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HomeMy WebLinkAbout14-0718 Supreme Co n nsylvania Cour Comm -o leas For Prothonotary Use Only: 1! t C . 1� �'Q. " Docket No: Cu �nd County l The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service ofpleadings or other papers as required by law or rules ofcourt. Commencement of Action: S 0 Complaint 0 Writ of Summons 0 Petition E 0 Transfer from Another Jurisdiction 0 Declaration of Taking C Lead Plaintiff's Name: Lead Defendant's Name: T Marie Bonanni and Clair Bonanni Karns Prime and Fancy Foods, LTD a/k/a Karns Qualit I Are money damages requested? 0 Yes 0 No Dollar Amount Requested: rMwithin arbitration limits (check one) Ooutside arbitration limits N Is this a Class Action Suit? Yes x! No Is this an MDJAppeal? 0 Yes x' No A Name of Plaintiff /Appellant's Attorney: Andrea M. Cohick, Esquire 0 Check here if you have no attorney (are a Self - Represented ll'ro 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 © Debt Collection: Other 0 Board of Elections 0 Nuisance 0 Dept. of Transportation Premises Liability 0 Statutory Appeal: Other S 0 Product Liability (does not include E mass tort) 0 Employment Dispute: 0 Slander/Libel/ Defamation Discrimination C 0 Other: 0 Employment Dispute: Other 0 Zoning Board T Other: I 0 Other: O MASS TORT 0 Asbestos N 0 Tobacco 0 Toxic Tort - DES © Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste ® 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 0 Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY rJl 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 METZGER, WICKERSHAM, P.C. Ll ICUTtyc By: Andrea M. Cohick, Esquire t A ' Attorney I.D. No. 307410 201 F - 7 pll 1 : 0 Zachary D. Campbell, Esquire L. UMRERL 1, tjD Attorney I.D. No. 93177 pE NIV S YLVANIA }� 2321 Paxton Church Road P.O. Box 69200 Harrisburg, PA 17106 -9200 (717) 238 -8187 Attorneys for Plaintiffs MARIE BONANNI and IN THE COURT OF COMMON PLEAS OF CLAIR BONANNI, Individually and CUMBERLAND COUNTY, PENNSYLVANIA as husband and wife, Plaintiffs CIVIL ACTION - LAW vs. KARNS PRIME AND FANCY NO. FOOD, LTD a/k/a KARNS QUALITY FOODS Defendant WITHIN ARBITRATION LIMITS NOTICE TO DEFEND TO: Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods 675 SilverSpring Road Mechanicsburg, PA 17050 YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within Twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. \ A 544251 -1 7/ c/6 3 R4- ?G13 a (� v Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249 -3166 544251 -1 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 esrita en persona o po 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 dinero reclamado en la demanda o po cualquier otra queja o compensaci6n reclamados por el Demandante. LISTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE, SI USTED NO TIENE O NO CONOCE UN ABODAGO, 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 (717) 249 -3166 544251 -1 r METZGER, WICKERSHAM, P.C. By: Andrea M. Cohick, Esquire Attorney I.D. No. 307410 Zachary D. Campbell, Esquire Attorney I.D. No. 93177 2321 Paxton Church Road P.O. Box 69200 Harrisburg, PA 17106 -9200 (717) 238 -8187 Attorneys for Plaintiffs MARIE BONANNI and IN THE COURT OF COMMON PLEAS OF CLAIR BONANNI, Individually and CUMBERLAND COUNTY, PENNSYLVANIA as husband and wife, Plaintiffs CIVIL ACTION - LAW VS. ; KARNS PRIME AND FANCY NO. FOOD, LTD a/k/a KARNS QUALITY FOODS Defendant WITHIN ARBITRATION LIMITS COMPLAINT AND NOW, come the Plaintiffs, Marie Bonanni and Clair Bonanni, by and through their attorneys, Metzger, Wickersham, Knauss & Erb, and respectfully represents the following: FACTS APPLICABLE TO ALL COUNTS 1. Plaintiffs, Marie Bonanni and Clair Bonanni, are adult individuals residing at 4608 Hampden Avenue, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods, is a Pennsylvania corporation with a registered office in Pennsylvania at 675 Silver Spring Road, Mechanicsburg, Cumberland County, Pennsylvania 17050. 544251 -1 3. At all times material hereto, Defendant owned, occupied, possessed, maintained, controlled and operated a grocery store at 4870 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17050 (hereinafter "Premises "). 4. On April 17, 2013 at approximately 11:00 a.m., Plaintiff was waiting in line at a checkout station when a store attendant advised her that she could move to the self - checkout area. Plaintiff attempted to walk through an opening between two self - checkout stations in order to get to the store attendant that would assist her with her purchases. As Plaintiff walked through the opening, Plaintiff fell over a raised step, causing her to fall. 5. At the time of Plaintiff, Marie Bonanni's aforesaid fall, Plaintiff was a business invitee of Defendant. COUNT MARIE BONANNI v. KARNS PRIME AND FANCY FOOD, LTD A/K/A KARNS QUALITY FOODS 6. Paragraphs 1 through 5 of Plaintiff's Complaint are incorporated herein by reference as if fully set forth. 7. Defendant, Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods, knew or should have known of the dangerous condition at or near the checkout stations of the Premises and knew or should have expected that its customers would not discover the hazard and protected its customers against the hazard. 8. Defendant, Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods, individually and /or by its agents, servants, workmen and /or employees, acting within the scope of their authority and course of their employment, breached its legal duty to the public and to Plaintiff and was negligent in the following particulars: 544251 -1 (a) Failing to give any warning either verbally or by any type of sign of the dangerous condition; (b) Failing to inspect, seek out, discover, maintain or otherwise repair the dangerous condition; (c) Failing to exercise reasonable care to protect pedestrians /patrons /customers, including Plaintiff, against the hazardous condition; (d) Allowing a dangerous and defective condition to be in existence upon the Premises without correction and /or repair; (e) Failing to have in place adequate illumination or lighting so that the hazardous condition in the checkout area(s) of the Premises could have been more readily observable; (f) Failing to warn its customers and Plaintiff of the dangerous condition including failing to have in place any warning signs or cones; (g) Failing to take the necessary protective and precautionary measures to ensure that its customers, including Plaintiff, had a safe walkway surface and were not subject to a trip and fall; (h) Failing to have the necessary personnel, employees, workmen, servants, agents and /or independent contractors available to maintain the checkout area(s) and keep it free from hazardous conditions; (i) Failing to barricade, rope off or otherwise bar access to the hazardous condition so that people, including Plaintiff, would not go through it; (j) Failing to have in place a program to prevent and /or respond to such a dangerous condition and to prevent such falls; (k) Failing to adequately train its employees, servants, workmen, agents, independent contractors to ensure that the checkout area(s) were free from hazardous conditions and /or that other protective measures are taken to protect its customers including Plaintiff from falling; (1) Hiring and /or retaining an employee, servant, workmen, agent, and /or independent contractor who was unfit or incompetent to keep the checkout area(s) of the Premises clear and free from hazardous conditions and /or take the other protective measures necessary to protect its customers from falling; 544251 -1 (m) Failing to take the necessary protective and precautionary measures to ensure that customers including Plaintiff were safe in its store and were not subject to a hazardous areas in the checkout area(s); (n) Not having in place signs to alert customers that the walkway in between the checkout areas was raised; (o) Failing to properly instruct, train, supervise and /or require personnel, employees, agents, servants and workmen of Defendant, to abide by proper safety standards, policies, and procedures; and (p) Allowing the dangerous condition of a raised step to be in a common walking area without any caution signs. 9. Defendant, Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods, is vicariously liable for the acts and /or omissions of its agents, servants, workmen and /or employees as though it performed the acts and /or omissions itself and subject to the doctrine of respondeat superior. 10. As a direct and proximate result of the negligence of Defendant, Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods, Plaintiff, Marie Bonanni, sustained, or may sustain, serious and debilitating injuries, some of which may be permanent, and some of which may be an aggravation and /or exacerbation of a pre- existing condition, which include, but are not limited to, the following: (a) Right shoulder pain/injury; (b) Right arm fracture; (c) Right arm pain/injury; and (d) Right knee pain/injury. 11. As a direct and proximate result of the aforesaid negligence of Defendant, Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods, Plaintiff, Marie Bonanni, has undergone and in the future will undergo physical pain, mental anguish, discomfort, inconvenience, distress, 544251 -1 embarrassment and humiliation, past, present and future loss of her ability to enjoy the pleasures of life and limitations in her pursuit of daily activities. 12. As a direct and proximate result of the aforesaid negligence of Defendant, Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods, Plaintiff, Marie Bonanni, has and /or may in the future incur expenses for medical treatment, surgery and rehabilitation for which damages are claimed. 13. As a direct and proximate result of the aforesaid negligence of Defendant, Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods, Plaintiff, Marie Bonanni, has and may in the future incur a loss of earning capacity, loss of household services and other economic damages for which damages are claimed. 14. As a direct and proximate result of the aforesaid negligence of Defendant, Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods, Plaintiff, Marie Bonanni, sustained incidental costs and losses to include, but not limited to, past and future medication costs and /or medical appliances. 15. As a direct and proximate result of the negligence of Defendant, Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods, Plaintiff, Marie Bonanni, has, or may in the future be, scarred and disfigured. WHEREFORE, Plaintiff, Marie Bonanni, demands judgment against Defendant, Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods, for the aforesaid damages in an amount less than the limits of compulsory arbitration in Cumberland County, Pennsylvania plus interest and /or damages for delay and costs of prosecution. 544251 -1 COUNT CLAIR BONANNI v. KARNS PRIME AND FANCY FOOD, LTD A/K/A KARNS QUALITY FOODS 16. Paragraphs 1 through 15 hereof are incorporated herein by reference as if fully set forth. 17. During all relevant times, Plaintiffs, Marie Bonanni and Clair Bonanni, were wife and husband, and as a result of the foregoing incident, the aforesaid negligence and carelessness of Defendant, Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods, and as a result of the injuries to Plaintiff, Marie Bonanni, the Plaintiff, Clair Bonanni, has been deprived of the assistance, companionship, consortium and society of his wife and has lost her services to him which may continue indefinitely. WHEREFORE, Plaintiff, Clair Bonanni, demands judgment against Defendant, Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods, for the aforesaid damages in an amount less than the limits of compulsory arbitration in Cumberland County, Pennsylvania, plus interest and/or delay damages and cost of prosecution. METZG ` , 1CKERSHAM, Kt AERB, P.C. By Andrea M. Cohick, Esquire I. D. No. 307410 Zachary D. Campbell, Esquire I.D. No. 93177 2321 Paxton Church Road P.O. Box 69200 Harrisburg, PA 17106 -9200 a (717) 238 -8187 Dated: 4 Attorneys for Plaintiffs 544251 -1 VERIFICATION I, Marie Bonanni, hereby certify that the following is correct: The facts set forth in the foregoing Complaint are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Complaint is that of counsel and not my own. I have read the Complaint, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the Complaint is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Dated: Marie Bonanm 544151 -1 VERIFICATION I, Clair Bonanni, hereby certify that the following is correct: The facts set forth in the foregoing Complaint are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Complaint is that of counsel and not my own. I have read the Complaint, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the Complaint is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. Dated: a/3/ c Clair Bonanni 544251 -1 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson t �l Sheriff ,,,: t t Fr"'z Jody S Smith ' -7 r Chief Deputy 1 �_ IO: q Richard W Stewart CUMBERLAND � Solicitor oFr ` PENNSYLVANIA Marie Bonanni (et al.) vs. Case Number Karnes Prime and Fancy Food, Ltd a/k/a Karns Quality Foods 2014-718 SHERIFF'S RETURN OF SERVICE 02/19/2014 11:42 AM - Deputy Jamie DiMartle, being duly sworn according to law, served the requested Complaint& Notice by handing a true copy to a person representing themselves to be Scott Karns, Owner and CEO, who accepted as"Adult Person in Charge"for Karnes Prime and Fancy Food, Ltd a/k/a Karns Quality Foods at 675 Silver Spring Road, Silver Spring Township, Mechanicsburg, PA 17050. �� SAAAA - .milt ,y±. IE DIMARTLE, D "UTY SHERIFF COST: $39.30 SO ANSWERS, February 24, 2014 RONR ANDERSON, SHERIFF • osc ,...c Scott D. Mc Carroll, Esquire Thomas, Thomas & Hafer, LLP I.D. No. 92985 P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7131 smccarroll@tth law. com MARIE BONANNI and CLAIR BONANNI, Individually and as husband and wife, Plaintiffs VS. KARNS PRIME AND FANCY FOOD, LTD a/k/a KARNS QUALITY FOODS, Defendant TO THE PROTHONOTARY: THE FR,GTilioNOLTAR'f 20I it RR 12 PH 1: 43 CUMBERL:AND COUNTY PENNS YLVAt4IA Counsel for Defendant Karns Prime and Fancy Food, Ltd a/k/a Karns Quality Foods IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION — LAW NO. 14-718 WITHIN ARBITRATION LIMITS ENTRY OF APPEARANCE Please enter our appearance on behalf of Defendant Karns Prime and Fancy Food, Ltd a/k/a Karns Quality Foods in the above matter. By: Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Cott D. McCarroll PA I.D. No. 92985 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7131 CERTIFICATE OF SERVICE AND NOW, this day of 7i)11Ait.Gk_ , 2O14, I, Co leen M. Polek, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Andrea M. Cohick, Esq. Metzger Wickersham, P.C. 2321 Paxton Church Road P.O. Box 69200 Harrisburg, PA 17106-9200 Co leen M. Polek 1465783.1 MARIE BONANNI and CLAIR BONANNI, Individually and as husband and wife, Plaintiffs VS. KARNS PRIME AND FANCY FOOD, LTD a/k/a KARNS QUALITY FOODS, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION — LAW NO. 14-718 c-5 --a 73". WITHIN ARBITRATION LIMITNiPn STIPULATION OF COUNSEL )■:1. N) 7.7 cs-1 AND NOW, the undersigned counsel, as authorized by their respective clients, hereby agree and stipulate that paragraph 8 of the Complaint at sub-parts (c), (g), and (m) only are hereby stricken. The Court and all parties shall treat the Complaint as having been originally filed as stipulated hereto. This stipulation is made without an admission of liability by Defendant, as said Defendant expressly denies all liability to Plaintiff, but said Defendant and Plaintiff make this stipulation to avoid the costs to all parties associated with the filing of Preliminary Objections to Ire Complaint. Andrea M. Cohick Metzger Wickersham, P.C. 2321 Paxton Church Road P.O. Box 69200 Harrisburg, PA 17106-9200 717.238.8187 Counsel for Plaintiff Date: Scott D. McCarroll, Esq. Thomas, Thomas & Hafer, LLP POB 999 Harrisburg, PA 17108-0999 717-237-7131 Counsel for Defendant Date: V/ eyfy Scott D. McCarroll, Esquire Thomas, Thomas & Hafer, LLP I.D. No. 92985 P.O. Box 999 Harrisburg, PA 17108 -0999 (717) 237-7131 smccarroll@tthlaw.com t THONO 2014 MIR 17 111111: 55 CUMBERLAND COUNTY PEN'NSYLVAN1A MARIE BONANNI and CLAIR BONANNI, Individually and as husband and wife, Plaintiffs vs. KARNS PRIME AND FANCY FOOD, LTD a/k/a KARNS QUALITY FOODS, Defendant Counsel for Defendant Karns Prime and Fancy Food, Ltd a/k/a Karns Quality Foods IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION — LAW NO. 14 -718 WITHIN ARBITRATION LIMITS NOTICE TO PLEAD You are hereby notified to plead to the enclosed Answer with New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. DEFENDANT'S ANSWER WITH NEW MATTER AND NOW, comes Defendant Karns Prime and Fancy Food, Ltd a/k/a Karns Quality Foods, by and through its counsel, Thomas, Thomas & Hafer, LLP, and files this Answer with New Matter to Plaintiffs Complaint, and avers as follows: 1. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that Answering Defendant occupied, possessed, maintained, controlled and operated a grocery store at 4870 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. It is specifically denied that Answering Defendant owns the property at 4870 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. 4. This averment is a conclusion of law to which no response is required. To the extent that a response is required, the averment is denied pursuant to Pa.R.C.P. 1029(e). 5. This averment is a conclusion of law to which no response is required. To the extent that a response is required, the averment is denied pursuant to Pa.R.C.P. 1029(e). COUNT I 6.' Paragraph 6 is a paragraph of incorporation to which no response is required. To the extent that a response is required, the above averments of Answering Defendant's Answer with New Matter are incorporated herein as if set forth at length. 7. This averment is a conclusion of law to which no response is required. To the extent that a response is required, the averment is denied pursuant to Pa.R.C.P. 1029(e). 8.(a -p) This averment and its sub -parts (a -p) are the subject of a stipulation. By way of further response, the averment and its sub -parts are conclusions of law to which no response is required. To the extent that a response is required, the averment and its sub -parts (a -p) are denied pursuant to Pa.R.C.P. 1029(e). 9. This averment is a conclusion of law to which no response is required. To the extent that a response is required, the averment is denied pursuant to Pa.R.C.P. 1029(e). 10. This averment is a conclusion of law to which no response is required. To the extent that a response is required, the averment is denied pursuant to Pa.R.C.P. 1029(e). 11. This averment is a conclusion of law to which no response is required. To the extent that a response is required, the averment is denied pursuant to Pa.R.C.P. 1029(e). 2 ( 12. This averment is a conclusion of law to which no response is required. To the extent that a response is required, the averment is denied pursuant to Pa.R.C.P. 1029(e). 13. This averment is a conclusion of law to which no response is required. To the extent that a response is required, the averment is denied pursuant to Pa.R.C.P. 1029(e). 14. This averment is a conclusion of law to which no response is required. To the extent that a response is required, the averment is denied pursuant to Pa.R.C.P. 1029(e). 15. This averment is a conclusion of law to which no response is required. To the extent that a response is required, the averment is denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Answering Defendant respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiffs. COUNT II 16. Paragraph 16 is a paragraph of incorporation to which no response is required. To the extent that a response is required, the above averments of Answering Defendant's Answer with New Matter are incorporated herein as if set forth at length. 17. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. By way of further response, this averment is a conclusion of law to which no response is required. WHEREFORE, Answering Defendant respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiffs. NEW MATTER 18. Answering Defendant incorporates herein, as if set forth at length, the above averments of its Answer with New Matter. 3 19. Plaintiff's claims may be reduced and/or barred based on Plaintiff's own negligence, conduct, or omissions. 20. Plaintiff's claims may be reduced or barred by her highly reckless conduct. 21. None of the alleged conduct on the part of Answering Defendant amounted to a substantial cause for all and /or some of the Plaintiffs injuries and/or damages. 22. Negligent acts or omissions of other individuals and/or entities may have constituted intervening, superseding causes of the damages and /or injuries alleged to have been sustained by the Plaintiff. 23. Plaintiff failed to mitigate her damages. 24. Plaintiff's claims may be barred by the doctrine of waiver. 25. Plaintiff's claims may be barred by the doctrine of accord and satisfaction. 26. Plaintiff's claims may be barred by res judicata or collateral estoppel. 27. Plaintiff fails to state claims upon which relief may be granted. 28. Plaintiff's claims may be barred by the applicable statute of limitations or other procedural limitations periods. 29. Plaintiff's claims may be barred by prior enforceable agreement to settle, accord, and/or satisfaction. 30. Plaintiff's claims may be reduced or barred because she assumed the risk. 31. Plaintiff's claims may be reduced or barred as her acts and /or omissions were taken voluntarily with knowledge of the risks and consequences thereof. 32. Plaintiff assumed the risk of her injuries. 33. Plaintiff's claims may be barred because the alleged condition was open and obvious and /or Plaintiff had notice of the condition. 4 WHEREFORE, Answering Defendant respectfully requests that judgment be entered, in its favor and against Plaintiff. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Scott D. McCarroll PA I.D. No. 92985 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 -0999 (717) 237 -7131 5 VERIFICATION I, D o em4 A.Ld !a' (44 have read the foregoing Answer with New Matter and hereby affirm that it is true and correct to the best of my personal knowledge, information and belief. This Verification and statement is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities; I verify hat all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa.C.S. § 4904. Date: /4-1(1 for Karns Prime and Fancy Food, Ltd a/k/a Karns Quality Foods 6 CERTIFICATE OF SERVICE Yr' AND NOW, this day of , 20114—I, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Andrea M. Cohick, Esq. Metzger Wickersham, P.C. 2321 Paxton Church Road P.O. Box 69200 Harrisburg, PA 17106 -9200 Coleen M. Polek 1467855.1 7 } METZGER, WICKERSHAM, P.C. By: Andrea M. Cohick, Esquire Attorney I.D. No. 307410 Zachary D. Campbell, Esquire Attorney I.D. No. 93177 2321 Paxton Church Road P.O. Box 69200 Harrisburg, PA 17106 -9200 (717) 238-8187 i? 21 PM 1 :02 i.JV 13EPL AND COUNTY PENNSYLVANIA Attorneys for Plaintiffs MARIE BONANNI and CLAIR BONANNI, Individually and as husband and wife, Plaintiffs vs. KARNS PRIME AND FANCY FOOD, LTD a/k/a KARNS QUALITY FOODS Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 14 -718 WITHIN ARBITRATION LIMITS PLAINTIFFS' REPLY TO DEFENDANT'S NEW MATTER 18. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). 19. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e) and 1030(note). By way of further reply, it is specifically denied that the Plaintiff was negligent, thereby limiting and /or barring any recovery. To the contrary, Defendant's acts and omissions were negligent, were a substantial factor, were not an insignificant factor, and were the legal, factual and /or proximate cause in injuring Plaintiff and causing damages to the Plaintiff. Plaintiff incorporates herein by reference its Complaint filed in this action. 20. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa. R.C.P. No. 1029 (e) and 1030 (note). By way of 548011 -1 further reply, Plaintiff was not reckless in any manner. Defendant was negligent and careless as set forth in the Complaint filed in this action, which is incorporated herein by reference. 21. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa. R.C.P. No. 1029(e). By way of further reply, Defendant was negligent and its negligence was a substantial factor or factual cause or legal cause or the proximate cause in the happening of the accident and Plaintiffs' injuries as set forth in the Complaint filed in this action which is incorporated herein by reference. 22. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied as stated and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Defendant has not identified the "other individuals and /or entities" and Plaintiffs cannot more specifically reply. 23. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa. R.C.P. No. 1029(e). By way of further reply, Plaintiff, Marie Bonanni, has sought the necessary medical treatment and has mitigated her damages the best she could. 24. Conclusion of law, no reply required. If a reply is required, the averments are specifically denied. Furthermore, the averments are denied pursuant to Pa. R.C.P. No. 1029(e). By way of further reply, Defendant has failed to set forth how Plaintiffs' action or claims are barred by the doctrine of waiver. 25. Conclusion of law, no reply required. If a reply is required, the averments are specifically denied. Furthermore, the averments are denied pursuant to Pa. R.C.P. No. 1029(e). By way of further reply, Defendant has failed to set forth how Plaintiffs' action or claims are barred by the doctrine of accord and satisfaction. 548011 -1 26. Conclusion of law, no reply required. If a reply is required, the averments are specifically denied. Furthermore, the averments are denied pursuant to Pa. R.C.P. No. 1029(e). By way of further reply, Defendant has failed to set forth how Plaintiffs' action or claims are barred by res judicata or collateral estoppel. 27. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Plaintiffs, in their Complaint, have stated a cause of action upon which relief can be granted and Defendant has not filed any preliminary objections to the Complaint, which is incorporated herein by reference. 28. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, the civil action was filed against the Defendant in a timely manner before the expiration of any statute of limitations and timely served upon Defendant as required under the Pennsylvania Rules of Civil Procedure. 29. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Plaintiffs have not settled or satisfied their claims. 30. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Plaintiffs' claims are not reduced or barred by the assumption of risk. By way of further reply, Defendant has failed to specify how Plaintiffs assumed the risk in causing their injuries and, as a result, Plaintiffs are unable to more specifically reply to the averment. By way of further answer, Plaintiffs did not assume the risk in any manner and strict proof of their alleged 548011 -1 assumption of risk, which is denied, is demanded at the time of trial. 31. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied as stated and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, it is denied that Plaintiff's acts and /or omissions were taken voluntarily with knowledge of the risks and consequences. To the contrary, Defendant's acts and omissions were negligent, were a substantial factor, were not an insignificant factor, and were the legal, factual and /or proximate cause in injuring Plaintiffs and causing damages to the Plaintiffs. Plaintiffs incorporate herein by reference his Complaint filed in this action. 32. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied and denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Plaintiffs' claims are not reduced or barred by the assumption of risk. By way of further reply, Defendant has failed to specify how Plaintiffs assumed the risk in causing their injuries and, as a result, Plaintiffs are unable to more specifically reply to the averment. By way of further answer, Plaintiffs did not assume the risk in any manner and strict proof of their alleged assumption of risk, which is denied, is demanded at the time of trial. 33. Conclusions of law, no reply required. If a reply is required, the averments are specifically denied. Furthermore, the averments are denied pursuant to Pa.R.C.P. No. 1029(e). Moreover, Plaintiff was not negligent in any manner and the "alleged condition" was not "open and obvious" at the time of the fall as set forth in the Complaint in this action which is incorporated herein by reference as if fully set forth. 548011 -1 WHEREFORE, Plaintiffs, Marie Bonanni and Clair Bonanni, demand that Defendant's New Matter be dismissed and that judgment be entered in Plaintiffs' favor and against the Defendant as requested in the Complaint filed in this action. Dated: 548011 -1 METZG R, WICKERSHAM, KNAUSS & ERB, P.C. By: , 2014 An: rea M. Cohick, squir Attorney I.D. No. 307410 Zachary D. Campbell, Esquire Attorney I.D. No. 93177 2321 Paxton Church Road P.O. Box 69200 Harrisburg, PA 17106 -9200 (717) 238 -8187 (717) 234 -9478 (fax) Attorneys for Plaintiffs VERIFICATION I, Marie Bonanni, hereby certify that the following is correct: The facts set forth in the foregoing Reply to New Matter are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Reply to New Matter is that of counsel and not my own. I have read the Reply to New Matter, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the Reply to New Matter is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Reply to New Matter are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. Dated:3 % .?//it 548011 -1 6-Itet/V,G1 Marie Bonanni VERIFICATION I, Clair Bonanni, hereby certify that the following is correct: The facts set forth in the foregoing Reply to New Matter are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Reply to New Matter is that of counsel and not my own. I have read the Reply to New Matter, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief To the extent that the content of the Reply to New Matter is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Reply to New Matter are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. Dated: 13 548011 -1 Clair Bonanni CERTIFICATE OF SERVICE I, Andrea M. Cohick, Esquire, hereby certify that I served a true and correct copy of Plaintiffs' Reply to Defendant's New Matter with reference to the foregoing action by first class mail, postage prepaid, this day of , 2014 on the following: Defendant, Karns Prime and Fancy Food, LTD a/k/a Karns Quality Foods c/o Scott D. Mc Carroll, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 E GER, WICKERSHAM, KNAUSS & ERB, P.C. Andr M. Co ick, squire 548011-1 METZGER, WICKERSHAM, P.C. By: Andrea M. Cohick, Esquire Attorney I.D. No. 307410 Zachary D. Campbell, Esquire Attorney I.D. No. 93177 2321 Paxton Church Road P.O. Box 69200 Harrisburg, PA 17106-9200 (717) 238-8187 Attorneys for Plaintiffs MARIE BONANNI and CLAIR BONANNI, Individually and as husband and wife, Plaintiffs vs. KARNS PRIME AND FANCY FOOD, LTD a/k/a KARNS QUALITY FOODS Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 14-718 WITHIN ARBITRATION LIMITS PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above captioned matter settled, discontinued and ended. r Dated:4�a 564477-1 0 614 METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By: Andrea M Cohick, squire Attorney ID No. 307410 Zachary D. Campbell, Esquire Attorney ID No. 93177 2321 Paxton Church Road P.O. Box 69200 Harrisburg, PA 17106-9200 Attorneys for Plaintiffs