Loading...
HomeMy WebLinkAbout06-5487MORGAN & WILKEN, P.C. BY: SCOTT W. MORGAN, ESQUIRE IDENTIFICATION NO. 36721 120 SOUTH STREET HARRISBURG, PA 17101-1210 (717) 236-7959 ATTORNEYS FOR PLAINTIFF LAUREN SMERLING 6315 Brandy Lane Mechanicsburg, PA, V. Plaintiff McDONALD'S RESTAURANT 5550 Carlisle Pike Mechanicsburg, PA, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. ?? - SZI P7 lv? C Fep-1--kn : 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 plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 AVISO 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 o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, is corte tomara medidas y puede continuer is demanda en contra suya sin previo aviso o 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 o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE ELDINERO SUFICIENTE DE PAGAR TAL SERVICO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue 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 LAUREN SMERLING IN THE COURT OF COMMON PLEAS 6315 Brandy Lane CUMBERLAND COUNTY, PENNA. Mechanicsburg, PA, n, Plaintiff NO. 01o V. McDONALD'S RESTAURANT 5550 Carlisle Pike Mechanicsburg, PA, Defendant CIVIL ACTION -LAW JURY TRIAL DEMANDED 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 food and beverage restaurant, known as McDonald's, store #22804, at the above address. 3. At all times material hereto, Defendant acted through its agents, servants and/or employee within the course and scope of their agency or employment. 4. At all times material hereto, Defendant processed, packaged, cleaned, prepared, cooked and provided food to Plaintiff, who purchased two Cheeseburger Meals from the Defendant at 18:42 hours on May 16, 2006. 5. On May 16, 2006, after Defendant sold Plaintiff the two Cheeseburger Meals aforesaid, Plaintiff consumed part of the food, which contained a dangerous form of salmonella bacteria and/or other harmful contaminants, causing her serious and disabling injuries. 6. As a result of this incident, Plaintiff suffered injuries and damages, including but not limited to, injuries to her nerves, muscles, joints, organs, facia, tissue, circulation and other internal systems, pain and suffering, mental and emotional distress, which may be continuing. 7. As a further result of her injuries, Plaintiff was forced to expend various sums of money for medical care and treatment. 8. At all times material hereto, Defendant marketed, distributed, supplied and sold the said food to Plaintiff, who purchased same in good faith and with legal tender. COUNTI PLAINTIFF V. DEFENDANT 9. Plaintiff incorporates herein by reference the allegations of paragraphs 1 through 8, as if fully set forth at length. 10. The aforesaid food products were in a defective condition when Defendant marketed, distributed, sold, supplied, prepared, cleaned, packaged, processed, cooked and/or provided them, and the defects caused the injuries to Plaintiff as previously described. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of $25,000.00, exclusive of interest, costs and delay damages. COUNT II PLAINTIFF V. DEFENDANT 11. Plaintiff incorporates herein by reference the allegations of paragraphs 1 through 10, as if fully set forth at length. 12. At the time Defendant marketed, distributed, sold, supplied, prepared, cleaned, packaged, processed, cooked and/or provided the aforesaid foods products, Defendant represented to persons such as Plaintiff the express and implied warranty that the products were safe, fit for their intended use and of merchantable quality. 13. The contamination of the food products with salmonella bacteria and/or other harmful contaminants, which caused injuries and damages to Plaintiff, constitutes a breach of warranty by Defendant to Plaintiff. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of $25,000.00, exclusive of interest, costs and delay damages. COUNT III PLAINTIFF V. DEFENDANT 14. Plaintiff incorporates herein by reference the allegations of paragraphs 1 through 13, as if fully set forth at length. 15. Plaintiff's injuries and damages were caused by the negligence of Defendant, to wit: A. Causing or allowing salmonella bacteria and/or other forms of dangerous matter to contaminate food products sold to Plaintiff; B. Failing properly and adequately to prepare, cook, package, process, and provide the aforesaid food to Plaintiff. 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. By S t Mor n, Es uire Attorneys for Plaintiff DATED: I.D. No. 36721 VERIFICATION Lauren Smerling 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. §4904, relating to unsworn falsification to authorities. auren Smerling N T? llj=. U.l C ,? ? iI9 ? ?R G ? ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Lauren Smerling, Plaintiff V. McDonald's Restaurant, Defendant CASE NO: 06-5487 JURY TRIAL DEMANDED PRAECIPE FOR APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly enter my appearance on behalf of the Defendant, McDonald's Restaurant, in the above-captioned matter. BY: Respectfully submitted, CIPRIANI & WERNER, P.C. J. BONETTI, ESQUIRE for the Defendant A JURY TRIAL IS DEMANDED CERTIFICATE OF SERVICE That counsel for the Defendant hereby certifies that a true and correct copy of its PRAECIPE FOR APPEARANCE has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the day of ;!9 , 2006. Scott W. Morgan, Esquire Morgan & Wilken, P.C. 120 South Street Harrisburg, PA 17101-1210 Respectfully submitted, CIP NI & ERNER, P.C. BY: J. BONETTI, ESQUIRE for the Defendant ?? C_ N _? c;? r ?? c?-. ?'7 `?? ?J .? :. CTS +. ^^ _ _ --? 7 ? ?1 ..? -J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Lauren Smerling, Plaintiff V. McDonald's Restaurant, CASE NUMBER: 06-5487 ISSUE NUMBER: PLEADING: DEFENDANT'S ANSWER WITH NEW Defendant MATTER TO PLAINTIFF'S COMPLAINT CODE AND CLASSIFICATION: TO: LAUREN SMERLING 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 ENfAZED/,iAINST YOU. DENf S J. BONETTI, ESQUIRE FILED ON BEHALF OF: McDonald's Restaurant, Defendant. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Lauren Smerling, Plaintiff V. McDonald's Restaurant, Defendant CASE NO: 06-5487 JURY TRIAL DEMANDED DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, MCDONALD'S RESTAURANT, (sic. Woodrich Enterprise, Inc.) by and through its counsel, Cipriani & Werner, and hereby files the following Answer with New Matter to Plaintiff's Complaint. 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 1 of Plaintiff's Complaint and the same are therefore denied. 2. Denied as stated. "McDonald's Restaurant" is not the business name of the entity that owns the McDonald's Restaurant operated at 5550 Carlisle Pike, Mechanicsburg, PA. To the contrary, the correct name of the owner of said restaurant is Woodrich Enterprises, Inc. 3. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the identity of the individuals described in paragraph 3 as "its agents, servants and/or employees." Without identifying the individuals averred to be agents, servants or employees of Defendant, Defendant is without reasonable information sufficient to admit or deny the allegations contained in paragraph 3 and the same is therefore denied. To the extent a further answer is required, Defendant is advised by counsel and therefore avers that the allegations contained in paragraph 3 of Plaintiff's Complaint state conclusions of law to which no answer is required. To the extent that a further answer is required, the averments contained in paragraph 3 are denied pursuant to Pa.R.C.P. 1029(e). 4. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 4 of Plaintiff's Complaint and the same are therefore denied. By way of further answer, the averments contained in paragraph 4 are denied pursuant to Pa.R.C.P. 1029(e). 5. Denied. Defendant is advised by counsel and therefore avers that the allegations contained in paragraph 5 of Plaintiff's Complaint state conclusions of law to which no answer is required. By way of further answer, the averments contained in paragraph 5 are denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments concerning the nature and extent of injuries suffered by Plaintiff and the same is therefore denied. 6. Denied. The averments contained in paragraph 6 are denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments concerning the nature and extent of injuries suffered by Plaintiff and the same is therefore denied. 7. Denied. The averments contained in paragraph 7 are denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments concerning the nature and extent of injuries suffered by Plaintiff and the same is therefore denied. 8. Denied. The averments contained in paragraph 8 are denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments concerning the nature and extent of injuries suffered by Plaintiff and the same is therefore denied. COUNT I - PLAINTIFF v. DEFENDANT 9. Denied. Defendant hereby incorporates its answers to paragraphs 1 - 8 as though the same were fully set forth herein at length. 10. Denied. Defendant is advised by counsel and therefore avers that the allegations contained in paragraph 10 of Plaintiff's Complaint state conclusions of law to which no answer is required. By way of further answer, the averments contained in paragraph 10 are denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments concerning the nature and extent of injuries suffered by Plaintiff and the same is therefore denied. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff without costs. COUNT II - PLAINTIFF v. DEFENDANT 11. Denied. Defendant hereby incorporates its answers to paragraphs 1 - 10 as though the same were fully set forth herein at length. 12. Denied. Defendant is advised by counsel and therefore avers that the allegations contained in paragraph 12 of Plaintiff's Complaint state conclusions of law to which no answer is required. By way of further answer, the averments contained in paragraph 12 are denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, after :reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments concerning the nature and extent of injuries suffered by Plaintiff and the same is therefore denied. 13. Denied. Defendant is advised by counsel and therefore avers that the allegations contained in paragraph 13 of Plaintiff's Complaint state conclusions of law to which no answer is required. By way of further answer, the averments contained in paragraph 13 are denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments concerning the nature and extent of injuries suffered by Plaintiff and the same is therefore denied. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff without costs. COUNT III - PLAINTIFF v. DEFENDANT 14. Denied. Defendant hereby incorporates its answers to paragraphs 1 - 13 as though the same were fully set forth herein at length. 15. Denied. Defendant is advised by counsel and therefore avers that the allegations contained in paragraph 15 including sub-paragraphs (a) and (b) state conclusions of law to which no answer is required. To the extent a further answer is required, the averments contained in paragraph 15 including sub-paragraphs (a) and (b) are denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendant demands judgment in its favor and against Plaintiff without costs. NEW MATTER 16. Plaintiff's claims may be barred by the applicable statute of limitations. 17. Plaintiff's alleged injuries and damages, if any, which are specifically denied, may have been caused, either in whole or in part by the acts or omissions of third parties other than Defendant. 18. Plaintiff's alleged injuries and damages, if any, which are specifically denied, may have been pre-existing, either in whole or in part and are not causally related to the accident giving rise to the present litigation. 19. Plaintiff's claims are reduced or barred by the Comparative Negligence Act. Plaintiff's contributory negligence consisted of, but is not limited to: a. Failing to pay attention to what she was eating; b. Failing to employ appropriate hygiene on her own behalf; and c. Failing to take appropriate measures to avoid illness. 20. Discovery may reveal that Plaintiff's claims may be barred in whole or in part by one or more affirmative defenses set forth in Pa. R.C.P. 1030, which are incorporated herein by reference including, but not limited to, assumption of the risk, collateral estoppel, res judicata, release or immunity from suit. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff without costs. BY: Respectfully submitted, CIPRIANI & WERNER, P.C. J. BONETTI, ESQUIRE for the Defendant A JURY TRIAL IS DEMANDED VERIFICATION I hereby affirm that the following facts are correct: McDonald's Restaurant, is a Defendant in the foregoing action. The attached Answer with New Matter is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation for this lawsuit. The language of tl:? Li.'IJ`vi'ci witil New ?Viattc>r is tilat of counsel ali;. n of ;nc. I b a'vc .cad t,lv Answer with New Matter and to the extent that the Answer with New Matter is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Answer with New Matter is that of counsel, I have relied upon counsel in making this verification. I hereby acknowledge that the facts set forth in the aforesaid Answer with New Matter is made subject to the penalties of 18 Pa.C.S. 4904 relating to unswom falsification to authorities. ool Dated: I°n Y 0 G Authorized Representative /f Mc onald's Restaurant D PPFU 0 1 1 zom CERTIFICATE OF SERVICE That counsel for the Defendant hereby certifies that a true and correct copy of DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the 16. day of _ Q , 2006. Scott W. Morgan, Esquire Morgan & Wilken, P.C. 120 South Street Harrisburg, PA 17101-1210 Respectfully submitted, CIPRIANI & WERNER, P.C. BY: Y ?d u E IS J. BONETTI, ESQUIRE Co sel for the Defendant N s'g <T G % OO w ?rn i Ln C? MORGAN & WILKEN, P.C. BY: SCOTT W. MORGAN, ESQUIRE IDENTIFICATION NO. 36721 120 SOUTH STREET HARRISBURG, PA 17101-1210 (717) 236-7959 LAUREN SMERLING V. Plaintiff McDONALD'S RESTAURANT Defendant ATTORNEYS FOR PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. : NO. 06-5487 Civil Term CIVIL ACTION -LAW JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER Plaintiff, through her attorneys, Morgan & Wilken, P.C., hereby responds to New Matter of Defendant, and avers as follows: 16-20. The allegations of these paragraphs are Denied as conclusions of law to which no answer is required; however, without waiver of same, Plaintiff denies that at any time she was contributorily negligent or failed to pay attention to what she was eating or failed to employ appropriate hygiene or failed to take appropriate measures to avoid illness; and, on the contrary, she at all times acted prudently and properly under the circumstances. WHEREFORE, Plaintiff requests that New Matter be dismissed and judgment entered in her favor. MORGAN & WILKEN, P. C. DATED: October 24, 2006 By Cott W. organ squire Attorneys for Plaintiff I. D. No. 36721 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. §4904, relating to unsworn falsification to authorities. _UL Cott w-:• org ' , Es ire CERTIFICATE OF SERVICE I, Scott W. Morgan, Esquire, hereby certify that service of a true and correct copy of the within Reply to New Matter was made on this -011 day of October, 2006, to the persons below named, by First Class United States Mail, postage prepaid. Dennis I Bonetti, Esquire Cipriani & Werner, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 MORGAN & WILKEN, P.C. Sc t an, Esquire 120 uth treef- Harrisburg, PA 17101-1210 (717) 236-7959 Attorneys for Plaintiff, Lauren Smerling - c? -n t ? ?Tl C? i-n 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 LAUREN SMERLING V. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNA. McDONALD'S RESTAURANT Defendant : NO. 06-5487 Civil Term CIVIL ACTION -LAW JURY TRIAL DEMANDED STIPULATION TO AMEND NAME OF DEFENDANT It is hereby stipulated and agreed by and between counsel for Plaintiff and counsel for Defendant that the caption should be amended to change the name of the Defendant to Woodrich Enterprises, Inc. MORGAN & WILKEN, P.C. DATED: ko LA(, ? DATED: /D ZS By tt VV, organ, Es ire Attorneys Plaintiff I.D. No. 36721 CIPRIANI & W NER, P.C. By De J. Bonetti, Esquire Att new for Defendant ' ?- ? :? - - ? - c ?: SHERIFF'S RETURN - REGULAR CASE NO: 2006-05487 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SMERLING LAUREN VS MCDONALD'S RESTAURANT KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MCDONALD'S RESTAURANT the DEFENDANT , at 1515:00 HOURS, on the 20th day of September, 2006 at 5505 CARLISLE PIKE MECHANICSBURG, PA 17055 by handing to DAVID BAUMAN, MANAGER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 10.56 Postage .39 Surcharge 10.00 R. Thomas Kline .00 38.95. 09/21/2006 MORGAN & WILKEN Sworn and Subscibed to By: x/ ,?v before me this day ep er'.ff of , A.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Lauren Smerling, CASE NUMBER: 06-5487 Plaintiff ISSUE NUMBER: V. Woodrich Enterprises, Inc.,, Defendant PLEADING: PRAECIPE DISCONTINUE CODE AND CLASSIFICATION: FILED ON BEHALF OF: Woodrich Enterprises, Inc.,, Defendant. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Lauren Smerling, ) Plaintiff } V. } Woodrich Enterprises, Inc.,, } Defendant ) CASE NO: € 6-5487 JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly mark the above-captioned matter settled, discontinued and ended. Respectfully submitted, SERRATELLI, SCHIFFMAN, BROWN & CALHOON By. SCOTT ORGAN, ESQ IRE Cau t for t e PLAIAITIFF CERTIFICATE OF SERVICE That counsel for the Defendant hereby certifies that a true and correct copy of its PRAECIPE FOR APPEARANCE has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the ?2_ day of 2007. Scott W. Morgan, Esquire Serratelli, Schiffman, Brown & Calhoon 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 Respectfully submitted, CIPRIANI & WERNER, P.C. BY: J. BONETTI, ESQUIRE for the Defendant C ".? ? ? am c-a ? _ '+i?• ? ? ' - - C.?7 f- ?': ???; _ m "' ? ? "Cl .- f.A? _..? •+ ii i! ry "? ? ?;