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HomeMy WebLinkAbout02-1233· F:XFILES~DATAFILE\Gendoc.cur\ 10408 -pta. 1/t de Crcatec[: 03/11/02 01:03:19 PM WILMA L. SWOPE and JERRY SWOPE, h/w, Plaintiffs WAL-MART STORES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-/~ ~ e~ CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please issue a Writ of Summons against captioned Defendant and transmit it to the Office of the Sheriff of Cumberland County for service on the Defendant at 6520 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiffs Date: March 11, 2002 Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS WILMA L. SWOPE AND JERRY SWOPE, H/W, Plaintiff Vs. WAL-MART STORES, INC. 6520 CARLISLE PIKE MECHANICSBURG, PA, Defendant Court of Common Pleas No. 02-1233 CIVIL TERM In CivilAction-Law To WAL-MART STORES, INC., You are hereby notified that WILMA L. SWOPE AND JERRY SWOPE, H/W, the Plaintiff has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAIO Date MARCH 12, 2002 CURTIS R. LONG Prothonotary Deputy ATTORNEY Name: EDWARD L. SCHORPP, ESQ Address: TEN EAST HIGH STREET CARLISLE, PA 17013-3093 Attorney for: Plaintiff Telephone: 717-243-3341 Supreme Court ID No. SHERIFF'S RETURN - REGULAR CASE NO: 2002-01233 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SWOPE WILMA L ET AL VS WAL-MART STORES INC CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon WAL-MART STORES INC the DEFENDANT at 6520 CARLISLE PIKE , at 1720:00 HOURS, on the 19th day of March , 2002 MECHANICSBURG, PA 17055 by handing to RON FR3~NK, STORE MAIqAGER a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 6.90 Affidavit .00 Surcharge 10.00 .00 34.90 Sworn and Subscribed to before me this ~ day of ~A~ ac~3 ~, A.D. ~ t~rotS~not a~r~ ' So Answers: R. Thomas Kline 03/20/2002 MDW&O Deputy~e~i-f LAW OFFICES OF McDONNELL & ASSOCIATES BY: Patrick J. McDonnell, Esquire Attorney I.D. No.: 62310 BY: Rocco J. Iacullo IV, Esquire Attorney I.D. No.: 86144 601 South Henderson Road - Suite 152 King of Prussia, PA 19406 (610) 337-2087 Attorneys for Defendant, Wal-Mart Stores, Inc. WILMA L. SWOPE and JERRY SWOPE, h/w Plaintiffs WAL-MART STORES, INC. Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 02-1233 CIVIL TERM in Civil Action - Law PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Please enter a Rule upon plaintiffs to file a Complaint within twenty (20) days hereof or suffer the entry of a Judgment of Non Pros. LAW OFFICES OF McDONNELL & ASSOCIATES DATED: April 12, 2002 By: Rocco J. Iacullo IV, Esquire Attorneys for Defendant, Wal-Mart Stores, Inc. RULE TO FILE COMPLAINT AND NOW, this t~'~- day of ~,~ ( ,2002, a Rule is hereby granted upon plaintiffs to file a Complaint herein within twenty (20) days after service hereof or suffer the entry ora Judgment of Non Pros. LAW OFFICES OF McDONNELL & ASSOCIATES BY: Patrick J. McDonnell, Esquire Attorney I.D. No.: 62310 BY: Roeco J. Iacullo IV, Esquire Attorney I.D. No.: 86144 601 South Henderson Road - Suite 152 King of Prussia, PA 19406 (610) 337-2087 Attorneys for Defendant, Wal-Mart Stores, Inc. WILMA L. SWOPE and JERRY SWOPE, h/w Plaintiffs WAL-MART STORES, INC. Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 02-1233 CIVIL TERM in Civil Action - Law ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearances on behalf of defendant Wal-Mart Stores, Inc. in connection with the above-referenced matter. LAW OFFICES OF McDONNELL & ASSOCIATES DATED: April 12, 2002 By: Patrick J. McDo~n~ell,'Esquire Rocco J. Iacullo IV, Esquire Attorneys for Defendant, Wal-Mart Stores, Inc. CERTIFICATE OF SERVICE ROCCO J. IACULLO IV, ESQUIRE hereby certifies that the attached Entry of Appearance was served by United States first class mail, postage prepaid, on April J~2~ , 2002 to the counsel below named: Edward L. Schorpp, Esquire 10 East High Street Carlisle, PA 17013-3093 LAW OFFICES OF McDONNELL & ASSOCIATES BY: ROCCO J. IA~LO IV, ESQUIRE WILMA L. SWOPE and JERRY SWOPE, h/w, Plaintiffs WAL-MART STORES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-1233 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by 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 Plaintiffs. 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, Pennsylvania 17013 Telephone (717) 249-3166 WILMA L. SWOPE and JERRY SWOPE, h/w, Plaintiffs WAL-MART STORES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-1233 CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiffs, Wilma L. Swope and Jerry Swope, by and through their attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and file this Complaint against Defendant upon the following: 1. Plaintiffs, Wilma L. and Jerry Swope, are adult individuals, and husband and wife, who reside at 149 Kline Road, Shippensburg, Cumberland County, PA 17257. 2. Defendant, Wal-Mart Stores, Inc., is a corporation doing business in the Commonwealth of Pennsylvania with a retail store located at 6520 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. At all times relevant herein, Defendant's place of business in Mechanicsburg was a retail store open to the general public. 4. On Sunday, March 18, 2001, at approximately 6:15 p.m., the Plaintiffs and other family members were shopping at Defendant's store. 5. At that time and place, PlaintiffWilma L. Swope was looking at wallets on shelving in the ladies department. 6. At that time and place, Plaintiff Wilma L. Swope attempted to reach a wallet on the top shelf and, as she was withdrawing her left hand, sustained a cut from a sharp, rusty edge of the shelving unit. 7. At that time and place, and for a long time prior thereto, the shelving unit was readily accessible to members of the public and was used to display merchandise for sale. 8. At all times relevant herein, the shelving upon which Plaintiff Wilma Swope cut her hand was defective, had rusty sharp edges, was missing a shield or other der/ce necessary to cover the sharp edges, and appeared to have been in use for a long period of time. 9. The rusty, sharp defective shelving was readily noticeable to Defendant's employees. Notwithstanding, the shelving remained in use at the store. 10. While Plaintiff Wilma Swope was seeking medical attention at Defendant's store immediately after sustaining the injury, her sister, Cathy Stamer, went to the defective shelving for the purpose of inspecting it with a store employee. 11. While in the vicinity of the shelving, another store employee, whose first name is Mary, but whose last name is unknown to Plaintiff, came to the area. 12. After hearing Mrs. Stamer explain what happened to the other store employee, Mary exclaimed that the person that got hurt must have been a moron. 13. Immediately thereafter, Mary presented herself to Plaintiff Wilma Swope and admitted calling her a moron. 14. Prior to and at the time that Plaintiff Wilma Swope cut her hand on the defective shelving, she was suffering from multiple sclerosis. 15. At all times relevant herein, Defendant's employee, Mary, was acting within the scope of her employment and in the course of her duties at Defendant's store. COUNT - I - NEGLIGENCE Wilma L. Swope v. Wal-Mart Stores, Inc. 16. The averments of paragraphs one through fifteen, inclusive, of this Complaint are incorporated herein by reference thereto. 17. Defendant, after having due notice of the dangerous condition, and/or after having had sufficient time to obtain notice of such defective shelving, failed to take reasonable steps to make the same safe to members of the public. 18. Defendant's conduct was negligent as follows: a. In allowing the defective shelving to remain in use after acquiring actual notice, or after sufficient time had elapsed in which Defendant's employees should have acquired notice, of such dangerous condition; and b. In failing to take steps to remove or repair the shelving, or otherwise make it safe for persons coming in contact with it; and c. In failing to warn the Plaintiff and other invitees of the dangerous condition of the shelving unit; and d. In failing to use due care under the circumstances. 18. As a result of coming into contact with the dangerous shelving, Plaintiff, Wilma L. Swope, suffered the following injuries: a. A cut to her left hand; b. The permanent, total or partial, loss of use of her left hand as a result of the trauma from the cut aggravating her pre-existing condition of multiple sclerosis; c. Pain, discomfort and other suffering; d. Permanent, partial/total impairment of the use of her left hand. 19. As a result of the cut on her hand, and the aggravation of her pre-existing multiple sclerosis, Plaintiff underwent carpal tunnel surgery in an effort to relieve the symptoms and regain the full use of her left hand. The surgery was unsuccessful. 20. Plaintiff, Wilma Swope, suffered substantial pain, suffering and inconvenience as a result of the unsuccessful carpal tunnel surgery. 21. The trauma from the surgery aggravated her pre-existing condition of multiple sclerosis and, independently or in conjunction with the trauma from the cut, caused the permanent partial/total impairment of the use of her left hand. 22. Plaintiffs incurred substantial medical expenses and inconvenience in the treatment ofPlaintiffWilma Swope' s injuries and condition, which expenses and inconvenience are continuing through the date of filing of this Complaint and are expected to continue into the future. COUNT II - LOSS OF CONSORTIUM Jerry Swope v. Wal-Mart Stores, Inc. 23. The averments of paragraphs one through twenty-two, inclusive, of this Complaint are incorporated herein by reference thereto. 24. As a result of the negligence of the Defendant, Plaintiff Jerry Swope has suffered the loss of his wife's services, companionship, society, consortium and pleasures of life. COUNT III - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Wilma L. Swope v. Wal-Mart Stores, Inc. 25. The averments of paragraphs one through fifteen, inclusive, of this Complaint are incorporated herein by reference thereto. 26. While acting within the scope of her employment with Defendant and during the course of her duties, Mary did intentionally, deliberately and recklessly inflict emotional distress upon the Plaintiff, Wilma L. Swope, by calling her a moron in front of other persons and family members. 27. As a result of the intentional conduct of Defendant's servant and employee, Plaintiff Wilma Swope suffered substantial and direct humiliation and emotional distress as a result of being called a moron in front of her family members and other persons in the store. 28. The substantial stress, humiliation, anxiety and distress suffered by Plaintiff Wilma Swope as a result of the intentional actions of Defendant's employee, aggravated her pre-existing multiple sclerosis and, independently or in conjunction with the injury and/or subsequent surgery, contributed to the permanent total/partial loss of the use of her left hand. 29. Plaintiffs incurred substantial medical expenses and inconvenience in the treatment ofPlaintiffWilma Swope' s injuries and condition, which expenses and inconvenience are continuing through the date of filing of this Complaint and are expected to continue into the future. COUNT IV - LOSS OF CONSORTIUM Jerry Swope v. Wal-Mart Stores, Inc. 30. The averments of paragraphs one through fifteen, inclusive, and twenty-six through twenty-nine, inclusive, of this Complaint are incorporated herein by reference thereto. 32. As a result of the intentional conduct of Defendant' s employee, Plaintiff Jerry Swope has suffered the loss of his wife's services, companionship, consortium, society and pleasures of life. COUNT V o DEFAMATION Wilma L. Swope v. Wal-Mart Stores, Inc. 33. The averments of paragraphs one through fifteen, inclusive, of this Complaint are incorporated herein by reference thereto. 34. While acting within the scope of her employment with Defendant and during the course of her duties, Mary did intentionally defame the Plaintiff, Wilma L. Swope, by calling her a moron, a derogatory term when used in the context of this occurrence. 35. Employee Mary published the untrue statement by exclaiming it verbally in front of family members and other store employees. 36. As a result of being called a moron by Defendant's employee, PlaintiffWilma Swope has been defamed and has suffered public humiliation, anxiety and distress. 37. The substantial stress, humiliation, anxiety and distress suffered by Plaintiff Wilma Swope as a result of the intentional defamatory actions of Defendant' s employee, aggravated her pre- existing multiple sclerosis and, independently or in conjunction with the injury, subsequent surgery, and/or infliction of emotional distress, contributed to the permanent total/partial loss of the use of her left hand. 38. Plaintiffs incurred substantial medical expenses and inconvenience in the treatment ofPlaintiffWilma Swope's injuries and condition, which expenses and inconvenience are continuing through the date of filing of this Complaint and are expected to continue into the future. COUNT VI - LOSS OF CONSORTILrM Jerry Swope v. Wal-Mart Stores, Inc. 39. The averments of paragraphs one through fifteen, inclusive, and thirty-four through thirty-eight, inclusive, of this Complaint are incorporated herein by reference thereto. 40. As a result of the intentional conduct of Defendant's employee, Plaintiff Jerry Swope has suffered the loss of his wife's services, companionship, consortium, society and pleasures of life. WHEREFORE, Plaintiff, Wilma L. Swope and Jerry Swope, demand damages from the Defendant in an amount in excess of $25,000.00, a sum which exceeds the limits of compulsory arbitration under local roles of Court. MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiff VERIFICATION The foregoing Complaint is based upon information which has been gathered by our counsel in the preparation of the lawsuit. The language of the document is that of counsel and not our own. We have read the document and to the extent that it is based upon information which we have given to our counsel, it is true and correct to the best of our knowledge, information and belief. To the extent that the content of the document is that of counsel, we have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if we make knowingly false averments, we may be subject to criminal penalties. Wifn~a L. Swope o~pe ./ CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Rocco J. Iacullo, IV, Esquire McDonnell & Associates Suite 152 601 South Henderson Road King of Prussia, PA 19406 MARTSON DEARDORFF WILLIAMS & OTTO -'~fic~a D. Eckenroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: LAW OFFICES OF McDONNELL & ASSOCIATES BY: Patrick J. McDonnell, Esquire Attorney I.D. No.: 62310 BY: J. Michael Kvetan, Esquire Attorney I.D. No.: 80229 601 South Henderson Road - Suite 152 King of Prussia, PA 19406 (610) 337-2087 Attorneys for Defendant, Wal-Mart Stores, Inc. WILMA L. SWOPE and JERRY SWOPE, h/w Plaintiffs WAL-MART STORES, INC. Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 02-1233 CIVIL TERM in Civil Action - Law WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of defendant Wal-Mart Stores, Inc. in connection with the above-referenced matter. LAW OFFICES OF McDONNELL & ASSOCIATES DATED: May 10, 2002 By: Patrick J. M~l~onnell, Esquire Rocco J. Iacullo IV, Esquire Attorneys for Defendant, Wal-Mart Stores, Inc. G:\WalMart~31165k31165X, M422 Swop¢~Pl oadkwea~a.wpd ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of defendant, Wal-Mart Stores, Inc., in connection with the above-referenced matter. LAW OFFICES OF McDONNELL & ASSOCIATES By: Patril~f J. McDonnell, Esquire J. Michael Kvetan, Esquire Attomeys for Defendant, Wal-Mart Stores, Inc. DATED: May 10, 2002 G:\WalMar~31165x31165XM-422 SwOl~Plead~woa~oa. wpd 2 CERTIFICATE OF SERVICE J. MICHAEL KVETAN, ESQUIRE hereby certifies that the attached Withdrawal/ Entry of Appearance was served by United States first class mail, postage prepaid, on May ]_-I ,2002 to the counsel below named: Edward L. Schorpp, Esquire 10 East High Street Carlisle, PA 17013-3093 LAW OFFICES OF McDONNELL & ASSOCIATES J. ~t~CHAEL KVETAN, ESQ~ LAW OFFICES OF McDONNELL & ASSOCIATES BY: Patrick J. McDonnell, Esquire Attorney I.D. No.: 62310 BY: Rocco J. Iacullo IV, Esquire Attorney I.D. No.: 86144 601 South Henderson Road - Suite 152 King of Prussia, PA 19406 (610) 337-2087 Attorneys for Defendant, Wal-Mart Stores, Inc. WlLMA L. SWOPE and JERRY SWOPE, h/w Vo Plaintiffs WAL-MART STORES, INC. Defendant COURT OF COM~ CUMBERLAND ( NO. 02-1233 CIVI in Civil Action - L, DEFENDANT WAL-MART STORES, INC.'S NOTICE 12 TO THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANI3 TO: Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 PLEASE TAKE NOTICE that this action has been rem~ District Court for the Middle District of Pennsylvania. Attached hereto G:\WalMart~31165x31165hM422 Swope~Plead~n2ccp.wpd 4ON PLEAS OUNTY L TERM W ,F REMOVAl, )R THE )ved to the United States .s a copy of the Notice of Removal filed with the Clerk of the United States District Court f~r the Middle District of Pennsylvania effectuating such removal. PLEASE TAKE FURTHER NOTICE that, in accordance the Court of Common Pleas of Cumberland County shall not proceed unless and until the action is remanded by the United States District Col of Pennsylvania. LAW OFFICES OF McDO qNELL & ASSOCIATES DATED: May 29, 2002 BY: Rocco J. Iacullo IV, Esqui~ Attorneys for Defendant, Wal-Mart Stores, Inc. with 28 U.S.C. § 1446(d), any further in this action trt for the Middle District .ire G:\WalMart~31165~31165~M422 Swope~Plead~n2ccp wpd 2 I - S/99) CIVIL COVER The J$,44 civii cover s'a~: ~nd ~ ~afo~adon con~a~d h~r~n n~r r*~c~ nor suooiem~n~ ~ ~ ' ~ ; ~ · -- I. (a) PLALNT~FS DE~N~NTS WILMA L. SWOPE and JERRY SWOPE, h/w WAL-MART STOR] 149 Kline Road 702 S.W. Eigh~ S · ~[~2]]~~. o~t Li~cd Plaintiff Cumberland ~ ~rr~&~g~in ~XC~PT ~ U.S. PL..LrN~FF CASES) (~ U.S. ~.S, INC. ;h Street ~_~ted Bent on, ~LA[N-FIF7 CASES ONL~h AR (C) A=om~Y'S { Fire N~:. Addrcs& ~d T¢!ephon¢ Numb:r) Edward L. Schorpp, Esquire 10 East High Street Carlisle, PA 17013-3093; (717) II. BASIS OF JUP4.SDICTION Cvlane aa "X' in One Sox Oni.v) U.S. Government Plaintiff U.S. Government Defendant Federal Question (U.S. Oovemment Not a Pa~y) Diversity (Indicate Citizenship of Parties in Item lid :V. NATURE OFSUIT (Place an "X" in One Box Onh.} CONTRACT TORTS NOT--: i'N LAND CGNDEM L .-~VD ff4VOLVED 243-3341 A=omeys {I£Knowm Courtney Seda 601 S. Hender King of Pruss IlL CITIZENSHIP OF PRINCIP, (For Diversity Cas,es On y) PTF DEF Citizen of This State ~ I [] I Citizen of.~ot.her State [] 2 n 2 Citizenor Subject•fa [] 3 [] 3 Foreion Country qAT":ON CASE~:. USE T:,-~ LOCA ~'~0N OF ~-r~_- rick J. McDonnell, Esq. McDonnell, Esquire .on Rd.-Ste. 152 a, PA 19406; (610) 337- 2087 ,L PARTIESwlace m "x" in ~e Box ~r ?tamti ~d ~e ~ox ~r De~tl PTF DEF Incorporated or Principal Place ~ 4 [] 4 of Business In This S~ate Incorporated and Principal Place of Business In Another State Foreign Nation [] 6 [] 6 [ l0 Insurance [20 Manme 130 Miller Act 140 Negotiable Instmmem [ $0 Recover), o f •versa.vroom & gn~o~ment of Jud~em l~l Med~ Act 315 A/rplane Product Liabili .n, 320 Assault, Libel & Slander 320 Federal Emplo~ ets' PERSONAL hqL/URY PERSONAL INJURY 310 Air, lace [] 362 Personal laju~-- 152 Recovery. of Defaulted ; Liabili~.., Smdenl Loans O 340 Manne tExcl. Vete~s) IO 345 M~ne ~ucl I ~3 Recove~ of~e~aym~t Lia~li~ of V~aa'~ B~tlts ~ JS0 MOtor ~eh c e 160 SIoc~oldgf $uiu [ ~ 3~ Momt V~ c e ?~hgCon~t . ~ ~c Liabili~ C~IVIL RIGHTS 442 Eml~loyment d,4.1 Hous,ng/ Accammod~tions 44.1 We/t~'e 440 Other Civil Rtghts REAL PROPERTY 210 Lacd Condemnatmn 220 Foreclosure 230 Rcm Le~ & Ejanrmem 240 Tons to Land 245 Ton ~ucl 290 All ~er Real Med. Malpractice O 365 Personal Inmr)/-- Pr~luct Liability O 368 Asbestus Personal tnjur-/Pr•duel Liabilir.., PERSONAL PROPERTY C] 370 Other Fraud C~ 371 Trulh m Lending [~ JR0 Other Personal Proper~ Damage ~ ~8.~ Property Damage Product Liabilfly PRISONER PETITIONS C~ }10 Mo6ons to Vacate Habeas Cat, us: r-t $30 6cn~ral n :~$ De~a Penalw r':, ~40 Mandatnus ~ Olhet C~ 5.~0 CF.'it Rights ~ :U:~ Prison Condition (PLACE AN "X" fN ONE BO~ ONLY) BANI~ O 820 Copy'r t'l 830 Patent [] S40 Tradc~ SOCIAL O 861HIA (1 O 862 Black m 861 DtWC [] 864 SSID' [] 865 RS[ (4 FEOERAL [] 870 Taxes ( or De(= ~1 gT[ [RS--T 26 USC Transferred from - another district I on-.thai X~r ~ R:moved From [] 3 Remanded fi'om ~ a Rcinsta:edor C 5 I, speci~,) Pro~etding ?.ate Court. Appellate Court R¢ooencd · C."~ L'S E OF ACTIO:~' (Cl[= the L'.S. Civil Statute under which you an~ flhng an~ '*'l~le bn~f sta cravat of causo. Do not m~e ju.nsd/¢t~onal .natures unle~ Personal Injury 'I. REQUESTED IN ~ C:'IECKiFTHISISACL.~SSACTio.~ CHE _CO_~PLAINT baNDER F.R.C.P. 23 excess of $75~000~'R II.RELATED CASE(S) IF ANY OFFICE USE ONLY :CE!WI' · __ AMOUNT JlL~L;'tlCtiOnS): SUD~E DOCKDr 5iONA~RNEY Q~, R.,EC~R.D, ~, ~ 'awal 157 FY RIGHTS ~ank $ECURITY 395ffi .ung (923) DIWW (405(g)} 'trio XVI I~(g)) T,-LX SUITS J.S. Plainoff ~dant) drd Party. 7609 Appeal to Dtsu'gt Judge from Multidisffict C] 7 Magistrate Litigation Judgment CK YES only if demanded in gomplamc DEMAND: X~ Y."I U NO ;UMBER ORIGIN RUPTCY OTHER STATUTES I 28 USC 158 C] 400 State R~qspom~mem v1 410 Aatil~st m 430 B~ ~d ~ aSO C~m~CC ~ 470 ~et~influ~ccd Co~p~ ~iu~,ons ~ 8~0 S~ii~Comm~ ~ 87~ C~z~ Chdl~ge 12 USCJal0 ~ 891 A~lm~ Acts Q 892 E~m~c St~ili~tmn Act - O 893 ~mme~t~ ~ 894 ~e~ Info~io, Ac~ ~ 90OAp~ o~ Fcc - Und~ ~qcal A¢~ S~le Statutes O 8~ ~h~ Stam~o~ Ac:~ons ~RF-FFPENALTY !C] 610Ag~. culture 620 Other Food & Drag n 62.~ IZh~B Related Seizure of Pro.ny 21 USC 6.t0 Liquar Laws 640 R.R, & Truck 6~0 Airiin~ Re~. 660 Occup~lional Safe~,/He~tth r'l 690 Other LABOR ? 10 Fair Labor Standards Act 720 Labor,4'4gmt. Relations 730 L~aborAM ~t. Reporang & Disclosure Act 740 Ral{wav Labor Act [] 790 O~her Lal~t Lifi~zation 791 Empl. Rel. Inc. PROPER O 42~ Wi~ 28 US, IN THE UNITED STATES DISTRICT COURr FOR THE MIDDLE DISTRICT OF PENNSYLV~ ~NIA WILMA L. SWOPE and JERRY SWOPE, h/w Vo Plaintiffs WAL-MART STORES, INC. Defendant CIVIL ACTION - L NO. DEFENDANT WAL-MART STORES~ INC.'S NOTICE O Defendant, Wal-Mart Stores, Inc. ("Wal-Mart"), files this Notice c U.S.C. §1441(a) and (b) to remove this action from the Court of Coma County, No. 02-1233 CIVIL TERM, in which it is now pending, to the Ui for the Middle District of Pennsylvania, and in support thereof, states as 1. On April 30, 2002, Plaintiffs Wilma L. Swope and Jerry S, the Court of Common Pleas of Cumberland County ("the County Action" issued by the Prothonotary of said Court and served upon Wal-Mart on copy of the Complaint is attached to this Notice of Removal as Exhibit 2. Plaintiff Wilma L. Swope alleges that she sustained a c sharp, rusty edge of a shelf at the Mechanicsburg Wal-Mart on March 1 ~ 3. Plaintiff also alleges that she was defamed by a store em victim of intentional infliction of emotional distress (Complaint ¶¶12 ar G \Wal Mart~31165~31165\M-422 Swol~XPlcactXnor wpd AW F REMOVAL fRemoval pursuant to 28 on Pleas of Cumberland tited States District Court follows: rope filed a Complaint in The County Action was about May 2, 2002. A on her left hand from a ,2001 (Complaint ¶6). ,loyee and that she was a t 26). 4. Plaintiff alleges that she sustained severe and disabling injuries including, but not limited to, a cut to her left hand, aggravation of pre-existing M.S.,/ permanent, partial/total impairment of the use of the left hand, pain and suffering, and mentaI and emotional distress. (Complaint ¶~18 and 37). 5. In addition, Plaintiff claims she incurred substantial med ical bills for the care and treatment of her injuries, including carpal tunnel surgery, and those :xpenses are continuing. (Complaint ¶¶19 and 22). 6. Plaintiff Jerry Swope claims a loss of consortium from hi ;wife, plaintiff Wilma L. Swope. (Complaint ¶24). 7. Plaintiffs are demanding judgment in excess of $25,000.( 8. On May 6, 2002, attorneys for Defendant Wal-Mart sex Stipulation limiting damages to $75,000.00. A copy of the Stipulation Lirr to this Notice as Exhibit "B." 9. Plaintiffs' counsel was given a deadline of May 20, 2002 less than $75,000.00. 10. On May 23, 2002, Plaintiffs' counsel informed defense co was not willing to stipulate to damages of less than $75,000.00. 11. Defendant has a good faith belief that the damages in this c~ that the jurisdictional requirements for removal are met, based upon Plain and disabling injuries as set forth above; Plaintiffs' claims of defamatior of emotional distress; and because Plaintiffs' counsel refused to execul damages to $75,000.00. to Plaintiffs' counsel a Iing Damages is attached :o stipulate to damages of ~nsel by telephone that he se exceed $75,000.00 and :iffs' allegations of severe and intentional infliction the Stipulation limiting G:\WalMartX31165"O 1165~M422 Swope\Plcad~or wpd 2 12. Removal from the Court of Common Pleas of Cumberland County is proper under 28 U.S.C. § 1441(b), which authorizes the removal of any civil action tf "none of the parties in interest properly joined and served as defendants are citizens of the stat~ in which such action is . ! brought. ' 13. Wal-Mart is a corporation organized under the laws of th~ State of Delaware, with its principal place of business in the State of Arkansas, and, as such is not a citizen of the Commonwealth of Pennsylvania. Plaintiffs are citizens and residents of :umberland County, Pennsylvania. WHEREFORE, Wal-Mart respectfully requests that the County kction be removed from the Court of Common Pleas of Cumberland County to the United Sta~ es District Court for the Middle District of Pennsylvania. DATED: May 29, 2002 LAW OFFICES OF McDONNE BY: Patrick J. M_df)onnell, Esquire Courtney Seda McDonnell, Esquir 601 South Henderson Road - Suite King of Prussia, PA 19406 (610) 337-2087 Attorney I.D. Nos.: 62310/76263 Attorneys for Defendant, Wal-Mart Stores, Inc. LL & ASSOCIATES 152 G:\Wal Mart'x31165x31165X~M422 $ wop~hu I~ad~ or wpd 3 WILMA L. SWOPE and JERRY SWOPE, h/w, Plaintiffs Vo WAL-MART STORES, INC., Defendant IN THE COURT OF C~ CUMBERLAND COU1 NO. 02-1233 CIV JURY TRIAL DEMA> NOTICE You have been sued in court. If you wish to defend against following pages, you must take action within twenty (20) days after this ¢ served, by entering a written appearance personally or by attorney and illin your defenses or objections to the claims set forth against you. You are wl so, the case may proceed without you and a judgment may be entered without further notice for any money claimed in the Complaint or for ~ requested by the Plaintiffs. You may lose money or property or other rigt YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT G HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPH FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HE Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 )MMON PLEAS OF qTY, PENNSYLVANIA L ACTION - LAW )ED e claims set forth in the ~'omplaint and Notice are ; in writing with the court xned that if you fail to do ~gainst you by the court my other claim or relief ts important to you. NCE. ll: YOU DO NOT DIXIE THE OFFICE SET LP: F:WILES~'DATAFIL~G~mdoc.cur~,10408-com I Created: 04/22/0201:46:23 PM Revved: 04/29/02 08:07:54 AM WILMA L. SWOPE and JERRY SWOPE, h/w, Plaintiffs WAL-MART STORES, INC., Defendant tN THE COURT OF ~ CUMBERLAND CO1 NO. 02-1233 Ct JURY TRIAL DEMA2 COMPLAINT AND NOW, comes the Plaintiffs, Wilma L. Swope and Jerry Sv attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and fil Defendant upon the following: I. Plaintiffs, Wilma L. and Jerry Swope, are adult individua who reside at 149 Kline Road, Shippensburg, Cumberland County, PA 2. Defendant, Wal-Mart Stores, Inc., is a corporation Commonwealth of Pennsylvania with a retail store located at 6520 Carl Cumberland County, Pennsylvania 17055. 3. At all times relevant herein, Defendant's place ofbusines retail store open to the general public. 4. On Sunday, March 18, 2001, at approximately 6:15 p.m family members were shopping at Defendant's store. 5. At flint time and place, PlaintiffWilma L. Swope was looki in the ladies department. 6. At that time and place, PlaintiffWilma L. Swope attemptet top shelf and, as she was withdrawing her left hand, sustained a cut from ~ shelving unit. 7. At that time and place, and for a long time prior thereto, the ,, accessible to members of the public and was used to display merchandise 8. At all times relevant herein, the shelving upon which Plain! hand was defective, had rusty sharp edges, was missing a shield or other the sharp edges, and appeared to have been in use for a long period of tim, OMMON PLEAS OF NTY, PENNSYLVANIA IL ACTION - LAW DED 'ope, by and through their this Complaint against and husband and wife, 7257. doing business in the de Pike, Mechanicsburg, in Mechanicsburg was a the Plaintiffs and other ag at wallets on shelving . to reach a wallet on the sharp, rusty edge of the helving unit was readily .:or sale. ~f Wilma Swope cut her vice necessary to cover 9. The rusty, sharp defective shelving was readily noticeabh Notwithstanding, the shelving remained in use at the store. 10. While Plaintiff Wilma Swope was seeking medical att~ immediately after sustaining the injury, her sister, Cathy Stamer, went t the purpose of inspecting it with a store employee. 11. While in the vicinity of the shelving, another store emp Mary, but whose last name is unknown to Plaintiff, came to the area. 12. After hearing Mrs. Starner explain what happened to the exclaimed that the person that got hurt must have been a moron. 13. Immediately thereafter, Mary presented herself to Ph admitted calling her a moron. 14. Prior to and at the time that Plaintiff Wilma Swope cut shelving, she was suffering fi:om multiple sclerosis. 15. At all times relevant herein, Defendant's employee, Mary, of her employment and in the course of her duties at Defendant's store. COUNT - I - NEGLIGENCE Wilma L. Swope v. Wal-Mart Stores, Inc~ 16. The averments of paragraphs one through fifteen, inclusi incorporated herein by reference thereto. 17. Defendant, after having due notice of the dangerous cond had sufficient time to obtain notice of such defective shelving, failed to make the same safe to members of the public. 18. Defendant's conduct was negligent as follows: a. In allowing the defective shelving to remain in u: notice, or after sufficient time had elapsed in whic~ should have acquired notice, of such dangerous co b. In failing to take steps to remove or repair the shelv] safe for persons coming in contact with it; and to Defendant's employees. ntion at Defendant's store the defective shelving for oyee, whose first name is ther store employee, Mary .miff Wilma Swope and ~er hand on the defective 'as acting within the scope ge, of this Complaint are tion, and/or after having take reasonable steps to ;e after acquiring actual Defendant's employees tdition; and ng, or otherwise make it c. In failing to warn the Plaintiffand other invitees °fthe dangerous condition of the shelving unit; and d. In failing to use due care under the cireumstanc~ ',. 18. As a result of coming into contact with the dangerous si :lying, Plaintiff, Wilma L. Swope, suffered the following injuries: a. A cut to her left hand; b. The permanent, total or partial, loss of use of her left hand as a result of the trauma fi.om the cut aggravating her pre-existi ag condition of multiple sclerosis; c. Pain, discomfort and other suffering; d. Permanent, partial/total impairment of the use of ~ter left hand. 19. As a result of the cut on her hand, and the aggravation ot'her pre-existing multiple sclerosis, Plaintiffunderwent carpal tunnel surgery in an effort to reliew the symptoms and regain the full use of her left hand. The surgery was unsuccessful. 20. Plaintiff, Wilma Swope, suffered substantial pain, suffer/tg and inconvenience as a result of the unsuccessful carpal tunnel surgery. 21. The trauma from the surgery aggravated her pre-existi~g condition of multiple sclerosis and, independently or in conjunction with.the trauma fi.om the :ut, caused the permanent partial/total impairment of the use of her left hand. 22. Plaintiffs incurred substantial medical expenses and inco~ venience in the treatment ofPlaintiffWilma Swope's injuries and condition, which expenses and inc( ,nvenience are continuing through the date of filing of this Complaint and are expected to continue into the future. COUNT II - LOSS OF CONSORTIUM Jerry Swope v. Wal-Mart Stores, Inc. 23. The averments of paragraphs one through twenty-two, inclusive, of this Complaint are incorporated herein by reference thereto. 24. As a result of the negligence of the Defendant, PlaintiffJen y Swope has suffered the loss of his wife's services, companionship, society, consortium and pleas ares of life. COUNT III - INTENTIONAL INFLICTION OF EMOTION Wilma L. Swope v. Wal-Mart Stores, Inc. 25. The averments of paragraphs one through fifteen, inclu., incorporated herein by reference thereto. 26. While acting within the scope of her employment with course of her duties, Mary did intentionally, deliberately and recklessl3 upon the Plaintiff, Wilma L. Swope, by calling her a moron in front ot members. 27. As a result of the intentional conduct of Defendant's serva Wilma Swope suffered substantial and direct humiliation and emotional, called a moron in front of her family members and other persons in the .. 28. The substantial stress, humiliation, anxiety and distress s~ Swope as a result of the intentional actions of Defendant's employee, a multiple sclerosis and, independently or in conjunction with the injury ~ contributed to the permanent total/partial loss of the use of her left hand. 29. Plaintiffs incurred substantial medical expenses and inco~ ofPlaintiffWilma Swope's injuries and condition, which expenses and in¢ through the date of filing of this Complaint and are expected to continue COUNT IV - LOSS OF CONSORTIUM Jerry Swope v. Wal-Mart Stores, Inc. 30. The averments of paragraphs one through fifteen, inclusiw twenty-nine, inclusive, of this Complaint are incorporated herein by refe~ 32. As a result of the intentional conduct of Defendant's emplo has suffered the loss of his wife's services, companionship, consortium, so, _COUNT V - DEFAMATION Wilma L. Swope v. Wal-Mart Stores, Inc. 33. The averments of paragraphs one through fifteen, inclusiv incorporated herein by reference thereto. AL DISTRESS; ive, of this Complaint are Defendant and during the 'inflict emotional distress other persons and family at and employee, Plaintiff Jstress as a result of being tore. ffered by Plaintiff Wilma ravated her pre-existing For subsequent surgery, enience in the treatment ,nvenience are continuing into the future. and twenty-six through nce thereto. ee, Plaintiff Jerry Swope ety and pleasures of life. ~, of this Complaint are 34. While acting within the scope of her employment with course of her duties, Mary did intentionally defame the Plaintiff, Wilma moron, a derogatory term when used in the context of this occurrence. 35. Employee Mary published the untrue statement by exclah family members and other store employees. 36. As a result of being called a moron by Defendant's emplol has been defamed and has suffered public humiliation, anxiety and disl 37. The substantial stress, humiliation, anxiety and distress si Swope as a result of the intentional defamatory actions of Defendant's em existing multiple sclerosis and, independently or in conjunction with the and/or infliction of emotional distress, contributed to the peauanent tot: her left hand. 38. Plaintiffs incurred substantial medical expenses and incor ofPlaintiffWilma Swope's injuries and condition, which expenses and in through the date of filing of this Complaint and are expected to contim COUNT VI - LOSS OF CONSORTIUM Jet,g Swope v. Wal-Mart Stores, Inc. 39. The averments of paragraphs one through fifteen, inclnsiv thirty-eight, inclusive, of this Complaint are incorporated herein by refer 40. As a result of the intentional conduct of Defendant's emplol has suffered the loss of his wife's services, companionship, consortium, sol Defendant and during the L. Swope, by calling her a ning it verbally in front of ~e, PlaintiffWilma Swope ~SS. [ffered by Plaintiff Wilma loyee, aggravated her pre- xjury, subsequent surgery, I/partial loss of the use of venience in the treatment ~nvenience are continuing into the future. , and thirty-four through me thereto. tee, Plaintiff Jerry Swope :iety and pleasures of life. WHEREFORE, Plaintiff, Wilma L. Swope and Jerry Swope, Defendant in an mount in excess of $25,000.00, a sum which excee¢ arbitration under local roles of Court. [emand damages from the the limits of compulsory MARTSON DEARDOPff WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013-30! ~3 (717) 243-3341 Attorneys for Plaintiff VERIFICATION The foregoing Complaint is based upon information which has b~ in the preparation of the lawsuit. The language of the document is that c We have read the document and to the extent that it is based upon inforrr to our counsel, it is true and correct to the best of our knowledge, info. extent that the content of the document is that of counsel, we have reli~ this verification. This statement and verification are made subject to the penalties relating to unswom falsification to authorities, which provides that if avemients, we may be subject to criminal penalties. F: ~V[LES~DAT~, cu~ 10408 -cont I :en gathered by our counsel fcounsel and not our own. ation which we have given mation and belief. To the upon counsel in making ~f18 Pa. C.S. Section 4904 we make knowingly false Wi~r~L. Swope CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorf certify that a copy of the foregoing Complaint was served this date by dc Office at Carlisle, PA, first class mail, postage prepaid, addressed as fo[ Rocco J. Iacullo, IV, Esquire McDonnell & Associates Suite 152 601 South Henderson Road King of Prussia, PA 19406 !Williams & Otto, hereby ~ositing same in the Post ~WS' MARTSON DEARDORF~ WILLIAMS & OTTO / Ten East High Street Carlisle, PA 17013 (717) 243-3341 r, atea: 2q, LAW OFFICES OF McDONNELL & ASSOCIATES BY: Patrick J. McDonnell, Esquire Attorney I.D. No.: 62310 BY: Rocco J. Iacullo IV, Esquire Attorney I.D. No.: 86144 601 South Henderson Road - Suite 152 King of Prussia, PA 19406 (610) 337-2087 Attomeys for Defendant, Wal-Mart Stores, Inc. WILMA L. SWOPE and SWOPE, h/w Plaintiffs WAL-MART STORES, INC. Defendant COURT OF COMN CUMBERLAND C NO. 02-1233 CIVIl in Civil Action - La STIPULATION TO LIMIT DAMAGES THE PARTIES hereby understand and accept the following: · Defendant Wal-Mart Stores, Inc. has the right, pursum remove this matter to Federal Court; · Wal-Mart is willing to forego that fight in exchange for tl to limit the damages which the plaintiffs are entitled to r{ · In reliance upon the express agreement of all parties to the forth herein, Wal-Mart will agree not to exemise its rigl~ Federal Court. [ON PLEAS 3LINTY TERM tt to 28 U.S.C. §1441, to te agreement of all parties ,,cover, if any; and limitation of damages set t to remove this matter to THEREFORE, on this day of May, 2 STIPULATE AND AGREE that the full amount and/or value of any and plaintiffs may be entitled in this matter shall not exceed Seventy- ($75,000.00). MARTSON DEARDORFF WILLIAMS & Date: Date: Edward L. Schorpp, Esquire Attorney for Plaintiffs, Wilma L. Swope and Jerry Swope LAW OFFICES OF McDONNELL & Patrick J. McDonnell, Esquire Rocco J. Iacullo IV, Esquire Attorneys for Defendant, Wal-Mart Stores, Inc. )02, the parties hereby 11 damages to which the rive Thousand Dollars OTTO SSOCIATES CERTIFICATE OF SERVICE COURTNEY SEDA McDONNELL, ESQUIRE hereby certifies th of Defendant Wal-Mart Stores, Inc.'s Notice of Removal was served by mail, postage prepaid, on /~/~)/ ~ e/ ) c,~p Edward L. Schorpp, Esquire 10 East High Street Carlisle, PA 17013-3093 McDONNELL & ASSO£ COURTN~Y SEDA McD~ tt a tree and correct copy [nited States first class to th counsel below named: INNELL, ESQUIRE ATES