Loading...
HomeMy WebLinkAbout13-6105 Supreme Court of Pennsylvania r Court`tl f Common Pleas For Prothonotary Use Only: C�yi 'Cover Sheet Docket No: CU1 BLAND, County 12 blos Ae infmnation collected on this is used solely court achninistration purposes. This form does not supplement or replace the, filing and service cif pleadings or other papers as required 43% lava- or rules of court. Commencement of Action: S E Complaint 0 Writ of Summons Petition Transfer from Another Jurisdiction 0 Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: MARY BOTTEICHER AND SHEARLD BOTTEICHER MAPLE RESTAURANTS, LP, t/d /b /a TACO BELL T Dollar Amount Requested: Owithin arbitration limits I Are money damages requested? El Yes 0 No (check one) Ox outside arbitration limits 0 N Is this a Class Action Suit? 0 Yes lx] No Is this an MDJAppeal? Yes El No A Name of Plaintiff /Appellant's Attorney: DAVID S. WISNESKI 0 Check here if yon have no attorney (are a Self - .Represented J.Pro 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 0 Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution 0 Debt Collection: Credit Card 0 Board of Assessment 0 Motor Vehicle 0 Debt Collection: Other 0 Board of Elections 0 Nuisance 0 Dept. of Transportation ®x Premises Liability 0 Statutory Appeal: Other S 0 Product Liability (does not include 0 Employment Dispute: E mass tort) 0 Slander /Libel/ Defamation Discrimination C 0 Other: 0 Employment Dispute: Other 0 Zoning Board 0 Other: T T 0 Other: O MASS TORT 0 Asbestos N 0 Tobacco 0 Toxic Tort - DES 0 Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste 0 Other: 0 Ejectment 0 Common Law /Statutory Arbitration B 0 Eminent Domain /Condemnation 0 Declaratory Judgment 0 Ground Rent Mandamus 0 Landlord/Tenant Dispute 0 Non - Domestic Relations E] Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY 0 Mortgage Foreclosure: Commercial 0 Quo Warranto 0 Dental 0 Partition 0 Replevin 0 Legal 0 Quiet Title 0 Other: 0 Medical 0 Other: 0 Other Professional: Updated 1/1/2011 IN THE COURT OF COMON PLEAS CUMBERLAND COUNTY, PENNSYLANIA c. MARY BOTTEICHER and SHEARLD BOTTEICHER, her husband, NO. /a S 4 Plaintiffs CIVIL ACTION — LAW�'�'- r` V. --c -n MAPLE RESTAURANTS, LP, s c �- t/d/b/a TACO BELL,' Defendant JURY TRIAL DEMANDED .dc 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 CLO �#J9���� IN THE COURT OF COMON PLEAS CUMBERLAND COUNTY, PENNSYLANIA MARY BOTTEICHER and SHEARLD BOTTEICHER, her husband, NO. Plaintiffs CIVIL ACTION — LAW V. MAPLE RESTAURANTS, LP, t/d/b /a TACO BELL, 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 recibi6 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 notificaci6n por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensaci6n reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA LISTED. 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 IN THE COURT OF COMON PLEAS CUMBERLAND COUNTY, PENNSYLANIA MARY BOTTEICHER and SHEARLD BOTTEICHER, her husband, NO. Plaintiffs CIVIL ACTION — LAW V. MAPLE RESTAURANTS, LP, 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, Maple Restaurants, LP, t/d/b /a Taco Bell (hereinafter Maple Restaurants), is a corporation organized pursuant to the laws of the Commonwealth of Pennsyvlania. 5. At all times relevant to this Complaint, Defendant Maple Restaurants 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. y 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 Maple Restaurants 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 Maple Restaurant's negligence as set forth below. COUNT MARY BOTTEICHER V. MAPLE RESTAURANTS, LP, 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 Maple Restaurants 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 Maple Restaurants is liable to Plaintiff Mary Botteicher for the injuries alleged herein. 21. Defendant Maple Restaurants utilized the aforesaid stones for landscaping in the area immediately adjacent the restaurant's sidewalk. 22. Defendant Maple Restaurants 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. 23. Defendant Maple Restaurants 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. 3 24. Defendant Maple Restaurants 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 Maple Restaurants 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 Maple Restaurants failed, prior to Plaintiff's accident, to discover the dangerous condition created by the presence of landscaping stones on its sidewalk. 27. Defendant Maple Restaurants failed, prior to Plaintiff's accident, to eliminate the dangerous condition created by the presence of landscaping stones on its sidewalk. 28. Defendant Maple Restaurants maintained its premises in such a fashion that a dangerous condition was created by the presence of landscaping stones on its sidewalk. 29. Defendant Maple Restaurants 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 Maple Restaurants failed, prior to Plaintiff's accident, to correct the dangerous condition created by its use of the aforesaid landscaping stones. 31. Defendant Maple Restaurants 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 Maple Restaurants caused and /or permitted the aforesaid area where the Plaintiff's accident occurred to become and remain dangerous and unsafe despite the fact that 4 the Defendant knew, or should have known, that the general public would be walking in that area. 33. Defendant Maple Restaurants 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 Maple Restaurants 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 Maple Restaurant'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. 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 5 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 Maple Restaurants, LP, 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. COUNT II SHERALD BOTTEICHER V. MAPLE RESTAURANTS, LP, t/d/b /a TACO BELL 42. Paragraphs 1 through 17 and Count I of this Complaint are incorporated herein by reference. 6 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 Maple Restaurants, LP, t/d/b /a 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, NAV Y, ON & ISNESKI LL David S. Vv4sneski, Esquire I.D. No. 58796 Joseph M. Melillo, Esquire I.D. No. 26211 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 717/541 -9205 Counsel for Plaintiffs Date: 7 VERIFICATION We, Mary Botteicher and Shearld Botteicher, verify that the facts set forth in the foregoing document 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. x 4 Mary Botteicher - "'6z'ael Shearld Botteicher Date: �� SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff 01 cillub,", Jody S Smith Chief Deputy Richard W Stewart Solicitor 4 �.. NI3 Y L�'k Af' E1 Mary Botteicher vs. Case Number Maple Restaurants, LP t/d/b/a Taco Bell 2013-6105 SHERIFF'S RETURN OF SERVICE 10/18/2013 03:03 PM-Deputy Brian Grzyboski, being duly sworn according to law, served the requested Complaint &Notice by handing a true copy to a person representing themselves to be Justin Camp- General Manager, who accepted as"Adult Person in Charge"for Maple RestauLits, LP t/d/b/a Taco Bell at 6520 Carlisle Pike, Silver Spring, Mechanicsburg, PA 17050. BRIAN GRZYB I, OfIDEWY SHERIFF COST: $39.76 SO ANSWERS, October 21, 2013 RbNW R ANDERSON, SHERIFF cl c. 4 25 bLRL PENNSYLVANIA Joseph W. Gibley, Esquire t ig bley2gibleylaw.com Attorney I.D.No. 51814 GIBLEY AND McWILLIAMS,P.C. 524 N. Providence Road Attorney for Defendant Media, PA 19063 Maple Restaurants, LP (610)627-9500 _ MARY BOTTEICHER and SHEARLD COURT OF COMMON PLEAS BOTTEICHER, her husband, CUMBERLAND COUNTY, PA Plaintiffs, V. CIVIL ACTION MAPLE RESTAURANTS, LP NO.: 2013-6105 t/d/b/a TACO BELL, Defendants. ENTRY OF APPEARANCE Kindly enter my appearance on behalf of Defendant Maple Restaurants, LP, t/d/b/a, Taco Bell in the above-captioned matter. Respectfully submitted, GIBLEY AND MCWILLIAMS,P.C. By: J sepb& Gibley, Esquire Attorney for Defendant Maple Restaurants, LP TO THE HEREIN PLAINTIFFS YOU ARE HERBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY(20)DAYS FRW SERVICE HEREOF A JUDGMENT MAY BE E RED AG T 711 --1 p .Gibley,E,s,6uire Joseph W. Gibley, Esquire Attorneys for Answering Defendant, Attorney ID #51814 MAPLE RESTAURANTS, LP GIBLEY AND McWILLIAMS, P.C. 524 N. Providence Road Media, PA 19063 (610) 627-9500; Fax: (610) 627-2400f David A. Donna, Esquire = Attorney ID #205308 u ;-D DONNA LAW FIRM, P.C. 7601 France Avenue South, Suite 350 Minneapolis, MN 55435 (952) 562-2460; Fax: (952) 562-2461 MARY BOTTEICHER and SHEARLD IN THE COURT OF COMMON PLEAS BOTTEICHER, her husband, OF CUMBERLAND COUNTY, PA Plaintiffs, CIVIL ACTION vs. Case ID No. 2013-6105 MAPLE RESTAURANTS, LP, t/d/b/a TACO BELL, Answering Defendant. MAPLE RESTAURANTS, LP'S ANSWER TO THE PLAINTIFFS' COMPLAINT WITH NEW MATTER In response to the Plaintiffs' Complaint Answering Defendant, MAPLE RESTAURANTS, LP, through its attorneys Gibley and McWilliams, PC responds thereto as follows: 1. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in this paragraph. Accordingly, all allegations are denied and strict proof is demanded at the time of trial. Moreover, these allegations are denied pursuant to Rule 1029. 2. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in this paragraph. Accordingly, all allegations are denied and strict proof is demanded at the time of trial. Moreover, these allegations are denied pursuant to Rule 1029. 3. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in this paragraph. Accordingly, all allegations are denied and strict proof is demanded at the time of trial. Moreover, these allegations are denied pursuant to Rule 1029. 4. Admitted. 5. Admitted. It is admitted that Answering Defendant owned and operated the Taco Bell restaurant located at 6520 Carlisle Park, Mechanicsburg, Pennsylvania which, Answering Defendant believes, is the restaurant referred to by plaintiffs. 6. Admitted in part, denied in part. Answering Defendant admits only that the plaintiffs claim a fall took place outside its restaurant, and on its premises, on February 12, 2012. By way of further response, Answering Defendant denies the remaining allegations contained in paragraph 6 and strict proof is demanded at the time of trial. Moreover, these allegations are denied pursuant to Rule 1029. 2 7. Admitted upon information and belief. 8. Admitted upon information and belief. 9. Denied. All of the allegations in the corresponding paragraph of the Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. 10. Denied. All of the allegations in the corresponding paragraph of the Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. 11. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 12. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 13. Admitted in part, denied in part. Answering Defendant admits only that it utilized stones as part of its landscape in areas around the restaurant. As to the remaining allegations contained in the plaintiffs' Complaint, all such allegations are specifically denied and strict proof thereof is demanded at the time of trial. . 14. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the 3 allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 15. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 16. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 17. Denied. The allegations in the corresponding paragraph of the plaintiffs' Complaint contain conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained within the corresponding paragraph of the plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. COUNT MARY BOTTEICHER V. MAPLE RESTAURANTS, LP t/d/b/a TACO BELL 18. Answering Defendant incorporates by reference the responses contained in paragraphs one (1) through seventeen (17) of this Answer as though fully set forth 4 herein at length. 19. Denied. The allegations in the corresponding paragraph of the plaintiffs' Complaint contain conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained within the corresponding paragraph of the plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. 20. Denied. The allegations in the corresponding paragraph of the plaintiffs' Complaint contain conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained within the corresponding paragraph of the plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. 21. Admitted in part, denied in part. Answering Defendant admits only, that it uses stones for landscaping in areas adjacent to portions of the restaurant sidewalk. By way of further response, the remaining allegations contained in the corresponding paragraph of the plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. 22. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 23. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the 5 allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 24. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 25. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 26. Denied. Answering Defendant denies that there was a "dangerous condition" on any property possessed and/or controlled by it at any time relevant to the plaintiffs' claimed cause of action. Byway of further response, the allegations in the corresponding paragraph of the plaintiffs' Complaint contain conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained within the corresponding paragraph of the plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. 27. Denied. Answering Defendant denies that there was a "dangerous condition" on any property possessed and/or controlled by it at any time relevant to the plaintiffs' claimed cause of action. By way of further response, the allegations in the 6 corresponding paragraph of the plaintiffs' Complaint contain conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained within the corresponding paragraph of the plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. 28. Denied. Answering Defendant denies that there was a "dangerous condition" on any property possessed and/or controlled by it at any time relevant to the plaintiffs' claimed cause of action. By way of further response, the allegations in the corresponding paragraph of the plaintiffs' Complaint contain conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained within the corresponding paragraph of the plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. 29. Denied. Answering Defendant denies that there was a "dangerous condition" on any property possessed and/or controlled by it at any time relevant to the plaintiffs' claimed cause of action. By way of further response, the allegations in the corresponding paragraph of the plaintiffs' Complaint contain conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained within the corresponding paragraph of the plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. 30. Denied. Answering Defendant denies that there was a "dangerous condition" on any property possessed and/or controlled by it at any time relevant to the plaintiffs' claimed cause of action. By way of further response, the allegations in the corresponding paragraph of the plaintiffs' Complaint contain conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of 7 the allegations contained within the corresponding paragraph of the plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. 31. Denied. Answering Defendant denies that there was a "dangerous condition" on any property possessed and/or controlled by it at any time relevant to the plaintiffs' claimed cause of action. Byway of further response, the allegations in the corresponding paragraph of the plaintiffs' Complaint contain conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained within the corresponding paragraph of the plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. 32. Denied. Answering Defendant denies the existence of a "dangerous and unsafe" condition on any property owned, possessed and/or controlled by the Answering Defendant at any time relevant to the plaintiffs' claimed cause of action. By way of further response, the allegations in the corresponding paragraph of the plaintiffs' Complaint contain conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained within the corresponding paragraph of the plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. 33. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 34. Denied. After reasonable investigation, Answering Defendant is without 8 knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 35. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. By way of further response, the corresponding paragraph of the plaintiffs' Complaint contains conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. 36. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 37. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 9 38. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 39. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 40. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. 41. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. WHEREFORE, Answering Defendant, Maple Restaurants, LP d/b/a Taco Bell demands judgment in its favor and against the plaintiffs, together with attorneys' fees and the costs of defending this matter. 10 COUNT 11 SHEARLD BOTTEICHER V. MAPLE RESTAURANTS, LP t/d/b/a TACO BELL 42. Answering Defendant incorporates by reference the responses contained in paragraphs one (1) through forty-one (41) of this Answer as though fully set forth herein at length. 43. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. By way of further response, the corresponding paragraph of the plaintiffs' Complaint contains conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at time of trial. 44. (mis-numbered as 31) Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the corresponding paragraph of the plaintiffs' Complaint and therefore all such specifically denied and strict proof is demanded thereof at the time of trial. WHEREFORE, Answering Defendant, Maple Restaurants, LP d/b/a Taco Bell demands judgment in its favor and against the plaintiffs, together with attorneys' fees and the costs of defending this matter. 11 NEW MATTER 45. The claims raised by Plaintiffs are barred in whole or in part by the applicable statute of limitations. 46. The allegations set forth by Plaintiffs fails to state a cause of action upon which relief may be granted. 47. The claims raised by the plaintiffs are barred or appropriately reduced by the Pennsylvania Comparative Negligence Act, the doctrine of Assumption of the Risk and/or the doctrine of Contributory Negligence. 48. The incident in question was caused solely by the negligence of the wife/plaintiff, and not the Answering Defendant and this constitutes a complete defense to the within cause of action. 49. The incident in question was caused solely by an instrumentality or entity over which this Answering Defendant had no control nor right to control and this constitutes a complete defense to the within cause of action. 50. The injuries which form the basis for Plaintiffs' claims against this Answering Defendant, the existence of which are specifically denied, were caused by the negligence of the wife/plaintiff and this constitutes a complete defense to the within claimed cause of action. 51. The plaintiffs' claims are barred or appropriately reduced by virtue of the wife/plaintiff's comparative negligence and this constitutes a complete defense to the within claimed cause of action. 52. If the incident which the plaintiffs claim entitles them to damages occurred as alleged, which is denied, then the incident and/or injury occurred as a result of the 12 negligence of an entity or party other than the Answering Defendant and this constitutes a complete defense to the plaintiffs' claimed cause of action. 53. If the incident for which the plaintiffs seek the imposition of damages occurred as alleged, which is denied, the incident was not caused by any action or inaction by the Answering Defendant and this constitutes a complete defense to the within claimed cause of action. 54. Answering Defendant denies it caused each and every item of injury and/or damages set forth in the plaintiffs' Complaint. 55. The plaintiffs' claimed cause of action was caused in whole or in part by individuals and/or entities other than the Answering Defendant or was caused by those over whom the Answering Defendant had no control nor right to control and this constitutes a complete defense to the within claimed cause of action. 56. The incident in question was caused solely by an instrumentality or entity over which this Answering Defendant had no control nor right to control, and this constitutes a complete defense to the within cause of action. 57. The alleged negligence of the Responding Answering Defendant, the existence of which is denied, was not the proximate cause of the alleged accident nor of the plaintiffs' alleged injuries and/or other losses and/or was not the substantial factor of the cause of the injuries to the plaintiffs or the accident out of which this case arises and therefore this constitutes a complete defense to the within cause of action. 58. If the condition which the plaintiffs claim caused the incident for which they seek the imposition of damages existed as alleged, which is denied, then the Answering Defendant did not cause the condition and was unaware of the condition before the 13 accident occurred and this constitutes a complete defense to the claimed cause of action. 59. If the condition which the plaintiffs claim caused the incident for which they seek the imposition of damages existed as alleged, which is denied, then the wife/plaintiff failed to notice and avoid an open and obvious condition and this constitutes a complete defense to the claimed cause of action. 60. At all relevant times, Answering Defendant acted with all due care. 61. At all relevant times, Answering Defendant acted reasonably. 62. Answering Defendant did not breach any duty owed to the plaintiffs. 63. Answering Defendant was not negligent and this constitutes a complete defense to the claimed cause of action. 64. At all relevant times, Answering Defendant acted as required by the controlling law. 65. Inasmuch as Pennsylvania Rule of Civil Procedure 1032 provides that a party waives all defenses not presented by way of answer, Answering Defendant, upon advice of counsel, hereby asserts all affirmative defenses as set forth in the Pennsylvania Rule of Civil Procedure 1030, those defenses to include, in addition to the defenses already enumerated herein, supra, consent, discharge and bankruptcy, duress, estoppel, failure of consideration, fair comment, illegality, immunity from suit, impossibility of performance, justification, license, payment, privilege, release, statute of frauds and truth and waiver. 66. Pursuant to SB 1131, the Pennsylvania Fair Share Act, all or part of plaintiffs' claims may be barred as averred against Answering Defendant. 14 67. Answering Defendant states that plaintiffs' claims may be barred or diminished by operation of the Workers' Compensation Act, Stat. Ann. Tit. 77, Sub.Sec. 1, et sec.. WHEREFORE, Answering Defendant, Maple Restaurants, LP d/b/a Taco Bell demands judgment in its favor and against the plaintiffs, together with attorneys' fees and the costs of defending this matter. Respectfully submitted, GEB EY AND McWIL MS, PC 1 1 se . G bley tto ey ID #51814 24 N. Providence Road Media, PA 19063 (610) 627-9500; Fax: (610) 627-2400 David A. Donna Attorney ID #205308 Donna Law Firm, P.C. 7601 France Avenue South, Suite 350 Minneapolis, MN 55435 (952) 562-2460; Fax: (952) 562-2461 ATTORNEYS FOR ANSWERING DEFENDANT MAPLE RESTAURANTS, LP I � I I� I 15 VERIFICATION I, Kathy Mullane, authorized by MAPLE RESTAURANTS, LP d/b/a TACO BELL, the defendant in the above-captioned matter, have read the foregoing Answer and New Matter. The statements therein are correct to the best of my personal knowledge or information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. Ka y M ull n Dated: UkM61 S NOV - 8 2013 FIGBotteicher CERTIFICATE OF SERVICE I, Joseph W. Gibley, certify that a true and correct copy of the foregoing Answer and New Matter was served on counsel listed below by First Class Mail, postage prepaid, on November 22, 2013, as follows: Mr. David S. Wisneski NAVITSKY, OLSON & WISNESKI LLP 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 i l P h W. 6 i 16 Y x_ 2013 DEC 121'1 I1: 25 IN THE COURT OF COMON PLEAS CUMBERLAND COUNTY, PENNSYLANIAti BE L NQAN ANT( MARY BOTTEICHER and SHEARLD • BOTTEICHER, her husband, • NO. 13-6105 • Plaintiffs • CIVIL ACTION—LAW v. MAPLE RESTAURANTS, LP, t/d/b/a TACO BELL, • Defendant • JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT AND NOW, come the Plaintiffs, Mary Botteicher and Shearld Botteicher, her husband, by and through their attorneys, Navitsky, Olson & Wisneski LLP, and hereby enter the following Reply to the New Matter of Defendant: 45. Denied. The incident giving rise to Plaintiffs' Complaint took place on February 12, 2012. Plaintiffs filed suit against Defendant via Complaint filed in the Court of Common Pleas of Cumberland County, Pennsylvania, on October 17, 2013, and timely service was effectuated promptly thereafter. Accordingly, Plaintiffs' claims are not barred in whole or in part by the applicable statute of limitations. 46. Denied. Plaintiffs' Complaint, which is incorporated herein by reference, sets forth valid causes of action upon which relief can, and should, be granted. By way of further response, the allegations contained in paragraph 46 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 47. Denied. The allegations contained in paragraph 47 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 48. Denied. The incident giving rise to Plaintiffs' Complaint was caused solely by the negligence of the named Defendant and its employees, servants, agents or ostensible agents as set forth in Plaintiffs' Complaint, which is incorporated herein by reference. By way of further response, the allegations contained in paragraph 48 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 49. Denied. The incident giving rise to Plaintiffs' Complaint was caused solely by the negligence of the named Defendant and its employees, servants, agents or ostensible agents as set forth in Plaintiffs' Complaint, which is incorporated herein by reference. By way of further response, the allegations contained in paragraph 49 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 50. Denied. The incident giving rise to Plaintiffs' Complaint was caused solely by the negligence of the named Defendant and its employees, servants, agents or ostensible agents as set forth in Plaintiffs' Complaint, which is incorporated herein by reference. Plaintiffs were in no manner negligent or comparatively negligent. By way of further response, the allegations contained in paragraph 50 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 51. Denied. The incident giving rise to Plaintiffs' Complaint was caused solely by the negligence of the named Defendant and its employees, servants, agents or ostensible agents as set forth in Plaintiffs' Complaint, which is incorporated herein by reference. Plaintiffs were in no manner negligent or comparatively negligent. By way of further response, the allegations contained in paragraph 51 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 2 52. Denied. The incident giving rise to Plaintiffs' Complaint was caused solely by the negligence of the named Defendant and its employees, servants, agents or ostensible agents as set forth in Plaintiffs' Complaint, which is incorporated herein by reference. By way of further response, the allegations contained in paragraph 52 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 53. Denied. The allegations contained in paragraph 53 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 54. Denied. Defendant caused each and every item of injury and/or damages set forth in Plaintiffs' Complaint, which is incorporated herein by reference. By way of further response, the allegations contained in paragraph 54 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 55. Denied. The incident giving rise to Plaintiffs' Complaint was caused solely by the negligence of the named Defendant and its employees, agents, servants and/or apparent agents as set forth in Plaintiffs' Complaint, which is incorporated herein by reference. By way of further response, the allegations contained in paragraph 55 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 56. Denied. The incident giving rise to Plaintiffs' Complaint was caused solely by the negligence of the named Defendant and its employees, agents, servants and/or apparent agents as set forth in Plaintiffs' Complaint, which is incorporated herein by reference. By way of further response, the allegations contained in paragraph 56 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 3 57. Denied. The allegations contained in paragraph 57 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 58. Denied. The allegations contained in paragraph 58 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 59. Denied. The allegations contained in paragraph 59 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 60. Denied. The allegations contained in paragraph 60 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 61. Denied. The allegations contained in paragraph 61 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 62. Denied. The allegations contained in paragraph 62 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 63. Denied. The allegations contained in paragraph 63 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 64. Denied. The allegations contained in paragraph 64 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 65. Denied. It is denied that any of the affirmative defense asserted in paragraph 65 of Defendant's New Matter are applicable in the instant action or afford the Defendant any defense in this action. By way of further response, the allegations contained in paragraph 65 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 4 66. Denied. It is denied that the Pennsylvania Fair Share Act may serve to bar all or part of Plaintiffs' claims in this matter. By way of further response, the allegations contained in paragraph 66 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). 67. Denied. It is denied that the Workers' Compensation Act may serve to bar all or part of Plaintiffs' claims in this matter. By way of further response, the allegations contained in paragraph 676 of Defendant's New Matter are denied in accordance with Pa. R.C.P. 1029(e). WHEREFORE, Plaintiffs respectfully requests that the New Matter of Defendant, Maple Restaurants, LP, t/d/b/a Taco Bell, be dismissed, and that that judgment be entered in favor of Plaintiffs. Respectfully submitted, NAVIT, SON & IS ES LLP 7 David S. Wi eski, Esquire I.D. No. 58796 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 717/541-9205 Counsel for Plaintiffs Date: December 11, 2013 5 AFFIDAVIT • COMMONWEALTH OF PENNSYLVANIA : ss COUNTY OF DAUPHIN I, David S. Wisneski, Esquire, being duly sworn according to law, depose and say that I am counsel for Plaintiffs and that I am authorized to make this Affidavit on behalf of said Plaintiffs, and that the facts set forth in the foregoing Answer and New Matter are true and correct to the best of my knowledge, information and belief or, are true and correct based on the information obtained from the Plaintiffs. Date: iV(/U i 2, in ( 20( David S. Wisneski Sworn to and subscribed before me this /10 day of D c Ibu- , 2013. Notary Public v1 coMMONNIEMJN OF PENNSYLVANIA My Commission expires: NOMINAt see► W.B.5.o g*Noma?Mile w a • I M& Commission .17 CERTIFICATE OF SERVICE I, Lois Stauffer, an employee of the law firm of Navitsky, Olson&Wisneski LLP,hereby certify that a true and correct copy of the foregoing Plaintiff's Reply to New Matter of Defendant was served upon the following persons via first-class United States mail,postage prepaid on December 11, 2013: Joseph W. Gibley, Esquire Gibley and McWilliams,P.C. 524 North Providence Road Media,PA 19063 Counsel for Defendant 'VOA; ..eem, aid Lois Stauffer 2 IN THE COURT OF COMON PLEAS CUNN� , I p; 2: 5a CUMBERLAND COUNTY, PENNSYLANIA PE I.Y� Ao c rY MARY BOTTEICHER and SHEARLD • NIA BOTTEICHER, her husband, • NO. 13-6105 • Plaintiffs • CIVIL ACTION—LAW v. • • MAPLE RESTAURANTS, LP, • t/d/b/a TACO BELL, • Defendant • JURY TRIAL DEMANDED ENTRY OF APPEARANCE Kindly enter my appearance on behalf of Plaintiffs in the above-captioned action. Respectfully submitted, NAVITSKY, OLSON & WISNESKI LLP f J eph M. Melillo I.D. No. 26211 2040 Linglestown Road, Suite 303 Harrisburg,PA 17110 (717) 541-9205 Counsel for Plaintiffs Date: January 9, 2014 CERTIFICATE OF SERVICE I, Lois Stauffer, an employee of the law firm of Navitsky, Olson&Wisneski LLP,hereby certify that a true and correct copy of the foregoing Entry of Appearance was served upon the following persons via first-class United States mail,postage prepaid on January 9, 2014: Joseph W. Gibley, Esquire Gibley and McWilliams 524 North Providence Road Media, PA 19063 Counsel for Defendant David A.Donna, Esquire Donna Law Firm,P.C. 7601 France Avenue South Suite 350 Minneapolis, MN 55435 Lois Stauffer 2