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HomeMy WebLinkAbout05-0591Diana Heckert, Plaintiff vs. Ruby Tuesday, Inc., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. OJ - J g / JURY TRIAL DEMANDED N O T I C E T O D E F E N D 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE PA 17013 717-249-3166 Mary A.•Etter Dissinger Attorney for Plaintiff Diana Heckert, Plaintiff vs. I Ruby Tuesday, Inc., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiff, Diana Heckert by and through her attorneys, Dissinger and Dissinger, and represents the following: 1. The Plaintiff, Diana Heckert, is an adult individual residing at 627 Myrtle Avenue, Marysville, Perry County, Pennsylvania. 2. Defendant is Ruby Tuesday, a corporation organized and existing under the laws of the Georgia with a corporate office located at 150 West Church Avenue, Tennessee and with place of business located at 4890 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. 3. On or about February 22, 2003, Plaintiff went to the Ruby Tuesday restaurant owned and operated by Defendant at 4890 Carlisle Pike, Mechanicsburg, Pennsylvania to have dinner. 4. At all times during the events of the allegations contained herein, Plaintiff was a business invitee of the Defendant at the Defendant's premises. 5. Upon entering Defendant's restaurant, Plaintiff wasl escorted to a table by Defendant's host. 6. Plaintiff had to walk fast to keep up with the host and, as she rounded a corner, she was caused to run into a bench that was sticking out from the wall. 7. The host apologized and said "That was my fault, I knew the bench was there." 8. Plaintiff's friend who accompanied her to dinner grabbed Plaintiff to keep her from falling. 9. Upon impact, Plaintiff felt a pop in her knee. 10. From that point on, Plaintiff was limping from the pain in her knee. 11. At all material times, the restaurant was under the sole and exclusive control, management and maintenance of the Defendant, its agents, servants, workmen or employees, then and there engaged in Defendants business and acting within the course and scope of their employment or authority. 12. At all material times, Defendant, by its agents, servants, workmen or employees, acting in the scope of their authority, was negligent in: a. Causing a bench to be concealed in a place where customers could potentially walk into it without prior warning of its placement; b. Failing to warn or instruct Plaintiff that there was a bench that she should walk around; C. Failing to use reasonable prudence in the operation of the restaurant; d. Failing to ensure the safety of the customers in the restaurant; and e. Causing Plaintiff to become injured. 13. Solely of the result of Defendant's negligence, Plaintiff sustained serious and painful injuries to the tissue, bone, nerves, ligaments and tendons in her knee which are permanent in nature and required surgery and caused and continue to cause her great pain and suffering. 14. As a result of Defendant's negligence, Plaintiff was obliged to expend various sums of money for medicines and medical treatment necessitated by the injuries caused by the incident, to her great detriment and financial loss. 15. As a further result of the accident, Plaintiff under went great physical pain and mental anguish that lead to the deterioration of her health, to her great detriment and loss. 16. As a result of Defendant's negligence, Plaintiff was unable to work and incurred damages due to loss of work. 17. As a result of Defendant's negligence, Plaintiff is unable to return to work and continues to incur damages due to loss of future earning potential. WHEREFORE, Plaintiff demands damages against Defendant in an amount in excess of One Hundred Thousand dollars ($100,000.00). Respectfully Submitted DISSINGER AND DISSINGER Mary A.'Etter Dissinger ?- Supreme Court ID #27736 Attorney for Plaintiff 400 South State Road Marysville, PA 17053 (717) 957-3474 VERIFICATION I, Diana Heckert, verify that the statements made in thi: Complaint are true and correct. I understand that false statement: herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification. Diana Heckert r ,:gin fa t-n U ) d, ? G 1 Diana Heckert, Plaintiff VS. Tuesday, Inc., Defendant IN THE COURT OF COMMON PLEAS OF THE 41ST JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY BRANCH CIVIL ACTION - LAW NO. 05-591 JURY TRIAL DEMANDED AFFIDAVIT OF MAILING TH OF PENNSYLVANIA as .. OF PERRY Karen L. Koenigsberg, attorney for Plaintiff, being duly sworn cording to law, says that she served Defendant pursuant to .R.C.P. 403 & 404 by mailing by United States Certified Mail, stricted Delivery, a true and correct copy of the foregoing mplaint in this action to the Defendant at their headquarters, and at Defendant did receive same as evidenced by the signed receipt ted February 7, 2005, attached hereto as Exhibit "A". a en Korn gsberg" f Attorney for Plaintif Supreme Court ID #27736 400 South State Road Marysville, PA 17053 (717) 957-3474 rn to and subscribed ore me this _1(s of ?e?b,tita 2005. 'Notary Pubiid NC1T tis LF)GHAPt MyComr?_ 2 Y.? ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: -ZLL( i y /so G7?,t Chu??? 411e, Mary U; Ile N 37 Fb/ D. Is delivery address different m 1? ? If YES, enter delivery address Io 3. Service Type Certified Mail ? Express Mail ? Registered ? Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number (transfer from service labeq 7000 05-20 00RI o35/ ,5700 PS Form 3811, August 2001 Domestic Return Receipt 102595.01-M-2509 UNITED STATES POSTAL S , VJ11 F First-Class Mail ,Y F P Postage & Fees Paid USPS i Permit No. 3-10 • Sender: Pleas n t ybur name, address, and ZIP+4 in this box 1- RECEIVED S ?;Ss?ncler `? ?i ;, ,ri y e r V FEB 10 2005 iii SiPdGER & DISS L„IrL,:NJrrrr:;lt:,;lit1t;11;!,:;11W.;I I,; h N!, Iii 1. /Ill EXHIBIT "A" y? .. J N OM i Y Cl* 40 a DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D. No. 32171 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. DIANA HECKERT V. RUBY TUESDAY, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 05-591 JURY OF 12 DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of defendant, Ruby Tuesday, Inc., in connection with the above-captioned matter. DALLER GREENBERG & DIETRICH, LLP By: AW44. Edward A. Gr berg Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. CERTIFICATE OF SERVICE I, Edward A. Greenberg, hereby certify that a true and correct copy of the foregoing Entry of Appearance was served via facsimile and first-class United States mail, postage prepaid, as follows: Mary A. Etter Dissinger, Esquire 400 South State Street Marysville, PA 17053 A4A . Edward A. eenberg Date: ?? /1, ?r DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D. No. 32171 By: Joseph F. Kampherstein, III I.D. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. DIANA HECKERT V. RUBY TUESDAY, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 05-591 JURY OF 12 DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT RUBY TUESDAY, INC. TO PLAINTIFF'S COMPLAINT Defendant, Ruby Tuesday, Inc., by and through its counsel, Daller Greenberg & Dietrich, LLP, hereby preliminarily objects to plaintiff's complaint as follows: Plaintiff filed her complaint on or about February 2, 2005. A copy of the complaint is attached hereto and marked as Exhibit "A." 2. This case arises out of an alleged incident that occurred on or about February 22, 2003 when plaintiff allegedly struck her knee on a bench and sustained personal injuries in the Ruby Tuesday restaurant located at 4890 Carlisle Pike, Mechanicsburg, Pennsylvania. 3. Rule 1028(a)(2) of the Pennsylvania Rules of Civil Procedure permits the filing of preliminary objections in the nature of a motion to strike a pleading because of lack of conformity to law or rule of court. 4. Rule 1028(x)(3) of the Pennsylvania Rules of Civil Procedure permits the filing of preliminary objections in the nature of a motion to strike a pleading because of insufficient specificity. Rule 1019 of the Pennsylvania Rules of Civil Procedure requires pleadings to state the material facts upon which a cause of action is based in a concise and summary form. Pennsylvania law requires plaintiffs to plead sufficient facts to notify defendants of plaintiff's claim and to inform the defendants of the relevant issues. In her complaint, plaintiff alleges that defendant's negligence consisted of the following: 12. (c) Failing to use reasonable prudence in the operation of the restaurant; 12. (d) Failing to ensure the safety of the customers in the restaurant; and 12. (e) Causing plaintiff to become injured. 8. Such boilerplate omnibus clauses fail to contain the specificity required by Pennsylvania law and could allow plaintiff to change her theory of liability or present new theories of liability at any time. 9. Accordingly, paragraphs 12(c), 12(d) and 12(e) of plaintiffs complaint should be stricken with prejudice for insufficient specificity and failure to conform to rule of law or court. WHEREFORE, defendant Ruby Tuesday, Inc. requests this Court to enter an Order in the form attached hereto. Respectfully submitted, DALLER GREENBERG & DIETRICH, UP By: Edward A. Greenberg Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street - Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D. No. 32171 By: Joseph F. Kampherstein, III I.D. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 90C Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. DIANA HECKERT V. RUBY TUESDAY, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 05-591 JURY OF 12 DEMANDED MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY OBJECTIONS OF RUBY TUESDAY, INC. TO PLAINTIFF'S COMPLAINT 1. MATTER BEFORE THE COURT The preliminary objections of defendant Ruby Tuesday, Inc. to plaintiff's complaint. II. STATEMENT OF THE QUESTION INVOLVED Are defendants entitled to an Order striking paragraphs that broadly allege defendant was negligent in "failing to use reasonable prudence in the operation of the restaurant," "failing to ensure the safety of the customers in the restaurant," and "causing plaintiff to become injured" from plaintiff's complaint as improper general allegations of negligence? Suggested answer: Yes. III. FACTS This case arises out of an alleged incident that occurred on or about February 22, 2003. In her complaint, plaintiff alleges she struck her knee on a bench and sustained personal injuries in the Ruby Tuesday restaurant located at 4890 Carlisle Pike, Mechanicsburg, Pennsylvania. Plaintiff filed her Complaint on or about February 2, 2005. A copy of the Complaint is attached hereto and marked as Exhibit "A." In her complaint, plaintiff alleges that defendant's negligence consisted of the following: 12. (c) Failing to use reasonable prudence in the operation of the restaurant; 12. (d) Failing to ensure the safety of the customers in the restaurant; and 12. (e) Causing plaintiff to become injured. Plaintiffs complaint, Exhibit "A," at X12. From these facts come defendant's preliminary objections to plaintiffs complaint. IV. ARGUMENT A. Paragraphs 12(c), 12(d) and 12(e) of Plaintiff's Complaint Should Be Stricken, with Prejudice, for Insufficient Specificity and Failure to Conform to Rule of Law or Court Pennsylvania is a fact pleading state. Miketic v. Baron, 450 Pa. Super. 91, 104. 675 A .2d 324, 330 (1996). The Pennsylvania Rules of Civil Procedure require parties pleading a cause of action to state the material facts upon which the action is based in a concise and summary form. Pa. R. Civ. P. 1019(a). The lack of specificity of a plaintiff s pleading may be raised by way of preliminary objection in the nature of a motion for more specific pleadings, or in the nature of a motion to strike the pleading due to the lack of conformity to law. Pa. R. Civ. P. 1028(a)(2)-(3); Connor v. Allegheny Hospital, 501 Pa. 306, 311 , 461 A.2d 600, 603 (1983). A complaint must not only give the defendant notice of what the plaintiffs claim is and what the grounds are upon which it rests, it must also formulate the issues by summarizing those facts essential to support the claim. Smith v. Brown, 283 Pa. Super. 116, 120, 423 A.2d 743, 745 (1980) (citations omitted). The "ultimate test" in determining whether the allegations in the complaint comport with the pleading practice in Pennsylvania is whether the complaint adequately informs the adverse party of the issues that the party must be prepared to meet so that counsel may prepare his defense for trial. Carvella v. Handy Andy Food Mart, 44 D. & C. 2d 133, 134 (1968). Plaintiff s complaint lacks the specificity required under Pennsylvania law. In paragraph 17(1), plaintiff has not pled with reasonable specificity the manner in which the defendants were allegedly negligent. Without notice of those essential elements, defendants are not adequately informed to the point where they can adequately prepare for trial. In Connor v. Allegheny General Hospital, the Pennsylvania Supreme Court reversed a trial court's decision to deny plaintiffs' request to amend their complaint to allege an entirely new liability theory on the day of trial. The new theory, the court reasoned, "merely amplified" plaintiffs' timely allegation that defendants was negligent "in otherwise failing to use due care.' 501 Pa. at 310. 461 A.2d at 602. The defendant in Connor had argued that this eleventh hour amendment prejudiced the defendant's case. The court rejected this argument, stating: If appellee did not know how it "otherwise failed to use due care and caution under the circumstances," it could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that portion of appellants' complaint. [citation omitted ...] In this case, however, appellee apparently understood this allegation ... [t]hus, appellee cannot now claim that it was prejudiced by the late amplification of this allegation ... Id. at 311 n.3, 461 A.2d at 602 n.3 (emphasis added). The opinion in Connor clearly mandates the "catch all" allegation of negligence must be stricken when appropriate preliminary objections are raised. As noted by the trial court in Link v. Roberts, 19 Center Leg J. 24 (No. 83-1296, September 25, 1984), To hold otherwise would require defendants to prepare to defend against every possible cause of action that might fall within the gambit of the language "otherwise fail to use due care." Clearly, this imposes an impossible burden upon defendant. Id. at 26. The Bucks County Court of Common Pleas followed similar reasoning in Campitall v. Williams, 36 Bucks Co. L.R. 195, 196 (Pa. C.P. Bucks Co. 1981). In Campitall, plaintiff alleged that defendant "was otherwise negligent in the performance of his duties as an official Pennsylvania State inspection station licensee." The court sustained defendant's preliminary objections, holding plaintiffs' allegations "fall usefully short of pleading a cause of action." Id. Since the Connor decision, many courts have required a more specific pleading whenever plaintiffs include allegations that defendants were "otherwise negligent," or the equally broad and equally commonplace allegation that defendant's negligence may be ascertained "through discovery." C.E. G. Farmer v. Rhoads, 43 D.& C.3d 393 (Pa. C.P. Chester Co. 1986); Marling v. Greene County Memorial Hospital, 5 Greene R. 1. (No. 8) (Pa. C.P. Greene Co., December 18, 1986); see also Kitzmiller v. Riverton Consolidated Water Co., 38 Cumb. L.J. 33, 34 (Pa. C.P. Cumberland Co. 1988) (striking "otherwise failing to exercise due care under the circumstances"); Simon v. Community General Osteopathic Hospital, 108 Caup. Co_ R. 218, 219 (Pa. C.P. Dauphin Co. 1988) (phrases "otherwise negligent" and "including but not limited to" stricken); South Pymatuning v. Bell ofPa., 23 Mer. Co. L.J. 270, 271-72 (Pa. C.P. Mercer Co. 1988) ("otherwise negligent" and "other negligent acts as may be disclosed through future discovery" held impermissibly vague). In the instant matter, paragraphs 12(c), 12(d) and 12(e) of plaintiff's complaint must be stricken with prejudice because they each fail to state, "in a concise and summary form," the material facts upon which plaintiff's cause of action is based. These averments are "catch-all" allegations that do not allow defendant to prepare adequately for trial. Ultimately, these 7 averments may result in the defendant having to prepare a defense to one or more original theories of liability, only to later learn, perhaps at trial, that plaintiff has developed new theories. Defendant should not be forced to waste time and money defending against one or more theories of liability that may later be abandoned in favor of some other theory of which defendant is without notice. V. RELIEF SOUGHT For the reasons stated above, defendant, Ruby Tuesday, Inc. respectfully requests this Court to enter an order in the form attached hereto, striking paragraphs 12(c), 12(d) and 12(e) from plaintiff's complaint with prejudice as impermissible general allegations of negligence. Respectfully submitted, DALLER GREENBERG & DIETRICH, LLP By: ? 'Edward A. Greenberg Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street - Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant Ruby Tuesday, Inc. CERTIFICATE OF SERVICE I, Joseph F. Kampherstein, 111, hereby certify that a true and correct copy of the foregoing Preliminary Objections to Plaintiffs Complaint with Brief in Support thereof was served by first-class United States mail, postage prepaid, as follows: Mary A. Etter Dissinger, Esquire Dissinger and Dissinger 400 South State Road Marysville, PA 17055 Attorneys for plaintiff Joseph F. Kampherstein, III Date: February 24, 2005 1?'?--------_ Diana Heckert, Plaintiff vs. Ruby Tuesday, Inc., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. p a~ i-qi SURY TRIAL DEMANDED N O T I C 8 T O D 8 8 8 N D 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 came 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. IV YOU NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE 7 OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE PA 17013 717-249-3166 Received F%b- "5 0116pu i? .. ' A. tet-Dissinger Attorney for Plaintiff i RUE COPY FROM R500RO ??? +.*??iaw?p ?r? r?s,r, ! P,?e un9a Est m?e ha,??; 'ha seat at sate Cou carlisM. •L qay o F7\Yh^r,..Ary ? V Fran To-Udgrick Od GL Pail 002 Diana Heckert, I Plaintiff vs. Ruby Tuesday, Inc., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA t CIVIL ACTION - LAW : NO. JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiff, Diana Heckert by and through her attorneys, Dissinger and Dissinger, and represents the following: 1. The Plaintiff, Diana Heckert, is an adult individual residing at 627 Myrtle Avenue, Marysville, Perry County, Pennsylvania. 2. Defendant is Ruby Tuesday, a corporation organized and existing under the laws of the Georgia with a corporate office located at 150 West Church Avenue, Tennessee and with place of business located at 4890 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. 3. On or about February 22, 2003, Plaintiff went to the Ruby Tuesday restaurant owned and operated by Defendant at 4890 Carlisle Pike, Mechanicsburg, Pennsylvania to have dinner. 4. At all times during the events of the allegations contained herein, Plaintiff was a business invitee of the Defendant at the Defendants premises. 5. Upon entering Defendants restaurant, Plaintiff was escorted to a table by Defendant's host. Recalvwd Feb-09-05 01:33wo Fr=- To-Sidowick CMS GL Pus 003 6. Plaintiff had to walk fast to keep up with the host and, as she rounded a corner, she was caused to run into a bench that was sticking out from the wall. 7. The host apologized and said "That was my fault, I knew the bench was there." 9. Plaintiff's friend who accompanied her to dinner grabbed Plaintiff to keep her from falling. 9. upon impact, Plaintiff felt a pop in her knee. 10. From that point on, Plaintiff was limping from the pain in her knee. 11. At all material times, the restaurant was under the sole and exclusive control, management and maintenance of the Defendant, its agents, servants, workmen or employees, then and there engaged in Defendants business and acting within the course and scope of their employment or authority. 12. At all material times, Defendant, by its agents, servants, workmen or employees, acting in the scope of their authority, was negligent in: a. Causing a bench to be concealed in a place where customers could potentially walk into it without prior warning of its placement; b. Failing to warn or instruct Plaintiff that there was a RaUved Fib-00-06 01:36Ps Fran To-Sedplck dK GL Fan 004 bench that she should walk around; C. Failing to use reasonable prudence in the operation of the restaurant; d. Failing to ensure the safety of the customers in the restaurant; and e. Causing Plaintiff to become injured. 13. Solely of the result of Defendant's negligence, Plaintiff sustained serious and painful injuries to the tissue, bone, nerves, ligaments and tendons in her knee which are permanent in nature and required surgery and caused and continue to cause her great pain and suffering. 14. As a result of Defendant's negligence, Plaintiff was obliged to expend various sums of money for medicines and medical treatment necessitated by the injuries caused by the incident, to her great detriment and financial loss. 15. As a further result of the accident, Plaintiff under went great physical pain and mental anguish that lead to the deterioration of her health, to her great detriment and loss. 16. As a result of Defendant's negligence, Plaintiff was unable to work and incurred damages due to loss of work. 17. As a result of Defendant's negligence, Plaintiff is unable to return to work and continues to incur damages due to loss of future earning potential. Recwived Feb-09-06 01:36PN Fror To-Sldpick CMS GL Pap 006 WHEREFORE, Plaintiff demands damages against Defendant in an amount in excess of One Hundred Thousand dollars ($100,000.00). Respectfully Submitted DISSINGER. AND DISSINGER Mary A! Etter Diasinger Supreme Court ID #27736 Attorney for Plaintiff 400 South State Road Marysville, PA 17053 (717) 957-3474 R?cNwd Feb-00-06 01:33M Frw To-Sedrrick CM GL Pus 008 _ L I, Diana Heckert, verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 14904 relating to unworn falsification. Diana Heckert Recelved Feb-00-05 01:38ae Frn- To-Sedevick CMS CL Pan COT DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D. No. 32171 By: Joseph F. Kampherstein, III I.D. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. DIANA HECKERT V. RUBY TUESDAY, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 05-591 JURY OF 12 DEMANDED PRAECIPE TO LIST PRELIMINARY OBJECTIONS FOR ARGUMENT TO THE PROTHONOTARY: Kindly list the preliminary objections of Ruby Tuesday, Inc. to plaintiff s complaint in the above captioned matter for argument. DALLER GREENBERG & DIETRICH, LLP By: ?"Edward A. Greenberg Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street - Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. Dated: February 24, 2005 £3 r\ N try Diana Heckert, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VS. : CIVIL ACTION - LAW Ruby Tuesday, Inc., : NO. S),nbS -(505?1I Defendant : JURY TRIAL DEMANDED N O T I C E T O D E F E N D 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE PA 17013 717-249-3166 Vill Mary A. Etter Dissinger Attorney for Plaintiff Diana Heckert, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. : CIVIL ACTION - LAW Ruby Tuesday, Inc., : NO. FjG S `j ( Defendant : JURY TRIAL DEMANDED AMENDED COMPLAINT AND NOW comes the Plaintiff, Diana Heckert by and through her attorneys, Dissinger and Dissinger, and represents the following: 1. The Plaintiff, Diana Heckert, is an adult individual residing at 627 Myrtle Avenue, Marysville, Perry County, Pennsylvania. 2. Defendant is Ruby Tuesday, a corporation organized and existing under the laws of the Georgia with a corporate office located at 150 West Church Avenue, Tennessee and with place of business located at 4890 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. 3. On or about February 22, 2003, Plaintiff went to the Ruby Tuesday restaurant owned and operated by Defendant at 4890 Carlisle Pike, Mechanicsburg, Pennsylvania to have dinner. 4. At all times during the events of the allegations contained herein, Plaintiff was a business invitee of the Defendant at the Defendant's premises. 5. Upon entering Defendant's restaurant, Plaintiff was escorted to a table by Defendant's host. 6. Plaintiff had to walk fast to keep up with the host and, as she rounded a corner, she was caused to run into a bench that was sticking out from the wall. 7. The host apologized and said "That was my fault, I knew the bench was there." 8. Plaintiff's friend who accompanied her to dinner grabbed Plaintiff to keep her from falling. 9. Upon impact, Plaintiff felt a pop in her knee. 10. From that point on, Plaintiff was limping from the pain in her knee. 11. At all material times, the restaurant was under the sole and exclusive control, management and maintenance of the Defendant, its agents, servants, workmen or employees, then and there engaged in Defendants business and acting within the course and scope of their employment or authority. 12. At all material times, Defendant, by its agents, servants, workmen or employees, acting in the scope of their authority, was negligent in: a. Causing a bench to be concealed in a place where customers could potentially walk into it without prior warning of its placement; b. Failing to warn or instruct Plaintiff that there was a bench that she should walk around; C. Failing to use reasonable prudence in the operation of the restaurant by having a bench placed in an area where customers could walk into it without prior warning of its placement; d. Failing to ensure the safety of the customers in the restaurant causing a bench to be placed in a place where customers could potentially walk into it without prior warning of its placement; and e. Causing Plaintiff to become injured by placing a bench in an area where Plaintiff was unable to see it before she hit it and injured her knee. 13. Solely of the result of Defendant's negligence, Plaintiff sustained serious and painful injuries to the tissue, bone, nerves, ligaments and tendons in her knee which are permanent in nature and required surgery and caused and continue to cause her great pain and suffering. 14. As a result of Defendant's negligence, Plaintiff was obliged to expend various sums of money for medicines and medical treatment necessitated by the injuries caused by the incident, to her great detriment and financial loss. 15. As a further result of the accident, Plaintiff under went great physical pain and mental anguish that lead to the deterioration of her health, to her great detriment and loss. 16. As a result of Defendant's negligence, Plaintiff was unable to work and incurred damages due to loss of work. 17. As a result of Defendant's negligence, Plaintiff is unable to return to work and continues to incur damages due to loss of future earning potential. WHEREFORE, Plaintiff demands damages against Defendant in an amount in excess of One Hundred Thousand dollars ($100,000.00). Respectfully Submitted DISSINGER AND DISSINGER Mary A. Etter Dissinger j Supreme Court ID #27736 Attorney for Plaintiff 400 South State Road Marysville, PA 17053 (717) 957-3474 VERIFICATION I, Diana Heckert, verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification. Diana Heckert LI' Diana Heckert, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA Vs. : CIVIL ACTION - LAW Ruby Tuesday, Inc., : NO. -?)Dc->5--- C7)05 j Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Mary A. Dissinger, do hereby certify that a copy of the foregoing Amended Complaint has been duly served upon Joseph F. Kampherstein, attorney for Ruby Tuesday, Inc, by depositing same in the United States Mail, postage prepaid, addressed as follows: Joseph F. Kampherstein, Esq. Daller, Greenberg, & Dietrich Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19248-2060 Date: Ma y A. Dissinge?' Attorney for Defendant r --R. %' ?: DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D. No. 32171 By: Joseph F. Kampherstein, III I.D. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. DIANA HECKERT V. RUBY TUESDAY. INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 05-591 JURY OF 12 DEMANDED PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS TO THE PROTHONOTARY: Kindly withdraw the preliminary objections of Ruby Tuesday, Inc., which were filed on February 25, 2005 and are currently scheduled for argument on March 23, 2005. The preliminary objections are being withdrawn in light of plaintiff's filing of an amended complaint. DALLER GREENBERG & DIETRICH. LLP Date: March 14, 2005 By: dward A. Greenberg Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street - Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant Ruby Tuesday, Inc. CERTIFICATE OF SERVICE I, Joseph F. Kampherstein, III, hereby certify that a true and correct copy of the foregoing Preliminary Objections to Plaintiff's Complaint with Brief in Support thereof was served by first-class United States mail, postage prepaid, as follows: Mary A. Etter Dissinger, Esquire Karen L. Cummings, Esquire Dissinger and Dissinger 400 South State Road Marysville, PA 17053 Attorneys for plaintiff Joseph F. Kampherstein, III Date: March 14, 2005 To: Plaintiff Diana Heckert You are hereby notified to file a written response to the enclosed New Matter w twenty (20) days from service hereof orl judgment may be entered against you. DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D. No. 32171 By: Joseph F. Kampherstein, III I.D. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 DALLER GREENBERG & DI BY: Edward A. Greenberg Joseph F. Kampherstein III Attorneys for defendant Ruby Tuesday, Inc. Attorneys for Defendant, Ruby Tuesday, Inc. DIANA HECKERT V. RUBY TUESDAY, INC. COURT OF COMMON PLI CUMBERLAND COUNTY NO. 05-591 JURY OF 12 DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT, RUBY TUESDAY. TO PLAINTIFF'S AMENDED COMPLAINT Defendant Ruby Tuesday, Inc., by and through its attorneys, Daller Dietrich, LLP, hereby responds to plaintiff's amended complaint as follows: Denied. After reasonable investigation, answering defendant is knowledge or information sufficient to form a belief as to the truth of the averments , LLP INC. enberg & forth in this paragraph, and accordingly, denies the same and demands proof thereof. 2. Denied as stated. Ruby Tuesday, Inc. is a corporation organized underlthe laws of the state of Georgia, is registered to do business in Pennsylvania, and maintains its place of business at 150 West Church Street, Maryville, TN 37801. Ruby Tuesday, I c. operates the Ruby Tuesday restaurant located at 4890 Carlisle Pike, Mechanicsburg, PA 17055 pursuant to a lease agreement. 3. Denied in part; admitted in part. It is admitted that Ruby Tuesday, restaurant located at 4890 Carlisle Pike, Mechanicsburg, PA 17055 pursuant to a 1 agreement. It is denied that Ruby Tuesday, Inc. owns the subject restaurant. AnsN defendant is without knowledge or information sufficient to form a belief as4o the remaining averments set forth in this paragraph after reasonable investigation, and denies the same and demands proof thereof operates a of the 4. Denied. This paragraph contains only conclusions of law, to which nol response is required. To the extent a response is deemed required, these allegations are denied pqrsuant to Pa. R.C.P. 1029(e). 5. Denied. After reasonable investigation, answering defendant is knowledge or information sufficient to form a belief as to the truth of the averments Ot forth in this paragraph, and accordingly, denies the same and demands proof thereof. 6. Denied pursuant to Pa. R.C.P. 1029(e). 7. Denied pursuant to Pa. R.C.P. 1029(e). 8. Denied. After reasonable investigation, answering defendant, is knowledge or information sufficient to form a belief as to the truth of the averments s?t forth in this paragraph, and accordingly, denies the same and demands proof thereof. 9. Denied. After reasonable investigation, answering defendant is knowledge or information sufficient to form a belief as to the truth of the averments sqt forth in this paragraph, and accordingly, denies the same and demands proof thereof. 10. Denied. After reasonable investigation, answering defendant is knowledge or information sufficient to form a belief as to the truth of the averments s t forth in this paragraph, and accordingly, denies the same and demands proof thereof: 11. Denied. It is denied that Ruby Tuesday, Inc. had sole and exclusive management and maintenance of the premises, as Ruby Tuesday operates the restaura it pursuant to a lease agreement. 12. (a) - (e). Denied pursuant to Pa. R.C.P. 1029(e). 13. Denied. Ruby Tuesday, Inc. specifically denies that any act or omissi n on its part was a direct and proximate cause of injury to plaintiff. By way of further responle, after reasonable investigation, Ruby Tuesday is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph concerning the nature and extent of plaintiff's injuries, and therefore, those allegations are denied. 14. Denied. Ruby Tuesday, Inc. specifically denies that any act or omission on its part was a direct and proximate cause of injury to plaintiff. By way of further reasonable investigation, Ruby Tuesday is without knowledge or information belief as to the truth of the remaining allegations contained in this paragraph, and allegations are denied. 15. Denied. Ruby Tuesday, Inc. specifically denies that any act or part was a direct and proximate cause of injury to plaintiff. By way of further reasonable investigation, Ruby Tuesday is without knowledge or information after to form a ore those on its after to form a belief as to the truth of the remaining allegations contained in this paragraph, and allegations are denied. 16. Denied. Ruby Tuesday, Inc. specifically denies that any act or part was a direct and proximate cause of injury to plaintiff. By way of further reasonable investigation, Ruby Tuesday is without knowledge or information belief as to the truth of the remaining allegations contained in this paragraph, and allegations are denied. ore those on its after to form a ore those 17. Denied. Ruby Tuesday, Inc. specifically denies that any act or omission on its part was a direct and proximate cause of injury to plaintiff. By way of further respon?e, after reasonable investigation, Ruby Tuesday is without knowledge or information sufficie[it to form a belief as to the truth of the remaining allegations contained in this paragraph, and allegations are denied. WHEREFORE, defendant Ruby Tuesday, Inc. demands judgment in its favor with costs and other relief which may be appropriate. NEW MATTER 18. Ruby Tuesday incorporates its answers to paragraphs 1 through 17 of complaint as if fully set forth at length herein. 19. No act or omission on the part of Ruby Tuesday, Inc. was the direct or substantial cause or contributing factor of plaintiff s alleged injuries and/or 20. Any alleged injuries to plaintiff was caused by the negligence, carelessness of persons over whom Ruby Tuesday, Inc. had neither control nor the those legal, or to control. 21. Any alleged injuries to plaintiff was caused by the intervening, of persons over whom Ruby Tuesday, Inc. had neither control nor the right to control 22. Plaintiff may have failed to mitigate her damages. WHEREFORE, defendant Ruby Tuesday, Inc. demands judgment in its favor with costs and other relief which may be appropriate. DALLER GREENBERG & DIETRICH. LLP 'Y- -Edward A. Greenberg Joseph F. Kampherstein III Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428 (215) 836-1100 acts Attorneys for Defendant, Ruby Tuesday, Inc. VERIFICATION 1, -UtIbA Kt-n-S verify that I am of Ruby Tuesday, Inc. and that I have read the foregoing Answer of Ruby Tuesday, c. to Plaintiff s Amended Complaint, and that the information set forth therein is true and correct to the best of my information and belief. I understand that this statement is made subje t to the penalties of 18 Pa. C.S.A. § 4904 relating to unworn falsification to authorities. ?i4?+Kr Date: 03-Z'1-05 CERTIFICATE OF SERVICE I, Joseph F. Kampherstein, III, hereby certify that a true and correct co?y of the foregoing Answer to Plaintiff s Complaint was served by first-class United States prepaid, as follows: Mary A. Etter Dissinger, Esquire Dissinger and Dissinger 400 South State Road Marysville, PA 17055 Attorneys for plaintiff Joseph F. Kamphersteip, III postage Date: March 29, 2005 .__ ?? _? ? -n _ ? ; - _, _ ? ?V _ ?. '. .? ?? ?, l .. .?- J ?\ `? Diana Heckert, Plaintiff VS. Ruby Tuesday, Inc., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. G?-Od S C)GS?71 JURY TRIAL DEMANDED ANSWER TO NEW MATTER OF DEFENDANT TO PLAINTIFF'S AMENDED COMPLAINT 18. No answer is required. 19. Denied. It is specifically denied that no act or i lomission on the part of Ruby Tuesday, Inc. was the proximate, (legal, direct or substantial cause or contributing factor of laintiff's alleged injuries and/or damages. 20. Denied. It is specifically denied that any alleged njuries to Plaintiff was caused by the negligence, recklessness, r carelessness of persons over whom Ruby Tuesday, Inc. had ither control nor the right to control. 21. Denied. It is specifically denied that any alleged juries to Plaintiff was caused by the intervening, superseding is of persons over whom Ruby Tuesday, Inc. had neither control the right to control. 22. Denied. It is specifically denied that Plaintiff has failed to mitigate her damages. Wherefore, Plaintiff demands judgement in her favor and against Defendant Ruby Tuesday, Inc. Respectfully Submitted: DissA nger & Dissinger ?iaky A. Ett6-r'ISissi.nger Supreme Court ID #27736 Karen L. Cummings Supreme Court ID #85556 400 South State Road Marysville, PA 17053 (717) 957-3474 Verification I, Diana Heckert, verify that the statements made in this ,Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification. ana Heckert Diana Heckert, Plaintiff vs. Ruby Tuesday, Inc., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO . >-D& 60 S'I : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Mary A. Dissinger, do hereby certify that a copy of the foregoing Answer to New Matter of Defendant to Platini.ff's IAmended Complaint has been duly served upon Joseph F. lKampherstein, attorney for Ruby Tuesday, Inc, by depositing !same in the United States Mail, postage prepaid, addressed as Ifollows: Joseph F. Kampherstein, Esq. Daller, Greenberg, & Dietrich Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19248-2060 te: k S e?, 1, ? •?.; ? en L . Cummings Attorney for Defendant v t ., ro r, DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D. No. 32171 By: Joseph F. Kampherstein, III I.D. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. DIANA HECKERT COURT OF COMMON PLEAS CUMBERLAND COUNTY V. CIVIL ACTION - LAW NO. 05-591 RUBY TUESDAY, INC. JURY OF 12 DEMANDED The trial list will be called on March 4, 2008 and Trials commence on March 31, 2008 Pretrials will be held on March 12, 2008 (briefs are due 5 days before pretrials) PRAECIPE TO LIST CASE FOR TRIAL TO THE PROTHONOTARY: Kindly list the above captioned matter for JURY TRIAL at the next term of civil court. Trial counsel for filing party: Joseph F. Kampherstein, III Trial counsel for plaintiff. Unknown. This case is ready for trial. Date: January 24, 2008 DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg Joseph F. Kampherstein, III Attorneys for Defendant, Ruby Tuesday, Inc. CERTIFICATE OF SERVICE I, Joseph F. Kampherstein, III, hereby certify that a true and correct copy of the foregoing Praecipe to List Case for Trial was served by first-class United States mail, postage prepaid, as follows: Mary A. Etter Dissinger, Esquire Dissinger and Dissinger 400 South State Road Marysville, PA 17055 Attorneys for plaintiff Joseph F. Kampherstein, III Date: January 24, 2008 2 r Last day for filing praecipe for trial listing: Call of the civil trial list: Pretrial memo due: Pretrial conferences: Civil trial week: February 11, 2008 March 4, 2008 March 7, 2008 March 12, 2008 March 31, 2008 ? ? ? ? '? p ?- ? ? ? `-? r ' ? ?? A 3"rt'1 ?,? ._. ? ? t., ? 'r? ? ?.. ?' ?? ? ,,..... .4J f DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D. No. 32171 By: Joseph F. Kampherstein, III I.D. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. DIANA HECKERT V. RUBY TUESDAY, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 05-591 JURY OF 12 DEMANDED PRAECIPE TO WITHDRAW PRAECIPE TO LIST CASE FOR TRIAL TO THE PROTHONOTARY: Kindly withdraw the praecipe to list the above-captioned case for trial, filed January 25, 2008. DALLER GREENBERG & DIETRICH, LLP By: dward A. Greenberg Joseph F. Kampherstein, III Attorneys for Defendant, Date: February 5, 2008 Ruby Tuesday, Inc. 10 ' CERTIFICATE OF SERVICE I, Joseph F. Kampherstein, III, hereby certify that a true and correct copy of the foregoing Praecipe to Withdraw Praecipe to List Case for Trial was served by first-class United States mail, postage prepaid, as follows: Mary A. Etter Dissinger, Esquire Dissinger and Dissinger 400 South State Road Marysville, PA 17055 Attorneys for plaintiff Joseph F. Kampherstein, III Date: February 5, 2008 2 ? ? -;. `? ^"a t ? ?? C .. `> r =::' ?.;1 ..?J '`` `".., --Q .,,,?. I'llF CM WI, OF (`ONINJON PLfl, 01. 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