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Home My WebLink About11-3021IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Plaintiffs & Addresses KeAno S. Paige, a minor, by his parents and natural guardians Michele L. Collins and George E. Paige, Jr and KeAno S. Paige in his own right, and Michele L. Collins and George E. Paige, Jr., her husband 34 Capital Hill Rd. Dillsburg, PA 17019 vs. Defendants & Addresses The Kroger Co., t/a Turkey Hill Minit Markets 438 S. 3rd Street Lemoyne, PA 17043 :W7 ? F Case No. 1 1-3021 CIVIL M CU Z" (71 #..r, Civil Action Z "tC) ? ? }± i'' n a -i CD G - Q0 V C) T-1 " 7- 4 § 3 ;r PRAECIPE TO REINSTATE SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please reinstate the Summons filed in this matter. x Writ of Summons shall be issued and forwarded to ? Attorney Name/Address/Telephone No. of Attorney Thomas P. Gannon, Esq. 552 Kelly Avenue Woodlyn, PA 19094 610-532-8445 Date by ® Sheriff nature of Attorney ' Supreme Court ID No. 24591 Date: 0811112011 Prothonotary Deputy ar"'+%10'Cb pa awl cat Iss9 90 Alaa7 No. 11-3021 HARTMAN UNDERHILL & BRUBAKER LLP oriplin By. Mark E. Lovett, Esquire ? Attorney ID No. 41071 Attorneys for Defendant: 221 East Chestnut Street The Kroger Company t/a ' Lancaster, PA 17602 Turkey Hill Minit Markets 717) 299-7254(phone)/(717) 299-3160 (fax) MICHELE L. COLLINS, et al., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY., PENNSYLVANIA C c?:a -- V. ma) =M CIVIL ACTION - LAW THE KROGER COMPANY t/a r TURKEY HILL MINIT MARTS, Docket No. 11-3021 :;>C-, z ; Defendant ° - off= JURY TRIAL DEMANDED c.Y =' ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendant, The Kroger Company t/a Turkey Hill Minit Marts, in the above-captioned matter. DATE: August 19, 2011 HARTMAN UNDERHILL & BRUBAKER LLP By: Mark E. Lovett, Esquire Attorney ID No. 41071 Attorneys for Defendant, The Kroger Company t/a Turkey Hill Minit Markets {00630157.1 } CERTIFICATE OF SERVICE No. 11-3021 I HEREBY CERTIFY that I am this day serving the foregoing document upon the person and in the manner indicated below. Service by First Class Mail, addressed as follows: Thomas P. Gannon, Esquire 552 Kelly Avenue Woodlyn, PA 19094 HARTMAN UNDERHILL & BRUBAKER LLP DATE: August 19, 2011 By: Mark E. Lovett, s e Attorney ID No. 41071 Attorneys for Defendant The Kroger Company t/a Turkey Hill Minit Markets 2 {00630157.1} SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff FILED-OFFICE Jody S Smith ?+'?"`" ° `?,nrxfi?a ()F THE PROTHONOTARY Chief Deputy 2011 AUG 22 AN 814 0 , Richard W Stewart Solicitor OFF cF?)Frf-G ZRIFF CUMBERLAND COUNTY PENNSYLVANIA KeAno S. Paige vs. Case Number The Kroger Co. 2011-3021 SHERIFF'S RETURN OF SERVICE 08/18/2011 12:45 PM - Stephen Bender, Deputy Sheriff, who being duly sworn according to law, states that on August 18, 2011 at 1245 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: The Kroger Co., t/a Turkey Hill Minit Markets, by making known unto Pat Detweiler, Manager of The Kroger Co. at 438 S. 3rd Street, Lemoyne, Cumberland County, Pennsylvania 17043 its contents and at the same time handing to her personally the said true and co rect copy of the same. 'e"z STEPHEN BENDER, DEPUTY SHERIFF COST: $44.44 August 18, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF (c) GountySuite Sheriff, Te'eosofi In-, C-) THOMAS P. GANNON, ESQ. 552 Kelly Avenue xrn c Woodlyn, PA 19094 ?,-- N 610-532-8445 - tz 4 ID #24591 ?v Attorney for Plaintiffs xo o COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHELE L. COLLINS, ET AL. Plaintiff, vs. Docket No: 11-3021 THE KROGER COMPANY T/A TURKEY HILL MINIT MARTS, Defendant ENTRY OF APPEARANCE ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Plaintiffs, Michele Collins, et al., in the above captioned matter. DATE: August 26, 2011 `UVr M ? vl TI OMAS G NON, 552 Kelly Avenue Woodlyn, PA 19094 I 1 COURT OF COMMON PLEAS, DELAWARE, PENNSYLVANIA r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michele L. Collins, et al., No. 11-3021-Civil Plaintiffs, vs. The Kroger Co. t/a Turkey Hill Minit Marts, Civil Action - Law Defendant. CERTIFICATION OF SERVICE I certify that, on August 26, 2011, I served a true and correct copy of the ENTRY OF APPEARANCE United States First Class Mail, postage pre-paid, addressed as follows: Mark E. Lovett, Esq 221 East Chestnut Street Lancaster, PA 17602 Thomas P. Gannon Attorney For Plaintiff SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff FILED-OFFICE ?4,,,,t? of ey?????,r,,?¢ OF THE PROTHO" OTAR`' Jody S Smith Chief Deputy 201 I SEP -1 AM 9: 40 Richard W Stewart Solicitor OPT ,- - R,FF CUMBERLAND COUNTY PENNSYLVANIA Amended KeAno S. Paige Case Number vs. The Kroger Co. 2011-3021 SHERIFF'S RETURN OF SERVICE 08/18/2011 12:45 PM - Stephen Bender, Deputy Sheriff, who being duly sworn according to law, states that on August 18, 2011 at 1245 hours, he served a true copy of the within Writ of Summons, Plaintiffs Interrogatories and Plaintiffs' Requests for Admissions Notice upon the within named defendant, to wit: The Kroger Co., t/a Turkey Hill Minit Markets, by making known unto Pat Detweiler, Manager of The Kroger Co. at 438 S. 3rd Street, Lemoyne, Cumberland County, Pennsylvania 17043 its contents and at the same time handing to her personally the said true and correct copy of the same. " ?_4z A C K STEPHEN BENDER, DEPUTY SHERIFF COST: $44.44 August 18, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF o i Cun?y?uitF Sherl Teir.,c .:it u,., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVAN KEANO S. PAIGE, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS MICHELE L. COLLINS AND GEORGE E. PAIGE, JR. AND KEANO S. PAIGE IN HIS OWN RIGHT AND MICHELE L. COLLINS AND GEORGE E. PAIGE, JR., HER HUSBAND 879 PIKETOWN ROAD HARRISBURG, PA Plaintiffs, vs. THE KROGER CO., t/a TURKEY HILL MINIT MARKETS 438S.3 RD STREET LEMOYNE, PA 17043 Defendant CIVIL DIVISION NO. 11-3021-CIVIL f I CZ, Cr7 < L X " c PLAINTIFFS' COMPLAINT AGAFNSI DEFENDANT FOR PERSONAL INJURY AND DAMGES CAUSED BY MINOR PLAINTIFF BURSTING INTO FLAMES WHILE USING DEFENDANT'S GASOLINE DISPENSING PUMP LOCATED AT THE TURKEY HILL MINIT MARKET IN LAMOYNE, PENNSYLVANIA (JURY TRIAL DEMANDED) Filed on Behalf of the Plaintiffs. KeAno S. Paige, Michele L. Collins and George E. Paige, Jr. Counsel of Record for Plaintiffs: Thomas P. Gannon, Esq. Pa. I.D. #24591 Thomas P. Gannon, Esq. P.C. 552 kelly Avenue Woodlyn, PA 19094 610-532-8445 era THOMAS P. GANNON, ESQ. 552 Kelly Avenue Woodlyn, PA 19094 610-532-8445 ID #24591 Attorney for Plaintiffs COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLAVNIA KEANO S. PAIGE, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS MICHELE L. COLLINS AND GEORGE E. Docket No: 11-3021-CIVIL PAIGE, JR. AND KEANO S. PAIGE IN HIS OWN RIGHT AND MICHELE L. COLLINS AND GEORGE E. PAIGE, JR., HER HUSBAND 879 PIKETOWN ROAD HARRISBURG, PA Plaintiffs, vs. COMPLAINT THE KROGER CO., t/a TURKEY HILL MINIT MARKETS 438S.3 RD STREET LEMOYNE, PA 17043 Defendant PLAINTIFFS' COMPLAINT AGAINST DEFENDANT FOR PERSONAL INJURY AND DAMGES CAUSED BY PLAINTIFF BURSTING INTO FLAMES WHILE USING DEFENDANT'S GASOLINE DISPENSING PUMP LOCATED AT THE TURKEY HILL MINIT MARKET IN LAMOYNE, PENNSYLVANIA 2 NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIC OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 34 S. Bedford Street Carlisle, Pennsylvania Telephone number 717-249-3166 3 COMPLAINT 1. Plaintiff KeAno S. Paige a minor resides with Michele L. Collins and George E. Paige, Jr. at 34 Capitol Hill Rd., Dillsburg, PA 17019. 2. Plaintiffs, Michele L. Collins and George E. Paige, Jr. reside at reside at 34 Capitol Hill Rd., Dillsburg, PA 17019. 3. Defendant The Kroger Co. t/a Turkey Hill Minit Markets is located at 438 S. 3rd Street, Lemoyne, PA 17043 4. On January 30, 2010 the defendant occupied 438 S. 3rd Street, Lemoyne, PA 17043 where it sold gasoline by way of retail gasoline pump dispensers. 5. On January 30, 2010 plaintiff Michele Collins and KeAno Paige were business invitees on the premises of defendant's Turkey Hill Minit Market. 6. On January 30, 2010 plaintiff KeAno S. Paige suddenly burst into flames while filling gasoline into a motor vehicle from the defendant's retail gasoline dispenser located on the premises occupied by defendant. 7. On January 30, 2010 defendant did not have an attendant on duty whose only and specific duty was to supervise, observe and control the dispensing of gasoline from its retail gasoline dispensing unit. 8. On January 30, 2010 defendant did not have an employee on duty whose specific duty concerned turning on and off the pump providing pressure for the gasoline dispensing unit. 9. On January 30, 2010 the defendant did not have an alert beeper or other device to notify the attendant that the plaintiff, KeAno Paige took the pump nozzle handle off the dispenser and flipped the lever on the pump handle. 4 10. On January 30, 2011 the defendant did not require an attendant to press a on a store console to start the gasoline dispenser pump. 11. On January 30, 2010 the defendant's attendant could turn the gasoline pump off at any time to stop the flow of gasoline. 12. On January 30, 2010 the defendant knew or should have known that gasoline vapors emitted while operating a retail gasoline dispensing can be ignited by static electricity. 13. On January 30, 2010 the defendant knew or should have known that static electricity would cause a customer to burst into flames while filling a vehicle with gasoline from the dispensing pump. 14. Defendant did not warn the plaintiffs of the risk of static electricity which could ignite the gasoline vapors at its retail gasoline dispensing pump. 15. Defendant did not give plaintiffs any specific warning or notice concerning the danger from static electricity involved in the operation of the gasoline dispensing pump. 16. Defendant did not notify plaintiffs of the measures to be taken to prevent or suppress static electricity from igniting gasoline fumes at its dispensing pump. 17. Defendant did not have any measures in place to prevent or suppress the occurrence of static electricity at its gasoline dispensing pump. 18. Defendant did not have any safety measures in place to protect plaintiff from the dangers of static electricity. 19. At all times herein the retail gasoline dispensing pump was under the control of the defendant. 5 20. Defendant had a duty to guard plaintiff KeAno Paige against the dangers and risks of fire from static electricity while operating its retail gasoline dispensing pump. 21. As a result of being engulfed in fire and flames KeAno Paige suffered burns to his body. 22. KeAno Paige required medical treatment for his burns at Holy Spirit Hospital. 23. As a result from being engulfed in fire and flames plaintiff KeAno Paige suffers nightmares, insomnia, post traumatic stress disorder and anxiety. 24. As a result from being engulfed in fire plaintiff KeAno Paige requires psychotherapy and medication to treat his nightmares, insomnia, post traumatic stress disorder and anxiety. 25. The accident and injuries suffered by the plaintiff were directly and proximately caused by the defendant; a. Operating its retail gasoline dispensing pump in a careless and negligent manner; b. Operating the gasoline dispensing pump in violation of the statutes of the Commonwealth of Pennsylvania, and the ordinances of Cumberland County and Lemoyne Borough pertaining to the operation of defendant's retail gasoline dispenser. c. Failing to the have the retail gasoline dispensing pump under proper control so as to prevent it causing plaintiff to burst into flames; d. Failing to warn the plaintiff of the dangers of static electricity; e. Failing to take safety measures to prevent static electricity from igniting gasoline vapors at its dispensing pump; 6 f. Failing to notify plaintiff of the measures to be taken to prevent static electricity from igniting gasoline vapors at its dispensing pump. g. Failing to use due care under the circumstances; h. Failing to take measures to prevent or suppress the occurrence of static electricity at its retail gasoline dispensing pump. i. Such other act or omissions as may be revealed in the course of discovery or at the trial of this case consistent with the causes of action set forth in this complaint. 26. All of the above were caused by the lack of due care and negligence of the defendant. 27. All of the above were caused by the defendant's failure to provide the proper standard of care to a business invitee on its premises. 28. At all times material hereto, plaintiff acted with due care and was not contributory negligent. COUNTI KeAno S. Paige v. The Kroger Co., t/a Turkey Hill Minit Markets 29. Plaintiff KeAno S. Paige incorporates by reference all of the preceding paragraphs in this Complaint as if each and every one were individually set forth in full. 30. As a direct and proximate result of defendant's breach of duty owed and negligent conduct, plaintiff was engulfed in flames and suffered: a. Burns about his body; b. nightmares; c. insomnia; d. post traumatic stress disorder; e. anxiety and depression; f. Mental anguish; g. Confusion; h. Emotional damage, distress and depression, i. Severe shock to his nerves and nervous system. 31.As a direct and proximate result of the defendant's conduct, plaintiff incurred, and in the future will incur, expenses for psychological and psychiatric treatment, and physical medical treatment and services in an amount not yet ascertained. 32. Plaintiff, KeAno Paige sustained injury and damages by reason of which he was rendered sick, sore, lame, prostrate, and disordered, and was made to undergo great mental anguish, emotional injuries and physical pain from which he still suffers and will continue to suffer for an indefinite time in the future. 33. As a result the defendant's negligence, plaintiff KeAno Paige has suffered an interruption of his daily habits, activities of daily living and pursuits, to his great and detriment and loss. 34. As a result of defendant's negligence plaintiff KeAno Paige suffers and will continue to suffer pain and suffering, humiliation and embarrassment, loss of life's pleasures, and other consequential damages. 35. In order to affect a cure of the aforesaid injuries, plaintiff has been compelled to expend various large sums of money for medicine and medical treatment, and will required to expend additional large sums of money for the same purpose in the future. s 36. Defendant is liable for plaintiffs injuries and damages described herein, inasmuch as plaintiff's injuries and loss are the direct and proximate result of defendant's negligence and carelessness as set forth. 37. Plaintiff has made demand for adequate compensation for her aforesaid injuries and losses, which defendants have failed and refused and still refuse to pay. WHEREFORE Plaintiff demands judgment against the defendant in an amount in excess of $50,000, exclusive of interest and costs. COUNT II MICHELE COLLINS V. THE KROGER CO., T/A TURKEY HILL MINIT MARKETS 38. Plaintiffs incorporate by reference all of the preceding paragraphs in this Complaint as if each and every one were individually set forth in full. 39. Plaintiff Michele Collins is the mother of the minor plaintiff KeAno Paige. 40. Plaintiff Michele Collins was inside the Turkey Hill Minit Market and observed the fire engulfing her son through the widows of the store. 41. Plaintiff Michele Collins ran out of the store to come to the aid of her son and in an attempt to put out the fire and flames that were engulfing her son and to save his life plaintiff Michele Collins suffered injury to her arms and body which required medical treatment at Holy Spirit Hospital. 42. Plaintiff Michele Collins suffered emotional distress and shock at the sight of her son engulfed in fire and flames while at the defendant's gasoline dispensing pump. 43. In order to affect a cure of her injuries plaintiff has been compelled to expend vario large sums of money for medicine and medical treatment and may be required to expend additional large sums of money for the same purpose in the future. 44. Plaintiff Michele Collins has made demand for adequate compensation for her aforesaid injuries and losses, which defendants have failed and refused and still refuses to pay. WHEREFORE Plaintiff demands judgment against the defendant in an amount in excess of $50,000, exclusive of interest and costs. COUNT III MICHELE L. COLLINS AND GEORGE E. PAIGE, JR. v. KROGER CO., T/A TURKEY HILL MINIT MARKETS 43. Plaintiffs incorporate by reference all of the preceding paragraphs in this Complaint as if each and every one were individually set forth in full. 44. As the direct and proximate result of the injuries sustained by defendant, plaintiff: Michele Collins and George Paige, Jr. have been and/or may be compelled to expend various sums of money for psychological and medical treatment and services, medical aid, medicines, medical services and the like for plaintiff KeAno Paige. 45. As a direct and proximate result of the injuries therein sustained by KeAno Paige, Michele Collins and George Paige have been deprived and/or continue to be deprived of his services, support and assistance. 46. Plaintiffs have made demand for adequate compensation for their aforesaid injuries and losses, which defendant has failed and refused and still refuses to pay. WHEREFORE plaintiffs demand judgment against defendant, in an amount in excess $50,000.00, exclusive of interest and costs. COUNT IV GEORGE E. PAIGE, JR. V. KROGER CO., T/A TURKEY HILL MINIT MARKETS 10 47. Plaintiffs incorporate by reference all of the preceding paragraphs in this Complaint as if each and every one were individually set forth in full. 48.As a result of defendant's negligence plaintiff George Paige, Jr. has been deprived of the society, companionship, contributions, services and consortium his wife plaintiff to his great detriment and loss. 49.As a result of the defendant's negligence plaintiff has incurred and will in the future incur medical bills and expenses to treat his wife's injuries. 50.As a result of defendant's negligence plaintiff has suffered a disruption in his dai habits and pursuits and the loss of enjoyment of life. WHEREFORE plaintiff demands judgment against defendant in an amount in of $50,000 exclusive of interest and costs. .?V .r ?ti1 K 'THOMAS P. GA NON, SQ. 552 Kelly Avenue Woodlyn, PA 19094 11 VERIFICATION I hereby certify that I am counsel for plaintiff, Plaintiff is not presently available to take this Verification or which lacks sufficient knowledge or information to verify the statements in the foregoing pleading in that the statements contained in that pleading are predicated upon the results of investigations that I have personally undertaken or commissioned and that have not been communicated to the client or involve legal interpretation. Under the provisions of Pa. R.C.P. 1024(c), I hereby verify that the statements made in the foregoing pleading and any attachment thereto are true and correct to the best of my information and belief I understand that false statements therein are made subject to the penalties of 18 Pa. C.S. Section 4904 relative to unsworn falsifications to authorities. T omas P. Gannon, sq. 12 COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLAVNIA KEANO S. PAIGE, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS : MICHELE L. COLLINS AND GEORGE E. Docket No: 11-3021-CIVIL PAIGE, JR. AND KEANO S. PAIGE IN HIS OWN RIGHT AND MICHELE L. COMPLAINT COLLINS AND GEORGE E. PAIGE, JR., HER HUSBAND 879 PIKETOWN ROAD HARRISBURG, PA Plaintiffs, vs. THE KROGER CO., t/a TURKEY HILL MINIT MARKETS 438S.3 RD STREET LEMOYNE, PA 17043 Defendant CERTIFICATION OF SERVICE I certify that, on September 12, 2011, 1 served a true and correct copy of plaintiffs' COMPLAINT by United States First Class Mail, postage pre-paid, addressed as follows: Mark E. Lovett, Esq 221 East Chestnut Street Lancaster, PA 17602 Thomas P. Gannon Attorney For Plaintiff 13 C' iI r 1' "l, THOMAS P. GANNON, ESQ. 552 Kelly Avenue Woodlyn, PA 19094 610-532-8445 ID #24591 Attorney for Plaintiff 1L 107 27 AM 11: PEN111iIY Vif % IN THE COURT OF COMMON PLEAS OF CUMBERLAND, PENNSYLVANIA Michele L. Collins, et al Plaintiff, Docket No: 11-3021 vs. The Kroger Company t/a Turkey Hill Minit Marts, Defendant PRELIMINARY OBJECTIONS Filed on Behalf of Plaintiff, Michele L. Collins Counsel of Record for This Party: Thomas P. Gannon, Esquire Pa. I.D.# 24591 552 Kelly Avenue Woodlyn, PA 19094 610-532-8445 TomGannon@tg4law. co m THOMAS P. GANNON, ESQ. 552 Kelly Avenue Woodlyn, PA 19094 610-532-8445 ID #24591 Attorney for Plaintiff COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLAVNIA Michele L. Collins Plaintiff, vs. The Kroger Co. t/a Turkey Hill Minit Marts, Defendant Docket No: 11-3021-Civil MOTION A JUDGE HAS NOT RULED UPON ANY OTHER ISSUE IN THIS MATTER PRELIMINARY OBJECTION OF PLAINTIFF TO DEFENDANT'S ANSWER AND NEW MATTER MOTION TO STRIKE 1. The plaintiff is Michele L. Collins. 2. The defendant is the Kroger Company t/a Turkey Hill Minit Marts. 3. On August 31, 2011 defendant served upon plaintiff a Rule to file a Complaint against the defendant within 20 days of service. 4. On September 12, 2011 the plaintiff served her complaint against the defendant on defendant's attorney. 5. Plaintiffs complaint contained a Certification of Service under date of September 12, 2011. 6. Plaintiffs complaint contained the required notice to plead within 20 days of service. 7. Answer to the complaint was due October 3, 2011. 8. On October 6, 2011 defendant served its Answer and New Matter on plaintiff s attorney. 9. Defendant filed the Answer to the complaint and New Matter on October 7, 2011. 10. Pennsylvania Rule of Civil Procedure No. 1026 requires every pleading subsequent to the complaint to be filed within twenty days after service of the preceding pleading. 11. The last day for filing the Answer and New Matter was October 3, 2011. 12. Defendant's Answer and New Matter are late. 13. The defendant did not request permission for its late filing. 14. The defendant has offered no reason for its late filing. Therefore, it is deemed unreasonable. WHEREFORE, plaintiff Michele Collins respectfully requests this court to strike the defendant's Answer and New Matter. Respectfully TIfOMAS P. GANNON, ESQ. Attorney for Plaintiffs THOMAS P. GANNON, ESQ. 552 Kelly Avenue Woodlyn, PA 19094 610-532-8445 ID #24591 Attorney for Plaintiffs COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLAVNIA Michele L. Collins, No. 11-3021-Civil Plaintiffs, VS. Civil Action - Law The Kroger Co. t/a Turkey Hill Minit Marts, Defendant. MEMORANDUM IN SUPPORT OF PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S ANSWER TO PLAINTIFFS COMPLAINT WITH NEW MATTER. Plaintiff served his complaint on September 12, 2011. Therefore, pursuant to the Pennsylvania Rules of Civil Procedure the answer to the complaint and New Matter should have been filed within 20 days of September 12, 2011 or by October 3, 2011. Defendant filed its Answer and New Matter on October 7, 2011. Defendant's Answer and New Matter was filed late. Francisco V. Ford Motor Company et al. 397 Pa. Super 430, 434; 580 A.2d 374 (1990). Because there is no agreement of the parties or application to the court for a late filing, defendant's answer to the complaint and New Matter Should Be Dismissed. y-pl<7 - vvv THOMAS P. G ON, ESQ. Attorney for Plaintiff COURT OF COMMON PLEAS, CUMBERLAND, PENNSYLVANIA Michele L. Collins, No. 11-3021-Civil Plaintiffs, vs. I Civil Action - Law The Kroger Co. t/a Turkey Hill Minit Marts, Defendant. CERTIFICATION OF SERVICE I certify that, on October 24, 2011, 1 served a true and correct copy of the PLAINTIFF'S PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO DISMISS To Defendant United States First Class Mail, postage pre-paid, addressed as follows: Mark E. Lovett, Esquire 221 East Chestnut Street Lancaster, PA 17602 Thomas A Gannon Attorney For Plaintiff No. 11-3021 KEANO S. PAIGE, A Minor, By His IN THE COURT OF COMMON PLEAS OF Parents and Natural Guardians, CUMBERLAND COUNTY, MICHELE L. COLLINS and PENNSYLVANIA GEORGE E. PAIGE, JR., and KEANO S. PAIGE, In His Own Right CIVIL ACTION - LAW and MICHELLE L. COLLINS and GEORGE E. PAIGE, Her Husband, Docket No. 11-3021 Plaintiffs V. THE KROGER COMPANY t/a TURKEY HILL MINIT MARTS, Defendant JURY TRIAL DEMANDED -0 ? rrl c-, ORDER AND NOW, this day ofd, 201:? upon consideration of the N C- C) Stipulation of Counsel, it is hereby ORDERED that the Stipulation is entered as an Order of Court. BY THE COURT: C) ?L. Judge {00637537.1} 4 "° (?R'IGINAL HARTMAN UNDERHILL & BRUBAKER LLP By: Mark E. Lovett, Esquire Attorney ID No. 41071 221 East Chestnut Street Lancaster, PA 17602 717) 299-7254(phone)/(717) 299-3160 (fax) KEANO S. PAIGE, A Minor, By His Parents and Natural Guardians, MICHELLE L. COLLINS and GEORGE E. PAIGE, JR., and KEANO S. PAIGE, In His Own Right and MICHELLE L. COLLINS and GEORGE E. PAIGE, Her Husband, Plaintiffs V. TURKEY HILL, L.P., t/a Turkey Hill Minit Markets, Defendant Attorneys for Defendant: Turkey Hill, L.P., t/a Turkey Hill Minit Markets IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Docket No. 11-3021 JURY TRIAL DEMANDED Z= r 77 try rte- ? ? ?" f s'. co c ('Z) NOTICE TO PLEAD TO: Plaintiffs, KeAno S. Paige, Michele L. Collins and George E. Paige, Jr. c/o Thomas P. Gannon, Esquire 552 Kelly Avenue Woodlyn, PA 19094 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. Date: 14 ?-? 20 ?2 HARTMAN UNDERHILL BRUBAKER LLP By: Mark E. Lovett, Esquire - Attorney I.D. No. 41071 Attorneys for the Defendant {00646946.1} No. 11-3021 HARTMAN UNDERHILL & BRUBAKER LLP By: Mark E. Lovett, Esquire Attorney ID No. 41071 221 East Chestnut Street Lancaster, PA 17602 717) 299-7254(phone)/(717) 299-3160 (fax) KEANO S. PAIGE, A Minor, By His Parents and Natural Guardians, MICHELLE L. COLLINS and GEORGE E. PAIGE, JR., and KEANO S. PAIGE, In His Own Right and MICHELLE L. COLLINS and GEORGE E. PAIGE, Her Husband, Plaintiffs V. TURKEY HILL, L.P., t/a TURKEY HILL MINIT MARKETS, Defendant Attorneys for Defendant: Turkey Hill, L.P., t/a Turkey Hill Minit Markets IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Docket No. 11-3021 JURY TRIAL DEMANDED DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFFS' AMENDED COMPLAINT 1-2. Denied. After reasonable investigation, the Defendant is without information or knowledge sufficient to form a belief as to the truth of the averments. 3. Denied. It is admitted that Turkey Hill, L.P., trades as Turkey Hill Minit Markets at a store located at 438 South Third Street, Lemoyne, PA 17043. The actual address of Defendant Turkey Hill, L.P., is 257 Centerville Road, Lancaster, PA 17603. 4. Admitted. 5. Denied as a conclusion of law. 6-18. Denied pursuant to Pa. R.C.P. 1029(e). 21-24. Denied. After reasonable investigation, the Defendant is without 100646946.1) No. 11-3021 information or knowledge sufficient to form a belief as the truth of the averments. 25. The allegations of paragraph 25 are denied as a conclusion of law and pursuant to Pa. R.C.P. 1029(e). 26-28. Denied as conclusions of law. COUNTI KeAno S. Paige v. Turkey Hill, L.P., t/a Turkey Hill Minit Markets 29. The Defendant incorporates answers 1 through 28 into Count I. 30-35. The allegations of causation are denied as conclusions of law. The remaining allegations are denied because after reasonable investigation, the Defendant is without information or knowledge sufficient to form a belief as to their truth. 36. Denied as a conclusion of law. 37. Denied pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendant Turkey Hill, L.P, t/a Turkey Hill Minit Markets, requests that judgment be entered in its favor and against Plaintiff KeAno S. Paige. COUNT II Michelle L. Collins v. Turkey Hill, L.P., t/a Turkey Hill Minit Markets 38. The Defendant incorporates answers 1 through 37 into Count II. 39. Admitted on information and belief. 40-41. Denied pursuant to Pa. R.C.P. 1029(e). 42-43. Denied. After reasonable investigation, the Defendant is without information or knowledge sufficient to form a belief as to the truth of the averment. 44. Denied as a conclusion of law. 45. Denied pursuant to Pa. R.C.P. 1029(e). (00646946.1) 2 No. 11-3021 WHEREFORE, Defendant Turkey Hill, L.P., t/a Turkey Hill Minit Markets, requests that judgment be entered in its favor and against Plaintiff Michelle L. Collins. COUNT III Michelle L. Collins and George E. Paige, Jr. v. Turkey Hill, L.P. t/a Turkey Hill Minit Markets 46. The Defendant incorporates answers 1 through 45 into Count III. 47-48. The allegations of causation are denied as conclusions of law. The remainder of the allegations are denied because after reasonable investigation, the Defendant is without information or knowledge sufficient to form a belief as to their truth. 49. Denied as a conclusion of law. 50. Denied pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendant Turkey Hill, L.P., t/a Turkey Hill Minit Markets, requests that judgment be entered in its favor and against Plaintiffs Michelle L. Collins and George E. Paige, Jr. COUNT IV George E. Paige, Jr. v. Turkey Hill, L.P., t/a Turkey Hill Minit Markets 51. The Defendant incorporates answers I through 50 into Count IV. 52-53. The allegations of causation are denied as conclusions of law. The remainder of the allegations are denied because after reasonable investigation, the Defendant is without information or knowledge sufficient to form a belief as to their truth. 54. Denied as a conclusion of law. {00646946.1} 3 No. 11-3021 55. Denied. After reasonable investigation, the Defendant is without information or knowledge sufficient to form a belief as to their truth. 56. The Defendant incorporates answers 1 through 55. WHEREFORE, Defendant Turkey Hill, L.P., t/a Turkey Hill Minit Markets, requests that judgment be entered in its favor and against Plaintiff George E. Paige, Jr. NEW MATTER 57. The Plaintiffs may have been contributorily negligent. 58. The Plaintiffs may have assumed the risk of their injuries. 59. The Defendant followed all applicable safety procedures as required by law. 60. The gasoline dispenser was permitted by the Pennsylvania Department of Labor and Industry. 61. The mere happening of an accident does not mean that the Defendant was negligent. 62. The Plaintiffs' actions may have caused a fire to occur. 63. The Plaintiffs' alleged damages and/or claims may be barred or limited by the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law. 64. The Plaintiffs have failed to state a claim upon which relief can be granted. {00646946.1} 4 No. 11-3021 WHEREFORE, the Defendant requests that the Plaintiffs' Complaint be dismissed. HARTMAN UNDERHILL & BRUBAKER LLP DATE: By: Mark E. Lovett, Esquire Attorney ID No. 41071 Attorneys for Defendant {00646946.1} 5 02/10/2012 12:24 7172990519 TURKEY HILL_ MINITMKT PAGE 02/02 No. J 1-3021 VERIFICATION I hereby verify that I am Director of Human Resources of Turkey Hill, L.P.; that as such I am authorized to make this verification; and that the information set forth in the foregoing Answer with New Matter. is true and correct to the best of my knowledge, information and belief I understand that any false statements contained herein are subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities for any false statements. Date: o? - 16 / o ??-v `=?? f? ?c?? Rose F'eeman (OW694b.1) 6 No. 11-3021 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving the foregoing document upon the person and in the manner indicated below. Service via First Class Mail, addressed as follows: Thomas P. Gannon, Esquire 552 Kelly Avenue Woodlyn, PA 19094 HARTMAN UNDERHILL & BRUBAKER LLP DATE: (? c Zo ?2 By: Mark E. Lovett, Esquire Attorney ID No. 41071 Attorneys for Defendant {00646946.1 } 7 t nlu TAR Thomas P. Gannon, Esquire Attorney for the Plaintiffs ID # 24591 552 Kelly Avenue Woodlyn, PA 19094 610-532-8445 -,,,,-1BERLAND COU14T Y PEN1NSyi-\/AFiIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KeAno S. Paige, a minor, et al, Plaintiffs, No. 11-3021-Civil vs. I Civil Action - Law Turkey Hill, L.P., t/a Turkey Hill Minit Markets, Defendant. Answer to Defendant's New Matter 57. Denied as a conclusion of law. 58. Denied as a conclusion of law. 59. Denied. The allegation contained within this paragraph is merely a denial of plaintiffs averments in the complaint to which an answer to new matter is not required. Further, the allegations of this paragraph state conclusions of law to which a response is not required. 60. Denied. The allegation contained within this paragraph is merely a denial of plaintiffs averments in the complaint to which an answer to new matter is not required. Further, the allegations of this paragraph state conclusions of law to which a response is not required. 61. Denied. The allegation contained within this paragraph is merely a denial of plaintiffs averments in the complaint to which an answer to new matter is not required. Further, the allegation of this paragraph states conclusions of law to which a response is not required. 62. Denied. The allegation contained within this paragraph is merely a denial of plaintiffs averments in the complaint to which an answer to new matter is not required. Further, the allegations of this paragraph state conclusions of law to which a response is not required. 63. Denied. The allegations of this paragraph state conclusions of law to which a response is not required. Further, defendant is not the operator of motor vehicle and plaintiffs asserts all rights granted to them under the PA Motor Vehicle Responsibility Law. 64. Denied. The allegation contained within this paragraph is merely a denial of plaintiffs averments in the complaint to which an answer to new matter is not required. Further, the allegations of this paragraph state conclusions of law to which a response is not required. WHEREFORE, plaintiffs requests judgment in their favor and against defendant. DATED: March 6, 2012 o as P. Gannon, Esquire Attorney for the Plaintiffs ID 424591 552 Kelly Avenue Woodlyn, PA 19094 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KeAno S. Paige, a minor, et al, Plaintiffs, No. 11-3021-Civil vs. I Civil Action - Law Turkey Hill, L.P., t/a Turkey Hill Minit Markets, Defendant. VERIFICATION "Thomas P. Gannon, hereby states that he is the Attorney for Plaintiff in this action and that the statements of fact made in the foregoing Answer to New Matter are true and correct to the best of his information and belief. The undersigned understands that the statements herein are made subject to the penalties of 88 Pa. Cons. Stat Sec 4904 relating to unsworn falsification to authorities. A AA homas P. Gannon IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KeAno S. Paige, a minor, et al, Plaintiffs, No. 11-3021-Civil vs. I Civil Action - Law Turkey Hill, L.P., t/a Turkey Hill Minit Markets, Defendant. CERTIFICATION OF SERVICE I certify that, on March 6, 2012 I served a true and correct copy of the Answer to New Matter upon defendant's counsel by United States First Class Mail, postage pre-paid, addressed as follows: Mark E. Lovett, Esq 221 East Chestnut Street Lancaster, PA 17602 ?J Thomas P. Gannon, Esq. Attorney For Plaintiff Docket No. 11-3021 HARTMAN UNDERHILL & BRUBAKER LLP ORIGII By: Mark E. Lovett, Esquire ' Attorney ID No. 41071 Attorneys for Defendant: V 401 221 East Chestnut Street Turkey Hill, L.P., t/a Lancaster, PA 17602 Turkey Hill Minit Markets 717) 299-7254(phone)/(717) 299-3160 (fax) KEANO S. PAIGE, A Minor, By His Parents and Natural Guardians, MICHELLE L. COLLINS and GEORGE E. PAIGE, JR., and KEANO S. PAIGE, In His Own Right and MICHELLE L. COLLINS and GEORGE E. PAIGE, Her Husband, Plaintiffs V. TURKEY HILL, L.P., t/a Turkey Hill Minit Markets, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW Docket No. 11-3021 • 4 3 h. JURY TRIAL DEMANDELrX3 =c r, c rv DEFENDANT'S MOTION TO COMPEL PLAINTIFFS TO RESPOND TO DISCOVERY 1. In this personal injury action, the Defendant sent to the Plaintiffs its First Set of Interrogatories and First Request for Production of Documents. These discovery requests were served on December 23, 2011. 2. Based on an agreement of counsel, responses were due on February 12, 2012. 3. By March 8, 2012, neither objections nor responses had been received from the Plaintiff, so Defendant's counsel sent a letter requesting that responses be provided by March 23, 2012, failing which a motion to compel would be filed. A copy of counsel's letter is attached to and made a part of this Motion as Exhibit A. {00656067.1 } Docket No. 11-3021 4. On March 23, 2012, Plaintiffs' counsel called to state that he would place responses in the mail over the weekend. 5. Unfortunately, no responses were ever received. 6. After reasonable efforts, the parties have been unable to resolve this discovery dispute. WHEREFORE, the Defendant requests that the Court enter an Order compelling the Plaintiffs to provide full and complete responses, without objection, to the Defendant's First Set of Interrogatories and First Request for Production of Documents within twenty (20) days of the date of the Order, failing which appropriate sanctions will be entered upon motion of the Defendant. HARTMAN UNDERHILL & BRUBAKER LLP Date: May 22, 2012 By. Mark E. Lovett, Esquire Attorney I.D. No. 41071 Attorneys for Defendant {00651673.1} 2 HARTMAN UNDERHILL & BRUBAKER LLP March 8, 2012 Thomas P. Gannon, Esquire 552 Kelly Avenue Woodlyn, PA 19094 Re: Michele L Collins and KeAno Paige v. Turkey Hill, L.P., t/a Turkey Hill Minit Marts, Docket No. 11-3-21 Dear Mr. Gannon: The date for you to provide your clients' responses to our discovery requests was February 15, 2012. Please provide me with your clients' responses on or before March 23, 2012, failing which I will need to file a motion to compel. Thank you for your attention to this matter. Very truly yours, Mark E. Lovett markl@hublaw.com MEL:11r:00651071.DOC cc Rose Feeman Pamela Johnson L " t, C. Y i^iWW.HUBLAICC0W, l.._ _ 7 7 -)8 7c.?_, Docket No. 11-3021 NICE CERTIFICATE OF S I HEREBY CERTIFY that I am this day serving the foregoing document upon the person and in the manner indicated below. Service via First Class Mail, addressed as follows: Thomas P. Gannon, Esquire 552 Kelly Avenue Woodlyn, PA 19094 HARTMAN UNDERHILL & BRUBAKER LLP Date: May 22, 2012 By: Mark E. Lovett, Esquire Attorney I.D. No. 41071 Attorneys for Defendant (00651673.1) 3 Docket No. 11-3021 v KEANO S. PAIGE, A Minor, By IN THE COURT OF COMMON PLEAS His Parents and Natural Guardians, OF CUMBERLAND COUNTY, MICHELLE L. COLLINS and PENNSYLVANIA GEORGE E. PAIGE, JR., and KEANO S. PAIGE, In His Own CIVIL ACTION - LAW Right and MICHELLE L. 1/-300.1 COLLINS and GEORGE E. Docket No. PAIGE, Her Husband, Plaintiffs JURY TRIAL DEMANDED V. TURKEY HILL, L.P., t/a Turkey , Hill Minit Markets, C-n Defendant C71 ,-a = ORDER BCD V'' AND NOW, this day of , 2012, upon consideration of the _ A Defendant's Motion to Compel Plaintiffs to Respond to Discovery, it is hereby ORDERED and DECREED that the Plaintiffs are to provide full and complete responses without objection to the Defendant's First Set of Interrogatories and First Request for Production of Documents within twenty (20) days of the date of this Order, failing which appropriate sanctions may be ordered by the Court upon motion of the Defendant. BY THE COURT: Judge Distribution: Mark E. Lovett, Esquire, 221 East Chestnut Street, Lancaster, PA 17602 (Attorney for Defendants) Thomas P. Gannon, Esquire, 552 Kelly Avenue, Woodlyn, PA 19094 (Attorney for Plaintiffs) (lp,?s a 100656067.1) Oi?L, COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15. 16 17 18 19 20 21 22 23 24 25 26 27 28 KeAno S. Paige, No. 11-3021-Civil Plaintiffs, VS. Turkey Hill, L.P., t/a Turkey Hill Minit Markets, Civil Action - Law Defendant. CERTIFICATION OF SERVICE I certify that, on June 14, 2012,1 served a true and correct copy of the PLAINTIFF'S ANSWERES TO DEFENDANT'S INTERROGATORIES United States First Class Mail, postage pre-paid, addressed as follows: Mark E. Lovett, Esq 221 East Chestnut Street lancaster, PA 17602 Thomas P. Gan$6n £= Attorney For ' if ?.s 9 +" .. v " KEANO S. PAIGE, A Minor, By His Parents and Natural Guardians, MICHELLE L. COLLINS and GEORGE E. PAIGE, JR., and KEANO S. PAIGE, In His Own Right and MICHELLE L. COLLINS and GEORGE E. PAIGE, Her Husband, Plaintiffs V. TURKEY HILL, L.P., t/a Turkey Hill Minit Markets, Defendant ORIGINAL IN THE COURT OF COMMON PLEAS; CUMBERLAND COUNTY, ° PENNSYLVANIA ," . CIVIL ACTION - LAW Docket No. 11-3021 N WC1*$ JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWAL/ENTRY OF APPEARANCE Please withdraw the appearance of Mark E. Lovett, Esquire and the law firm of Hartman Underhill & Brubaker LLP, on behalf of Defendant, Turkey Hill, L.P., t/a Turkey Hill Minit Markets, in the above-captioned matter. HARTMAN UNDERHILL & BRUBAKER LLP Date: zj By ' Kevin M. French, I.D. #4 9 Please enter the appearance of Mark E. Lovett, Esquire on behalf of Defendant, Turkey Hill, L.P., t/a Turkey Hill Minit Markets in the above-captioned matter. Date: • 2-z' 1 17-- By: Mark E. Lovett, I. D,. #41071 Attorneys for Defendant (00662258.1) CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving the foregoing Praecipe upon the persons and in manner indicated below. Service by First Class Mail, addressed as follows: Thomas P. Gannon, Esquire 552 Kelly Avenue Woodlyn, PA 19094 Mark E. Lovett, Esquire 480 New Holland Avenue Suite 6205 Lancaster, PA 17602 Date: z HARTMAN UNDERHILL & BRUBAKER LLP By: T Kevin M. French, I.D. #4`589 {00662258.1}