GOLDEN M. COMPANY, t/d/b/a McDONALD'S RESTAURANT, Defendant. CIVIL ACTION-LAW AMENDED PRAECIPE FOR APPEARANCE FILED ON BEHALF OF: DEFENDANT, KENMAR ENTERPRISES, INC., t/d/b/a McDONALDS RESTAURANT, incorrectly designated as THE GOLDEN M. COMPANY t/d/b/a McDONALD'S RESTAURANT COUNSEL OF RECORD FOR THIS PARTY: LINDA L. PRETZ, ESQUIRE PA ID #30335 BASHLINE & HUTTON 1650 One PPG Place Pittsburgh, PA 15222 (412) 391-7005 Attorney's Firm ID #150 MARY SHEARER, Plaintiffs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. THE GOLDEN M. COMPANY, t/d/b/a NO. 2001 ~ 2586 - CIVIL McDONALD'S RESTAURANT, Defendant. CIVIL ACTION-LAW AMENDED PRAECIPE FOR APPEARANCv: TO THE PROTHONOTARY: Kindly enter the appearance of Bashline & Hutton and Linda L. Pretz, Esquire as counsel for defendant, Dofondant. KENMAR ENTERPRISES, INC. t/d/b/a McDONALDS RESTAURANT. incorrectly designated as THE GOLDEN M. COMPANY t/d/b/a McDONALD'S RESTA URAN~, in the above-captioned matter. Respectfully submitted, BASHLINE & HUTI'ON inda L. Pretz,~squire~ Attorney for Defendant CE--_~RTIFI~CATE OF SERVICE I hereby certifT that a cop), of the within was forwarded to all counsel of record via U.S. Mail, postage prepaid on the ~-~day off~/L~ 2001 ~ t/4~, , as follows: George B. Faller, Jr., Esquire Ten East High Street Carlisle, PA 17013-3093 Linda L. Pretz, ~ - MARY SHEARER, IN THE COURT OF COMMON PLEAS Plaintiffs, OF CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 2001 - 2586 - CIVIL THE GOLDEN M. COMPANY, t/d/b/a McDONALD'S RESTAURANT, Defendant. CIVIL ACTION-LAW ANSWER AND NEW MATTER To The Within: Plaintiff FILED ON BEHALF OF: You are hereby required to plead to the DEFENDANT, KENMAR ENTERPRISES, within New Matter within twenty days INC., t/d/b/a McDONALDS from the date of service thereof or default RESTAURANT, incorrectly designated as judgment may be entered against you. THE GOLDEN M. COMPANY t/d/b/a McDONALD'S RESTAURANT Linda L. Pretz, Esq. COUNSEL OF RECORD FOR THIS PARTY: LINDA L. PRETZ, ESQUIRE PA ID #30335 BASHLINE & HUTFON 1650 One PPG Place Pittsburgh, PA 15222 (412) 391-7005 Attorney's Firm ID #150 MARY SHEARER, IN THE COURT OF COMMON PLEAS Plaintiffs, OF CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 2001 - 2586 - CIVIL THE GOLDEN M. COMPANY, t/d/b/a McDONALD'S RESTAURANT, Defendant. CIVIL ACTION-LAW ANSWER AND NEW MA TI'ER AND now, comes the Defendant, KENMAR ENTERPRISES, INC., t/d/b/a McDONALD'S RESTAURANt, INC., incorrectly designated as THE GOLDEN M. COMPANY t/d/b/a McDONALD'S RESTAURANT, by and through its attorneys, Bashline & Hutton and Linda L. Pretz, Esquire, and sets forth the following Answer and New Matter to Plaintiffs Complaint: 1. The averments set forth in Plaintiff's Complaint insofar as it is necessary to make an Answer thereto are generally and specifically denied. It is specifically denied that the Golden M. Company was a franchisee of McDonald's and operated the subject business at 905 Walnut Bottom Road, C~rlisle, Cumberland County, Pennsylvania at the time of the subject accident. To the contrary, the correct owner and entity is Kenmar Enterprises, Inc., (hereinafter "McDonald's"). It is further denied that Murray Levine is the franchise owner, to the contrary, Kenneth Levine is the franchise owner of Kenmar Enterprises, Inc. Further, McDonald's specifically denies that any food product produced, sold, distributed and/or supplied by it was in a defective condition or unsafe for consumption. It is specifically denied that McDonald's, its agents, employees and/or servants were negligent in any respect and denied that any acts or omissions of it, its agents, employees and/or servants were the proximate cause of any injuries or damages complained of by the Plaintiff herein. WHEREFORE, McDonald's demands that judgment be entered in its favor with cost in its behalf sustained. NEW MA TI'ER 2. Plaintiff has failed to state a cause of action against McDonald's upon which relief can be granted. 3. The Plaintiff's injuries and damages were the direct and proximate result of the carelessness, recklessness and negligence of the Plaintiff, and any award or verdict is barred or must be reduced proportionately by reason of the Pennsylvania Comparative Negligence Act. 4. The subject cheeseburger was changed, altered and/or m°dified bY °thers who are solely responsible for the Plain. tiff's injuries and damages. 5. If I is established that the subject cheeseburger was defective or unfit for consumption or that McDonald's was negligent, all of which have been specifically denied, it is averred that the superseding, intervening conduct of other persons or entities, for whom McDonald's is not liable, intervened between the alleged acts or omissions of McDonald's and the incident of which complaint is made. -2- WHEREFORE, McDonald's demands that judgment be entered in its favor with cost in its behalf sustained. Respectfully submitted, BASHLINE & HU'FFON By: ~(_~ retz Es~u~e Linda L. P , Attorney for Def~dant -3- _VERIFICATION I, KENNETH LEVINE,~°f KENMAR ENTERPRISES, INC., t/d/b/a McDONALD'S RESTAURANT, have read the ANSWER AND NEW MATTER. The statements contained therein are true and correct to the best of my personal knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn fabrication to authorities, which provides that if I make know'ingly false averments, I may be subject to criminal penalti? / -5- CERTIFICATE OF SERVICE I hereby certify that a copy of the within was forwarded to all counsel of record via U.S. Mail, postage prepaid on the j_~day of~-, .2001, as follows: George B. Failer, Jr., Esquire Ten East High Street Carlisle, PA 17013-3093 Linda L. Pretz, Esquif~~''~ -4- MARY SHEARER, IN THE COURT OF COMMON PLEAS Plaintiffs, OF CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 2001 - 2586 - CIVIL THE GOLDEN M. COMPANY, t/d/b/a McDONALD'S RESTAURANT, Defendant. CIVIL ACTION-LAW NOTICE OF DEPOSITION OF PLAINTIFF FILED ON BEHALF OF: DEFENDANT, KENMAR ENTERPRISES, INC., t/d/b/a McDONALDS RESTAURANT, incorrectly designated as THE GOLDEN M. COMPANY t/d/b/a McDONALD'S RESTAURANT COUNSEL OF RECORD FOR THIS PARTY: LINDA L. PRETZ, ESQUIRE PA ID #30335 BASHLINE & HUTTON 1650 One PPG Place Pittsburgh, PA 15222 (412) 391-7005 Attorney's Firm ID #150 NOTICE OF DEPOSITION TO: George B. Failer, Jr., Esquire Ten East High Street Carlisle, PA 17013-3093 TAKE NOTICE that the deposition of MARY SHEARER, will be taken for the purpose of discovery pursuant to Rule 4007 et seq. of the Pennsylvania Rules of Civil Procedure, as amended, before a Notary Public duly authorized by law to administer oath, on JULY 20, 2001 at 1:00 o'clock P.M. at the offices of George B. Failer, Jr., Esquire, Ten East High Street, Carlisle, PA 17013-3093, at which time and place you are invited to appear and take part as shall be fitting and proper. BASHLINE & HU1TON By: Linda L. Pretz, Esqmre Attorney for Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the within was forwarded to all counsel of record via U.S. Mail, postage prepaid on the b~r~tday of ~Xc~--'' follows: George B. Failer, Jr., Esquire Ten East High Street Carlisle, PA 17013-3093 Linda L. Pretz, Esqfife IN THE COURT OF COMMON PLEAS MARY SHEARER, OF CUMBERLAND COUNTY, Plaintiffs, PENNSYLVANIA vs. NO. 2001 - 2586 - CIVIL THE GOLDEN M. COMPANY, t/d/b/a McDONALD'S RESTAURANT, Defendant. CIVIL ACTION-LAW NOTICE OF DEPOSITION OF RAYMOND SHEARER FILED ON BEHALF OF: DEFENDANT, KENMAR ENTERPRISES, INC., t/d/b/a McDONALDS RESTAURANT, incorrectly designated as THE GOLDEN M. COMPANY t/d/b/a McDONALD'S RESTAURANT COUNSEL OF RECORD FOR THIS PARTY: LINDA L. PRETZ, ESQUIRE PA ID #30335 BASHLINE & HUTI'ON 1650 One PPG Place Pittsburgh, PA 15222 (412) 391-7005 Attorney's Firm ID #150 NOTICE OF DEPOSITION TO: George B. Failer, Jr., Esquire Ten East High Street Carlisle, PA 17013-3093 TAKE NOTICE that the deposition of RAYMOND SHEARER, will be taken for the purpose of discovery pursuant to Rule 4007 et seq. of the Pennsylvania Rules of Civil Procedure, as amended, before a Notary Public duly authorized by law to administer oath, on JULY 20, 2001 at 2:00 o'clock P.M. at the offices of George B. Failer, Jr., Esquire, Ten East High Street, Carlisle, PA 17013-3093, at which time and place you are invited to appear and take part as shall be fitting and proper. BASHLINE & HUTFON Linda L. Pretz, ~squire Attorney for Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the w~t))in was forwarded to all counsel of prepaid on the ~ ~day of ,2001, as follows. record via U.S. Mail, postage ' ~ · George B. Faller, Jr., Esquire Ten East High Street Carlisle, PA 17013-3093 MARY SHEARER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : V. : NO. 2001-2586 : THE GOLDEN M COMPANY, t/d/b/a : McDONALD'S RESTAURANT : Defendant : CIVIL ACTION - LAW PLAINTIFF'S RESPONSE TO DEFENDANT,S NEW MATTEl: 2-5. Denied pursuant to Pa. R.C.P. 1029(e). MARTSON DEARDORFF WILLIAMS & OTTO George B. ~F_alLer,,J~r., Esqt~i~- I.D. Number 49813 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiff Date: June 18, 2001 MARY SHEARER, Plaintiffs, IN THE C (~. OF CL ............. AS PENNSYLVANIA VS. THE GOLDEN M. COMPANY, t/d/b/a NO. 2001 - 2586 - CIVIL McDONA LD'S RESTAURANT, Defendant. CIVIL ACTION-LAW ORDER OF COURT AND NOW, to wit, this -~-~-~ay of __~, 2001, upon consideration of the Stipulation to Amend Caption of the above-captioned matter, it is hereby ORDERED, ADJUDGED and DECREED that the caption of this matter shall be changed to reflect the caption as follows: Mary Shearer, Plain&T£ v. Ko--ar £nterlarises, Inc., t/d/b/a McDonald's Restaurant, Defendant. OURT:) 'y MARY SHEARER, IN THE COURT OF COMMON PLEAS Plaintiffs, OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 - 2586 - CIVIL THE GOLDEN M. COMPANY, t/d/b/a McDONALD'S RESTAURANT, Defendant. CIVIL ACTION-LAW STIPULATION OF COUNSEL TO AMEND CAPTION FILED ON BEHALF OF: DEFENDANT, KENMAR ENTERPRISES, INC., t/d/b/a McDONALDS RESTAURANT, incorrectly designated as THE GOLDEN M. COMPANY t/d/b/a McDONALD'S RESTAURANT COUNSEL OF RECORD FOR THIS PARTY: LINDA L. PRETZ, ESQUIRE PA ID #30335 BASHLINE & HU2TON 1650 One PPG Place Pittsburgh, PA 15222 (412) 391-7005 Attorney's Firm ID #150 STIPULATION OF COUNSEL TO AMEND CAPTION AND NOW, come the parties to this action by and through their attorneys, George B. Failer, Ir., Esquire, attorney for Plaintiff, and Linda L. Pretz, Esquire, attorney for Defendant, and stipulate to amend the caption of the above-captioned matter as follows: .~lary ~. earer, Plain t?££ v. Kenmar Enterprises, lnc, t/d/b/a McDonald's Restaurant, Defendant Attorney for Defendant MARY SHEARER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. 2001-2586 : THE GOLDEN M COMPANY, t/d/b/a : McDONALD'S RESTAURANT : Defendant : CIVIL ACTION - LAW PRAECIPE TO SETTLE AND DISCONTINU e; TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please mark the above captioned case settled and discontinued and issue a certificate reflecting same. Respectfully submitted, MARTSON DE,~a)O~ WILL~,~S & OTTO ... .~ ~&e B. Failer, Jr., Esqui~ Attorney I.D. g 49813 Ten East High Street C~lisle, PA 17013-3093 (717) 243-3341 Aaomeys for Plaintiff M~ Shea~r Date: S~temb~ 28, 2001 _CERTIFICATE OF SER¥1CE I, Melinda A. Hall, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe to Settle and Discontinue was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Linda L. Pretz, Esquire BASHLINE & HUTTON Suite 1650 One PPG Place Pittsburgh, PA 15222 MARTSON DEARDORFF WILLIAMS & OTTO ~lelind'a A. Hall ' Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: September 28, 2001