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HomeMy WebLinkAbout13-5068 Supreme Courtof,;Pennsylvania COur''t M f COinmon Pleas For Prothonotary Use Only: {"I v y s.` r Jar t C yil, Coyer;Sheet Docket No: i r �B � CUMS�ERLAND Coun The information collected on this is used solely court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S w Complaint D Writ of Summons 0 Petition Transfer from Another Jurisdiction Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: MARY & SHEARLD BOTTEICHER SUMMERWOOD CORPORATION T /D /B /A TACO BELL I Are money dam a g es req uested? Yes No Dollar Amount Requested: Elwithin arbitration limits Y g q (check one) Ig outside arbitration limits O N Is this a Class Action Suit? 0 Yes No Is this an MDJAppeal? 0 Yes M No A Name of Plaintiff /Appellant's Attorney: DAVID S. WISNESKI (] Check here i.fyou have no attorney (are a Self - Represented 1Pro Sel Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS 0 Intentional El Buyer Plaintiff Administrative Agencies (] Malicious Prosecution 0 Debt Collection: Credit Card 0 Board of Assessment E] Motor Vehicle I❑ Debt Collection: Other 0 Board of Elections F1 Nuisance E] Dept. of Transportation Premises Liability 0 Statutory Appeal: Other S E] Product Liability (does not include mass tort) � Employment Dispute: E El Slander/Libel/ Defamation Discrimination E t C El Other: Q Employment Dispute: Other 0 Zoning Board El J Other: , I E3 Other: O MASS TORT El Asbestos N 0 Tobacco Q Toxic Tort - DES Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS Toxic Waste F71 Ejectment J Common Law /Statutory Arbitration B Other: ❑i Eminent Domain /Condemnation . Declaratory Judgment 0 Ground Rent E] Mandamus !r_l Landlord/Tenant Dispute F-1- Non - Domestic Relations 0 Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY Mortgage Foreclosure: Commercial Quo Warranto 0 Dental Q Partition 0 Replevin Legal 0 Quiet Title El Other: Medical Q Other: Other Professional: Updated 1/1/2011 IN THE COURT OF COMON PLEAS CUMBERLAND COUNTY, PENNSYLANIA MARY BOTTEICHER and SHEARLD BOTTEICHER, her husband, NO. rn R :CF. , 1 � M C r- Plaintiffs CIVIL ACTION — LAW -v, : w T N :-' 1..`�'' V. ..<D _j t- , SUMMERWOOD CORPORATION,Q t/d/b /a TACO BELL, D Defendant JURY TRIAL DEMANDED AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar acci6n dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia escrita en persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensacion reclamados por el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1- 800 - 990 -9108 717 - 249 -3166 ptirnq C 4 �yS�i 7 2��9yg37 IN THE COURT OF COMON PLEAS CUMBERLAND COUNTY, PENNSYLANIA MARY BOTTEICHER and SHEARLD BOTTEICHER, her husband, NO. Plaintiffs CIVIL ACTION — LAW V. SUMMERWOOD CORPORATION, t /d/b /a TACO BELL, Defendant JURY TRIAL DEMANDED 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 an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1- 800 - 990 -9108 717 -249 -3166 IN THE COURT OF COMON PLEAS CUMBERLAND COUNTY, PENNSYLANIA MARY BOTTEICHER and SHEARLD BOTTEICHER, her husband, NO. Plaintiffs CIVIL ACTION — LAW V. SUMMERWOOD CORPORATION, t/d/b /a TACO BELL, Defendant JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff Mary Botteicher is an adult individual who resides in Hollidaysburg, Blair County, Pennsylvania. 2. Plaintiff Shearld Botteicher, is an adult individual who resides in Hollidaysburg, Blair County, Pennsylvania. 3. Mary Botteicher and Shearld Botteicher are currently, and were at all times relevant to this Complaint, married and living together as husband and wife. 4. ' Defendant, Summerwood Corporation, t/d/b /a Taco Bell (hereinafter Summerwood Corporation), is a corporation organized pursuant to the laws of the Commonwealth of Pennsyvlania. 5. At all times relevant to this Complaint, Defendant Summerwood Corporation owned and operated a Taco Bell franchise located in or near the Silver Spring Commons Shopping Plaza in Silver Spring Township, Cumberland County, Pennsylvania. 6. The facts and occurrences hereinafter related took place on or about February 12, 2012, at approximately 5:00 p.m., on the premises of Defendant's Taco Bell franchise. 7. At all times relevant to this Complaint, Plaintiffs Mary Botteicher and Sherald Botteicher were business invitees of the Defendant. 8. At said time and place, Mr. and Mrs. Botteicher were in the process of leaving the Defendant's Taco Bell restaurant after having purchased and eaten their dinner. 9. As Mrs. Botteicher was walking normally on the restaurant's sidewalk toward the area where her car was parked, her foot stepped on a landscaping stone that was lying on the sidewalk. 10. This caused her to lose her balance, and she fell violently to the ground. 11. Mrs. Botteicher suffered serious injures, including, but not limited to, a severely comminuted distal radius shaft fracture extending into the distal radioulnar joint and radiocarpal joint, a comminuted fracture of the distal ulna with displacement, bilateral nasal bone fractures, facial contusions, and a left knee contusion. 12. Mrs. Botteicher's right arm injuries were treated with open reduction and internal fixation and resection arthroplasty surgery. 13. Defendant Summerwood Corporation utilized stones as part of its landscape in the area immediately adjacent to the sidewalk where Mrs. Botteicher fell. 14. The aforesaid stones were of a size and shape that would present a tripping hazard to anyone who might accidentally step on one. 15. The aforesaid stones were also a white or off -white color that did not provide significant or sufficient contrast between the stones and restaurant sidewalk. 2 16. Additionally, the aforesaid stones were piled high without a retaining mechanism sufficient to keep them from tumbling onto the sidewalk and presenting a tripping hazard to restaurant patrons. 17. The aforesaid accident, and all of Plaintiff's injuries as alleged herein, were a direct and proximate result of Defendant Summerwood Corporation's negligence as set forth below. COUNT MARY BOTTEICHER V. SUMMERWOOD CORPORATION t /d /b /a TACO BELL 18. Paragraphs 1 through 17of this Complaint are incorporated herein by reference. 19. Plaintiff's injuries as alleged herein were a direct and proximate result of the negligence of Defendant Summerwood Corporation as set forth in paragraphs 21 through 34 below. 20. As a direct and proximate result of its negligence as. set forth in paragraphs 21 through 34 below, Defendant Summerwood Corporation is liable to Plaintiff Mary Botteicher for the injuries alleged herein. 21. Defendant Summerwood Corporation utilized the aforesaid stones for landscaping in the area immediately adjacent the restaurant's sidewalk. 22. Defendant Summerwood Corporation used stones that were of such a size and shape that they could present a tripping hazard to patrons of the restaurant should they tumble onto or otherwise become located on the restaurant's sidewalk. 3 23. Defendant Summerwood Corporation failed to utilize a sufficient retaining strip, guard or other mechanism to prevent the stones from falling, tumbling, or otherwise becoming relocated onto the sidewalk of Defendant's restaurant. 24. Defendant Summerwood Corporation utilized an excessive quantity of the stones, piling them too high and creating a condition whereby they could fall onto the restaurant's sidewalk. 25. Defendant Summerwood Corporation failed to adequately inspect the condition of the sidewalk of its restaurant so as to have discovered the dangerous condition presented by the presence of the landscaping stones on its sidewalk. 26. Defendant Summerwood Corporation failed, prior to Plaintiff's accident, to discover the dangerous condition created by the presence of landscaping stones on its sidewalk. 27. Defendant Summerwood Corporation failed, prior to Plaintiff's accident, to eliminate the dangerous condition created by the presence of landscaping stones on its sidewalk. 28. Defendant Summerwood Corporation maintained its premises in such a fashion that a dangerous condition was created by the presence of landscaping stones on its sidewalk. 29. Defendant Summerwood Corporation failed to properly maintain its premises so as to have prevented or eliminated the dangerous condition created by the presence of the landscaping stones on its sidewalk. 30. Defendant Summerwood Corporation failed, prior to Plaintiff's accident, to correct the dangerous condition created by its use of the aforesaid landscaping stones. 4 31. Defendant Summerwood Corporation failed, prior to Plaintiff's accident, to in any fashion warn the Plaintiffs of the dangerous condition created by the presence of the landscaping stones on its sidewalk. 32. Defendant Summerwood Corporation caused and/or permitted the aforesaid area where the Plaintiff's accident occurred to become and remain dangerous and unsafe despite the fact that the Defendant knew, or should have known, that the general public would be walking in that area. 33. Defendant Summerwood Corporation caused and/or permitted the aforesaid area where the Plaintiff's accident occurred to become and remain dangerous and unsafe despite the fact that the Defendant was aware of the fact that the stones regularly fell or became dislodged onto the sidewalk. 34. Defendant Summerwood Corporation caused and/or permitted the aforesaid area where the Plaintiff's accident occurred to become and remain dangerous and unsafe despite the fact that the Defendant was aware that one or more of its employees had tripped on the stones prior to Plaintiff's accident. 35. As a direct and proximate result of Defendant Summerwood's negligence as set forth above, Plaintiff Mary Botteicher suffered serious injuries, including, but not limited to, a severely comminuted distal radius shaft fracture extending into the distal radioulnar joint and radiocarpal joint, a comminuted fracture of the distal ulna with displacement, bilateral nasal bone fractures, facial contusions, and a left knee contusion. The right arm injuries were treated with open reduction and internal fixation and resection arthroplasty surgery. 5 36. As a direct and proximate result of the aforesaid injuries, Plaintiff Mary Botteicher has incurred, and will in the future incur, medical and rehabilitative expenses, and claim is made therefor. 37. As a direct and proximate result of the aforesaid injuries, Plaintiff Mary Botteicher has undergone, and in will in the future undergo, great mental and physical pain and suffering, a loss of life's pleasures and enjoyment, and great inconvenience in carrying out her daily activities, and claim is made therefor. 38. As a direct result of the aforesaid injuries, Plaintiff Mary Botteicher has suffered, and will in the future suffer, humiliation and embarrassment, and claim is made therefor. 39. As a direct result of the aforesaid injuries, Plaintiff Mary Botteicher has experienced, and may in the future undergo surgical procedures that could result in, scarring and disfigurement, and claim is made therefor. 40. As a direct and proximate result of the aforesaid injuries, Plaintiff Mary Botteicher has sustained a loss of earnings by reason of not being able to fulfill her employment, and claim is made therefor. 41. As a direct and proximate result of the aforesaid injuries, Plaintiff Mary Botteicher has sustained a loss of earning power and earning capacity, and claim is made therefor. WHEREFORE, Plaintiff Mary Botteicher demands judgment against Defendant Summerwood Corporation, t/d/b /a Taco Bell for compensatory damages in an amount of Fifty Thousand ($50,000.00) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. 6 COUNT II SHERALD BOTTEICHER V. SUMMERWOOD CORPORATION t/d/b /a TACO BELL 42. Paragraphs 1 through 17 and Count I of this Complaint are incorporated herein by reference. 43. As a direct and proximate result of Defendant's negligence and the injuries sustained by Plaintiff Mary Botteicher as set forth above, Sherald Botteicher has been, and in the future may be, deprived of the companionship, support, services, society, and consortium of his wife, and claim is made therefor. 31. As Plaintiff Mary Botteicher's accident - related injuries are serious and have resulted in a serious impairment of body function, and as her injuries have resulted in permanent disfigurement and scarring, Plaintiff Sherald Botteicher's consortium claim is similarly serious, and he is entitled to bring this action. WHEREFORE, Plaintiff Shearld Botteicher demands judgment against Defendant Taco Bell for damages in an amount of Fifty Thousand ($50,000.00) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully submitted, NA V Y, SONNESKI LP David . W neski, Esquire I.D. No. 58796 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 717/541 -9205 Counsel for Plaintiffs Date: August 26, 2013 7 f VERIFICATION We, Mary Botteicher and Shearld Botteicher, verify that the facts set forth in the foregoing Complaint are true and correct to the best of our knowledge, information and belief We understand that this verification is made subject to the provisions of 18 Pa. C.S. §4904, relating to the unsworn falsification to authorities. Mary Botteicher l hearld Botteicher Date: SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson � Sheriff %,».. ,, ,, Jody S Smith Chief Deputy 2013 SEA' 4 I Ali I0* 1 Richard W Stewart � � COUNTY Solicitor a€ ' ° r " ` ' P PENNSYLVANIA Mary Botteicher(et al.) Case Number vs. Cyummerwood Corporation t/d/b/a Taco Bell 2013-5068 SHERIFF'S RETURN OF SERVICE 09/05/2013 12:22 PM-Deputy Shawn Harrison, being duly sworn according to law, se d the a nested Complaint &Notice by handing a true copy to a person representing themselves to isa T o as, shift manager, who accepted as"Adult Person in Charge"for giummerwood Corporation t/ / ac Bell at 6520 Carlisle Pike, Silver Spring, Mechanicsburg, PA 17050, Sr HARN44RON, DEPUTY SHERIFF COST: $3930 SO ANSWERS, September 06, 2013 RbNW R ANDERSON, SHERIFF {c}CountySuite Sheriff,Teieosoft,Inc.