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Home My WebLink About05-1849 MORGAN & WILKEN, P.c. BY: SCOTT W. MORGAN, ESQUIRE IDENTIFICATION NO. 36721 120 SOUTH STREET HARRISBURG, PA 17101-1210 (717) 236-7959 ATTORNEYS FOR PLAINTIFF MARY A, KIRK 31 West Factory Street Mechanicsburg, PA 17055, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. OS - ;;"1'1 CIC..)LCC,tfi-Y'Y'l v. CIVIL ACTION - LAW LOWE'S COMPANIES, INC. 1000 Lowe's Boulevard Mooresville, NC 28115, JURY TRIAL DEMANDED Defendant NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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 A venue Carlisle, PA 17013 (717) 249-3166 A VISO .. Le han demandado a usted en la corte. Si usted defenderse de estas demandas expuestas en law paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita 0 en persona 0 con un abogado y entregar a la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, ia corte tomara medidas y puede continuer ia demanda en contra suya sin previo aviso 0 notificacion. Ademas, la corte puede decodor a favor del demandante y requiere que usted cumpla con todas law provisiones de eSta demanda. Usted puede perder dinero 0 sus propiedades u otros derechos importantes para usted, LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 Sl NO TlENE ELDINERO SUFIClENTE DE PAGAR TAL SERVICO, V A Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DlRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUlR AS1STENCIA LEGAL. Cumberland County Bar Association 2 Liberty A venue Carlisle, PA 17013 (717) 249-3166 MORGAN & WILKEN, p,c. BY: SCOTT W. MORGAN, ESQUIRE IDENTIFICATION NO, 36721 120 SOUTH STREET HARRISBURG, PA 17101-1210 (717) 236-7959 ATTORNEYS FOR PLAINTIFF Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. DS-If'4'i e'(.)~L'-T~ MARY A. KIRK 31 West Factory Street Mechanicsburg, PA 17055, v. CIVIL ACTION - LAW LOWE'S COMPANIES, INC. 1000 Lowe's Boulevard Mooresville, NC 28115, JURY TRIAL DEMANDED Defendant COMPLAINT Plaintiff, by and through her attorneys, Morgan & Wilken, P.C., hereby complains against Defendant and avers as follows: 1. Plaintiff is an adult individual residing at the above address. 2. Defendant is a business organization operating a commercial business known as Lowe's Home Improvement Warehouse of Mechanicsburg, located at 6520 Carlisle Pike, Mechanicsburg, PA. 3. At all times material hereto, Defendant acted through its agents, servants and/or employees within the course and scope of their agency or employment. 4, On or about May 21, 2004, Plaintiff was a business invitee at Defendant's store in Mechanicsburg, Pennsylvania. 5. On that date, Defendant owned, possessed and/or controlled the building comprises the Lowe's Home Improvement Warehouse of Mechanicsburg at 6520 Carlisle Pike, Mechanicsburg, PA, and, in particular, the entrance doors, doorways, and door opening/closing mechanisms of said building. 6. On May 21, 2004, Plaintiff was injured when an unsafe functioning entrance door s truck her, 7, At all times material hereto, Defendant knew or should have known that the said entrance door was not safely and properly functioning. 8. As a result of the impact by the door, Plaintiff sustained severe and disabling injuries, including but not limited to, injuries to her nerves, bones, muscles, joints and fascia, pain and suffering, mental and emotional distress, which may be continuing. 9. As a further result of her injuries, Plaintiff incurred bills for medical care, treatment and rehabilitation, and suffered loss of life's pleasures and diminution of daily activities, which may be continuing. 10. Plaintiff's damages and injuries were caused by the negligence of Defendant, to wit: A, Failing to have in place polices and procedures to inspect, maintain and repair entrance doors and door opening/closing mechanisms; B. Failing to follow up and/or implement polices, rules and procedures regarding the inspection, maintenance and repair of entrance doors and door opening/closing mechanisms; , C. Failing to warn persons such as Plaintiff of an unreasonable risk of harm due to improperly and unsafely operating entrance doors; D. Allowing an entrance door and opening/closing door mechanism to function improperly and unsafely; E. Failing properly and adequately to adjust the opening/closing mechanism of the subject door so that it closed and retracted properly, safely and at an appropriate speed and force; F, Allowing the entrance door to close with excessive force and speed so as to present an unreasonable risk of harm to persons such as Plaintiff, who was entering said door. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of $25,000.00, exclusive of interest, costs and delay damages. MORGAN & WILKEN, P,C. DATE: L/_ 7- 0 f . , VERIFICATION Mary A. Kirk states that she is Plaintiff in this matter, and that the statements made in the foregoing Complaint are true and correct to the best of her knowledge, information and belief. She understands that the statements in said pleading are made subject to the penalties of 18 Pa, C.S.A. 94904, relating to unsworn falsification to authorities. 'fiuu tl Mary A.~k :t;Jz (J .(q. g 1 lrl ~ V'\ ~ Q, V\ n cc:> - ~-..; c.J' ~~ - () C> I" ~ \" ...0 ~ , :;0 t - I :See 4 co q!q, ..t:: ~ ..." ~:'~~ i~ { ::li: J.-rn r:-:' S~ 7:'" Ln :l C1' - ,~ " MORGAN & WILKEN, P.c. BY: SCOTT W. MORGAN, ESQUIRE IDENTIFICATION NO, 36721 120 SOUTH STREET HARRISBURG, PA I7IOI-I2IO (717) 236-7959 ATTORNEYS FOR PLAINTIFF MARY A. KIRK 31 West Factory Street Mechanicsburg, PA 17055, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. Plaintiff NO. 05-1849 Civil Term v. CIVIL ACTION - LAW LOWE'S COMPANIES, INC. 1000 Lowe's Boulevard Mooresville, NC 28115, JURY TRIAL DEMANDED Defendant PROOF OF SERVICE TO THE PROTHONOTARY: We hereby certify that on April 15, 2005, Plaintiff served Defendant, Lowe's Companies, Inc" by United States First Class, Certified Mail, return receipt requested, as evidenced by the attached signed receipt. MORGAN & WILKEN, P.C. /' DATED: May -2-,2005 By ~\:~ I'---- sZQUW: Morgan, ESqUi) Attorney for Plaintiff, Mary Kirk ), MARY A. KIRK Plaintiff v. LOWE'S COMPANIES, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. 05-1849 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED . 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 mailpiec8, or on the front if space penn its. 1. Article Addressed to: L.CI.0C'c,Cn"\)f\N lES;.:Lf\.iC. Ieee l..owb.S bLli D. (~lCUK\:S" ,Ll( Nt, ;25l/l6 ; D. Is delivery address different from item 11 t?:.as If YES, enter delivery address below: rNO 3. Service Type tiI Certified Mall D Express Mail D Registered 0 Return Receipt for Merchandise D Insured Mall D C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number (Transf9rfromsetvfcelabel) '7 GO 3 311 [; 000(" 3(15() '773'1, PS Form 3811, February 2004 Domestic Return Receipt 10259S-02-M-1540 T"'o...-"; .g Gf'< ,,' () ,(11 ~(~ ;;-. ( " ,t.. :1 . 105_ A ILlASI TJMILLPGI] 86440VMFI] 5000\50000 MARY A. KIRK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-1849 LOWE'S COMPANIES, lNC., Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned as counsel on behalf of the Defendant, Lowe's Home Centers, Inc. (incorrectly captioned as Lowe's Companies, Inc.), with respect to the above-referenced matter. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATE: 1v1~{ 19( 1u<sS BY: TIM THY J LD. No. 52918 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant, Lowe's Home Centers, Inc. MARY A KIRK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-1849 LOWE'S COMPANIES, lNC., Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Wamer, Coleman & Goggin, do hereby certify that on this'~ct' day of May 2005, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: Scott W. Morgan, Esquire Morgan & Wilken, P.e. 120 South Street Harrisburg, PA 17101-1210 ~~ ~ ,\;\ill Jo eM. Parr (- r-.' -, -n CJ'\ :::;1 ~~1 ,...... v') -."1 ';'",) r"'> \lJ5 _A \lWl\ fJM\LLPO\18644;'JMf\1 ;OOOljOOOO v. IN THE COTJRT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL V ANL.... NO. 05-1849 MARY A. KIRK, P laintitT LOWE'E COMPA..l\TIES, INC., Defendant CML AC1 ION - LAW JURY TRIAL DEMANDED STIPULATION The parties, through their respective counsel, hereby sripulale that all references in the caption and Complaint to "Lowe's Companies, Ine," are hereby amended via this Stipulation to refer to "Lowe's Home Centers, Inc." The caption in this ca.;e shall hereafter be amended to reflect this c1arilication concerning the identification ofDefendmlt. ) r: - Timot~h Mc Attorney for en a t, Lowe's Home Centers,lnc, ..... MARY A. KIRK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-1849 LOWE'S HOME CENTERS, INC., Defendant CNIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this~~ day of May 2005, served a copy of the foregoing Stipulation to Amend Caption via First Class United States mail, postage prepaid as follows: Scott W. Morgan, Esquire Morgan & Wilken, P.C. 120 South Street Harrisburg, PA 17101-1210 '-1Y'\\ \I\~\m anne M. Parr c,', - \05_ A \L1AB\ TJM\LLPGlI87253IJMF\12240\OO286 MARY A. KIRK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-1849 LOWE'S HOME CENTERS, INC., Defendant CNIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Plaintiff, Mary A. Kirk c/o Scott W. Morgan, Esquire Morgan & Wilken, P.C. 120 South Street Harrisburg, PA 17101-1210 You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be filed against you. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & G G IN T OT Y J ON, ESQUIRE I.D. No. 529 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 DATE: ~1A111 ( 1J.j)5 BY: Attorney for Defendant, Lowe's Home Centers. Inc. ---- \05 J\UAB\TJMILLPGlI86451IJMFI12240100286 MARY A.KIRK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-1849 LOWE'S HOME CENTERS, INC., Defendant CNIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT LOWE'S HOME CENTERS. INC. TO PLAINTIFF'S COMPLAINT 1. Admitted in part; denied in part. It is admitted only that Plaintiff is who she says she is. All remaining allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(c). 2. Admitted in part; denied in part. It is admitted only that Defendant Lowe's Home Centers, Inc. is a business organization which operates a business located at 6520 Carlisle Pike, Mechanicsburg, Pennsylvania as alleged. All remaining allegations set forth in this Paragraph are denied. 3. Admitted in part; denied in part. It is admitted only that Defendant, a corporation, acts through agents, servants and/or employees as alleged. All remaining allegations set forth in this Paragraph are specifically denied in accordance with Pa.R.C.P. 1029 because the agents, servants and/or employees through whom Defendant is alleged to have acted at all times material hereto are not identified and accordingly Defendant Lowe's Home Centers, Inc. cannot admit whether these individuals were indeed acting within the course and scope of their agency and/or employment as alleged; proof thereof to the contrary is demanded at the time of trial. 4. Denied. The allegations set forth in this Paragraph constitute conclusions oflaw within the meaning ofPa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof is demanded at trial. 5. Admitted in part; denied in part. It is admitted only that Defendant Lowe's Home Centers, Inc. possessed a building in which it conducted business on May 21,2004 and which was located at 6520 Carlisle Pike, Mechanicsburg, Pennsylvania and that the building included entrance doors and doorways which had automatic opening and closing mechanisms. All remaining allegations set forth in this Paragraph are denied and proof thereof to the contrary is demanded at trial, if relevant. 6. Denied. The allegations set forth in this Paragraph are denied in accordance with the provisions ofPa.R.C.P. 1029(c) and 1029(e) and proofthereofto the contrary is demanded at trial, to the extent relevant. 7. Denied. The allegations set forth in this Paragraph constitute conclusions oflaw within the meaning ofPa.R.C.P. 1029(e) and proof thereof to the contrary is demanded at the time of trial, to the extent relevant. 8. Denied. The allegations set forth in this Paragraph are denied in accordance with the provisions ofPa.R.C.P. 1029(c) and 1029(e) and proof thereof to the contrary is demanded at trial, to the extent relevant. 9. Denied. The allegations set forth in this Paragraph are denied in accordance with the provisions ofPa.R.C.P. 1029(c) and 1029(e) and proof thereof to the contrary is demanded at trial, to the extent relevant. 10. Denied. The allegations set forth in this Paragraph, together with its subparts (a) through (f) constitute conclusions oflaw within the meaning ofPa.R.C.P. 1029(e) and accordingly these allegations are denied and proof thereof to the contrary is demanded at trial, to the extent relevant. WHEREFORE, Defendant Lowe's Home Centers, Inc. demands judgment in its favor and against Plaintiff Mary A. Kirk together with such other relief as this Court shall deem appropriate. NEW MATTER DIRECTED TO PLAINTIFF 11. Plaintiffs Complaint fails to state a cause of action as a matter oflaw against Defendant upon which relief may be granted. 12. No act or omission on the part of Defendant was a substantial contributing factor in causing Plaintiffs injuries and/or damages, all such injuries and/or damages being expressly denied. 13. Defendant breached no duty of care owed to Plaintiff under the circumstances set forth in the material and well pleaded allegations of Plaintiffs Complaint. 14. Plaintiffs claims may be barred and/or limited by the Doctrines of Res Judicata and/or Collateral Estoppel. 15. Defendant reserves its right to raise one or more of those defenses preserved at Pa.R.C.P. 1030. 16. Plaintiff's injuries and/or damages, all such injuries and/or damages being expressly denied, may have been caused in whole or in part by acts and/or omissions on the part of persons and/or entities over whom Defendant had neither control, nor right of control as a matter oflaw. , 17. Contrary to the allegations set forth in Plaintiffs Complaint, no unreasonable, unsafe or defective condition existed on Defendant's business premises on May 21,2004 which caused and/or contributed to Plaintiff's injuries and/or damages, all such injuries and/or damages being expressly denied. 18. Defendant had neither actual, nor constructive notice of any alleged unsafe, dangerous and/or defective condition, any and all such conditions being expressly denied, which Plaintiff alleges existed on Defendant's business premises on May 21, 2004. WHEREFORE, Defendant Lowe's Home Centers, Inc. demands judgment in its favor and against Plaintiff Mary A. Kirk together with such other relief as this Court shall deem appropriate. DATE: 5/21/05 Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GO N 01~ BY: TIMOTH J. M M LD. No. 52918 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant, Lowe's Home Centers. Inc. VERIFICATION I hereby affirm that the following facts are correct: Lowe's Home Centers, Inc. is a Defendant in the foregoing action and I am authorized to execute this Verification on their behalf. The attached Answer with New Matter to Plaintiffs Complaint is based upon information which has been gathered by my counsel in the defense of this lawsuit. The language of the Answer with New Matter to Plaintiffs Complaint is that of counsel and not of me. I have read the Answer, and to the extent that the responses are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. To the extent that the contents of the responses are that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid responses are made subject to the penalties of 18 Pa. C.s. Section 4904 relating to unsworn falsification to authorities. DATE: ~ .;)1/. '() S BY:~ ~'\\ ~ \\~'3' ~ WALT A. WILLIAMS ~ Title: Manager Liability & Property Claims Risk Management Department Lowe's Companies, Inc. . " . MARY A. KIRK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-1849 LOWE'S HOME CENTERS, INC., Defendant CNIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this ~~day of May 2005, served a copy of the foregoing Answer with New Matter of Defendant Lowe's Home Centers, Inc. to Plaintiff's Complaint via First Class United States mail, postage prepaid as follows: Scott W. Morgan, Esquire Morgan & Wilken, P.C. 120 South Street Harrisburg, PA 17101-1210 \. ~''j.\). \il.~~_ {janne M. Parr - (,; - ...-('~ ...... .' I',", --.. L;? ,.- ;;. MORGAN & WILKEN, P.C. BY: SCOTT W. MORGAN, ESQUIRE IDENTIFICATION NO. 36721 120 SOUTH STREET HARRISBURG, PA I7IOI-I21O (7I 7) 236-7959 ATTORNEYS FOR PLAINTIFF MARY A. KIRK Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. v. NO. 05-1849 Civil Term LOWE'S HOME CENTERS, INC. Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER Plaintiff, by and through his attorneys, Morgan & Wilken, P.C., hereby complains against Defendant and avers as follows: 11-18. The allegations of these paragraphs are DENIED as conclusions oflaw to which no answer is required. WHEREFORE, Plaintiff requests that New Matter be dismissed and judgment entered in her favor. MORGAN & WILKEN, P.c. DATED: July 5,2005 VERIFICATION Scott W. Morgan, Esquire states that he is counsel of record for Plaintiff in the within action, is authorized to take this Verification on her behalf, and that the statements made in the foregoing Reply to New Matter are true and correct to the best of his knowledge, information and belief He understands that the statements in said pleading are made subject to the penalties of 18 Pa. C.S.A. 94904, relating to unsworn falsification to authorities. s~ CERTIFICATE OF SERVICE I, Michele E. Neff, Legal Assistant of the firm Morgan & Wilken, P.C., hereby certity that service of a true and correct copy of the within Plaintiff's Reply to New Matter was / made on this --L day of July, 2005, to the persons below named, by First Class United States Mail, postage prepaid. Timothy 1. McMahon, Esquire MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 MORGAN & WILKEN, P.C. ~'l l-w1Df.-'. Mich e E. Neff, Legal 120 South Street Harrisburg, PA 17101-1210 (717) 236-7959 Attorneys for Plaintiff n '" 0 = c: = ...., <J't " '-- --I 1.1(:: ::t:" rr}; c:: n,p .~ f- ,-,m 7 I (z~ -05:: -.J 0, -<"..- t_~~~ ~~:.'" "'" ~. ~:~;:; ~. ~.~rn 'fi' "~'~ "--1 L- ',. =< t'.) '.0 (.Jl .< 17 , -, 105_ A ILlABlTJM\LLPGI199923IJMF\12240\OO286 MARY A. KIRK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-1849 LOWE'S HOME CENTERS, INC., Defendant CNIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO SETTLE. DISCONTINUE & END CASE TO: PROTHONOTARY Cumberland County, Pennsylvania Kindly mark the above-referenced matter as SETTLED, DISCONTINUED and ENDED. Respectfully submitted, MORGAN & WILKEN, P.C. / DATE: \V ~fu BY: QUIRE Attorney for Plaintiff, Mary A. Kirk . .--' , MARY A. KIRK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-1849 LOWE'S HOME CENTERS, INC., Defendant CNIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this 7v'-- day of November 2005, served a copy of the foregoing Praecipe to Settle, Discontinue & End Case via First Class United States mail, postage prepaid as follows: Scott W. Morgan, Esquire Morgan & Wilken, P.C. 120 South Street Harrisburg, PA 17101-1210 (}DClN\\01 1\\ p~ V Joanne M. Parr (') c --, c:::-_'} 2:g C") -0 ::;:} mZ} -;7;-"-"] :,')C,J ;'-., ' .:::-:.+'(; c3 "'~ I V) -;? ~.h Go.> ;"', ;'Ii e..,