HomeMy WebLinkAbout94-06311
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: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNlY, PENNSYLVANIA
94.6311 CIVIL TERM
MARK E. ENGERER and
JOYCE A. ENGERER
SUPER FRESH FOOD
MARKETS, INC. and
HAMPDEN CENTER, INC.
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AND NOW, June 24, 1998, the parties appearing for Argument Court, and
by agreement of counsel, It Is hereby ordered that Defendant Hampden Center,
Inc. file an amended Answer to Plaintiffs Complaint within twenty days.
By the Court,
. 0 er,
P.J.
Andrew Sheely, Esquire
For the Plaintiffs
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Lawrence Barone,Esqulre
For Defendant Hampden Center
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in dup1 i<,~tel
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
please list the within IIIIItter for the lI8lCt ArguI8It Court.
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CAPTION OF CASE
(entire caption lIUlt be stated in fulll
Mark E. Engerer, and
Joyce A. Engerer,
( PlaintiffS
VB.
Super Fresh Food Markets, Inc.
and
Hampden Center, Inc.
( Defendant I
No. 6311
Civil
19 94
1. State matter to be argued (i.e.. plaintiff's rrotion for MW trial, defendant's
denurrer to c~1aint. etc.):
plaintiffs preliminary objections to Defendant Hampden Center,
Inc. 's Answer and New Matter
2. Identify oounsel who will argue case:
(al for plaintiff:
.Address:
Andrew C. Sheely, Esquire
127 S. Market Street .
P. O. Box 95
Mechanicsburg, PA 17055
(bl for defendant:
.Address:
Lawrence Barone, Esquire
Post & Schell, P.C.
101 N. Front Street
Harrisburg, PA 17101
in writing within t'4IO days that thia CMe h88
3.
I will notUy aU plIrt1es
been lis ted for arg\IlleIlt.
.e. Argunent Court DIlte:
June 24, 1998
.:.teih
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Attorney fOl:
P1aintif "
May 12, 19'98
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NAULTY, SCARICAMAZZA & McDEVITT
BY: JOSEPH A, BREYMEIER, ESQUIRE
Idtntificatlon Number: 40927
1617 John F, Kennedy Boulevard
1600 One PcM Center
Philadelphia, PA 19103
(2IS) S68-S 116
ATTORNEY FOR DEFENDANT
Super Fresh Food Markets, loe,
Mark E, Engerer and Joyce A, Engerer
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
VS
Super Fresh Food Markets, Inc, & Hampden
Center, loe,
NO, 94-6311
JURY TRIAL DEMANDED
ENTRY OF APPEARANCE
To the Prothonotary:
Kindly enter my appearance on behalf of Defendant(s), Super Fresh Food Markets, Inc., in the
above-captioned matter,
NAULTY, SCARICAMAZZA & McDEVITT
WITHDRAW At OF APPEARANCE
To the Prothonotary:
Kindly withdraw my appearance on behalf of Defendant(s), Super Fresh Food Markets, Inc., in
the above-captioned matter,
NAUL TY, SCARICAMAZZA & McDEVITT
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BY' (-) -" ,~:~, l'" ~~,
'OERARD x. SMitH, ESQUIRE
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MARl B. BNGBRBR and
JOYCI A. BNGBRER,
Plaintiffe
v.
SUPER FRBSH FOOD
MARlBTS, INC., and,
BAMPDBN CBNTBR, INC.,
Defendants
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INTHB COURT OF COMMON PLEAS or
CUMBERLAND COUNTY, PBNNSYLVANIA
CIVIL ACTION - LAW
NO. 94"'6311 CIVIL TBRH
ORDER OF COURT
AND NOW, thil tiL day of November, 1995, upon consideration
of Plaintiff.' Motion To Compel Dilcovery, a RULE i. hereby i.sued
upon Defendants to show cause why the relief requested should not
be granted.
RULE RETURNABLE within 20 days of service.
BY THE COURT,
J.
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James D. Bogar, Esq.
Andrew C. Sheely, Esq.
1 West Main Street
Shiremanstown, PA 17011-6371
Attorneys for Plaintiffs
Gerald x. Smith, Esq.
NAULTY, SCARIACMAZZA ,
McDEVITT
Suite 1600
One Penn Center at
Suburban Center
1617 John F. Xennedy Boulevard
Philadelphia, PA 19103
Attorney for Defendant Super Fresh
rood Markets, Inc.
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Paul W. Grego, Esq.
101 North Front Street
Hsrrisburg, PA 17101
Attorney for Defendant Hampden Center
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IN THE COURT OF COMMON PLIAS or
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 6311 CIVIL 1994
MARK E. ENGERER, and
JOYCE A. ENGERER,
Plaintiff.
SUPER FRESH rOOD MARKETS, INC.,
and HAMPDEN CENTER INC,
Defendant.
KOTIO. TO COKPIL DIICOV.RY
AND NOW, comes Plaintiff., Mark E. Engerer and Joyce A. Enqerer, by
their coun.el, Andrew C. Sheely, Esquire, and .tate. the following in
eupport of it. Motion to Compel Defendant, Hampden Center, Inc.
("Hampden center") to an.wer and respond to it. Interrogatorie..
1. On or about November 4, 1994, plaintiff., Mark E. Enqerer and
Joyce A. Enqerer, in.tituted a civil action in law aqain.t Defendant
"Super Fresh" a. a result of injuries sustained by Plaintiff at
Defendant. real property and grocery .tore in Hampden Town.hip,
CUmberland County, Penn.ylvania.
2. On or about January 13, 1995, Defendant Hampden Center filed an
An.wer and New Matter to Plaintiff's complaint.
3. On or about March 24, 1995, Plaintiff. .erved and forwarded
written Interrogatorie. upon Defendant Hampden Center. A copy of .aid
Interrogatorie. i. attached hereto as Exhibit "A".
4. On or about July :l0, 1995, Plaintiff. directed a letter to
Defendant Hampden Center requesting that Defendant Hampden Center an.wer
the Interrogatories.
5. To date, Defendant Hampden Center has not re.ponded to
Plaintiff'. di.covery request..
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6. Defendant Hampden center hu not fUed any objections to the
discovery requests and has had sufficient time to answer such request..
7. Pur.uant to Pa R.C.P. 4006, Defendant Hampden Center v.s
required to respond to the discovery requests on or about April 24, 1995.
8. Pursuant to pa R.C.P. 4019 (a), this Court has the authority to
compel Defendant Hampden center to re.pond to plaintiff' s discovery
request., award sanctions and other relief a. authorized by the Rule. of
court.
WHEREFORE, it 18 respeotfully prayed that this Honorable court i..us
an Order compelling Defendant Hampden Center to respond to plaintiff's
discovery requests within thirty (30) days.
Respectfully submitted,
Dated: November 3, 1995
Andrew C. Sheely, re
Law Office of Jame . Bogar
Attorney for plaintiff
1 West Main street
Shiremanstown, PA 17011
717-737-8761
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CIRTIFICATZ OF SBRVICE
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I, Anclr.w C. Sh.ely, a.quir., her.by c.rtify that I a. thi. clay
.ervinq the foreqoinq Motion to COlDp.l D1acov.ry upon the toUowinq naaecl
incliviclual th1a clay by clepo.itinq 8alDe in the Unit.cl stat.. MaU,
c.rtifi.d aail, return rec.ipt r.quested, Fir.t Cl..., po.t.q. pr.paicl,
at Shir.man.town, p.nn.ylv.nia, .cldr....cl a. fOllow.:
P.ul w. Greqo, I.quir.
POST' SHELL, P.C.
101 N. FRONT STREET
HARRISBURG PA 17101
Dat.: NoveJDb.r 3, 1995
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MARX I. INGIRIR, and
JOYCE A. IIfOIRlR,
plaint.1ff.
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IN THI COURT or COIOCON PLDS or
CUMBIlRLAlfD COUNTY, pllflfSYLVAMIA
CIVIL ACTION - LAW
NO. 6311 CIVIL 1994
v..
SUPER FRESH rooD KARKlTS, INC.,
and HAIIpDIN CIlNTlla INC,
Def.ndant.
INTERROGATORIES OF PLAINTIFFS
ADDRESSED TO DEFENDANT HAIIPDEW CENTER, INC
TO: Def.ndant Ha.pd.n c.nt.r, Inc.
and it.. coun..l,
Paul W. Or.qo, I.quir.
POST . SHIlLL, P.C.
10l N. rront str..t
Harriaburg, PA 17101
P~SE TAKE NOTICI that you ar. r.quir.d pursuant to the P.nn.yl-
vania Rul.. of Civil proc.dur., Rul. 4005 and 4006 to an.v.r, und.r oatb,
vithin tbirt.y (30) day. alter ..rvic. of thi. notic., the at.tach.d
Writt.n Int.rroqatori... Th... int.rrogatori.. ar. d....d to be
continuinq to t.h. .xt..nt provided by Pa. R.C.P. 4007.
Dat.d: Marcb 24, 1995
A ~ v C. Sh..ly,
Attorn.y for Plai
1 w..t Main Str..t
Shir..anstown, PA l7011
ID 162469
(717) 737-8761
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DEFINITIONS
1. ".l.i.till." .hall .ean Mark E. Eng.r.r and Joyc. A. Inqerer.
2. "Defe.daat" .hall ..an Hampden Center, Inc.
3. " DoclI'IlIIe.t" .hall .ean any writing of any kind, including
recorded or qraphic .atter, howev.r produc.d or reproduced.
It include. all ..tter. that r.late to or ref.r to in whole or
in part to the .ubject .atter r.f.rr.d to in .ny interroqatory.
If a docuaent has b..n prepar.d in .everal copies or if
.dditional copi.. have be.n ..d. and the copies .r. not:
id.ntical (or by r.a.on of .ubs.quent .odification by the .ddi-
tion or notation. or oth.r modification., th. copies ar. no
long.r id.ntical) .ach non-identical copy i. . ..parat.
"40owa..t". Th. t.rm "dooua.at" includ.., but i. not li.ited
to corr..pond.nce, per.onal and int.r-offic., .e.oranda, not..
di.ri.., log book., .tatistic., work ord.r., letter.,
t.l.qra.., Ilinut.., contracts, r.port., .tudi.., ch.ck
.tat...nt., book., int.r-offic. and intra-office co_unica-
tions, bull.tine, print.d matt.r, cOllput.r printout., t.l.typ-
.., invoic.., r.cording., worksh..t., work pap.r., .nd all
draft., alt.r.tion., .odification., chang.. and/or ..end..nt.
of any of th. for.going.
5. "all doou.at." shall ..an any docu..nt a. above dsf1nad
known to you, .nd ev.ry .uch docum.nt which may b. locat.d or
di.cov.r.d by r.a.onabl. .ffort.
6. Th. t.ra "po.....ioa, ou.tody or oo.tro1." includ.. the joint
and ..v.ral po.....ion, cu.tody, and control not only by the
Def.ndant., but .l.o by each and any per.on acting or purporting to
.ct in conc.rt or on th. b.half of the Pl.intiff wh.ther an
e.ploy.e, .n .ttorn.y, accountant, or oth.rwi...
7. "Ide.tif," or "Ideatilio.tioa" wh.n u.ed in ref.renc. to any
n.tur.l per.on .ean. to .tat. the fullname of .uch per.on, if known,
hi. pr..ent or l..t known po.ition and/or bu.ine.. .ffili.tion, and
hi. bu. in... addr... and tel.phon. numb.r."ld.atif," or
"It..tifi..ti.." when u..d in refer.nc. to a p.r.on oth.r than a
natural per.on .ean. to .tat. the n.tur. of .uch p.r.on (..q.
corporation, .uthority, county, .tc.), full n..., addr..., and
t.l.phon. nuab.r/ th. identity of tho.. p.r.on. ..ployed by .uch
.ntity with who. you haVe d.alt, and the .ubj.ct ..tt.r with re.pect
to which you d.alt with .uch p.rson. "Id.atif," or "It..tifl..tio."
wh.n u..d in ref.r.nc. to a docu..nt ..an. to .tat. th. type of
docuaent (..9. l.tt.r, t.l.gram, ...orandu., r.port, .tc.) it. dat.,
the na_ ot the ..nder or ..nd.r., the na.. ot the .ddr..... or
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.ddr......, .nd th. titl. 01' h..dlftCJ. If th. docuaent 1. pr.pdnted,
th. pr...nt loc.tion of .uch docuaent .nd .11 known copl.. llball --
fumll1heel. If. doc\llMlnt 1. not In Def.nd.nt'. po.....lon, CN8t04y
01' control, .t.t. wh.t di.po.ltlon ha. M.n ..d. of .uch doau.ent
.nd all cop 1.. .
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INSTRUeTIONS
'!'be.. In.truction. .hall be cla.-cl to be contlnulft9
in natul'. ancS if betw..n the ti.. of fil'.t an.w.rlft9
the lnt.l'l'Q9atory .ncl the tl.. ot tl'l.l any
acScSltlon.l intonation co... into your cu.tocSy,
po.....lon, 01' control, you .h.ll b. uncl.1' a con-
tlnuil\9 obl1qatlon to .uppl...nt your an.wer to th...
~nt.rl'Q9.tod...
2. In con.trulnq th... lnterrOC).tod.., the .ln9\l1al'
.hall be d....cI to inclucl. the plural, the plural
.hall be d....d to inclucle the .in9\l1ar, the ...-
culin. V.nd.1' .h.ll includ. tho f..inin., .ncS the
t..inin. sh.ll inclucl. the ...culin..
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3. It .ny obj.ction i. a...rt.d or docwa.nt withh.lcl
uncleI' clai. of privU.q., pl.... furni.h th. tol-
lowinq:
.. Th. id.ntlty of the int.rrOC).tory to which .n
obj.ction i. as..rt.d or id.ntlty of the docu..nt
vithh.ld.
b. The n.tur. ot th. ....rt.d privU.q. or obj.ctlon .ncS the
ba.i. upon which it i. cl.i..d.
c. Th. d.scription of the nature .nd .ubj.ct ..tt.r ot
the intonation requ..t.d within the docu..nt withhelcl.
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INTBRROGlATORrBS
1. Identity youn.lf and .ach and .v.ry per.on a..iatift9 in
an.v.dnv ..ch of the.e Inte.rrovatori.. and/or providift9 the
docu..nt. r.qu..tad h.rein and identify .ach Int.rrovatory .nd/or
docu..nt provid.d a. to which each .uch per.on ...i.ted you in the
pr.paration of your r..pon...
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2. If you are a bu.ine.., .tate the fol1owift91
a. Your leval na.e,
b. Whether you operate a. a corporation, a partner.hip, or .01e
proprietor.hip, and further .tate,
i. If a corporation:
8. The principal place of bu.ine..,
A. The date and place of incorporation
ii. If doinq bu.in... under a fictitiou. ne..,
A. The date of filinq of the certificate of 40i"9
bu.ine.. under a fictitiou. na.e,
8. The country where filed,
Iii. If a .ub.idiary of any entity:
A. The entity'. leqal na.. and principal place of
bu.in...,
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I. The date and place of the entity'. incorporation,
c. The date you b.e... . .Ub.idiary,
D. Th. n.tur. of the .Ub.idiary r.lationahip.
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3. Accordil\9 to the Article. of Incorporati~n of your corporation
.tat..
A. pri..ry bu.ine.. to be en9aq.d in by the oorporation.
B. General purpo.e for whioh the corporation wa. orqani.ed.
c. The duration, if any, of it. oorporate exi.tanoe.
D. Attaoh reoeipted copie. of the filed Articla. of Incorporation
and reqi.try .tat...nt. and identify the par.on or bu.ine.. antity filing
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4. If byl.w. w.r. .dopt.d pl.... .t.t..
A. Ti...nd pl.c. of th.ir .doption.
B. Att.ch. copy of the corpor.tion. byl.w., includinq any .nd .11
...ndaent. or .edific.tion. ther.to fro. the d.t. of incorpor.tion
to the pr...nt.
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5. Doe. Defend.nt own in t.. d.pl. or in .ny .quit.bl. or l~.l
int.net .ny 1'..1 property lOCl.tad in H..pden Town.hip, C\mb.rland
County, p.nn.ylv.ni.7 It the An.w.r i. y.., pl.... .t.t.1
A. Th. d.ed d..Clription, parCl.l nWlll.r and plan which
.peClitiClally id.ntifi.. the prop.rty,
B. Th. d.t. .uch prop.rty wa. purClha..d7
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C. Any oth.r penon who ha. an leqal or .quit.bl. int.r..t in
the property, inClludinq a de.cription ot .uClh inter..t.
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6. W.r. the pr..i... or prop.rty on which the bu. in... known
.. Super rr..h rood Mark.t, Inc. v.. carri.4 on .ubj.ct to .ny 1....
on March 1, 19931
If the An.v.r i. y.., pl.... .t.t.a
A. Th. n... an4 a4dr... ot the l...or,
B. Th. na.. and addr... of the l...c..,
C. Th. date the l.as. va. .x.cut.d,
D. Th. 4at. of termination,
E. Th. .xt.nt of the le..or'. and l.....'. int.r..t.
f. Th. n... and addr... of the per.on vho h.. cu.tody of . copy
of the l.a.., .nd attach . copy of the l....(.) to th...
Int.rrOCJ.tori...
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7. What 1. the na.. and addr... of .ach per.on who ..naved
and controlled the bu.1n... known a. Ha.pd.n Center. Inc?
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.. 'or .ach .uch per.on, .tat.,
A. Hi. or h.r job title,
I. A d..cr1pt1on of hi. or h.r dut1..,
C. Hi. or h.r financial inter..t in the bu.1n...?
D. Th. inclu.ive date. of hi. or her .anaq...nt up until the
pr...nt t1...
.. What i. the na.., addr... and jOb title of the per.on vho
va. in charq. of the bu.ine.. at the t1.. plaintiff va. injured?
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10. Doe. Def.ndan~ own, operate or control artifici.l l1Vht1nv
on the pr..i... where Plaintiff wa. injur.d? If .0. pl.... .tat..
A. The nuab.r of ligh~. u..d,
B. Th~ nuaber of light.,
c. Th. w.ttav. of .ach ligh~ a. of M.rch 1. 1"3,
D. Th. di.tanc. of each light fro. the .cen. of the .ccid.nt,
E. The par.on(.) re.pon.ible for ..intaining the liVht.,
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11. Did you, or any ..ployae, r.c.iv. .ny coapl.int, w.rninv,
or oth.r notic. concerning . dang.rou. or d.f.ctiv. condition on
the pr..i... prior to the accident? If .0, pl.... .t.t.,
A. Th. d.t. and time it wa. r.c.ivad'
B. Wh.th.r it was writt.n, or or.l, and the .ub.tanc. of it,
C. Th. n..., or other ..an. of identification .nd addr... of
the par.on by who. it w.. givan,
D. Th. n..., addr... and job titla of the p.r.on who rec.ived
it,
.. Th. n.tur. and loc.tion of the d.nger, or d.f.ct to which
it ral.t.d,
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,.Wh.th~r any action wa. taken a. a r..ult of it, and, if 80,
a d..oription of the action and the ti.. at which it va. taken,
G. Attach a copy of .ach written co.plaint, varnin9 or oth.r
notio. to you.
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1:2. Wa. an in.pection .ade by Defendant prior to or clurinv
..arch 1, 1993 to det.nine whether the area whero plaintiff wa.
injured we. in . .af. condition for u.. by cu.to..r.?
If .0, pl.... .tat.:
(A) Th. fr.qu.ncy of .uch in.p.ction.,
(8) Th. date and ti.. of tho h.t in.p.ction prior to tho
accident,
(C) Th. n..., addr... and jOb title of the p.r.on. who .ad. tho
la.t 1n.p.ction,
(D) A d..cription of, or the .Ub.tanc. of tho finding. ..de on
.uch in.paction, if any,
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13. .a. any in.pection ..d. of the area of the aaaiden~
.ub..~ent to Karch 1. 19931 If .0. .t.t. the followin;1
(A) Th. d.t. it wa. .ade,
(8) The n.... .ddre.. .nd job title of ..ch penon wbo ..de
.ucb in.pection,
(C) Wh.t findinq. were ..d..
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, 14. Did Def.nd.nt pl.c. .ny w.rnin9 d9n. 01' d.vic.. on the
property .1'.. .dj.c.nt to wh.r. Pl.intiff v.. injur.d on Karch 1,
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If .0, pl.... .t.t.:
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(A) A d..cription of, or the .ub.tanc. of, the warning 9iven,
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(8) Th. n..e, 01' oth.r ...n. of id.ntification, and .ddre.. of
..ch per.on to whoa it va. CJ i v.n,
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15. H.. .ny other accidant occurrad on your pra.i.e. in the
.... ara. a., 1)1' in _ .i.il.r _nnar to the accidant in which
pl.intiff va. injurad? If .0, .t.tal
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(A) Tha d.te and ti.e it occurred,
(B) A da.cription of hov it occurred?
(C) Tha locationwhara it occurred.
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16. .a. an inve.tigation .ad. by o.tendant, it. agent. or
eaploy.e. in reterence to plaintitt'. injurie.? It .0, .tatel
(A) Th. date it wa. .ade,
(8) The na.., addr... an~ occupation ot each per.on vho ..de,
and
(C) Whether any report. va. aade ot it, and it .0, attach a .
copy hereto.
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17. Did you or .ny ..ploy.. or .v.nt ..Ice . r.port ot tb4t
.ccid.nt?
It .0, pl.... .tat.l
(A) Th. n..., addr... and jOb title ot the per.on who ..d. the
r.port ,
(8) Th. d.t. and ti.. it wa. ..de,
(C) Wh.ther writt.n or oral, .nd, it writt.n, the na.. .nd
addr... of the per.on who ha. cu.tody of it.
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11. Do you oontend th.t Plaintiff v.. not authorile4 to be on
the part of the pre.i.e where the aocident ooourred?
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It 10, pl.... .t.te the tact. which .upport .uoh cont.ntion.
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1.. Do you cont.nd that ~t.ndant va. not nerli9.nt?
It,.o, on vhat .pecitic tact. do you ba.. your cont.ntion?
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ao. Do you contend that plaintiff ...Ulled the r1.k 0' hi.
injur1..?
If .0, on what .peeiflc fact. do you ba.. your oont.ntion?
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21. Do you oontend that Plaintiff va. oontributorily
nevllvent?
If .0, on vhat .peoifio faot. do you ba.e your contention?
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22. Do you cont.nd th.t Defend.nt super rr..h ,ooc1l1ark.t Inc.
or oth.r per.on va. n.91i9.nt in any ..nn.r conc.rninq pl.intiff'.
injur1..?
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If .0, pl.... .p.cific.lly .tat. the faot. which .upport your
cont.ntion.
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23. ld.ntity .ach witn... Def.ndant .xp.ct. to call at the trial
or thi. action, .u.aari.in9 hi. or h.~ propo..d t..ti~ny.
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9round. for .ach exp.rt I. opinion to which an .xpert witne..
i. expect.d to t..tify.
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25. Identify each and every docUllent, dia9ra. and phot09l'aph vbiab
Defendant intend. to introduce at trial.
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26. Identity each end every eurv.y, plan, drawing or de.cription
which Defendant intend. to introduce et trial.
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27. Do you pre..ntly and/or did you contract with or e.ploy any
per.on to .aintain, cl.an, r.pair and in.p.ct the co..on way.,
fixtur.., e~it way., .ntranc. way., light., .torag. of .hoppinq
cart. at the Sup.r Fr..h Food Mark.t .tor. locat.d at 4820
Carliale Pik., M.chanic.burg, P.nn.ylvania during the .onth.
of '.bruary and Maroh of 1993? If your anawer ie y..,
pl.... .tat.:
A. Th. n... .nd la.t known .ddr... of the p.r.on who waa ..ploy.d
to p.rfora .uch ..rvic. in 1993; .nd
B. The dat.C.) wh.n .uch p.r.on w.. .mploy.d in 1993, and
C. Whether a writt.n .gr..m.nt or docu._nt .xi.t. concerninq the
.tatu. of .uch ..ploya.nt; and
D. Th. .cop. of r..pon.lbiliti.. of .uch agr....nt' and
I. The location of any contract or agr....nt r.f.r.nced abov.?
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3.. Are you re.pon.ible for .aintaininq the int.rior and/or ext.rior
liqhtinq .y.te. accord!nq to plan. or .pacification. at your
facility or .tore located at 4820 Carli.l. pike, H.chanic.burv,
P.nn.ylvani.?
If your an.w.r i. ye., pl.... .tat.:
(A) The nuab.r of ti... and date. when the liqhtinq .y.te. ha. been
in.pect.d and/or maintained ainc. J.nu.ry 1, 1993, and
(8) The per.on or peraons employed to mak. luch in.pection., .nd
(C) Whether .ny writt.n plans or .p.cific.tionl .xi.t which require
liqhtinq at your Itor. located at 4820 C.rlisle Pik., K.ohanic.burv,
P.nn.ylv.ni.?
(D) 'l'he r.quirem.nts for liqhtinq in accordance with the written
plan. or .pacification.; and
(I) Attach . copy of any writt.n plan. or .p.cification, to the
ext.nt .uch .xi.t.
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:It. Wa. the Defend.nt COVered by any policy of Uuility
in.urance effective on the date of the .aid occurrence?
If the answer to the preceding Interrogatory 18 in tIM
affi~ative, .tate the following ite..:
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A. What i. the na.. of the co.pany that i..u.d the POlicy?
8. What i. the number of .aid policy?
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c. What are the effective period. and the .axi.ua liability
li.it for each per.on provid.d for in .aid pOlicy.
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D. What ia the na.. of the in.ured appearing in the policy?
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Re.p.ctfully .Ub.itted,
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DATI: ".rch 24, lft5
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An re . Sh..ly, .qui
Law Office of J.... D.
Pa. Id. 62469
On. We.t ".in Str..t
Shire.an.town, PA 17011
(7l7) 737~8761
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C!....I.IC!&.. 01' ..awIC!ll
I, And~ev C. Sheely, ..quire, hereby c.rtify that I .. tbi. day
.ervinq the for89oinq Plaintiff. Interrogatori.. Addr....d to Defendant
Ha.pd.n Cent.r, Inc. upon the following na..d individual thi. day by
d.poaiting .a.. in the Unit.d stat.. Mail, Firat Ciaa., po.taq. pr.paid,
at Shir...n.tovn, Pann.ylvania, addr....d a. follow.:
Paul W. Gr.qo, E.quir.
101 N. Front Stre.t
Harri.burq, PA 17101
G.rald x. S.ith, Zaquir.
NAULTY, SCARIACMAZZA , MCDEVITT
suite 1600
On. P.nn Cent.r at Suburban C.nt.r
1617 John F. K.nn.dy Boul.vard
Philadelphia, PA 19103
Dat.: Maroh 24, 1995
~vbJ (1. ~
Andr.w C. She y, quire
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MARK I. INGBRBR and
JOYCB A. BNGBRBR,
Plalntifh
v.
SUPIR FRlSH FOOD
MARKITS, INC., and
HAMPDBN CBNTBR, INC.,
Oehndante
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IN THB COURT OF COMMON PLBAS or
CUMBBRLANO COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94-6311 CIVIL TERM
ORDBR OF COURT
AND NOW, thia ~..~ day of November,
1995, upon conaideration
of Plaintiffa' Motion To Compel Oiacovery, a RULI ia hereby iaaued
upon Oefendanta to ahow cauae why the relief reque.ted ahould not
be qranted.
RULB RBTURNABLB within 20 day a of aervice.
BY THB COURT,
J
Jamea D. Boqar, Baq.
Andrew C. Sheely, Baq.
1 Weat Main Street
Shiremanatown, PA 17011-6371
Attorneya for Plaintiff a
Gerald X. Smith, Baq.
NAULTY, SCARIACMAZZA ,
McDBVITT
Suite 1600
One Penn Center at
Suburban Center
1617 John F. Kennedy Boulevard
Philadelphia, PA 19103
Attorney for Oefendant Super rreah
Food Marketa, Inc.
,;Y
caf ",J- <
11.)-101,14
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Paul W. Greqo, Eaq.
101 North Front Street
Harriaburq, PA 17101
Attorney for Defendant Hampden Center
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MARK E. ENGERER, and
JOYCE A. ENGERER,
Plaintiffs
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I CIVIL ACTION - LAW
:
: NO. 6311 CIVIL 1994
I
vs.
SUPER FRESH FOOD MARKETS, INC.,
and HAMPDEN CENTER INe,
Defendante
KOTIOH TO COKPBL DI8COVlRY
AND NOW, comee Plaintiff., Mark E. Enqerer and Joyce A. Enqerer, by
thelr eoun.el, Andrew C. Sheely, Esquire, and state. the followlnq ln
.upport of its Motion to Compel Defendant, Super Fresh Food Market, Ino.
("Super Fresh") to answer and respond to its Interroqatorle..
1. On or about November 4, 1994, Plaintiffs, Mark E. Enqerer and
Joyce A. Enqerer, instituted a civil action ln law again.t Defendant
"Super rre.h" ae a result of injuries sustained by Plaintlff at
Defendants qrocery store in Hampden Township, Cumberland county,
Pennsylvania.
2. On or about December 22, 1994, Defendant Super Fresh flIed an
Answer and New Matter to Plaintiff's complaint.
3. On or about March 24, 1995, Plaintiffs served and forwarded
written Interroqatories upon Defendant Super Fresh.
Interrogatories is attached hereto as Exhibit "A".
A copy of said
4. On or about July 20, 1995, Plaintiffs directed a letter to
Defendant Super Fresh requesting that Defendant Super Fresh answer the
Interroqatories.
5. To date, Defendant super Fresh has not responded ~o Pl.in~lff's
dlscovery reque.ts.
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DEPINITIONS
1. "'laiatiff." .hall ..an Mark E. Eng.r.r and Joyc. A. Inq.rer.
2. .oef..'eat" .hall mean Super Fresh Food Mark.t, Ino.
3. " Doouae.t. .hall mean any writlnq of any klnd, inoludlnC)
r.cord.d or qraphic matter, however produced or reproduc.d.
It includ.. all .att.r. that relate to or r.f.r to in whole or
in part to the .ubj.ct matter ref.rred to in any lnterroqatory.
If a docUMnt has b.en pr.par.d in ..v.ral ccpi.. or lf
addltlonal copies have be.n .ad. and the copl.. ar. not
id.ntioal (or by reason of .ub..qu.nt modificatlon by the addl-
tion or notation. or oth.r modification., the copl.. ar. no
lonq.r id.ntical) each non-identical copy 1. a .eparat.
.40oua..t". Th. t.rm "'ooua..t" includ.., but 1. not 1i.ited
to corr..pondenc., per.onal and inter-office, m.moranda, not..
diari.., 109 book., .tatistic., work ord.r., lett.r.,
t.l.gra.s, ainute., contract., report., .tudi.., ch.ck
.tat...nt., book., inter-office and lntra-offic. coaaunlca-
tion., bull.tin., printed matter, computer printout., tel.typ-
.., lnvolc.., r.cording., work.heets, work pap.r., and all
draft., alt.ration., mOdifications, chanq.. and/or a.endm.nt.
of any of the for.qoinq.
!S. .Ul 4ooua..t.. .hall mean any document a. above definecl
known to you, and .v.ry .uch document which may b. locat.d or
dl.cov.r.d by r.a.onabl. effort.
6. Th. t.ra .po.....lo., aueto', or oontrol." lnclude. the joint
and ..v.ral po.....ion, cu.tody, and control not only by the
Def.ndant., but a1.0 by each and any p.r.on acting or purportlnq to
act ln concert or on the behalf of the Plaintlff wh.th.r an
..ploy.., an attorn.y, accountant, or oth.rwi...
7. .1'..Uf,. or "I...UflcaUo.. when us.d ln r.f.r.nc. to any
natural p.r.on ..an. to .tat. the fu1lna.. of such p.r.on, lf known,
hl. pr...nt or 1a.t known po.ition and/or bu.in... affillatlon, and
hl. bu.lne.s addr... and telephone nuab.r."I...tify" or
.I...tifioaUo.. wh.n u.ed in r.f.renc. to a p.r.on oth.r than a
natural p.rson ..an. to .tate the nature of .uch p.r.on (..C).
corporatlon, authority, county, .tc.), full na.., addr..., and
t.1.phon. nuab.r/ the identity of tho.e p.r.on. .mploy.d by .uch
.ntlty '11th who. you have dealt, and the .ubj.ct .att.r with r.speot
to whlch you d.alt with .uch p.reon. .I...dfy. or "I'..tlfloatio."
wh.n u..d ln r.f.r.nc. to a docu..nt ..an. to .tat. the type of
dooUMnt (..C). l.tt.r, t.leqr.., ...orandu., r.port, eto.) It. date,
the na.. of the ..nd.r or .end.r., the na.. of the addr..... or
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addl'......~ and tha titl. o~ haadinq. If the docuaent 18 pl'apdnted,
the pn..nt location of suoh doc\lMnt .nd all known oaple. llhall be
fumlAed. It a docua&nt i. not in Defandantl. po.....lon, cwat04y
01' Clont1'Ol, .tate what dl.po.ltion h.. bean ..da of .Iloh dOCNMnt
and all copl...
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INSTRUCTIONS
1. Th... In.truotlon. .hall be d....d to b. continulnv
in nature and lf b.tw..n the ti.. of tint an.'ferinq
the int.rroqatary and the tl.. of trlal any
addltlona1 lnforaation co... lnto your ou.tody.
po.....lon, or control, you shall b. under a oon-
tinulnq oblivation to .uppl...nt your an.w.r to th...
lnt.r~oq.torl...
2. In con.truinq th..e interroqatorl.., the slnvular
.hall be d....d to includ. the plural, the plural
.hall b. d....d to includ. the .ingular, the ...-
oulin. v.nd.r .hall lnclud. the f..inln., and the
f..lnln. .hall include the .a.culin..
3. If any obj.ctlon ia ....rt.d or docua.nt wlthh.ld
und.~ 01&1. of privil.q., pleas. furni.h the fol-
lowlnql
a. Th. i.d.ntity of the interrogatory to whloh an
obj.ctlon 1. a...rted or ld.ntlty of the docua.nt
wlthh.ld.
b. Th. nature of the a.s.rted privil.q. or obj.ction and the
baai. upon which it i. clal..d.
o. Th. de.crlptlon of the nature and .ubj.ct ..tt.r of
the lnforaatlon r.quested within the docua.nt wlthh.ld.
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INTERROGATORIES
1. Identify yourself and each and ev.ry pe~.ona..btlnq in
an.wering each of these Interrogatories and/or p~oYldlnq th.
doouaent. requested hereln and identify each Interroqetory and/o~
400uaant provided as to which each such person a..l.ted you ln the
preparatlon of your response.
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2. If you are a buslne.s, .tate the followlngl
a. Your legal na..,
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b. Whether you operate as a corporation, a partne~.h1p, O~ .01.
propr1etorshlp, an4 further state,
1. If a corporation I
A. The date and place of incorporation
B. The prlncipal place of busines.,
11. If a partnership or sole proprietor.hlp,
A. The name and addreSS of each owner,
8. The proprietary interest of each owne~'
111'. If doinq business under a fictitious na..,
A. The date of fiUng of the certUloate of doillCJ
business under a fictitlou. na.e,
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B. The oountry where fUed,
lv. If a subaidlary of any entltYI
A.
The entity's legal na.. and prlnolpal plaoe of
bl,lalness,
a. The date and place of the entity'. lncorporatlon,
c. The date you beca.e a Sub.idiary,
D. The nature of the subsidlary relatlon.hlp.
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3. Aocordlnq to the Articles of Incorporatlon of you~ corporatlon
state.
A. P~l..ry business to ba enqaqed in by the corporation.
8. ~eneral purpo.e for which the corporation va. orqanized.
C. ,The duration, if any, of its corporate exlstence.
D. Attaoh recelpted copies of the filed Articles of Incorporatlon
and registry .tate.ents and ldentify the person or bu.lne.. entlty flllnq
sa.e.
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4; If bylaw. we~. adopted plea.e state:
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A. Tl.. and place of their adoptlon.
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B. Attach a copy of the corporation. bylaw., lnolud1nq any and all
...ndaents or .edification. thereto fro. the date of lnoorporat1on
to the pre.ent.
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6. state the aubatance of the faot. and oplnlona, lnolwU.", the
vro\lnda for each expert'. opinlon to vbloh an expert vl~.....
1. expected to te.tify.
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Identify each and every docuaant whlch Defendant intend8 to
introduce at trlal.
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I. Identlfy eaoh and eve~ dlaqra. or photoqrapb whioh Defendant
ln~end. to lntroduoe at trlal.
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Identlfy eaoh and evary survey, plan, d~awlnq or de.oription
vhloh Defendant lntends to lntrodua. at t~la1.
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10. Id.ntify .aoh and every ..ployee and ataff ..aber who waa
eaplOl'ed by Defendant at the super rr.ah rood Market, Inc.
9rocery atore located at 4820 carl1ale pike, Mechanlcsbul'9,
Penn.y1vania durinq the .onths of F.bruary and March of un,
lnoludln9 their last known addr....
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11. If Def.ndant has ever lea.ed or .nt.r.d lnto . l.... aqr....nt
r.q.rdlnq the pr.mi..., faclllty, .t~ctur. .nd/or .to~.
loc.t.d at 4820 Carlisle Pik., M.chanic.burg, P.nn.ylvanl., or
ln .ny oth.r capaclty from Def.ndant Ha.pd.n C.nter, Ino. or
any oth.r p.r.on at any tim., pl.a.. identify the followlnql
a. Th. date of the lea.e and/or writt.n aqr....nt' .nd
b. Th. r.quirement. in .uch l.a.. aqr....nt conc.rnlnq
..lnt.nanc., saf.ty, snow removal, liqhtinq and k..plnq the
coamon ar.a free of ob.t~ctions; and
c. Th. p.rtl.s who .xecuted the l.ase and/or wrltt.n .gr....nt'
d. Th. ..ount of rent charqed or paid for ~h. u.. of the .ald
faclllty ln accordanc. with .uch l.a.. aqr....nt' and
.. Th. per.on or .ntity r.sponslbl. for maint.lning the coaaon
w.y. and fixtur.., includinq but not ll.lt.d to .xit ways,
entrance way., 1 ightinq, storaqe of .hoppinq carts, .t the
Sup.r rr..h rood Mark.t .tor. located at 4820 earll.l. Plke,
M.ch.nlo.burq, P.nn.ylvania.
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12. Do you pr...ntly ovn or dld you own the faolllty, at~oture
and/or .tore looated at 4820 Carll.1e Plke, Meohanloabu~,
P.nnay1vanla, fro. Defendant Ha.pden C.nt.r, Inc. at any tl..
.ub..quent to reb~ary 1, 19931
If ycur .nav.r 1. y.., pl.... identify the followlnql
A. Th. 189.1 d..crlptlon of e.ch parc.l of prop.rty lnolucUII9 the
plaoe of r.cordln9 of .aid d..d ln .n applic.ble ccunty oou~oUlle.
B. Froawboll aoquir.d, date and consid.ration paid th.~.for vbeth.~
ln oash or oth.~l...
C. To who. the prop.rty or lnt.reat va. .old, date and oon.lderat10n
pald ther.for ln ca.h or oth.~1.e1
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13. Hav. you rented, l.a.ed or purcha.ed any propeRY, real or
per.onal, fro. the date of incorporation to the pr...nt, at the
facllity or .tor. located at 4820 Carli.le Pike, Mechanlo.burq,
Penn.ylvanla?
If you an.w.~ i. ye., pleas. .tate and/or provld.dl
A. A d..cription of .aid property.
B. The na.. and addr... of the p.non, corporatlon, o~ oth.r .ntlty
who has or .ay have po.....ion of said prop.rty.
C. Wheth.r .aid property is rented, l.a.ed or othervl.e ln the
po.....lon of a third party.
D. Th. con.ld.ratlon received by your corporatlon.
E. The na.e and addr.s. of per. on or bu. in... entity who r.c.lve.
the rent. or oth.r r.nu..ration for .ame.
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14. Do you pr.s.ntly .nd/or did you contr.ot '11th o~ .aploy any
per.on to ..intaln, cl.an, r.palr and lnspeot the ooa.on vay.,
flxtu~.s, .xit ways, .ntranc. ways, U9ht., .toraq. of shopplnq
oart. .t the Super rr..h rood Mark.t .tor. looat.d .t 4120 Ca~11.1.
Plke, M.ch.nic.burg, P.nnsylvanla durln9 the aonths of r.brua~ .nd
Maroh of 19931 If your answ.r ls y.., .t.t.:
A. The n... and last known addr.ss of the p.~.on Who wa. .aployed
to perfora such s.rvic., and
B. Th. dat.(s) wh.n such p.rson wa. ..ploy.d, and
C. Wh.th.r . writt.n aqr....nt or docum.nt .xlst. oono.rnlnq the
.t.tu. of .uch ..ploya.nt, and
D. Th. .oope of r.spon.lbl1iti.s of such .gr....nt' and
.. Th. looatlon 01 any oontr.ot or .qr....nt r.f.r.nced abov.?
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15. Are you raspon.ible for ..1ntalninq the lnterior and/or exter10~
liqhtinq .y.ta. accordinq to plans or spenifioation. at YO\l~
faoility or store located at 4820 Carlisle Plke, Mechanlosb\U'q,
Pennsylvania?
If your answer ls yes, plaaae .tate:
(A) The nlmbar of tilDes and dates whan the liqhtinq syst.. ha. been
lnspeotad and/or maintained since January 1, 1993, and
CB) The per.on or persons a.ployad to make such lnapectlon., and
(C) Whethar any written plans or .pecifications exlat whlch ~.qulr.
liqhtinq at your .tore located at 4820 carlisle Plke, Mechanlcsburq,
Pennaylvania?
(D) The requlra.ents for liqhtinq in accordance wlth the wrltten
plans or .pacifications; and
(E) Attach . copy of any wrltten plans or spec1flcation, to the
extent such axl.t.
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16. Dld you or any person employed by you shovel, olear, reaove o~
aove any snow and/or ice from the co_on ways, exlt ways and
,
entranoe ways at your facility or store located at 4820 Carlls1e
Plke, Mechanlcsburq, Pennsylvania durinq the month. of reb~ary and
March 1993?
If your answer is yes, please state:
(A) The names of the penons employed by you to shovel, olea~,
re.ove or .ove snow and/or ice.
(B) The dates and time. when suoh person shoveled, cleared, reaoved
or .oved snow and ice from the common ways, exit ways and entranoe
ways at your store.
(C) The persons who directed such persons to shovel, re.ove,
aave cr olear snow and ice from the co_on ways, exlt way. and
entrance ways at your store.
(D) Identify when any commercial salt, remover or other
abraslve substance was applied by you to the co_on ways, exltways
and entrance ways at your store durinq the months of reb~ary and
March 1993.
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17. Identlfy the person(s) who served a. Manager(s) and
A..latant Manaqer(a) of your facility or store looated at 4120
Ca~li.l. Pike, Mechanicsburq, Pennaylvanla durln9 the aonths of
r.brua~ and March 19931
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11. Dld you or any of your ..ployee. oau.. any .now o~ loe to
be olea~.cl fro. the coaaon way., exi t way. and entranoe way.
adjao.nt to or near your .tore between February 22, 1993 and Karch
2, 19931.
If the an.wer to the precedinq questlon. i. yes, .tate ecoh
date and tl.e and identlfy the persons who oleared sa14 area. of
.now.
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1.. Dld any e.ploy.., aqent or r.pr.sentatlv. of the Defendant
in.pect the oo..on ways, .xlt way. and .ntranc. way. adjaoent to o~
n.ar your .to~. wlthin a period of thr.. (3) daya before of att.~
the cO~lain.d of occurrence.
If the anawer to the preceding Int.rroqato~ ia Y.., what a~
the na... of .ald p.r.on. who accoapll.h.d the in.peotlon. and on
what date the lnsp.otlon. take plac. and ar. any r.port. or r.oord.
ln the po.....lon of the Def.ndant r.qardln9 the inapeotlona7
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20. Identify the parsons or e.ploye.. of Defendant who oa.Hrved
the ooourrenoe In que.Uon.
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21. Identlfy the person. who were pre.ent at the .cene of the
oocu~~ence wlthln one hour after it. happenln9?
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22. 00.. the Def.ndant, or It. .q.nt. or repr...ntatlve. have
any .tat...nt. fro. any witn..... conc.rnin9 thl. inold.nt?
It the an.w.r to the pr.c.dinq qu..tlon 1. y.., pl.... .tatel
(A) Th. na.. and addr..s of each witn....
(B) What i. date or dat.. of .ach of the .aid stat...nt. taken
f~o. the ..1d witn...?
(C) A. to each statement, .tate wh.ther it i. oral or ~ltten?
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23. Doe. the Defendant have po.....lon of any phot09~.Ph. of
the .c.ne of the occurr.nc. ln qu..tlon?
If the an.w.r to the pr.c.dlnq qu..tion i. y.., pl.... ld.ntlfy the
photoqrapher who took the photograph, the date or elat. when .uob
photoqraph wa. tak.n and what 1. the .ubject of the photograph and who
po....... .uch photo?
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24. Wa. the Defendant covered by any p?lioy of liability
in.uranoe effeotive on the date of the sald oocurrenoe?
If the an.ver to the precedinq Interrogatory i. In the
afflraatlve, state the followinq items:
A. What i. the na.e of the company that is.ued the polley?
I. What i. the number of .aid policy?
c. What are the effective period. and the aexi.ua llability
li.it for each person provided for in said pOlioy.
D. What 1. the na.e of the insured appearing ln the polley?
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21. 'l.a.. stat. what warnlnq., wrltten O~ o~al, w.~e qlv.n to
vi.itol'. or lnvlt... ooalnq to or leavlnq to the p~..i... at th.
,
ti.. of 'laintlff's all.qed injurl.s on Maroh 1, 1..3?
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26. p~lor to the date and ti.. of p1aintlff'. a1leqed lnju~i..,
dld you or any aqent or e.ployee of Defendant have any knov1e4q. of
any d.fect condltlon around the coaaon way., exlt way. and ent~anoe
way. adjao.nt to or near your store.
If your answer to the precedinq Int.rrOCJato~ 1a in the
afflraatlve, pleas. state how the e.ploy.e or aqent of the Defendant
aoquired such knowledq. and how lonq the e.ployee or aqent of
Defendant knew of the defective or d.f.ct prior to the all89ed
occurrence.
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27. Identify any person conaulted or eaployed by Defendant to
.tudy, analy.. or lnvestiqate th. lnoldent "de the ba.!. of thl.
sult?
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2.. Do you have any wrltten or oral po1101.. oono.~inv the
ato~age and .af.ty of .hopplnq oarta whlch ar. u.ed ln your atore?
If the Answer to your questlons is yea, pl.... ldentlfy the policy,
lta .ffeotlve date and enforce.ent prooedu~ea.
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at. Do you cont.nd that plaintiff wa. not authori..d to be on
the pa~ of the pre.i.. where the accident occurr.d?
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If .0, pl.a.. state the facts which .uppcrt .uoh cont.ntion.
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30. Do you oontend that Defendant wa. not negllqent?
It .0, on what speclflc faot. do you ba.. you~ oonte~tlon?
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31. Do you oontend that Defendant a.sllIMld the risk of bb
1njul'1es?
If so, on what speolflo faot. do you ba.. you~ oontentlon?
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32. Do you contend that Plalntlft wa. oon~~lbu~o~lly
negUqent?
If so, on what .pecific tact. do you base you~ cont.ntlon?
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33. Do you oontend that oefend~nt Hampden center, Ino. or any
other penon 'I" neqUq.nt in any aanner concernlnq PlalntUt'.
injurie.?
If so, please speoificallY state the fact. whlch .upport you~
oontention.
DATIl March 24, 1995
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Andrew C. Sheely, I. re
Law Office of Jame. . Bogar
Pat Id. 62469
One West Main street
Shiremanstown, PA 17011
(717) 737-8761
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C!...%.ICA... a. ..lI'Ilcm
I, Andrew C. Sheely, I.quire, h.r.by c.rtlfy th.t I .. thl. day
..rvlnq the for.qolng Plaintiffs Interroqatorl.. Addr....d to Defendant
Sup.r rr..h Pood Market, Inc. upon the followlnq n...4 lndlv14ual thl.
day by depo.ltlnq .aae in the United State. Mall, rlr.t Cl.s., poetaq.
prepaid, at Shir..anstown, P.nn.ylvanla, .ddr....d .. fol1ow.r
Gerald X. Saith, I.qulr.
HAULTY, SCARIACMAZZA , MCDIVITT
Sulte 1600
On. Penn C.nter at Suburban Center
1617 John F. Kenn.dy Boul.vard
Philadelphia, PA 19103
Paul W. Greqo, E.qulr.
101 N. Front street
Harri8burq, PA 17101
Dat.: Ma~oh 24, 1.95
ilJd f
Andr.w C. She.l
b.
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CERTIFICATE OF SERVICE
I, Andrew C. Sheely, E.quire, hereby certify that I a. thl. day
..rvlnq the fore901nq Motion to Compel Discovery upon the foUowlnq named
lndivldual thi. day by d.positinq same in the Unlted state. Hail,
oertlfl.d mail, return r.ceipt requ.st.d, Fir.t Cla.., postage prepald,
at Shlre..n.town, Pennsylvania, addr....d as follow.:
Gerard X. smlth, Esquire
HAULTY, SCARIACMAZZA , MCDEVITT
Suit. 1600
On. Penn Center at SUburban C.nt.r
1617 John F. Kenn.dy Boul.vard
Phlladelphia, PA 19103
Dat.: November 3, 1995
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NAULTY, SCARICAMAZZA & McDEVITT
BY: OERARD X. SMITH, ESQUIRE
Identification Number: 40927
1617 John F. Kennedy Boulevard
1600 One Pcnn Center
Philadelphia, PA 19103
(215) 568-5116
ATTORNEY FOR DEFENDANT. SUPER FRESH FOOD
MARKETS, INC.
MARK E. ENOERER, and JOYCE A.
ENOERER
VS
SUPER FRESH FOOD MARKETS, INC. and
HAMPDEN CENTER INC.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 94-6311
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REPLY OF DEFENDANT, SUPER FRESH FOOD MARKETS, INC.,
TO NEW MATfER CROSSCLAIM OF CODEFENDANT,
HAMPDEN CENTER. INC.
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86. Denied. The allegations contained in paragraph 86 of codefendant, Hampden Center. Inc.'s
Crossclaim constilUte conclusions of law to which no further response is required under the Pennsylvania Rules of
Civil Procedure. However. and to the extenlthal a response is required, il is specifically denied Ihat answerina
defendanl, Super Fresh Food Markets, Inc" is alone liable to the plaintiff, jointly or severally liable to the plainliff
or liable over to codefendant, Hampden Celller, Inc.. in contribution and/or indemnity for the causes of ac:lion sel
forth in either plaintiff's Complaint or codefendant's New Maller Crossclaim,
WHEREFORE, answering defendant, Super Fresh Food Markets. Inc., hereby prays thai codefendant
Hampden Center, Inc,' s New Maller Crossclaim be dismissed with prejudice,
i,
NAULTY, SCARICAMAZZA & McDEVITT
BY'
. GERARD X. SMITH, ESQUIRE"
Allorney for Defendanl,
Super Fresh Food Markets, Inc.
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VERI PICA TION
I. Oerard X. Smith. Esquire. altomey for the defendant hereby verify that the facts set fonh in the
foregoillll pleading are true and correct to the best of my knowledge. infoml8lion and belief, I understand
that false statements herein are made subjeclto the penalties of 18 Pa. C.S.A. f4904 relating to unsworn
falsiflcalion to authorities.
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OI!RARD X. SMITH. ESQUIRE
CRRTIPICATION pP SRRVICR
I. GERARD X. SMITH. ESQUIRE, hereby cenify thai on January 23. 199' a copy of Defendant
Super Fresh Food MarkelS, Inc. 's Reply to Codefendant Hanlpden Center Inc's Crosaclaim has been lerved
upon the plaintiff by U. S. First Class Mail as follows:
Andrew C. Sheely, Esquire
LAW OFFICES OF JAMES D. BOGAR
, West Main Streel
Shil'ernanstown. PA 17011
Paul W. Grego. Esquire
101 Nonh Fronl Streel
Harrisburg, PA 17101
NAULTY. SCARICAMAZZA 81: McDEVln
BY: , / ~,'
GERARD X. SMITH, ESQUIRE
Attorney for Defendanl,
Super Fresh Food Marlcets, Inc.
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MARK E. ENGERER, and
JOYCE A. ENGERER,
Plaintiff.
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IN THE COURT or COMKON PLIAS or
CUMBERLAND COUNTY, PEHNSYLVANIA
CIVIL ACTIOH - LAW
NO. 6311 eIVIL 1994
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vs.
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SUPER FRESH FOOD MARKETS, INe.,
and HAMPDEN CENTER INC,
Defendants
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.OTIC. '1'0 PL.U
TOI Paul W. Greqo, Esquire,
and Hampden Center, Inc.
POST' SHELL, P.C.
101 N. Front Street
Harrlsburq, PA 17101
You are hereby notified to file a wrltten respon.e to the enolo.ed
Prell.lnary Objections wlthin twenty (20) day. from servioe hereof or a
j~dgaent aay be entered aqain.t you.
By: /1Jv (l
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Andrew C. Sheely, ire
Pat I.D. No. 6246
Law Offices of Jam O. Boqar
1 We.t Maln street
Shiremanstown, PA 17011
(717) 737-8761
Attorney for Plaintlff.
MARK E. EHGERER, and
JOYCE A. ENGERER,
plaintiff.
I
IN THE eOURT OF COMMON PL!A8 0'
CUMBERLAND COUNTY, PEHNSYLVANIA
CIVIL ACTION - LAW
NO. 6311 CIVIL 1994
vs.
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SUPER FRESH FOOD MARKETS, INC.,
and HAMPDEN CENTER INC,
Defendants
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>>L&I~I..'. ...LIKI...Y OBJ.~IO.. ~ D...KD~ .au.D.. e.~... I.C'.
UlnR. .... IlATT.. UD comrr..CLAIK
Plaintiffs, by and throuqh counsel of Andrew C. Sheely, Esqulre,
hereby file. these Preliminary Objections to the alleqations set forth
in Defendant's Hampden eenter, Inc. 's Answer, New Matter and
Counterclaim, and respectfully states as follows:
1. Plaintlffs, Mark E. Enqerer and Joyce A. Enqerer, filed a
Complaint on or about November 18, 1994.
2. Defendant, H~mpden Center Inc. filed an Answer, New Matter
and Counterclaim to Plaintiff's Complaint on or about January 14, 1995.
1 . 'AILURII 0' PL.ADIIIG TO CONJ'ORM TO
RDL.O' COURT >>U.8DAIfT TO PA R.C.P. .0. 102'fA~f2~
3. The responses and alleqations contained in Defendant Hampden
eenter Inc. '. Answer do not conform with Pa. R.C.P. No. 1029 (a) by
failinq to properly admit or deny an averment of fact in the precedlnq
pleadinq.
4. The practice of qroupinq answers, denials and respon.e.
together in one separate paraqraph is inconsistent with Pa. R.C.P. No.'.
1029 and 1022 which requires specific answers to alleqations and further,
that paraqraphs contain only one material alleqation of fact.
5. The alleqations contained in Plaintiffs' Complaint are concl..
and suaaary atate.enta which permit a sl.ple an.wer ln the form of an
adal..lon, denlal or other response permltted by the Pennsylvania Rule.
of eivll ~ocedure.
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6. The re.ponse. and answers contained ln Paragraph. 5 - 1'1,
Paragraphs 42 - 54, 56 - 59 and 61 - 64 are inconsistent with the RUle.
of Civll Procedure as set forth above.
WHIRErORE, Plaintiffs, Mark E. Enqerer and Joyoe A. .nqerer,
re.pectfully requests that thi. Honorable Court requlre that Defendant
fl1e an a.ended pleadinq in accordance with the Rules of Court.
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Andrew c. Sheely
Law Offices of J
1 West Maln street
Shlre.anstown, PA 17011
717-737-8761
.ublDitted,
Date I January 25, 1995
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~~I.ICAT. o. ...vIC.
I, Andrew C. Sheely, E.quire, h.r.by certlfy that I a. thl. day
..~lnq th. for.qolnq Preliminary Obj.ot1cm. to Def.ndant'. An.w.Z',
Counterclai. and New Matter upon the followin9 nam.d ln41vldual. thl. day
by d.po.lt1nq .am. in the United state. Nail, riZ'.t C1a.., po.taq.
p~.paid, at Shlr...n.town, Penn.ylvania, addr....d a. fcllow.,
Paul W. Greqo, E.quir.
POST AND SHELL, P.C.
101 N. Front Street
Harrl.burq, PA 17101
; ,
Gerald X. Smith, Eaquire
NAULTY, SCARIACMAZZA , MCDEVITT
Suite 1600
On. Penn Center at Suburban Center
1617 John F. Kennedy Boulevard
Phllad.lphla, PA 19103
Adt~ (? .
Andr.w C. She.ly,
Dat.1 January 26, 1995
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MARK I. ENGERBR, and
JOYCE A. ENGERER,
plalntiUs
IN THI COURT OF COMMOH PLEAS or
CUMBERLAND COUNTY, PINNSYLVANIA
CIVIL ACTION - LAW
NO. 6311 CIVIL 1994
vs.
SUPER FRESH FOOD MARKETS, INC.,
and HAMPDEN eENTER INC,
Defendants
PLA!~!'..' "PLY TO D...XOaHT BUP.. ..B8R POOD MA."~.. %.0.
u.... um OW KATT..
Plaintiffs, Mark E. Enqerer and Joyce A. Enqerer, by and through
counsel of Andrew C. Sheely, Esquire, hereby file thls Reply to the New
Matter of Defendant, Super Fresh Food Markets, Inc., and respectfully
state as follows I
1 - 74. Plalntiffs' alleqations of fact set forth in thelr
Complaint are hereby incorporated by reference.
75. Denied. The alleqations set forth in Paraqraph 75 of Defen-
dant Super Fresh Food Markets, Inc.'s Answer and New Matter are a
conclusion of law to which no response is necessary. To the extent a
response is deemed necessary, the alleqations are denied and strlct
proof thereof demanded at hearinq or trial. By way of further
response, Plaintiffs' Complaint is timely and appropriately flled and
the defense of Statute of Limitations is inapplicable.
76. Denied. The alleqations set forth in Paraqraph 76 of Defen-
dant Super Fresh Food Markets, Inc. 's Answer and New Matter are con-
clusions of law to which no response is deemed necessary. To the
extent that a response is deemed necessary, the alleqatlons are denied
and strict proof thereof demanded at hearinq or trial.
77. Denl.d. The all.gation. ..t forth ln Paraqraph 77 of Defen-
dant Super Fr..h Food Markets, Inc.'. An.wer and New Matter are con-
olu.lon. of law to which no re.pon.e i. nece.sary. To the .xt.nt a
re.pon.e 1. d..m.d nec...ary, the alleqation. are denied and .trict
proof thereof demand.d at hearlnq or trial. By way of further
re.pon.e, Plaintiff.' Complaint set. forth .everal clal.. and caus.. of
actlon aqaln.t Def.ndant, Super Fre.h Food Mark.t., Inc.
78. Denied. Th. alleqation. of fact set forth ln Paragraph 78 cf
Defendant Super Fr.sh Food Market., Inc. '. New Matter are conclu.lon.
of law to which no respon.e i. deemed nece..ary. To the extent a
re.pon.e ia nece..ary, tha allegation. are denied and .trict proof
thereof d.manded at hearinq or trial. By way of further r..ponse, a.
.et forth in Plalntiff.' Complaint, the lnjuries and lo.... .u.talned
by Plaintiff. were approximately caused by the action. and failure of
Defendant Super Fresh Food Market., Inc. within the scope of It. bu.l-
ne.. operation..
79. Denied. Th. alleqatlons .et forth ln Paraqraph 79 of Defen-
dant Sup.r Fre.h Food Market., Inc.'. Anawer and New Matter are con-
clusion. of law to which no re.pon.e i. deemed nece..ary. To the
extent a respon.e i. deemed necessary, the alleqatlon. are denl.d and
.trict proof ther.of demanded at hearinq or trial. By way of :urther
re.pon.e, it 1. .peciflcally deni.d that Plalntiff. falled to aitiqate
their damage..
3
80. Denied. The alleqations contained in Paraqreph 80 of Defen-
dant Super rresh rood Market., Inc. 's Answer and New Matter constltute
conclusions of law to which no further response is requlred. To the
extent a response is de.med necessary, the alleqations are denied and
strlct proof thereof demanded at hearinq or trial. By way of further
re.ponse, Plaintiffs did not knowinqly and voluntarily account a known
danqer and did not assume the risk of their injuries whioh were cau.ed
by Defendant Super Fresh Food Markets, Inc.
81. Denied. The alleqations contained in Paraqraph 81 of Defen-
dant Super Fresh Food Markets, Inc. 's Answer and New Hatter constltute
conclusions of law to which no further re.pon.e is required. To the
extent a re.ponse is de.med necessary, the alleqations are denied and
strlct proof thereof i. demanded at hearinq or trial.
83. Denled. The alleqations contained in Paraqraph 83 of Defen-
dant Super Fresh Food Markets, Inc. 's Answer and New Matter constitute
conclusions of law to which no response is deemed necessary. To the
extent a response is deemed necessary, Super Fresh Food Markets, Inc.
failed to act with due improper care under the circumstances, as Bore
specifically set forth in Plaintiffs' Complaint.
83. Denied. The alleqations contained in Paraqraph 83 of Defen-
dant Super Fresh Food Markets, Inc. 's Answer and New Matter constitute
conclusions of law to which no response is deemed necessary. To the
extent a response is deemed necessary, the alleqatlons are denied and
strict proof thereof is doaanded at hearinq or trial. By way of
3
furthe~ respcn.e, as set forth in the complaint, Defendant Super rresh
rood Markets Ino. had sufficient notice and was aware of the al1eqed
defeotlve and danqerous condltions.
84. Denied. The alleqatlons contalned in Paragraph 84 of Defen-
dant super Fresh Food Markets, Inc.'s Answer and New Matter oonstitute
conclu.ions of law to which no further respon.e is required. To the
extent that a response is deem~d nece.sary, the alleqations are denled
and striot proof thereof is demanded at hearinq or trial. By way of
further response, Plaintiffs' complaint is timely and appropriately
flled and the defense of the statute of Repose is inapplicable to the
complaint.
WHEREFORE, plaintiffs, Mark E. and Joyce A. Engerer, respeotfully
request that this Honorable Court enter judgment in thelr favor and
aqainst Defendant, super Fresh Food Markets, Inc., together wlth the
cost of suit including reasonable attorney's fees if allowed by law.
Respectfully submltted,
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ANDREW C. SHEELY ESQUIRE
LaW Offices of James D. Bogar
One We.t Main street
Shiremanstown, PA 17011
Attorney for plaintiff.
ID No. 62469
DATE: January 25, 1995
4
...UJ:OA'l'J:OIII
I verlfy that the state.ents .ade ln thl. Reply to Defendant,
Super rre.h Pood Markets, Inc.'. Answer and New Matter are true and
oorrect. I understand that unsworn .tat..ent. herein are .ade aubjeot
to the penaltle. of 18 Pa. C.S.A. Sectlon 4904, relatin9 to un.worn
fal.lflcation to authorlti...
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ICUJt .. fiIG.".". IUJd : IH rH. cOUllr 0' COIIIION 'L1IA/I
JOrc. A. .NQ.".", : Cf1ICB."LANJ:) COf1N'l'r. 'mtNSrLVANZA
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,1sJ.atJ.ff. . CIVIL ACrIOH . LA"
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v. . NO. 6311 CIVIL 1994
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SUP." '''.SH ,00D JlARU'l'S, .
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INC. , IUJd HAJI'DU CDIT.", .
.
INC. , .
.
:
DefeadlUJt. : JURY rRIAL DIDIANDG
JIO'f'IC. 2'0 )>>r..an
rOt All '.rt1e.
You are hereby aotJ.ced to plead to the eaclo.ed AII.lter IUJd He"
Matter w1th1a tweaty (10) day. of .erv1ce hereof or a default ..y
be eatered agaJ.a.t you,
POsr 6 CH.LL, '.C.
Paul ft. Grego, ..quJ.
I.D. HUmber: 39701
J01 H. 'roat St,
HarrJ..burg, PA 1710J
(7J7) 131-5931
Date: ,;/ 3.-"h!i-
Coua.el for DefeadlUJt
H-JHfea Ceater, Iae.
ICARJf.. ua.R.R, lUJd
JOrc. A. ua.UR,
IN TN. COURT 0' CONNoN PLUS
CUIIB.RLAND COUN'l'r, P~SrLVANIA
CIVIL ACTION - LA"
Pla1nt1~~.
v.
NO. 6'J1.l CIVIL 2994
SUP.R 'R.SH ,00D IlARJC.TS,
INC., lUJd HANPD.N ClIN'l'.R,
INC.,
,
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:
De~endlUJt.
JURr TRIAL DDAND.D
ANlIWml ...am 11IIII _~
NO" IN'l'O COURT, through unders1!1D.ed coun.el, COIle. the
De~endlUJt, H-IIden Center, Inc" who, 1n an.wer to the CQlllJlla1nt o~
,\
II
the Pla1nt1~~., re.JlectLully reJlre.ent. that:
l-2. Den1ed. A~terrea.onable1nve.t1gat1on, en.wer1ng
De~endlUJt lack. 1nrormat1on or knOWledge .u~r1c1ent to rorm a
bel1e~ a. to the truth or the averment. conta1ned 1n th1. Jlaragraph
lUJd ._e are thererore den1ed, .tr1ct Jlroo~ be1ng d_ended at
tr1al, 1~ relevant,
3. A. th1. allegat10n 1. not d1rected toward AD.wer1ng
De~endant, no all.wer 1. requ1red.
4. Adm1tted.
5-l7. Legal conclu.1on. wh1ch requ1re no en.....r. fibere
lUJ an.wer 1. de_ed to be requ1red, arter rea.onable 1nve.t1gat1on,
lUJ..,.r1ng De~endant lack. 1nrormat1on or knOWledge .u~~1c1ent to
~oz. a bel1er a. to the truth or the averment. conta1ned In thJ.
IUIragraJ'h lUJd -_e are thererore den1ed, .trJct prool beJng
d-..aded at trJal, Jr relevent,
l', DenJed, Alter rea.onable 1nve.tJgatJOII, en..,.rJng
Dfl/endlUJt lack. Jnrormat1on or knowledge .ur/JcJent to rOnt a
beHet a. to tlle trutll ot tll. aV.J'IIIeDt. eODta.1D.d .1D th.1. paragraJl.b
aud .am. .r. th.r.tor. d.D.1.d, .tr.1at prool b..1Dg duauded at
tr.1al, .1t rel.vaDt.
19-:l:l. L.g.I cODalu..1oD. wll.1ah r.qu.1r. DO au.war. M:a.re
au au.w.r .1. de..ed to be r.qu.1red, atter r.a.oDable .1Dve.t1gat.1oD,
au.wer.1Dg D.t.udaut laak. .1utoJ'lllat10u or kuowl.dge sutt.1a.1eDt to
tOJ'lll a b.H.t a. to the trutb ot tb. aV.J'III.Dt. aODta1ued .1u th.1s
paragraJl.b aud ._. are tller.tor. d.u1.d, .tr.1at proot be1ug
dem4Dd.d at tr.1.I, 1t rel.vaut.
13. D.D.1ed, Att.r r.a.ou.bl. .1Dve.t.1gat.1ou, auswer.1ug
D.teudaut l.ck. .1DtOJ'lllat.1oD or kDowl.dg. .utt.1a.1.ut to tOJ'lll a
bal.1.t a. to th. truth ot tb. aV.J'III.ut. cODta.1D.d .1u tll.1. paregr.JI.b
_d .ame ar. tb.r.tor. d.u.1ed, .tr.1at prool b..1ug damaud.d at
tr.1al, .1t r.l.v.Dt,
14, D.taudaut adm.1t. tbat a 1.... ex.1.t., but aver. tllat
tll. 1.... _d the .urround.1Dg a.1raum.taDa.s .1D tb. .a.1ut.D_ae _d
upk.ep ot th. ar.. .1D qu..t.1QD by Sup.r 'r..b .p.ak tor th....lv...
15, L.gal aoualu..1ou. wb.1ab r.qu.1re uo au.w.r. M1.r._
_.wer .1. d._.d to b. r.qu.1r.d, ate.r rea.ouable .1uv..t.1gat.1ou,
_.w.r.1Dg D.t.ud.ut l.ak. .1DtOJ'lllat.1oD or kDowl.dg. .utt.1a.1.Dt to
tOJ'lll a b.l.1.t a. to th. trutb ot tb. .v.rmeDt. aODta.1Ded .1D th.1.
paragraJl.b aud .am. ar. tber.tor. d.n.1.d, .tr.1at proot b..1Dg
demaud.d ae tr.1al, .1t r.l.vaDt,
16-40, A. tll... all.g.t.1oD. are uot d.1r.at.d toward
AD.wer.1ng D.t.Dd_t, DO _.w.r .1. r.qu.1r.d.
41, R.qu.1r.. no aD.w.r,
41-54. L.gal aonalu..1ou. wb.1ab requ.tr. DO _.wer. JIb.r.
e e.war i. de_ed to be required. a'ter rea.oJIable iJIve.t.tgaUOll,
e.wer.tJIg De'eJIdet lack. .tJI'on:atioJI or kJIowledge .u".tc.teJIt to
'on: a belle' a. to the truth 0' the avezmeJIt. COJIta.tJIed .tJI th.t.
paragraph ed .ame are th.re~ore deJI.ted, .tr.tct proo' beiJIg
deaaaded at tr.tal, .t, relevet.
55, Requ.tre. JIO aJI.wer,
56-59. Legal COJIclu..toJI. wh.tch requ.tre JIO e.wer. H21ere
e e.wer .t. d__ed to be requ.tred, a'ter rea.oJIable .tJIve.t.tgllt.tOJI,
e.wer.tJIg De~eJIdet lack. .tJI~ozmat.toJI or kJJowledge .u".tc.teJIt to
'on: a bel.te' a. to the truth o~ the avezmeJIt. COJIta.tJIed .tJI th.t.
JUjragraph aJId ._e are there'ore deJI.ted, .tr.tct proo' be.tJIg
d-.aaded at tr.tal, .t, relevet,
60. Requ.tre. JIO e.wer,
6l-6", Legal COJIclu..toJI. wh.tch requ.tre no aJI.wer. H21ere
e e.wer .t. de_ed to be requ.tred, a'ter r.a.oJIable .tnve.t1gat.t01J,
e.wer1JIg De'eJIdant lack. .t1J'ozmat10n or klJowledge .u".tc.telJt to
'ozm a bel.t", a. to the truth o~ the avezmeJIt. COJIta.tlJed 1JI th.t.
JUjragraph ed ._e are there~ore den.ted, .tr.tct pre-o' be.tJIg
d..eded at tr.tal, .t, relevet,
65-7l, A. the.e allegat.toJI. are not d.trected toward
AIJ.wer1JIg De'elJdalJt, IJO an.wer .t. requ1red.
73, Requ.tre. IJO e.wer,
73, DelJ.ted, A'ter rea.OlIable .tlJve.t.tgat.toJI, aJIswer.tJIg
De'eJIdfUlt lack. .tJI'on:at.tolJ or knowledge .u',.tc.telJt to 'or. a
bel.te' a. to the truth 01 the aver.elJt. cOlJta.tned .t1J tld. paragraJ)h
alJd ._e are there'ore delJ.ted, .tr1et proo' be.tlJg d"azaded at
tr.tal, .tl relevalJt.
74, Lagal CloDaludoD. wb1Clh raqu1ra DO u._r. Hhere UI
u._r 1. daemad to b. raqu1rad, sttar raa.oDabla 1Dve.Ugat10J1,
u._r1Dg DetaDdUlt lack. 1Dtormat1oD or kDowladg. .utt1Cl1eDt to
torm a ba11et a. to tha truth ot tha avarmant. CloDta1Dad 1D tb1.
paragraph Uld .ama ara tharatore daD1ad, .trJat proot be1Dg
d..uded at tr1al, 1t r.l.vut.
.." IfAftJIR
75, Tha pla1DtJtt. may hava taJlad to etata a Clau.a ot
aClt10D UpoD wb1ab raHat cu ba grutad.
76, Tha appHaabla Statuta ot L1mJ tat10Ds may have
e~Jred prJor to tha JD.tJtUtJOD ot tb1. aat10D.
77. An.warJDg DataDdaDt wa. DOt Dag11g.Dt.
78. Any aat. or omJ.aJoD ot An.warJDg DateDdUlt allegad
to ClOD.t1tuta DaglJgaDaa wara Dot .ub.tUltJal aau.a. or taator. ot
tba .ubjact JDcJdaDt aDd/or dJd DOt ra.ult JD the 1Djur1a. Uld/or
10.... allagad by tha PlaJDtJtt.,
79. Tha JDaJdeDt aDd/or d..aga. da.crJbad 112 Pla1Dt:itts'
ComplaJDt may hava baaD aau.ad or cODtrJbutad to by tha pla1Dt1tt..
80, Tha Dag.1JgeDt act. or omJ..10D. ot othar 1Dd1v1duals
aDd/or aDt1tJ.. may hava cOD.tJtutad JDtarvaDJng, .upar..d1Dg
cau.a. ot tha d..ag.. aDd/or JDjurJ.. all.ged to have b..D
.u.taJDad by tha PlaJDtJtt.,
81, Tha plaJDtJtt. may have a..umad the r1.k,
82, Tha PldDUtt. may have b..D cODtrJbutorJly
Dag.1JgaDt,
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Tba JDaJdaDt, JDjurJ.. aDd/or d..ag.. all.g.d to
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bave been su.ta1ned by the Pla1Dt1tt. were Dot prox1.ately aau.ed
by ADs_r1Dg DetendllDt.
Sf. Pla1nt1tt. may Dot bave properly m:l.t1gated tbe1r
d...ge.,
85, ADawer1Dg DeteDdant de.1re., aDd :I.. eDt1tled to, a
tr1al by jury,
86. DeteDdllDt, H_pden aeDter, IDa., hereby j01D. as
Add1t10Dal Detendant, Super 're.b 'ood "arket., Ina,. tor purpo.e.
ot aODtr1but10D lIDd/or 1ndelllD1t1cat10D and bereby allege. tbat .dd
Add1Uonal Detendant 1s alone Hable to Pla1nt1tts, are Hable over
to DetendllDt H_pden Center, IDe:" or are jo1ntly or .everally
Hable to Pla1DHtt. w1tb DetendllDt, Hampden Center, Ina.
""'8R8'OR8, Detendant, Hampden Center, InCl., pray. tbat
the Compla1nt be d1.m1..ed, at the ao.t ot the Pla1nt1tt., or, 1n
the alternat1ve, tor the re11et alleged 1n '86, above.
Re.peattully eubm1tted,
", Grego, 8.qu
I,D, No. 39101
101 N, 'ront Bt.
Harr1eburg, PA 17101
(717) 333-5931
COWl.eJ tor DetendllDt
H_JX1- Center, Ina.
Datel '/13/~)
v..rrZCA'f'ZOII
A....rcr LDNBM/l.D1
I, JilAV.r. .I!ItAHI'., .tate that I _ Operat101J. "aager ot
Hampdell Cellter, Ilia., a Delellduat 111 the wrJtten aat1011 ad ver1ty
that the .tat_ellt. _de 111 the lorego111g An....r alld New "atter are
true uad aorreat to the be.t 01 .y Imowledge, 1111onDat.t0lJ ad
bel1el. The UIIder.1g.aed ullder.tad. that the .tat_ellts there111
are _de .ubj.at to the pellalt1e. 01 lB Pa.C.S. .4904 relat111g to
UII.worll lals111aat1011 to author1t1e.,
..~ :1. ,.;.vL'Y
.+c....r UJM~,
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C.R,.InCA'%'. 0' S,RVIC.
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1. Carol A. Land1., aD employe. tor th. law ~1ra Poat a
Sch.ll, P.C., h.r.by .tat. that a true and corr.ct copy at th.
tor.go1ng AD._r and N.w Natt.r waa ..rv.d upon .11 eoun..l at
r.cord by t1rllt cl... UJ:IH.d St.t.. IDdl, po.t.g. pr.p.:td,
.ddr....d .a tallow., on th. d.t. ..t torth b.low:
Bv,1r.t Cl... U.S, N.11:
Andr.w C. Sh..ly, ..qu1r.
5 ft. Ndn St.
Bh1remanatoltD, PA 11011
Q.r.rd]C. Sm:tth, ..qu1r.
1600 On. P.nn C.nt.r
1 n 7 Jo.bD ,. Jf.DD.dy III vd .
Ph11.d.lpb1., PA 19103
POB'%' 6 BCH.LL, P.C.
{~ Q ,xf-u1oL, J
C.rol A. Land1.
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NAULTY, SCARlCAMAZZA & McDEVITT
BY: GERARD X. SMITH, ESQUIRE
Identification Number: 40927
1617 John F. Kennedy Boulevard
1600 One Penn Center
Philadelphia. PA 19103
(215) 568-5116
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',. ' :.. - . -In V~~\j'rv"ll
I')('n cdl o~
IJl"J' ll,.\ ('l", , - ,
/' -I .,'. '~""'~l.l..../f.J by:
l'Q.....h.1l.:ll);1,[. J., 1l.
D COL'tll'l,,(j U;;.LU
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ATTORNEY FOR DEFENDANT, SUPER FRESH FOOD
MARKETS. INC.
MARK E. ENGERER, and JOYCE A,
ENGERER
VS
SUPER FRESH FOOD MARKETS, INC. and
HAMPDEN CENTER INC,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 94.6311
ANSWER AND NEW MATfER OF DEFENDANT,
SUPER FRESH FOOD MARKETS, INC, TO PLAINTIFFS' COMPLAINT
I, Admitted,
7, Admitted in part and denied in part, It is denied t/1.a1 answering defendant has its principal
place of business located in Mechanicsburg. Pennsylvania, On the contrary, answering defendant's
principal place of business is located in the State of New Jersey, The remaining allegations contained in
paragraph 2 of plaintiffs' C()mplaint are admitted,
8, Admitted,
4 - 6, Denied, The allegations contained in paragraphs 4 through 6 of plaintiffs' Complaint are
nol directed lowards answering defendant and, therefore, no response is required under the Pennsylvania
Rules of Civil Procedure,
7, Denied, It is specifically denied that answering defendant allowed or caused outside
walkways of the property to artificially accumulate piles of snow and patches of Ice.
8. Denied. The allegations contained in paragraph 8 of plaintiffs' Complainl conslilUte conclUllolll
of law to which no funher respol1.!le is required under the Pennsylvania Rules of Civil Procedure. However. and
to :he eXlenlthal a response is required, it is specifically denied that al1.!lwering defendant allowed :he outside
walkways to artificially accumulate patches of ice and snow for periods of time sufficienl to provide aclUal or
constructive notice,
9. Denied. The allegations contained in paragraph 9 of plaintiffs' Complainl constilute conclUlions
of law to which no funher response is required under the Pennsylvania Rules of Civil Procedure, However. and
to :he extenl that a response is required. it is admitted only that answerill8 defendam leased :he premises in question
and. per Ihe lease. agreed to maintain and control the interior portions of the premises.
10, Admitted,
II. Denied. After reasonable investigation answering defendant is wi:hout suftlcienl knowledge or
information to form a belief as to the truth or accuracy of the averments contained in plainliffs' Complainl and.
therefore. these averments are denied and stricl proof thereof is demanded,
12, Denied. The allegations contained in paragraph 12 of plaintiffs' Complainl conslirute conclUlions
of law to which no funher response is required under the Pennsylvania Rules of Civil Procedure. As 10 the
remaining averments contained in paragraph 12 of plainliffs' Complaint. answering defendanl is wi:houl sufficient
knowledge or information to form a belief as to the truth or accuracy of same and. therefore, these averments are
denied and strict proof thereof is demanded,
13. Denied, After reasonable investigation ar\:lwering defendant is withoul sufficicnt knowledgc or
information 10 form a belief as to the truth or accuracy of the averments contained in plainliffs' Complainl and.
Iherefore. Ihese averments are denied and strict proof thereof is demanded,
14, Denied, It is specifically denied that answering defendant allowed artificial accumulalions of snow
and ice 10 accumulate, As to:he remaining averments contained in paragraph 14 of plainliffs' Complaim, answering
defendant i~ without sufficiem knowledge or information to form a belief as to the truth or accuracy of same and.
therefore, these averments are denied and S1ricl proof thereof is demanded,
I~, Denied, After reasonable invesligation answering dcfendam is wilhoul sufficicnl knowlcdlC or
..2..
Infonnalion to form a belief as te the lruth or accuracy of :he avennents contained In plainllffs' Complaint and.
lherefore. these avennents are denied and stricl proof Ihereof is dentanded.
16, Denied. As 10 the remaining averments contained in paragraph 16 of plaintiffs' Complaint.
anawerlna defendanl is wi:houl sufflcienl knowledge or informalion to fonn a belief as to :he tru:h or accurllty of
same and. :herefore. :hese avennents are denied and strict proof :hereof is demanded.
17. Denied. The allegations contained In paragraph 17 of plaintiffs' Complainl conalilUle conclusiona
of law 10 which no further response is required under the Pennsylvania Rules of Civil Procedure. However. and
to :he eXlenl:hal a response is required. answering defendanl is. after reasonable investigalion. wi:houl sufficlelU
knowledge or infonnationlo fonn a belief as to the tru:h or accuracy of :he avennenls contained In paragraph 17
of plalnliffs' Complaint and. :herefore. same are denied and strict proof thereof demanded.
18, Denied. After reasonable Investigation answering defendalll is wwi:houl sufficienl knowledge or
infonnalion to fonn a belief as to the trulh or accuracy of :he avennents contained in plaillliffs' Complaint and.
:herefore, Ihese avennellls are denied and SUiel proof thereof is demanded.
19. Denied, The allegalions contained in paragraph 19 of plainliffs' Complainl conatilUte conclusiona
of law to which no further response is required ur.der :he Pennsylvania Rules of Civil Procedure,
20. Denied. The allegalions contained in paragraph 20 of plaimlffs' Complaint conalilule conclusiolll
of law 10 which no further response is required under the Pennsylvania Rules of Civil ProcedUle. However. and
10 :he eXlellllhat a rcsponae is required. II Is specifically denied :hat there existed any "hidden dangers" .
21. Denied, The allegallona contained in paragraph 21 of plaintiffs' Complallll constitute conclusiona
of law 10 which no further response is required under the Pennsylvania Rules of Civil Procedure. However. and
to Ihe extelll Ihal a response is required. il is specifically denied Ihal Ihere exisled any dangerous or defeclive
condilions ,
22, Denied, The allegalions comained In paragraph 22 of plainliffs' Complainl conalilUte conclusions
of law to which no furlher response is required under the Pennsylvania Rules of Civil Procedure, However. and
10 Ihe eXlenl Ihal a response is required. II is specifically denied Ihat al15werlng defendanl had any aClU.ll or
conallUClive 1K1Iice of Ihe alleged dangerous and defective condllion. As 10 Ihe remaining avennenL, contained In
parallraph 22 of plaimiffs' Complaim, amwerlnll defendam is Wi:holUI sufficiem know1edlle or infonnalion 10 fonn
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a belief as to Ibe trulb or accuracy of same and, Iherefore. these averments are denied and slrlel proof thereof II
demanded.
23, II is admilled that plaintiffs received a checking card, The remaining allegations contained In
parallraph 23 of plaintiffs' Complainl are denied,
24, It is admiued that there is a lease agreemenl in existence.
2S, The alleg~lions contained in paragraph 2S of plaintiffs' Complainl are not dlrecled towards
answering defendanl and. therefore. no response is required under the Pennsylvania Rules of Civil Procedure.
COUNT I
26. Answering defendam. Super Fresh Food Markets, Inc., hereby incorporates b)' referC'JlCe ill
answers to paragraphs I through 2S of plaintiffs' Complaint as if same were fully sel fonh al (englb herein.
27, Denied. The allegations conlained in paragraph 27 of plaimiffs' Complainl constilUte concluslona
of law to which no funher response is required under the Pennsylvania Rules of Civil Procedure. However, and
to Ihe extent that a response is required. it is specifically denied that answering defendanl knew. or should have
known, of the alleged conditions described and/or alleged unreasonable risks.
28. Denied. The allegations contained in paragraph 28 of plainliffs' Complainl constilUte conclusions
of law 10 which no funher response is required under the PellilSylvania Rules of Civil Procedure. However, and
to the extenl thai a response is required. it is specifically denied that answering defendanl had any knowledge of the
alleged dangerous and/or defective conditions in question and/or thai these conditions posed an alleged unreasonable
risk of harm,
29, Denied, The allegations contained in paragraph 29 of plaintiffs' Complainl COIISlilUte conclusions
of law to which no furlher response is required under the Pennsylvania Rules of Civil Procedure. However, and
10 the extenl that a response is required. it is specifically denied that answering defendant failed to exercise
reasonable care,
30, Denied, The allegations comained in paragraph 30 of plaimiffs' Complainl conslitute conclusions
of law to which no funher response is required under the Pennsylvania Rules of Civil Procedure, However, and
10 the utem Ihat a response is required. it is specifically denied thai Ihere existed any danllerollS or defective
conditions of which answering defendam had any knowledge, As to the remaining avermenls contained in
-.4..
paragraph 30 of plaintiffs' Complaint. answerlns defendanl is wlthoul sufficient knowledge or infonnalion 10 fonn
a belief 118 to the truth or accuracy of same and, therefore, these averments are denied and strict proof thereof is
demarv;led.
31. Denied. The allegations contained in paragraph 31 of plaintiffs' Complainl constilUle conclusions
of law to which no funher response Is required under the Pennsylvania Rules of Civil Procedure. However. and
to the extent that a response is required, it is specifically denied that answering defendant, Super Fresh Food
Markets. Inc.. acted negligenlly, carelessly, recklessly or wantonly wllh regard to the allegations conlained in
plainllffs' Complainl and/or that said allegations of negligence were a proximate cause of plaintiffs' il\luries.
Moreover. it is specifically denied that answering defendant:
a. failed to exercise reasonable care to make the premises safe for business invitee.
considering the contemplated activity conducted thereon by defendant Super Fresh Food
Markets, Inc.
b. failed to seek out. discover and correct an anificial condition representil1ll a danger to
persons. such as plaintiff, Mark E, Engerer. who were lawfully upon the premise. at
defendant, Super Fresh Food Markets, Inc. 's invilation;
c. failed to recognize thai persons such 118 the plaintiff, Mark E. Engerer, would nol know of
said conditions or have reason to know of said conditions and would be Iherefore unable
to protect himself againsl injury directly caused by such conditions;
d. failed to place signs or olher warnings or in any way obviate the said dangerous and
defeclive conditions;
e. failed to provide adequate removal of snow and ice to prevenl il from becoming icy.
slippery and dangerous;
f. allowed the exil area to become accumulated with shopping carts on a walkway which wu
icy and snow covered;
g. failed to provide adequate lighting that would allow persons such as plaintiff to avoid or
take precautions from confronling the aforementioned dangerous, defeclive and unexpected
condilions;
h. failed to periodically clean the aforementioned area clearing such area of all snow and ice
when defendanl. Super Fresh Food MarkelS, Inc., knew or should have known thai such
substances created a dangerous and deceplive condilion upon the walkway;
i. failed to exercise due care under all the circumslances then and there exisling 10 prolect
business invitees from foreseeable harm;
j. failed to make premises, panicularly ils exilways and walkways, safe for businellS visilor,
parlicularly in areas where business visitors were required 10 oblain access 10 defendant.
Super Fresh Food Markets, Inc. 's premises and Iheir vehicles;
--5..
k. breached ilS aflinnalive duty 10 keep ilS premises safe for ilS contemplated business activity;
I. allowed a danllerous aniflcial condition to be In existence without correction:
m, failed to properly inspect the area where defendanl. Supcr Fresh Food Markets. Inc..
knew, or should have known. an aniflcial hazard exisled thai would be imperceptible 10
business visitors; and
;,
n. failed to properly advise defendant, Hampden Center, Inc. of the known aniflcial and
hazardous conditions which existed on the propeny.
On the contrary, at all times material hereto answering defendant acted with due and proper
care under the circumstances.
32, Denied. The allellalion., contained in parallraph 32 of plaintiffs' Complaint conslilUte concluslona
of law to which no further response is required under the Pennsylvania Rules of Civil Procedure. However. and
to the extent that a response is required. it is specifically denied that answering defendant acted nelIlilIently.
carelessly, recklessly or wantonly with regard to the allellations contained in plaintiffs' Complainl and/or that said
acts of neglilIence we,'e a proximate cause of plaimiffs' injuries. As to the remaining avermenlS contained In
paragraph 32 of plainliffs' Complain:, answering defendant is withoul suflicienl knowledge or informalion to form
a belief as to the lruth or accuracy of same and, therefore, Ihese avermenls are denied and slricl proof thereof Is
demanded.
33 -40,
Denied, The allegations comained in paragraphs 33 through 40 of plainliffs' Complaint
conslilUte conclusions of law to which no furlher response is required under Ihe Pennsylvania Rules of Civil
Procedure, However. and to the extenllha: a response is required, il is specifically denied thaI defendant's allelIed
nelIlillence was a proximate cause of plaimiff's injuries and damages, As 10 Ihe remaining avermenlS contained In
parallraphs 33 Ihroullh 40 of plain:iffs' Complain:, answerinll defendan:, Supcr Fresh Food Markets, Inc., is
withoul sufflcienl knowledlle or infonnalion 10 form a belief a., to the truth or accuracy of same and. therefore, these
avermenlS are denied and stricl proof Ihereof is demanded.
WHEREFORE. answering defendam. Super Fresh Food Markels, Inc., hereby dentaMsjud8mcnt in
ilS favor and allainsl plain:iff. Mark Enllerer. tOllelher with COSI of suil includin8 reasonable allorney'. fees If
allowed by law,
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COUNT II
41 _ 54. Denied, The allegatlons contained in paragraphs 41 through 54 of plaintiffs Complainure
not direclCd lowards answering defendalll and, therefore, no response is required under the Pennsylvania Rules of
Civil Procedure.
WHEREFORE. answering defendanl. Super Fresh Food Markets, Inc., hereby demands judgment
in ilS favor and against plaintiff. Mark Engerer, together with cost of suit including reasonable attorney's
fees if allowed by law.
COUNT III
55.59. Denied, The allegations conlained in paragraphs 55 through 59 of plainliffs' Complaint are nol
directed towards answering defendant and, therefore. no respol1lle is required under the Pennsylvania Rules of Civil
Procedure.
WHEREFORE. answering defendant, Super Fresh Food Markets. Inc., hereby demands judgment
in ilS favor and against plaintiff. Mark Engerer, together with cost of suit including reasonable attorney's
fees if allowed by law.
COUNT IV
60 _ 64. Denied. The allegations contained in paragraphs 60 through 64 of plaintiffs' Complaint are not
directed towards answering defendant and, therefore, no response is required under the Pennsylvania Rules of Civil
Procedure.
WlmREFORE, answering defendanl. Super Fresh Food Markets, Inc., hereby demands judgment
in ilS favor and against plaintiff, Mark Engerer, together with cost of suit including reasonable attorney's
fees if allowed by law.
COUNT V
65, Answering defendant, Super Fresh Food Markets, Inc., hereby incorporates by reference ill
answers to paragraphs I through 65 of plainliffs' Complainl as if same were fully set forth at length herein.
66, Denied. The allegalions contained in paragraph 66 of plaintiffs' Complaint conslilUle conc1ualolll
of law 10 whi~h no further response is required under the Penn.,ylvania Rules of Civil Procedure, However, and
to the Clllenl thai a respome is required. il is .pecifically denied lhat plainliff wasan "implied third party benefICiary"
of the lease agreemenl",
..7--
67. Denied, The allegalioll5 contained in paragraph 67 of plainliffs' Complainl cOll5lilUle concluaioll5
of law 10 which no further respoll5e is reqllired under Ihe Penll5ylvania Rilles of Civil Procedllre.
68, Denied. The allegalioll5 contained in paragraph 68 of plainliffs' Complainl cOll5tilUle conclusiolll
of law to which no further respoll5e is reqllired under the Pennsylvania Rilles of Civil Procedllre. II is specifically
denied thai all5wering defendanl violated Ihe "Unfair Trade Praclices and COll5l1mer Protection Law".
WHEREFORE. answering defendanl. SlIper Fresh Food Markets. Inc.. hereby demands judgment
in its favor and against plaintiff. Mark Engerer, together with cost of suit including reasonable attorney's
fees if allowed by law.
COUNT VI
69. Answering defendanl. Super Fresh Food Markets. Inc.. hereby incorporates by reference ilS
answers 10 paragraphs 1 through 68 of Ihe plaintiffs' Complainl as if same were fully sel forth at length herein.
70. Denied. After reasonable investigation answering defendant is wilhoUI sufflcienllmowledae
or infonnalion 10 form a belief 1510 the lruth or accuracy of Ihe averments contained in plaintiffs' Complainl and.
therefore. Ihese averments are denied and slrict proof Ihereof is demanded.
71. Denied, The allegalions contained in paragraph 71 of plaintiffs' Complainl cOlllltilUle conclusioll5
of law 10 which no further respon,e is required under Ihe Pennsylvania Rules of Civil Procedure. As 10 the
remaining averments contained in paragraph 71 of plainliffs' Complainl. answering defendanl is without sufficient
knowledge or infonnation 10 form a belief as 10 Ihe truth or accuracy of same and. Iherefore. these averments are
denied and slricl proof Ihereof is demanded.
WHEREFORE. answering defendanl. Super Fresh Food Markets, Inc.. hereby demands judgment
in its favor and against plaintiff. Joyce Engerer. together with cost of suit including reasonable attorney's
fees if allowed by law,
COUNT VIII
72 - 74. The allegalioJl.' contained in paragraphs 72 IhCllugh 74 of plainliff's' Complaint are not direcled
lowards answering defendanl and. therefore. no response is required under the Penll5ylvania Rules of Civil
Procedure,
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WHEREFORE. answering defendant, Super Fresh Food Markets. Inc.. hereby demands judgment
in lIS favor and against plaintiff. Joyce Engerer. together with cost of suit including reasonable attorney's
fees if allowed by law.
NEW MATIER
7S. Plaintiffs' Complain: must be barred by the applicable StalUte of Limitations.
76. If plaintiffs su~tained Ihe injuries and damages as alleged in Iheir Complaint. then same musl be
reduced by the provisions of the Pennsylvania Comparative Negligence Act. 42 Pa. C.S.A. Section 7100.
71. Plainliffs' Complainl fails to state a claim upon which relief may be granted.
78. If plaintiffs sustained the injuries and damages as alleged in their Complaint. then same were not
proximately caused by any aclion or failure 10 act on behalf of answering defendanl or any of its employees actlna
within the cour~e and scope of their employment and within funherance of answering defendanl's bl14iness.
79, Plaintiffs have failed to mitigate their damage~.
80. If plainliffs sustained the injuries and damages as alleged in their Complaint. then same occurred
when plaintiffs knowingly and voluntarily encountered a known danger thereby assuming the risk of their injuries.
81. If plainliffs sustained the injuries and damages as alleged in their Complainl, !hen same were caused
by other entilies over which answering defendant has or had no control.
82. At all times material hereto. answering defendant acted with due and proper care under the
circumstances,
83, Answering defendant had no nOlice of the allegedly defective condition.
84. Plainliffs' clailllll are barred, in whole or in pan. by the StalUle of Repose.
WHEREFORE. answering defendant, Super Fresh Food Markets. Inc.. hereby demands judgment
In ilS favor and against plainliffs. Mark Engerer and Joyce Engerer. together with cost of suit including
reasonable allorney' s fees if allowed by law,
.. 9..
NAULTY, SCARlCAMAZZA & McDEVITf
BY:
~~ It-- I}C.,
GERARD X. SMITH, ESQUIRE
Attorney for Defendant.
Super Fresh Food Markets. Inc,
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I. Laurie Notoris hereby verify that I am Claims Administrator for the defendant. Super Fresh
Food Markets. 11IC. herein, and that the foregoing Answer and New Matter is true and correc:t to the best
of my knowledge. infonnation and belief. I understand that false statements herein are made subject to
the penalties of 18 Pa. C.S.A. 14904 relating to unsworn falsification to authorities.
L~1*~d.la j, If ( )
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CUIIIIIRLAIID C01JIn'Y, PIIIII8YLVAlfIA
IIAJUt I. DGIRlR,
PlalntiU
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CIVIL ACTIOlf . LAW
MO. U-U11
IlAllPDD CDTmt, IMC.,
Defen4ant
JO'RY TRIAL DIIIAIRlID
IDI'I'RY OF APP&UUCK
TO THB CLBRK OF COURT:
Please enter my appearance as attorney for Defendant
Hampden Center, Inc" in the above-captioned matter,
PAUL W. GREGO,
101 North Front Street
Harrisburg, PA 17101
(717) 232-5931
Attorney for Defendants
Date //-;21 flV
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C..TInCA.TIl O. SIRVICI
I, MARY ANN MIKOLAY, an employee of the law firm of Post ,
Schell, P,C" do hereby certify that on the date set forth below.
I did serve a true and correct copy of the foregoing document upon
the following person (s) at the following address (8) indicated
below by sending same in the United States mail, first-class,
postage prepaid:
ANDREW C, SHEELEY, ESQUIRE
5 W, MAIN STREET
SHIREMANSTOWN, PA 17011
BY:
DATE:
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super Fresh Food Markets, Inc.
Hampden Center Inc.
In the Court of Common Pleas of
Cumberland county, pennsylvania
No. 94-6311 Civil Term
Complaint in Civil Action Law
and Notice
Mark E. Engerer, and Joyce A.
Engerer
"
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Michael E. Barrick, Deputy Sheriff who being duly sworn according to
law. says on November 7, 1994 at lO:55 o'clock A.M.E.S.T., he served a
true copy of Complaint in Civil Action Law and Notice, in the above
entitled action upon the within named defendant to wit: super Fresh Food
Markets, Inc. , by making known unto Mile Smith Store Manager at 4820
Carlisle Pike, Mechanicsburg. Cumberland County, Pennsylvania, its
contents and at the same time handing to him personally the said true
and attested copy of the same.
R. Thomas Kline. Sheriff who being duly sworn according to law,
says he made diligent search and inquiry for the within named defendant
to wit: Hampden Center. Inc., but was unable to locate them ins his
bailiwick. He therefore returns the within Complaint in Civil Action Law
Notice "NOT FOUND" as to the defendant Hampden Center Inc.
Hampden Center Inc. no longer in business new address 417 Fifth Avenue
Suite 1116, NY NY 10016.
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So answers:
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Sheriff's costs:
Docketing
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surcharge
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R. Thomas Kline, Sheriff
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Deputy sheriff
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Sworn and subscribed To Before Me
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1994. A. D. <'_ ~ .... C '/}l ,,~. AJ1nt;;,
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prothonotary
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vs.
IN THE COURT OF COMMON PLEAS or
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 14 -(D11/ CIVIL 1994
MARK E. ENGERER, and
JOYCE A. ENGERER,
plaintiffs
SUPER FRESH rOOD MARKETS, INC.,
and HAMPDEN CENTER INe,
Defendants
COIIPLAIII'1'
Mark E. Enqerer and Joyce A. Enqerer, Plaintiffs, by and throuqh
their Attorney, Andrew C. Sheely, Es~~ire, hereby flle this complaint
and respectfully avers as follows:
1. Plaintiffs, Mark E. Engerer and Joyce A. Engerer, husband and
wife, are adult individuals residing at 3 Delbrook Court, Mechanic-
sburq, Hampden Township, Cumberland County, pennsylvania.
2. Defendant super Fresh Food Market, Inc. is a business cor-
poration enqaqed primarily in the selling of food and groceries with
its principal place of business at 4820 Carlisle Plke, Mechanicsburq,
Hampden Township, Cumberland County, Pennsylvania with registered
busine.s address of c/o U.S. eorporation Company, 225 South 15th
Street, Philadelphia, Pennsylvania.
3. Defendant Super Fresh Food Market, Inc. was at all times
hereinafter mentioned and still is, engaged in the buslness of main-
tainlnq, operatinq and conductinq a food and grocery store at 4820
Carll.le Pike, Mechanicsburq, Hampden Township, Cumberland eounty,
Pennsylvanla.
4. Defendant Hampden Center Inc. is a business corporation doinq
bu.iness at Route 11, Carlisle Pike, Mechanic.burg, Hampden Township,
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cu.berland eounty, pennsylvania.
5. Defendant Hampden Center Inc. was at all times hereinafter
.entioned and still is the owner of a certain tract of land, beln9 more
specifically de.cribed as set forth in Cumberland County Deed Book "L",
Volume "35" at paqe 120, containing approximately 31.963 acres known as
parcel No. 's 10-21-0279-052, 10-21-0279-390, 10-21-0279-391.
6. Defendant Hampden Center Inc. was at all time. herelnafter
mentioned and still is enqaged at the above stated location in the
buslnes. of leasinq space for commercial and occupational purpo.es,
inclUding the use of a food and qrocery store operated by Defendant
Super Fresh Food Market, Inc.
7. On March 1, 1993, Defendants Super Fresh Food Market, Inc. and
Hampden center, Inc. did allow and cause the outside walkways immedi-
ately adjacent to the Eastern exit of the grocery and food store
operated by Defendant Super Fresh Food Market, Inc., to artificially
accuaulate snow, piles of snow and patches of ice.
8. On March 1, 1993, Defendants Super Fresh Food Market, Inc. and
Hampden Center, Inc. did allow the outside walkways immediately ad-
jacent to the Eastern exit of the qrocery and food store operated by
Defendant Super Fresh Food Market, Inc., to artificially accumulate
snow and patches of ice which existed for a sufficient period of time
prior to this occurrence to qive both defendants actual or constructive
notice thereof as well as an opportunity to correct the danqerous and
deceptive conditions.
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9. At all tl.es .aterial to this action, Defen~ant. Super Frs.h
rood Market, Inc. did own, po....., maintain and control or had the
duty to maintaln .nd control their pre.i.e. more particularly described
in paraqraph. 3 and 5, includinq the entrances, exit., walkway. and
corridor. at the locations set forth above.
10. At all time. mat.rial to this action, Defendant Hampden
Center, Inc., did own, posses., maintain and control or had the duty to
aalntain and control th.ir premises more particularly described in
paragraph. 3 and 5, includinq the entrances, exit., walkways and cor-
~idor. at the location. set forth above.
11. Durinq the eveninq of March 1, 1993, at approximately 8100
p..., Plaintiff, Mark E. Engerer, entered the qrocery store operated by
Detendant Super Fresh Market, Inc., with the permission of Defendants
Super Fre.h Food Market Inc. and Hampden Center, Inc. for the purpose
of purcha.inq various food items.
12. On March 1, 1993, no warninq or caution .iqns were placed or
installed by Defendant. Super Fresh Food Market Inc. and Hampden
Center, Inc. to alert Plaintiff Mark E. Engerer of the snowy and patchy
lce conditions whlch artificially accumulated on the outside walkway
i..ediately adjacent to the Eastern exit of the qrocery store.
13. Def.ndants Super Fresh Food Market Inc. and Hampd.n Center,
Ine. wer.e aware of the .xistence of .now and patchy ice condltions on
the walkway immediately adjacent to the Ea.tern exit of the grocery
store which .xisted on March 1, 1993.
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14. In additlon to the artificial accumulations of snow and ice,
Defendant. Super Fresh Food Market, Inc. and Hampden Center, Inc.
peraltted the .toraqe and collection of numerous shoppinq cart. which
were po.itioned in disorqanized fashion in the area which had artific-
lal accumulation. of ice patches and snow immediately adjacent to the
la.tern exit of the qrocery store on March 1, 1993.
15. Acces. to the parkinq lot adjacent to the qrocery .tore
operated by Defendant Super Fresh Food Market Inc. and owned by Defen-
dant Ha.pden Center, Inc. required that Plaintiff walk throuqh the
artlficial accumulation of ice patch.., .now and shoppinq cart. to a
..all openinq between several snow embankments which led to the parklnq
lot.
16. The outside walkways immediately adjacent to the Eaatern exit
of the grocery and food store operated by Defendant Super Fresh Food
Market, Inc. and on real property owned by Defendant Hampden Center
Inc. were poorly liqhted durinq the eveninq of March 1, 1993.
17. As Plaintiff Mark E. Enqerer was leavinq the store after
purcha.inq certain items and walkinq on the outside walkway immediately
out. ide the store exit, he was, by reason of the previOUSly described
snow, patches of ice, location of shoppinq carts and poor lightinq
condltlons, cau.ed to slip and fall down resultinq in acute pain and
the serious and peraanent injuries hereinafter set forth.
18. At all ti.es relevant hereto, Plaintiff Mark E. Enqerer
entered Defendants Super Fresh Food Market, Inc.'s and Hampden Center's
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pr..lses and later exited therefrom throuqh acce.s areas speciflcally
desiqn.ted by defendant. for shoppinq purposes.
19. At all times relevant hereto, Plaintiff Mark E. Enqerer was a
bu.ine.. invitee of Defendant Super Fresh Food Market Inc., and Defen-
dant Hampden Center, Inc.
20. At all times relevant hereto, Plaintiff did not know or have
re.son to know of the hldden danqer. presented by the condition of the
outside walkway immediately outside the qrocery store operated by
Defendant Super Fresh Food Market, Inc. and owned by Defendant Hampden
Center, Inc.
21. At all times relevant hereto, Defendants Super Fresh Food
Market, Inc and Hampden center, Inc. were aware of the danqerous and
defective conditions which existed immediately outside the qrocery
store operated by defendant Super Fresh Food Market, Inc.
22. Plaintiff, Mark E. Enqerer, had the riqht to assume that
rea.onable precautions had been made for his safety due to Defendants
Super Fresh Food Market, Inc's and Hampden Center Inc.'s actual or con-
structive knowledqe of notice of the danqerous and defective condi-
tions.
33. At all times relevant hereto, Plaintiffs Mark E. Enqerer and
Joyoe A. Enqerer were recognized customers of Defendant Super Fresh
rood Market, Inc. havinq been pre-approved for and received checkinq
oards for the Super Fresh Food Market store No. ~3-953.
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24. At all ti.e. relevant hereto, Defendant Hampden Center Inc.
v.. engaged in a lea.e aqreement for the maintenance and upkeep with
Defendant Super Fre.h Food Market, Inc. concerninq the above-described
are..
25. At all ti.e. relevant hereto, Defendant Hampden Center's Inc.
'I.. undsr a .tatutory duty of reasonable care for .afsty in u.e of
stalrways, passaqe., roadways and other common facilities of the
property described in paragraphs 3 and 5 above pursuant to 68 Pa.C.S.A.
1250.502-A.
COUllT I. ncaLIaBllcl
Kalla I. IlIa.OR v. 8U... .088 .OOD KaIlU'l", IIIC.
26. paraqraph. 1 - 25 are incorporated herein as if set forth at
lenqth.
27. Defendant super Fresh Food Market, Inc. knew or had reason to
know that the conditions described above involved an unreasQnable risk
of harm to persons exiting the store.
28. Defendant Super Fresh Food Market, Inc. knew or had reason to
know that the conditions described above involved an unreasonable risk
of harm in that bu.iness invitees would not discover the dangerous and
defective conditions.
29. Defendant super Fresh Food Market, Inc. failed to exercise
rea.onable cars to make the conditions safe or warn plaintiff, Mark E.
Ingerer, of ths oonditions and the ri.ks involved in leavinq the store
ln the area which had accumulated ice and snow immediately adjacent to
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the lastern exit of the qrocery store on March 1, 1993.
30. Plaintiff, Mark E. Ingerer, did not know or have reAson to
know of the danqerous and defective conditions in the area whlch had
acouaulated lce and snow immediately adjacent to the Eastern exit of
the qrocery store on March 1, 1993.
31. The proximate, direct and immediate cau.e of Plaintiff Mark E.
Ingerer's injury and the dangerous and deceptive condltion referred to
above was the neqliqence, careless, recklessness and wanton in-
difference of Defendant Super Fresh Food Market, Inc., its employees,
agent. and servants, who actinq within the course and scope of their
authorlty from Defendant, committed the followinq:
a. In failinq to exercise reasonable care to make the pre-
mi.es safe for business invitees considerinq the contemplated
activlty conducted thereon by Defendant super Fresh Food Market,
Inc.;
b. In tailing to seek out, discover and correct an artiflcial
condition representinq a danger to persons, such as Plaintiff Mark
E. Inqerer who were lawfully upon the premises at Defendant Super
rresh Food Market's Inc's invitation;
c. In failinq to recoqnize that persons such as the Plaintiff
Mark I. Inqerer would not know of said conditions or have reason
to know of said conditions and would be therefore unable to
protect himself aqainst injury directly caused by such conditions;
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d. In tailing to place signs or other warnings or in any way
obviate the said dangerous and detective conditions I
e. In tailing to provide adequate removal of snow and ice to
prevent it from becoming icy, slippery and dangerous I
f. In allowing the exit area to become accumulated with
shopping carte on a walkway which was icy and snow covered;
g. In failing to provide adequate lighting that would allow
persons such as plaintiff to avoid or take precautJ.ons from
confronting the aforementioned dangerous, defective and unexpected
conditions I
h. In failing to periodically clean the aforementioned area
clearing such area of all snow and ice when Defendant Super Fresh
Food Market Inc. knew or should have known that such substances
created a dangerous and deceptive condition upon the walkwaYI
i. In failing to exercise due care under all the circumstan-
ces then and there existing to protect business invitees from
tore.eeable harml
j. In failing to make premises particularly its exitways and
walkway& safe for business visitors particularly in areas where
bu.ine.. visitors were required to obtain access to Defendant's
Super Fresh Food Market, Inc. 's premises and their vehicles:
k. In breaching its affirmative duty to keep its premise.
safe for its contemplated business activity:
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1. In allowing a dangerous artificial condition to be in
existence without correction I
II. .In tailing to properly inspect the area where Defendant
Super rresh Food Market, Inc. knew or should have known an artifi-
cial hazard existed that would be imperceptible to business
visitors I and
n. In failing to properly advise Defendant Hampden Center,
Inc. of the krlown artificial and hazardous conditions which
existed on the property.
32. As the sole, direct and proximate result of Defendants super
Fresh rood Market's Inc.'. negligence, careless, recklessness and
wanton indifference and the aforementioned fall, plaintiff, Mark E.
Bngerer, suffered severe and permanent injuries which include:
(e) Trimalleor fracture of left anklel
(b) Widening of ankle mortis.,
(c) Open Wound:
(d) Edema/Swelling I
(e) Acute painl
(t) Decreased range of motionl
(9) Shock to nerves and nervous system I
(h) Permanent steel ankle brace (steel support screws in ankle);
(1) Loss of flexibility in anklel
(j) Periodic stiffening of ankle.
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33. As a direct result of his injuries, Plaintiff Mark E. Engerer
va. hospitalized, subjected to various medical treatments and
procedures including x-rays, anesthesia, surgery, multiple castings of
hi. leg, stitches, the imposition of a permanent, steel ankle brace and
screws, a hospital stay, use of a wheel chair, ultrasound, rehabilita-
tion, daily bandaging, therapy and various types of medication in-
cluding vicodem.
34. As a result of his injuries, Plaintiff, Mark E. Engerer, has
undergone in the past and in the future will continue to undergo great
pain and suffering, loss of use and motion, swelling and aching.
35. plaintiff is advised and therefore avers that the aforesaid
injuries are permanent in nature and effect.
36. As a result of his injuries, plaintiff suffered impairment of
his earning power and capacity, lost wages and sick leave due to his
inability to work at his job as a postal service employee from March 2,
1993 through June 15, 1993.
37. That as a result of said injuries, Plaintiff has suffered
loss of sick leave of six hundred (600) hours and loss of wages in a
presently indeterminable amount, with Plaintiff's average bi-weekly
wage at the time of his injury equaling Nine Hundred rorty Dollars and
Nineteen Cents ($940.19), not inCluding overtime and has further
suffered a permanent 108s ot earning capacity.
38. Plaintiff has suffered permanent loss of use and motion and
atrophy in the aforementioned areas of his body and will be partially
10
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di.abled for the re.t of hi. natural life.
3'. Plaintiff will experience a deterioration of his condition as
he 8ge. and vill become increa.ingly unable to engage in normal physi-
oal aotivitie..
40. A. a re.ult of hi. injuries, Plaintiff .uffered loss of his
ability to enjoy lite and life'. pleasures, including the inability to
engage in no~al sooial, recreational and family activities since date
ot he acoident will be unable to do so for the rest of his natural
life.
WHERErORE, Plaintiff, Mark E. Engerer demands judgment again.t the
Defendant, super rresh Food Market, Inc. in an amount an amount ex-
oeedin9 t20,000.00, or an amount which exceeds local compulsory ar-
bitration.
eOUMT II. ..OLIOINCI
...1 .. ..0.... v. BANPD.. e.MTI., I.e.
41. Paragraph. 1 - 40 are incorporated herein as if set forth at
len9th.
43. Defendant Ha.pden Center Inc. knew or had reason to know that
the oondition. de.cribed above involved an unreasonable risk of harm to
business invitee. entering its premises and the store operated by Super
rre.h rood Market, Ino.
43. Defendant Ha.pden Center Inc. knew or had reason to know that
the condition. de.cribed above involved an unreasonable risk of harm in
that invitee. would not discover the dangerous and defective condi-
11
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., " .
tion. .
44. Detendant Hampden Center Inc. failed to exerci.e reasonable
oare to make the conditions safe or warn Plaintiff, Mark E. Engerer,
of the conditions and the risks involved in leaving the store in the
area which had accumulated ice, snow and shopping carts immediately ad-
jacent to the Eastern exit of the grocery store on March 1, 1993.
45. The proximate, direct and immediate cause of Plaintiff's
injury and the dangerous and deceptive condition reterred to abOVe was
the negligence, careless, recklessness and wanton indifference ot
Detendant Hampden center, Inc., its employees, agents and servants, who
acting within the course and scope of their authority from Defendant,
Hampden Center, Inc., committed the following:
a. In failing to exercise reasonable care to make the pre-
mi.e. safe for licensees and business invitees considering the
contemplated activity conducted thereon by Defendant Super Fresh
Food Market, Inc. and Hampden Center, Incl
b. In failing to seek out, discover and correct an artificial
conditions representing a danger to persons, such as Plaintiff,
Mark E. Engerer, who vas lawfully upon the premises at Defendant
Super rresh Food Market's Inc's and Hampden Center Inc.'s business
invitaUonl
c. In failing to recognize that persons such as the Plaintiff
Mark E. Engerer would not know of said conditions or have reason
to know of said conditions and would be therefore unable to
12
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_4 .
proteot hi..elt against injury directly caused by such conditions I
d. In tailing to place signs or other warnings or in any way
obvi8te the said dangerous and defective conditions I
e. In failing to provide adequate removal of snow and ice to
prevent it from becoming icy, slippery and dangerous I
t. In allowing the exit area to become accumulated with
shopping carts on a walkway which was icy and snow covered,
g. In failing to provide adequate lighting that would allow
persons such as Plaintiff Mark E. Engerer to avoid or take pre-
oautions from confronting the aforementioned danqerous, defective
and unexpected conditions;
h. In failing to periodically clean the aforementioned area
ol.aring such area of all snow and ice when Defendant Hampden
Center, Inc., knew or should have known that such substances
oreated a dangerous and deceptive condition upon the walkwaYI
i. In failing to exercise due care under ail the circumstan-
ce. then and there existing to protect business invitees of
Defendant Super rresh Market and licensees from foreseeable harml
j. In failing to make premises particularly its exitways and
walkways safe for business visitors particularly in areas where
business visitors were required to obtain access to Defendant
Hampden's Center's Inc. 's premises and their vehicles I
k. In breaching its affirmative duty to keep its premise.
sate for its contemplated business activitYI
13
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.,
.; J. .
1. In allowinq a dangerouR artificial condition to be in
existence vithout correction,
a. In failing to properly inspect the area where Detendant
Haapden Center, Inc. knew or should have known an artiticial
hazard existed that would be imperceptible to business visitors,
n. In failing to properly advise Defendant Super rresh rood
Market, Inc. of the known artificial and hazardous conditions
which existed on the property.
46. As the sole, direct and proximate result of Defendants
HaapcSen Center, Inc.'s negligence, careless, recklessness and wanton
indifterence and the aforementioned fall, Plaintiff, Mark E. !ngerer,
suffered severe and permanent injuries which include but are not
liaited tOI
(a) Trimalleor fracture of left anklel
(b) Widening of ankle mortiael
(0) Open Woundl
(d) Ede.a/Svell1ngl
(e) Acute pain I
(f) Decreased range of motion I
(q) Shock to nerves and nervous systall'
(h) Permanent steel ankle brace (steel support sorevs in ankle) I
(i) Loss of flexibility in anklel
(j) Periodic stiftening of ankle.
14
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.~ .
. . .
47. As a direct result of hie injuriee, plaintiff Mark E. Engerer
was hospitalized, eubjected to various medical treatments and
prooedures including x-raye, anesthesia, eurgery, mUltipla castinge of
his leg, stitches, the imposition of a permanent, steel ankle brace .nd
screws, a hospital stay, uee of a wheel chair, ultrasound, rehabilita-
tion, daily bandaging, therapy and various types of medication in-
cluding vicodem.
48. A8 a result of his injuries, Plaintiff, Mark E. Engerer, has
undergone in the paet and in the future will continue to undergo great
pain and suffering, loss of motion, swelling and aching.
49. Plaintift is advised and therefore avers that the aforesaid
injuries are permanent in nature and effect.
50. As a result of his injuries, Plaintiff suffered impairment of
his earning power and capacity, lost wages and sick leave due to hie
inability to work at his job as a poetal service employee from Maroh 2,
1993 through June 15, 1993.
51. That as a result of said injuries, Plaintiff has suffered
lo.s of sick leave of six hundred (600) hours and loes of wages in a
presently indeterminable amount, with Plaintiff'e average bi-weekly
wage at the time of his injury equaling Nine Hundred rorty Dollars and
Nineteen Cents ($940.19), not including overtime and has further
suffered a permanent loss of earning capacity.
52. Plaintiff has euffered permanent loss of use and motion and
atrophy in the aforementioned areas of his body and will be partially
15
. -
" -
. .. .
disabled tor the rest ot his natural lite.
53. plaintiff will experience a deterioration of his oondition as
he age. and will become increasingly unable to engage in normal physi-
cal activities.
54. As a result of his injuries, plaintiff suffered diminution ot
hi. ability to enjoy life and life's pleasures, including the inability
to engage in normal social, recreational and tamily activities since
date ot he accident will be unabla to do so for the rest of his natural
life.
WHEREFORE, plaintiff, Mark E. Engerer demands judgment against the
Defendant Hampden center, Inc. in an amount in excess ot $20,000.00,
and an amount in excess of the amount requiring compulsory reterral to
arbitration under the local rules of Court.
COUMT III. B.IAeH or IMPLIID WARRAMTY or HABITABILITY
IIAIlIt I. I..OID. v. RAIIPD... elnl., I"C.
55. Paragraphs 1 - 54 are incorporated herein by reference as if
set forth at length.
56. Defendant Hampden center, Inc., a lessor, failed to maintain
the property in question in a habitable condition.
57. Defendant Hampden center, Inc. failed to exerci.e reasonable
care to repair or warn of the aforesaid dangerous and defective condi-
tions.
58. The aforesaid conditions of the property were in violation of
the i.plied warranty ot habitability.
16
. .
., - .
. .. .
59. The proximate, direct and immediate cause of plaintiff's
injuries as set forth above was the result of Defendant Hampden Center,
Inc., its employees, agents and servants, who acting within the course
and scope of their authority from Defendant, Hampden Center, Inc.,
tailed to keer the property in habitable condition.
WHEREFORE, plaintiff, Mark E. Engerer demands judgment against the
Defendant Hampden center, Inc. in an amount in excess of $20,000.00,
and an amount in excess of th~ amount requiring compulsory referral to
arbitration under the local rules of Court.
COUMT IV. BRlAea O. 8TATUTORY DUTY O. HABITABILITY AND 8~ITY
MARK I. I.GIRI. v. IIAIII'DI. CIMTI., I.e.
60. paragraphs 1 - 59 are incorporated herein by reference as if
set forth at length.
61. Defendant Hampden Center, Inc. failed to maintain the property
in reasonable care and safety in use pursuant to 68 P.S. S250.502-A.
62. Defendant Hampden Center, Inc. failed to exercise reasonable
care to repair or warn the aforesaid dangerous and defective con-
ditions.
63. The aforesaid conditions of the property were in violation of
Defendant Hampden Center's Inc. affirmative statutory duty as set forth
above.
64. The proximate, direct and immediate cause of Plaintiff's
injuries as set forth above was the result of Defendant Hampden Center,
Inc., its employees, agents and servants, who acting within the course
17
. .. .
. - .
. -
and scope ot their authority trom Defendant, Hampden Center, Inc.,
tailed to keep the property in habitable condition in accordance with
it attirmative statutory duty.
WHEREFORE, plaintiff, Mark E. Engerer demands judgment against the
Defendant Hampden Center, Inc. in an amount in excess of $20,000.00,
and an amount in excess of the amount requiring compulsory referral to
arbitration under the local rules of Court.
V. ."AeB O. UKrAIR TRADa PRAeTIea8 AND eO.8ONaR PROTaCTIOM LAW
DJtJ: .. alloaDR v. 8UUR ...88 .OOD MAIlltaT, IlIe.
65. Paragraphs 1 - 64 are incorporated herein by reference as if
set forth at length.
66. Plaintiff, as a business invitee of Defendant Super Fresh Food
Market, Inc., is an implied third party beneficiary of a lea.e agree-
ment between Super rresh Food Market Inc. and Hampden Center, Inc.
67. The lease of commercial property for business purposes i.
governed by the Unfair Trade practices and Consumer Protection Law, 73
P.S. Section 201-1 et sea.
68. As a result of the aforesaid statements of fact and actions,
Defendant super rresh Food Market Inc. violated the Unfair Trade Pra-
ctices and Consumer Protection Law, 73 P.S. section 201-1 et seq. by
failing to make repairs and corrections on its tangible and real
property of a nature inferior to or below the standard of that agreed
to in writing with Defendant Hamdpen Center, Inc.
18
. - .
~ - .
. .. .
WHERErORE, Plaintiff, Mark E. Enqerer demands judqment aqain.t the
Defendant Super Fre.h rood Market Inc. in an aaount in exce.. ot
$20,000.00, or an amount determined by a jury which in its di.cretion
aay award a judgment three times the times the amount of the award
vhich fairly repres.nt. the 10.... .u.tained by Plaintiffs pur.uant to
73 P.S. Section 201-9.2 et sea., all in exce.. of the amount requiring
co.pulsory referral to arbitration under the local rules of Court.
COUH'l' VI. COIIIORTION
JOye. A. .1I0.DR V. IUI'IR ruaB rOOD HARDT IIIC.
69. Paragraphs 1 through 68 are incorporated herein by reference
a. if .et forth in full.
70. At all relevant times hereto, Joyce A. Engerer wa. married to
Mark I. Enqerer.
71. A. a result of the injuries sustained by her husband, Joyce A.
Ingerer has euffered mental anguish, physical shock and SUffering and
has been and will be deprived of the assistance, companionship, consor-
tium, con.ideration, aid and society of her husband, all of which has
been and will be to her great loss and detriment.
WHEREFORE, plaintiff, Joyce A. Engerer demands judqment again.t
the Detendant, Super Fresh food Market, Inc. in an amount in exces. of
t20,000.00, or an amount which exceeds local compulsory arbitration.
COUJl'l' VII. COII.oaTION
Joye. A. ..G.... v. BAMPO.. e.lIT.a lire.
19
11 . ~ .
. .. .
.. .
...!.!ea..roll
I verity that the statements made in this Complaint are true and
oorreot. I understand that unsworn state.ents herein are made subjeot
to the penalties of 18 Pa. C.B.A. section 4904, relating to unsworn
talsification to authoritie..
DATil I OCTOBER5l
1994
I/!tJ~
Mark E. Enge
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suffielentto fonn a belief us to the trulh (lfthe avemlenls conlained in this paragraph and same are
therefore denied. strict proof being demanded atlrial. ifrelevant,
8, legal conclusions which require no answer, Where an answer is deemed to be
required. after reasonable invc$tigation. answering Defendant lacks infonnation or knowledge
sufficient to foml a belief us to the truth of the avemlents contained in this paragraph and same are
therefore denied. strict proof being demanded atlrial. if relevant,
9, legal conclusions which require no answer. Where an answer is deemed to be
required. after reasonable investigation. answering Defendant lacks infonnation or knowledge
sufficient to fonn a belief us to the truth of Ihe avennents contained in this paragraph and same arc
therefore denied. strict proof being dr.manded at trial. ifrelevant.
10. legal conclusions which require no answer, Where an answer is deemed to be
required. after reasonable investigation. answering Defendant lacks infonnation or knowledge
sufficient to fonn a belief us to the truth of the avennenls contained in this paragraph and same are
therefore denied. strict proof being demanded atlrial. ifrelevant,
II, legal conclusions which require no answer, Where an a!1swer is deemed to be
required. aner reasonable investigation. answering Defendant lacks infonnation or knowledge
suffieientlo fonn a belief as to the truth of the avennenls contained in this paragraph and same arc
therefore denied. strict proof being demanded at trial. ifrelevant.
12, legal conclusions which require no answer, Where an answer is deemed to be
required. after reasonable investigation. answering Defendant lacks infonnation or knowledge
sufficient to fonn a beliefus to the truth of the avennents contained in this paragraph and same are
therefore denied. strict proof being demanded at trial. if relevant.
-2-
13, Legal conclusions which rcquirc no answcr, Where an answer is deemcd to be
required, after rcasonablc invcstigation. answering Defendant lacks infomlation or knowledge
suffici\mt to fonn a bclief as to the truth of thc avcrmcnts contained in this paragraph and same are
therefore denied. strict proof being dcmanded at trial, irrelevant.
14, Legal conclusions which require no answer, Where an answer is deemed to be
rcquired. after reasonable invcstigation, answering Dcfendant lacks infomlation or knowledge
sufficient to foml a bclicf as to the truth of thc avcnnenls containcd in this paragraph and same arc
thereforc dcnicd. strict proofbcing dcmandcd at trial, ifrclevant.
IS, Lcgal conclusions which require no answer, Where an answer is deemed to be
required, after reasonable investigation. answering Defendant lacks information or knowledge
sufficient to form a belief as to the truth of the avemlcnts contained in this paragraph and same are
therefore denied. strict proofbeing demanded at trial. if relevant.
16, Legal conclusions which rcquire no answer, Where an answer is deemed to be
required. after reasonable investigation. answering Defendant lacks information or knowledge
sufficient to form a belief as to the truth of the averments contained in this paragraph and same are
therefore denied, strict proof being demanded at trial. if relevant.
17, Legal conclusions which reljuire no answer, Where an answer is deemed to be
required. after reasonable invcstigation, answering Defcndant lacks information or knowledge
sufticient to fom1 a belief as to the truth of thc averments contained in this paragraph and same are
thereforc denied. strict proof being demandcd at trial. if relevant,
18, Dcnied, Allcr rcasonable investigation, answering Defendant lacks information or
knowledge sufticient to form a belief as to the truth of the avemlents contained in this paragraph and
same arc therefore dcnied, strict proof being demandcd at trial. ifrelevant,
-J-
19. Legal conclusions which require no answer. Where an answer is deemed to be
required, aller reasonable investigation. answering Defendant lacks infonnation or knowledge
sufficient to foml a belief as to the truth of the avcnnents .:ontained in this paragraph and same arc
theretbre denied, strict proof being demanded at trial. ifrelevant.
20, Legal conclusions which require no answer. Where an answer is deemed to be
required, aller reasonable investigation, answering Defendant lacks information or knowledge
sufficient to form a belief as to the truth of the averments contained in this paragraph and same are
therefore denied. strict proofbeing demanded at trial, ifrelevant.
21. Legal conclusions which require no answer, Where an answer is deemed to be
required, aller reasonable investigation, answering Defendant lacks information or knowledge
sufficient to form a belief as to the truth of the averments contained in this paragraph and same are
therefore denied, strict proof being demandcd at trial, if relevant.
22, Legal conclusions which require no answer, Where an answer is deemed to be
required, aller reasonable investigation, answering Defendant lacks information or knowledge
sufficient to form a belief as to the truth of the averments contained in this paragraph and same are
therefore denied. strict proofbeillg demanded at trial. if relevant.
23, Denied, Aller reasonable investigation, answering Defendant lacks information or
knowledge sufficient to Ibrm a belief as to the truth of the averments contained in this paragraph and
same are therefore denied. strict proof being demanded at trial. if relevant.
24, Admilled in part. denied in part, Delcndant admits that a lease exists, but specifically
denies that Hampden Center. Inc, was in control of the area in question at the time of the incident.
25, Legal conclusions which require no answer, Where an answer is deemed to be
required. aller reasonable investigation. answering Defendant lacks inlbrmation or knowledge
-4-
sufficient to foml a belief as to the truth of the avemlents contained in this paragraph and slime are
therefore denied, strict proof being demanded at trial, if relevant,
26, As these allegations are not directed toward Answering Defendant, no answer is
required,
27, As these allegations arc not directed toward Answering Defendant. no answer is
required,
28, As these allegations are not directed toward Answering Defendant, no answer is
required,
29, As these allegations arc not directed toward Answering Defendant, no answer is
required,
30, As these allegations are not directed toward Answering Defendant, no answer is
required,
31. As these allegations arc not directed toward Answering Defendant, no answer is
required,
32, As these allegations arc not directed toward Answering Defendant, no answer is
required,
33, As these allegations are not directed toward Answering Defendant, no answer is
required,
34, As these allegations are not directed toward Answering Defendant, no answer is
required,
3S, As these allegations are not directed toward Answering Defendant, no answer is
required,
-S-
36. As these allegations are not directed toward Answering Defendant, no answer is
reqaired.
37. As these allegations are not directed toward Answering Defendant, no answer is
reqaired.
38. As these allegations arc not directed toward Answering Defendant, no answer is
required,
39, As these allegations are not directed toward Answering Defendant, no answer is
required.
40, As these allegations are not directed toward Answering Defendant, no answer is
required.
41. Requires no answer,
42, Legal conclusions which require no answer. Where an answer is deemed to be
required, after reasonable investigation. answering Defendant lacks information or knowledge
sufficient to form a belief as to the truth of the averments contained in this paragraph and same are
therefore denied. strict proof being demanded at trial. if relevant,
43, Legal conclusions which require no answer, Where an answer is deemed to be
required, after reasonable investigation. answering Defendant lacks information or knowledge
$ufficient to form a belief as to the truth of the averments contained in this paragraph and same are
therefore denied. strict proof being demanded at trial. ifrelevant.
44, Legal conclusions which require no answer, Where an answer is deemed to be
required, after reasonable investigation. answering Defendant lacks information or knowledge
sufficient to form a belief as to the trulh of the averments contained in this paragraph and same are
therefore denied. slricl proof being demanded at trial. if relevant,
.6.
I,
4S, Legal conclusions which rcquire no answer, Where an answer is deemed to be
required. after reasonable investigation, answering Defendant lacks information or knowledge
sufficient to foml a belief as to the truth of the avemlents contained in this paragraph and same are
therefore denied, strict proof being demanded at trial, if relevant.
46, Legal conclusions which require no answer, Where an answer is deemed to be
required, after reasonable investigation, answering Defendant lacks information or knowledge
sufficient to fonn a belief as to the truth of the avemlents contained in this paragraph and same are
therefore denied, strict proof being demanded at trial, ifrelevant.
47, Legal conclusions whieh require no answer, Where an answer is deemed to be
required, after reasonable investigation. answering Defendant lacks information or knowledge
sufficient to form a belief as to the truth of the averments contained in this paragraph and same are
therefore denied, strict proof being demanded at trial, ifrelevant,
48, Legal conclusions which require no answer, Where an answer is deemed to be
required, after reasonable investigation, answering Defendant lacks information or knowledge
sufficient to form a belief as to the truth of the averments contained in this paragraph and same are
therefore denied, strict proof being demanded at trial, ifrelevant.
49, legal conclusions which require no answer, Where an answer is deemed to be
required, after reasonable investigation, answering Defendant lacks information or knowledge
sufficient to form a belief as to the truth of the avermenls contained in this paragraph and same are
therefore denied. striel proof being demanded atlrial, if relevant,
SO, legal conclusions which require no answer, Where an answer is deemed to be
required, after reasonable investigation. answering Defendant lacks information or knowledge
.7.
sufficient to fornlll belicf liS to the truth of the avennents contained in this paragraph and slime are
therefore dcnicd, strict proofbcing demanded at trial, ifrelcvant.
S I. Legal conclusions which require no answer, Whcre an answer is dccmcd to bc
required, allcr reasonable investigation. answering Defendant lacks infomllltion or knowledge
suffieicntto form a belief as to the truth of the avennenls cOlltained in this paragraph and same are
therefore denied. strict proof being demanded at trial, ifrelcvant.
S2, Legal conclusions which requirc no answcr, Where an answer is deemed to be
required. aller reasonable investigation, answering Defendant lacks information or knowledge
sufficient to form a belief as to the truth of the avemlenls contained in this paragraph and same are
therefore denied. strict proof being demanded at trial, i I' relevant.
S3, Legal conr.lusions which require no answer, Where an answer is deemed to be
required. aller reasonable investigation. answering Defendant lacks information or knowledge
sufficient to form a belief as to the truth of the avernlcnts contained in this paragraph and same are
therefore dcnied, strict proof being demanded at trial. if relevant,
S4, Legal conclusions which require no answer, Where an answer is deemed to be
required, aller reasonable investigation, answering Defendant lacks information or knowledge
suflicient to lorm a belief as to thc truth of the averments contained in this paragraph and same are
therefore denied. strict proof being demanded at trial, if relevant.
SS, Requires no answer,
S6, Legal conclusions which require no answer, Where an answer is deemed to be
required, aller reasonable investigation, answering Defendunt lacks inltlrmation or knowledge
suflicientto foml a belief as to the truth of the averments contained in this puragraph and same are
therefore denied, strict proof being demunded at trial. if relevant,
.8.
57. Legal conclusions which re\juirc no answcr. Where an answer is deemed to be
required. after reasonable investigation. answering Defcndallt lacks infomlation or knowledge
sufficient to form a belief as to the truth ofthc avemlcnts contained in this paragraph and same are
therefore denied. strict proof being demanded at trial. if relevant.
58, Lcgal conclusions which rC\juire no answer, Where an answcr is deemed to be
required. after reasonable investigation. answering Defendant lacks information or knowledge
sufficient to form a belief as to the truth of the averments contained in this paragraph and ~ame are
therefore denied. strict proof being demanded at trial. if relevant.
59, Legal conclusions which rC\juire no answer, Where an answer is deemed to be
required. at\cr reasonable investigation. answering Defendant lacks information or knowledge
sut1icient to foml a belief as to the truth of the avem1ents contained in this paragraph and same are
therefore denied. strict proof being demanded at trial. if relevant.
60, Requires no answer,
61, Legal conclusions which require no answer, Where an answer is deemed to be
re\juired. after reasonable investigation, answering Defendant lacks information or knowledge
sullicient to form a belief as to the truth of the averments contained in this paragraph and same are
therefore denied. strict proof being demanded at !rial. if relevant,
62, Legal conclusions which require no answer, Where an answer is deemed to be
required. after reasonable investigation. answering Defendant lacks information or knowledge
sut1icientto fom1 a belief as to thc truth of the averments contained in this paragraph and same arc
therefore denied. strict proof being demanded at trial. if relevant,
63, Legal conclusions which require no answer, Where an answer is deemed to be
required. after reasonable investigation, answering Defendant lacks information or knowledic
-9-
sufficient to fonn a belic:fas to the truth llfthe avemlellls contained in this paraj,lraph and same arc
therefore denied, strict proof being demanded at trial. if relevant.
64. Legal conclusions which require no answer, Where an answer is deemed to be
required. after reasonable investigation. answering Defendant lacks inlomlation or knowledge
sufficient to fonn a belief as to the truth of the avemlents contained in this paragraph and swne arc
therefore denied, strict proof being demanded at trial, ifrelevant,
65, As these allegations arc not directed toward Answering Defendant, no answer is
required.
66, As these allegations are not directed toward Answering Defendant, no answer is
required,
67. As these allegations are not directed toward Answering Defendant, no answer is
required.
68, As these allegations arc not directed toward Answering Defendant, no answer is
required,
69, As these allegations arc not directed toward Answering Defendant, no answer is
required,
70, As these allegations are not directed IowaI'd Answering Defendant, no answer is
required,
71, As these allegations are not directed toward Answering Defendant, no answer is
required,
72, Requires no answer,
-10.
73, Denied, At\er reasonable investigalion. answering Defendant lacks information or
knowledge sutlicient to fonn a belicf as to thc truth of the avcmlents containcd in this paragraph and
sume are therefore denied. strict proof being demanded at trial, if relevant.
74. Legal conclusions which requirc no answer. Whcre an answer is decmed to be
required, at\er reasonable investigation. answering Defendant lacks information or knowledgc
sufficient to form a belief as to the truth of the avemlents contained in this paragraph and sume are
therefore denied, strict proof being demanded at trial, if relevant.
NEW MAT'IE.B
75, The Plaintiffs may have failed to state a cause of action upon which relief can be
granted,
76, The applicable Statute of Limitations may have expired prior to the institution of this
action,
77, Answering Defendant was not negligent,
78, Any acts or omission of Answering Defendant alleged to constitute negligence were
not substantial causes or factors of the subject incident and/or did not result in the injuries and/or
losses alleged by the Plaintiffs,
79, The incident and/or damages described in Plaintiffs' Complaint may have been caused
or contributed to by the Plaintiffs,
80, The negligent acts or omissions of other individuals and/or entities may have
constituted intervening. superseding causes of thc damages and/or injuries alleged to have been
sustained by the Plainti ffs,
81. The Plaintiffs may have asslImed the risk,
82, The Plaintiffs may have been contributorily negligent.
-II-
83. The incident, injuries and/or damages alleged to have been sustained by the Plaintiffs
were not proximately caused by Answering Defendant.
84. Plaintiffs may not have properly mitigated their damages,
85, Answering Defendant desires, and is entitled to, a trial by jury,
86, Defendant, Hampden Center, Inc" hereby joins as Additional Defendant, Super Fresh
Food Markets, Inc,. for purposes of contribution and/or indemnification and hereby alleges that said
Additional Defendant is alone liable to Plaintil1s, are liable over to Defendant Hampden Center.lnc"
or are jointly or severally liable to Plaintiffs with Defendant, Hanlpden Center, Inc,
WHEREFORE. Defendant, Hampden Center, Inc., prays that the Complaint be dismissed,
at the cost of the Plainllffs. or, in the altemative, for the relief alleged in ~86, above,
Respectfully submilled,
Date: )..-/7-79
POST & SCHELL, p,c.
~~
PAUL W, GREGO, E~RE
Counsel for Defendant
Hampden Center, Inc,
VERIFICA.TION
PAUL W. GREGO, ESQUIRE. states that he is the attorney for the party serving the for\lgoing
document; that he makes this aflidavit as an attorney because he has sufficient knowledge or infonnation and
belief, based upon his investigation of the matters averred or denied in the foregoing document; that time is
of the essence in the filing of this document; and that this statement is made subject to the penalties ofPa, C.S.
~4904, relating to unsworn falsification to authorities,
DatJ/!11
PAUL~4r
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CERTIFICATE OF SERVIC:E
I, Rebecca S. Rusbatch, an employce of Post & Schell, p, C" do hereby certify that on the
date listed below, I did serve a true and correct copy of the foregoing document upon the following
person(s) at the following address(cs) hy sending same via United States mail, first-class, postage
prepaid:
Andrew C. Sheely, Esq,
127 South Market Street
P. O. Box 95
Meehanicsburg, PA 17055-0095
Joseph A, Breymeier, Esq,
Naulty, Scaricamazza & McDevitt, Ltd.
1600 One Penn Center
1617 John F, Kennedy Boulevard
Philadelphia. P A 19103
DATE: 2/17/99
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NAULTY, SCARlCAMAZZA & McDEVITT, LTD.
BY: JOSEPH A. BREYMEIER ESQUIRE
Identification Number: 55976
1617 John F, Kennedy Boulevard
1600 One Penn Center
Philadelphia, PA 19103
(215) 568-Sl16
ATTORNEY FOR DEFENDANT
Super Fresh Food Markets, Inc,
MARK E. ENGERER and JOYCE A,
ENGERER
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
VS
SUPER FRESH FOOD MARKETS. INC, &
HAMPDEN CENTER, INC,
NO, 94-6311
DEFENDANT, SUPER FRESH FOOD MARKETS, INC.'S REPLY TO
NEW MAnER OF DEFENDANT. HAMPDEN CENTER. INC.
1.74, See defendant's Answer, New Maller and New Matler Crossclaim,
75, Denied, The averments in this paragraph constitute conclusions of law to which no
responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure, However, and to
the extent that an answer may be required. answering defendant avers that the information contained in
this averment is not addressed to answering defendant and same is thus denied,
76, Denied, The averments in this paragraph constitute conclusions of law to which no
responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure, However, and to
the extent that an answer may be required. answering defendant avers that the information contained in
this averment is not addressed to an,wering defendant and same is thus denied,
77, Denied, The averments in Ihis paragraph constitute conclusions of law to whk:h no
responsive pleading is required pursuant to lhe Pennsylvania Rules of Civil Procedure, However. and to
lhe exlenl lhatlln answer may be required. answering defendant avers thai the infonnation conlained in
this avermenl is not addressed to answering defendant and same is thus denied.
78, Denied. The averments in this paragraph constitute conclusions of law to which no
responsive pleadina is required pursuanlto the PeJUlSylvania Rules of Civil Procedure, However. and 10
the exlenl lhal an answer may be required, answering defendant avers that the infonnation contained in
Ihis averment is nOI addressed to answering defendant and same is thus denied.
79, Denied, The averments in this paragraph constitute conclusions of law to which no
responsive pleadina is required pursuant to the Pennsylvania Rules of Civil Procedure. However. and 10
the exlent lhat an answer may be required. answering defendant avers thatlhe infonnation contained in
this avermenl is not addressed 10 answering defendant and same is thus denied.
80. Denied, The averments in this paragraph constitute conclusions of law 10 which no
responsive pleading is required pursuanlto the Pennsylvania Rules of Civil Procedure, However. and 10
the eXlenllhal an answer may be required. answering defendant avers that the infllnnalion contained in
this avermenl is not addressed to answering defendant and same is thus denied,
81, Denied, The averments in Ihis paragraph constitute conclusions of law 10 which no
responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure, However. and 10
Ihe extenl lhal an answer may be required, answering defendanl avers that the infonnalion contained in
Ihis avermenl is nOI addressed 10 answering defendant and same is thus denied,
82, Denied, The averments in this paragraph conslitute conclusions of law 10 which no
responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure, However. and 10
Ihe eXlenl lhat an answer may be required, answering defendant avers lhal the information contained in
this avermenl is nol addressed 10 answering defendant and same is Ihus denied,
83, Denied, The averments in this paragraph constitute conclusions of law to which no
responsive pleading is required pursuant 10 the Pennsylvania Rules of Civil Procedure, However. and to
the eXlent thai an answer may be required. answering defendant avers Ihalthe informalion contained in
this avermenl is nol addressed to answering defendanl and same is Ihus denied,
84, Denied, The averments in this paragraph constitute conclusions of law to which no
...... 2..
responsive pleading is required pursuant to the PeMSylvania Rules ot' Civil Procedure, However, Ilnd to
the extent an answer may be required. answering defendant aven that the information contained In this
averment is not addressed to answel'lng defendant and same is thus denied,
85. Denied. The averments In this paragraph constitute conclusions of law to which no
responsive pleading is required pursuant to the PeMSylvanla Rules of Civil Procedure. However, and to
the extent that an answer may be required. answering defendant avers that the Infornlatlon contained in
this averment is not addressed to answering defendant and same is thus denied,
86, Denied, The averments in this paragraph constitute conclusions of law to which no
responsive pleading Is required pursuant to the PeMSylvanla Rules of Civil Procedure, However. and to
the extent that an answer may be required. answering defendant specifically denies that it Is alone liable,
jointly and severally liable. or liable ov.:r to defendant. Hampden Center. Inc,. by way of contribution
and/or indemnification,
WHEREFORE. defendant. Super Fresh Food Markets. Inc,. avers that should plaintiff establish
her cause of action at time of trial. said averments specifically denied by answering defendant herein. that
defendant. Hampden Center. Inc" is alone liable. jointly and severally liable or liable over to defendant,
Super Fresh Food Markets. Inc" by way of contribution and/or indemnification,
NAULTY. SCARICAMAZZA & McDEVITT. LTD,
,/
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VERIFICATION
I. JOSEPH A. BREYMEIER. ESQUIRE. hereby verify that I am the attorney for
defendant. Super Fresh Food Markets. Inc., herein and that the facts set fonh in the foregoina
pleadina are true and correct to the best of my knowledge. information and belief. 1
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 14904
relatina to unsworn falsification to authorities,
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PRAECIPE FOR LISTING CASE FOR TRIAL
(MUst be typewritten and submitted in duplicate)
'IU 'llIE PR1I'tKH1l'ARY OF ctMlERlMI> COUNI'Y
Please list the following case.
C" ......') a
(Check one) (X) for JURY trial at the next tern of civil CSQurtP -I,
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(X Civil ActiOl{t L/iii ~
Appeal from Arbitration
MARK E. ENGERER and
JOYCE A. ENGERER
(other)
(Plaint iflij
vs.
SUPER FRESH FOOD MARKETS, INC.
and HAMPDEN CENTER, INC.
The trial list will be called on Aoril~, 1 99
and
( Defendan.
Trials caTIllElnce on May 10 and May 17, 1999
Pretrials will be held on April 26, 1999
(Briefs are due 5 days before pretrials.)
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
all counsel. pursuant to local Rule 214.1.)
vs.
No. 6311
Civil
1994
D8te, March 22, 1999
Attorney fo1'l Plalnt.iffs
.
-
Andre. C. Sh..ly, tlqulre
Attorney rQr Plaintift_
127 B. Market Stl..t
P.O. BoX 95
l(eohanlo.bur9, PA 17055
PA 10 NO, 6H69
717-697-7050 (Phone)
717.697-7065 (r..)
HARK E. ENGERER, and
JOYCE A. ENGERER,
Plaintiffs
vs.
I IN THE COURT or COMMON PLEAS or
I CUMBERLAND COUNTY, PENNSYLVANIA
I
1 CIVIL ACTION - LAW
I
I NO. 6311 CIVIL 1994
:
I JURY TRIAL DEMANDED
SUPER FRESH FOOD MARKETS, INC.,
and HAMPDEN CENTER INC,
Defendants
PLAINTIFFS' RIPLY TO NIW MATTIR or
DEPENDANT HAMPDIN CINTIR INC.
plaintiffs, Mark E. Engerer and Joyce A. Engerer, by and
through counsel of Andrew C. Sheely, Esquire, hereby file this
Reply to the New Matter of Defendant Hampden Center, Inc. and
respectfully s.tate as follows I
1. - 74. See Paragraphs 1 - 74 of Plaintiffs' Complaint
which are hereby incorporated herein.
75. Denied. The averments set forth in this Paragraph 7~ of
Defendant Hampden Center Inc.'s New Matter constitute conclusions
of law to which no response is required. To ~he extent that a
,
I,
Reply may be required, the allegations are denied and strict proof
thereof demanded at trial or otherwise. By way of further Reply,
Plaintiffs' Complaint sets forth valid causes of action against
Defendant Hampden Center, Inc.
76. Denied. The averments set forth in Paragraph 76 of
\I
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Defendant Hampden Center Inc.'s New Matter constitute conclusions
of law to which no response is required. To the extent that a
Reply may be required, the allegations are denied and strict proof
thereof demanded at trial or otherwise. By way of further Reply,
Plaintiffs' Complaint sets forth valid and timely causes of action
against Defendant Hampden Center, Inc.
77. Denied. The averments set forth in paragraph 77 of
Defendant Hampden Center Inc.'s New Matter constitute conclusions
of law to which no response is required. To the extent that a
Reply may be required, the allegations are denied and strict proof
thereof demanded at trial or otherwise. By way of further Reply,
Plaintiffs' Complaint sets forth valid causes of action against
Defendant Hampden Center, Inc.
78. Denied. The averments set forth in Paragraph 78 of
Defendant Hampden Center Inc.'s New Hatter constitute conclusions
(',
,
of law to which no response is required. To the extent that a
Reply may be required, the allegations are denied and strict proof
thereof demanded at trial or otherwise. By way of further Reply,
Plaintiffs' Complaint sets forth valid causes of action against
Defendant Hampden Center, Inc.
79. Denied. The averments set forth in Paragraph 79 of
Defendant Hampden Center Inc.'s New Hatter constitute conclusions
of law to which no response is required. To the extent that a
Reply may be required, the allegations are denied and strict proof
2
thereof demanded at trial or otherwise. By way of further Reply,
plaintiffs did not contribute to or cause their injuries in th.ls
incident.
80. Denied. The averments set forth in paragraph 80 of
Defendant Hampden Center Inc.'s New Matter constitute conclusions
of law to which no response is required. To the extent that a
Reply may be required, the allegations are denied and strict proof
thereof demanded at trial or otherwise. By way of further Reply,
Plaintiffs' Complaint sets forth valid causes of action against
Defendant Hampden Center, Inc.
8l. Denied. The averments set forth in Paragraph 81 of
Defendant Hampden Center Inc.'s New Matter constitute conclusions
of law to which no response is required. To the extent that a
Reply may be required, the allegations are denied and strict proof
thereof demanded at trial or otherwise. By way of further Rep.ly,
Plaintiffs did not assume the risk of injury and Plaintiffs'
Complaint sets forth valid causes of action against Defendant
Hampden Center, Inc.
82. Denied. The averments set forth in paragraph 82 of
Defendant Hampden Center Inc.'s New Matter constitute conclusions
of law to which no response is required. To the extent that a
Reply may be required, the allegations are denied and stri~c proof
thereof demanded at trial or otherwise. By way of further Reply,
Plaintiffs were not contributorily negligent and Plaintiffs'
J
Complaint sets forth valid causes of action against Defendant
Hampden Center, Inc.
83. Denied. The averments set forth in paragraph 83 of
Defendant Hampden Center Inc's New Matter constitute conclusions
of law to which no response is required. To the extent that a
Reply may be required, the allegations are denied and strict proof
thereof demanded at trial or otherwise. By way of further reply,
Plaintiffs' Complaint sets forth valid causes of action against
Defendant Hampden Center, Inc.
84. Denied. The averments set forth in Paragraph 84 of
Defendant Hampden Center's Inc.'s New Matter constitute
conclusions of law to which no response is required. To the
extent that a Reply may be required, the allegations are denied
and strict proof thereof demanded at trial or otherwise. By way
of further Reply, Plaintiffs reasonably mitigated their damages.
85. Admitted.
86. The allegation contained in paragraph 86 of Defendant
Hampden Center Inc.'s New Matter are not allegations of fact which
require an affirmative answer or defense as the allegations are
directed at Defendant Super F'resh Food Market. By way of further
Reply, Defendant Hampden Center Inc.is jointly and/or severally
liable with Defendant Super Fresh Food Market, Inc. for Plaintiffs
injuries as alleged in the various counts of Plaintiffs'
underlying Complaint.
4
WHEREFORE, Plaintiffs respectfully request that the Court
di.m1s8 the affirmative defenses and other New Hatter raised in
Defendant Hampden Center Inc.'s Answer and New Matter and that
judqment be entered in favor of Plaintiffs and aqainst Defendant
Hampden center, Inc. on all counts directed aqainst Defendant
Hampden Center Inc.
Date I March ~ 1999
, ~. i
Andrew C. Shee
PA 10 62469
l27 S. Market Street
P.O. Box 95
Hechanicsburq, PA l70SS
717-697-7050
717-697-7065 (Fax)
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MARJI; B. BNGERER, and
JOYCE A. BNGBRBR,
Plaintiffs
vs.
I IN THB COURT OF COMMON PLEAS OF
I CUMBBRLAND COUNTY, PENNSYLVANIA
I
I CIVIL ACTION - LAW
I
I NO. 631l CIVIL 1S94
I
I
SUPBR fRBSH FOOD MARKETS, INC.,
and HAMPDEN CENTER INe,
Defendants
PRABCIPB TO SBTTLB AND DISCONTINUI
TOI CURTIS R. LONO, PROTHONOTARY
CUH.IRLAND COUNTY COURTHOUSB
CARLISLB, PA 17013
Kindly mark the above-captioned matter settled and
discontinued, with prejudice.
May 3, 1999
BYI ,.11 kJ 0
~. SHBELY, Bsq
Pa. 1.0. No. 62469
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
(717) 697-7050
Attorney for Plaintiffs
.
el.TIPICATI OP ...VIe.
I, Andrew C. Sheely, Esquire, hereby certify that I am this
day serving the foregoing praecipe to Settle and Discontinue upon
the following named individuals by depositing same in the United
States Mail, First Class, postage prepaid, at Mechanicsburg,
pennsylvania, addressed as follows I
Joseph M Breymeier, Esquire
NAULTY, SCARIACMAZZA & MCDEVITT
Suite l600
One Penn Center at Suburban Center
1617 John F. Kennedy Boulevard
Philadelphia, PA 19l03
Paul W. Grego, Esquire
POST & SCHELL, P.C.
260 Grandview Avenue
Suite lOO
Camp Hill, PA 17011
Date I May2f ' 1998
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