Supreme ColJfl;Qf~~..ennsylvania:',-0-- '-'.:.c' ..

Ceurf-of-Cemmoa'Pleas For Prothonottuy Use Only:

Ch:UCover'Sliet
""_'. ", ':.' Docket No:
WES~RELAND" ;l::' County
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The information collected on this form is used solely for court administration purposes. This form does not
supplement or replace the filing and service of pleadings or other papers as required by law or rules of court.
Commencement of Action:
lEI Complaint D Writ of Summons D Petition
S D Transfer from Another Jurisdiction D Declaration of Taking
E
Lead Plaintiffs Name: Lead Defendant's Name:
C MARK E. MATTHEWS SPANGLER CANDY COMPANY
T
Dollar Amount Requested: D within arbitration limits
I Are money damages requested? lEI Yes D No (check one) lEI outside arbitration
limits
o
N Is this a Class Action Suit? DYes lEI No Is this an MDJ Appeal? DYes lEI No

A Name of Plaintiff/Appellant's Attorney: BERNARD P. MATTHEWS. JR.. ESQUIRE

D Check here if you have no attorney (are a Self-Represented [Pro Se] Litigant)

Nature of the Case: Place an "X" to the left of the ONE case category that most accurately describes your
PRIMARY CASE. If you are making more than one type of claim, check the one that
you consider most important.

TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS
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S lEI Product Liability (does not include
mass tort) D Employment Dispute:
E D SlanderlLibell Defamation Discrimination
[] Employment Dispute: Other D Zoning Board
C D Other:
D Other:
T
I [] Other:
o MASS TORT

N B
D Asbestos
Tobacco
Toxic Tort - DES
D Toxic Tort - Implant
REAL PROPERTY MISCELLANEOUS
D Toxic Waste
D Ejectment D Common Law/Statutory Arbitration
D Other;
D Declaratory
B D
D
D
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PROFESSIONAL LIABLITY D Mortgage Foreclosure: Commercial D Quo Warranto
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D Other Professional:

Updated /1112011
 IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
PENNSYLVANIA ~ CIVIL DIVISION

MARK E. MATTHEWS and KRISTINA

MATTHEWS, Individually and as Parents
And Natural Guardians of MBM, a Minor

Plaintiffs COMPLAINT IN CIVIL ACTION

vs.

SPANGLER CANDY COMPANY,

Filed on behalf of Plaintiffs,

Defendant.
BERNARD P. MATTHEWS, JR., ESQ.
PA I.D. #54880

MEYER, DARRAGH; BUCKLER,

BEBENEK & ECK, P.L.L.C.
40 North Pennsylvania Avenue, Suite 410
Greensburg, PA 15601

Telephone No.: (724) 836-4840

Fax No.: (724) 836-0532

JURY TRIAL DEMANDED

 IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
PENN"SYLVANIA - CIVIL DIVISION

MARK E. MATTHEWS and KRISTINA

MATTHEWS, Individually and as Parents
And Natural Guardians of MBM, a minor

No. 3J~?J O~ dP\'b

Plaintiff,

vs.

SPANGLER CANDY COMPANY

Defendant.

NOTICE TO DEFEND

You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with the
court your defenses or objections to the claims set forth against you. You are warned that if you
fail to do so the case may proceed without you and a judgment may be entered against you by the
Court without further notice for any money claimed in the complaint or for any claim or relief
requested by the Plaintiff. You may lose money or property or other rights important to you.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO

NOT HAVE A LAWYER, TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT
WHERE YOU CAN GET LEGAL HELP.

IF YOU CANNOT AFFORD A LAWYER, THIS OFFICE MAY BE ABLE TO

PROVIDE YOU WITH INFORMATION ON AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.

LA WYER REFERRAL SERVICE

WESTMORELAND BAR ASSOCIATION
P.O. BOX 565
GREENSBURG, PA 15601
(724) 834-8490
 IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
PENNSYLVANIA - CIVIL DIVISION

MARK E. MATTHEWS and KRISTINA

MATTHEWS, Individually and as Parents
And Natural Guardians of MBM, a minor

No. ?:>l ~XSQ\ ')D\~

Plaintiff,

vs.

SPANGLER CANDY COMPANY

Defendant.

COMPLAINT IN CIVIL ACTION

AND NOW, come the Plaintiffs, Mark E. Matthews and Kristina Matthews, Individually

and as Parents and Natural Guardians of MBM, a minor, by and through their attorneys,

MEYER, DARRA.GH, BUCKLER, BEBENEK & ECK, P.L.L.C., and Bernard P. Matthews, Jr.,

Esquire, and file this Complaint in Civil Action, averring in support thereof as follows:

I. Factual Background

1. The Plaintiff, Mark E. Matthews, is an adult individual residing at 338

Brandywine Drive, Irwin, Westmoreland County, Pennsylvania 15642.

2. The Plaintiff, Kristina Matthews, is an adult individual residing at 338

Brandywine Drive, Irwin, Westmoreland County, Pennsylvania 15642.

3. Mark E. Matthews and Kristina Matthews are husband and wife and the parents

and natural guardians of MBM, a minor, born on [redacted].

4. Defendant, Spangler Candy Company ("Spangler"), is an Ohio Corporation

actively engaged in business activities in Westmoreland County, Pennsylvania.

 5. Spangler is the manufacturer of a hard candy product commonly referred to as a

"Dum Dum" sucker which it has placed into the stream of commerce for purchase and

consumption by consumers in Westmoreland County, Pennsylvania, including for consumption

by minor children such as MBM.

6. On July 5, 2017. MBM was eating a "Dum Dum" sucker manufactured,

distributed and sold by Spangler (hereinafter "Defective Dum Dum Sucker") when suddenly and

without warning the candy ball slipped and/or came off the stick and lodged in MBM's throat,

causing MBM's airway to close for an extended period oftime and further causing MBM's life

to be in peril due to lack of oxygen.

7. Mark E. Matthews and Kristina Matthews witnessed MBM gasping for air while

choking on the candy ball of the Dum Dum sucker.

8. It took a heroic effort by Mark E. Matthews over an extended period of time to

dislodge the candy ball from MBM's throat and clear his airway.

9. The candy ball caused MBM to sustain an injury to his throat for which he was

transported via ambulance to a hospital where he received medical treatment.

10. MBM's near-death experience continues to cause severe emotional and mental

distress and anxiety to MBM, Mark E. Matthews and Kristina Matthews.

COUNT I-MANUFACTURING DEFECT

(Mark E. Matthews and Kristina Matthews, as parents and natural guardians ofMBM, a minor)

11. Plaintiffs adopt and incorporate by reference the allegations of paragraphs 1

through 10 as if fully set forth here and at length.

12. Spangler designed, manufactured and distributed the Defective Dum Dum Sucker.

13. The Defective Dum Dum sucker was unreasonably dangerous and defective in its

manufacture in that shortly after MBM began sucking on the candy ball, suddenly and without
warning, the candy ball slipped and/or came off the stick and lodged in MBM's throat instead of

slowly dissolving 'while it remained affixed to the stick, as it should have.

14. The Defective Dum Durn Sucker was expected to and did reach the user without

substantial change in the condition in which it was designed, manufactured, distributed and sold

by Spangler.

15. As designed, manufactured, distributed and sold by Spangler, the Defective Durn

Dum sucker was unreasonably dangerous and incapable of being safely used by its intended user

when used by MBM.

16. As a direct and proximate result of the defective and unreasonably dangerous

design, manufacture, distribution and sale of the Defective Dum Dum sucker, the candy ball

slipped and/or came off the stick and lodged in MBM's throat, causing MBM's airway to close

for an extended period of time and further causing MBM's life to be in peril due to lack of

oxygen.

17. As a direct and proximate result of the defective and unreasonably dangerous

design, manufacture, distribution and sale of the Defective Dum Dum sucker, MBM was caused

to sustain an injury to his throat, he was bruised about his body due to his father's heroic efforts

to dislodge the candy ball from this airway, and he was caused to endure and, in the future, will

endure pain and suffering, emotional trauma, anxiety and distress, loss of life's pleasures and

inconvenience.

18. As a direct and proximate result of the defective and unreasonably dangerous

design, manufacture, distribution and sale of the Defective Dum Dum sucker, MBM has incurred

and, in the future, may incur medical bills and other out-of-pocket losses and damages.
 WHEREFORE, and based on the foregoing, Plaintiffs, Mark E. Matthews and Kristina

Matthews, as parents and natural guardians of MBM, a minor, respectfully request a judgment in

favor of MBM and against the Defendant, Spangler Candy Company, in an amount in excess of

Thirty Thousand Dollars ($30,000.00), punitive damages, and costs of this action and any other

relief deemed just and proper.

COUNT 11- MANUFACTURING DEFECT-FAILURE TO WARN

(Mark E. Matthews and Kristina Matthews, as parents and natural guardians of MBM, a minor)

19. Plaintiffs reallege and incorporate by reference paragraphs 1 through 18 above as

though fully stated herein.

20. Despite knowledge that the candy ball of its Dum Dum suckers has a propensity

to slip and/or come off the stick suddenly and without warning, Spangler failed to warn Plaintiffs

and other users of such risks, dangers and hazards, thereby knowingly creating a dangerous

choking risk to minor children such as MBM.

21. Despite knowledge of the hazards and dangers associated with minor children of

MBM's age choking on the candy ball of a Dum Dum Sucker, Spangler failed to warn Plaintiffs

and other users of such risks, dangers and hazards, thereby knowingly creating a dangerous

choking risk to minor children the age ofMBM.

22. The conduct of Spangler described in paragraphs 20-21 was outrageous, willful

and recklessly indifferent to the safety and well-being of MBM.

23. As a direct and proximate result of the defective and unreasonably dangerous

design, manufacture, distribution and sale of the Defective Dum Durn sucker and failure to warn,

the candy ball slipped and/or came off the stick and lodged in MBM's throat, causing MBM's

airway to close for an extended period of time and further causing MBM's life to be in peril due

to lack of oxygen.
 24. As a direct and proximate result of the defective and unreasonably dangerous

design, manufacture, distribution and sale of the Defective Dum Dum sucker and failure to warn,

MBM was caused to sustain an injury to his throat, he was bruised about his body due to his

father's heroic efforts to dislodge the candy ball from this airway, and he was caused to endure

and, in the future, will endure pain and suffering, emotional trauma, anxiety and distress, loss of

life's pleasures and inconvenience.

25. As a direct and proximate result of the defective and unreasonably dangerous

design, manufacture, distribution and sale of the Defective Dum Dum sucker and failure to warn,

MBM has incurred and, in the future, may incur medical bills and other out-of-pocket losses and

damages.

WHEREFORE, and based on the foregoing, Plaintiffs, Mark E. Matthews and Kristina

Matthews, as parents and natural guardians of MBM, a minor, respectfully request a judgment in

favor of MBM and against the Defendant, Spangler Candy Company, in an amount in excess of

Thirty Thousand Dollars ($30,000.00), punitive damages, and costs of this action and any other

relief deemed just and proper.

COUNT III - NEGLIGENCE

(Mark E. Matthews and Kristina Matthews, as parents and natural guardians ofMBM, a minor)

26. Plaintiffs reallege and incorporate by reference paragraphs 1 through 25 above as

though fully stated herein.

27. Spangler negligently designed, manufactured and distributed the Defective Dum

Dum Sucker in that shortly after MBM began sucking on the candy ball, it slipped and/or came

off the stick and lodged in MBM's throat instead of slowly dissolving while it remained affixed

to the stick, as it should have.

 28. Spangler failed to manufacture the candy sucker such that the candy ball would

remain attached to the stick while the candy ball dissolved.

29. The doctrine ofres ipsa loquitur establishes Spangler's negligence liability in that

the candy ball should not slip and/or come off the stick in the absence of negligence in

manufacture, MBM's conduct as the cause of the candy ball slipping and/or coming off the stick

is eliminated as a matter of law due to his age, and the indicated negligence is within the scope of

Spangler's duty to MBM and his parents.

30. The Defective Dum Dum Sucker was expected to and did reach the user without

substantial change in the condition in which it was designed, manufactured, distributed and sold

by Spangler.

31. As designed, manufactured, distributed and sold by Spangler, the Defective Dum

Dum sucker was unreasonably dangerous and incapable of being safely used by its intended user

when used by MBM.

32. As a direct and proximate result of Spangler's negligent conduct and

unreasonably dangerous design, manufacture, distribution and sale of the Defective Dum Dum

sucker, the candy ball slipped ofI the stick and lodged in MBM's throat, causing MBM's airway

to close for an extended period of time and further causing MBM' s life to be in peril due to lack

of oxygen.

33. As a direct and proximate result of Spangler's negligent conduct and

unreasonably dangerous design, manufacture, distribution and sale of the Defective Dum Dum

sucker, MBM was caused to sustain an injury to his throat, he was bruised about his body due to

his father's heroic efforts to dislodge the candy ball from this airway, and he was caused to
endure and, in the future, will endure pain and suffering, emotional trauma, anxiety and distress;

loss of lifes pleasures and inconvenience.

34. As a direct and proximate result of Spangler's negligent conduct and the defective

and unreasonably dangerous design, manufacture, distribution and sale of the Defective Dum

Dum sucker, MBM has incurred and, in the future, may incur medical bills and other out-of-

pocket losses and damages.

WHEREFORE, and based on the foregoing, Plaintiffs, Mark E. Matthews and Kristina

Matthews, as parents and natural guardians of MBM, a minor, respectfully request a judgment in

their favor and against the Defendant, Spangler Candy Company; in an amount in excess of

Thirty Thousand Dollars ($30,000.00), punitive damages, and costs of this action and any other

relief deemed just and proper.

COUNT IV- NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

(Mark E. Matthews and Kristina Matthews, as parents and natural guardians ofMBM, a minor)

35. Plaintiffs reallege and incorporate by reference paragraphs I through 34 above as

though fully stated herein.

36. Mark E. Matthews and Kristina Matthews were situated in close physical

proximity to MBM and witnessed their son choking on the candy ball and gasping for air.

37. Mark E. Matthews and Kristina Matthews endured the terror of desperately

trying to dislodge the candy ball from MBM's throat before it was too late to save his life.

38. Mark E. Matthews and Kristina Matthews were caused to endure and, in the

future, will endure pain and suffering, emotional trauma, anxiety and distress, loss of life's

pleasures and inconvenience as a result of their contemporaneous, sensory witness of the near-

death of their son.

 WHEREFORE, and based on the foregoing, Plaintiffs, Mark E. Matthews and Kristina

Matthews, respectfully request a judgment in their favor and against the Defendant, Spangler

Candy Company, in an amount in excess of Thirty Thousand Dollars ($30,000.00), punitive

damages, and costs of this action and any other relief deemed just and proper.

Respectfully subrni tted:

MEy){il, DARRAGH,
BE~~~ & ECK, P.
/" / .
By: J
~ER~ D WS, JR., ESQ.
riey for l~{ iffs, Mark E. Matthews
Kristina M thews, Individually and
ents an Natural Guardians ofMBM,
ammor

40 N. Pennsylvania Avenue, Suite 410

Greensburg, PA 15601
Telephone No: (724) 836-4840
Fax No: (724) 836-0532

CERTIFICATE OF COMPLIANCE

I certify that this filing complies with the Public Access Policy of the Unified Judicial

System of Pennsylvania: Case Records of the Appellate and Trial Courts requiring that

confidential information and documents be filed differently than information and documents that

are not confidential.

. 7
MEYER, .DARRAGH, BUCKLER,
BEBENEK & ECK, P .L.L.C .
../~':~><J
/</~
By:
,..
;e~DP.MATTHEWS,
I
JR., ESQ.
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 VERIFICATION

I, Mark E. Matthews, hereby verify that the statements set forth in the foregoing

Complaint are true and correct to the best of my knowledge, information and belief.

I understand that these statements of fact are made subject to the penalties of 18 Pa.C.S.§

4904 relating to unsworn falsification to authorities.

Date: _%_i c

t-/1-----iUI_I ~-=------_
Mark E. Matthews