VRP:FTCA:BARKSDALE:ANSWER.REV

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BERNICE BARKSDALE, )

)

Plaintiff, )

)

v. ) Civil Action No. 02-4397

)

KHL MARKET SQUARE, L.P., )

UNITED STATES POSTAL SERVICE, )

Defendants. )

ANSWER TO JOINDER COMPLAINT, AFFIRMATIVE DEFENSES

AND NEW MATTER - CROSS CLAIM

The United States of America, on behalf of the United

States Postal Service, hereinafter referred to as “Federal

Defendant”, by and through its counsel, Patrick L. Meehan,

United States Attorney for the Eastern District of

Pennsylvania, and Virginia R. Powel, Assistant United States

Attorney for said District, answers Plaintiffs' Complaint in

like numbered paragraphs as follows:

1. Admit.

2. Admit.

3. Paragraph three of the Complaint sets forth

procedural and/or jurisdictional allegations as well as

conclusions of law to which no response is required. To the

extent this paragraph is deemed to contain allegations of

material fact, they are denied.

4. Denied. It is specifically denied that the

Federal Defendant is the lessor of the subject property, or

Case 2:02-cv-04397-NS Document 2 Filed 07/10/2002 Page 1 of 8
VRP:FTCA:BARKSDALE:ANSWER.REV

-2-

that its duties under the written lease included the

maintenance of the subject area. By way of further answer,

the Federal Defendant is the lessee of the subject property

under a lease with Defendant KHL Market Square Ltd. The

Federal Defendant avers that pursuant to the lease

agreement, KHL Market Square, Ltd. is responsible for

maintenance of the subject area.

5. Denied. The Federal Defendant is without

sufficient information to form a belief as to the truth of

the averment that KHL Market Square has pled denial of

responsibility, as KHL Market Square has not filed an Answer

to the Complaint. The balance of averments of Paragraph 5

consist of conclusions of law to which no response is

required. Federal Defendant specifically denies that it is

jointly or severally liable, by way of contribution and

indemnification, for any damages assessed against KHL Market

Square, Ltd.

6. Defendant incorporates its responses to Paragraphs

1 - 5 as its response to Paragraph 6.

7. Denied. To the extent that Paragraph 7 consists

of conclusions of law, no response is required. To the

extent that Paragraph 7 consists of allegations of fact, it

is denied. The Federal Defendant specifically denies that

Case 2:02-cv-04397-NS Document 2 Filed 07/10/2002 Page 2 of 8
VRP:FTCA:BARKSDALE:ANSWER.REV

-3-

any damages were caused by the negligence and carelessness

of the United States Postal Service, or that it breached any

duty imposed under its lease with KHL Market Square, Ltd.

8. Denied. Paragraph 8 consists of conclusions of

law to which no response is required. The Federal Defendant

specifically denies it is jointly or severally liable, by

way of contribution or indemnification to KHL Market Square,

Ltd.

The text immediately following the word “WHEREFORE”

sets forth Plaintiffs' prayer for relief to which no

response is required. To the extent this text is deemed to

contain allegations of material fact, they are denied. 

AND FURTHER answering, Defendant avers: 

JURY DEMAND

Pursuant to 28 U.S.C. § 2402, Plaintiffs are not

entitled to a jury trial against the Federal Defendant.

FIRST AFFIRMATIVE DEFENSE

Federal Defendant did not have a legal duty to maintain

the premises.

SECOND AFFIRMATIVE DEFENSE

Federal Defendant did not fail to discharge any duty it

owed to Plaintiff. 

Case 2:02-cv-04397-NS Document 2 Filed 07/10/2002 Page 3 of 8
VRP:FTCA:BARKSDALE:ANSWER.REV

-4-

THIRD AFFIRMATIVE DEFENSE

Any damages sustained by Plaintiff were solely and

proximately caused by the carelessness, recklessness, and

negligence of the Plaintiff. 

FOURTH AFFIRMATIVE DEFENSE

Plaintiff's claims are barred, in whole or in part, by

her own comparative negligence.

FIFTH AFFIRMATIVE DEFENSE

Defendant denies that it or any of its agents or

employees engaged in any conduct which was the proximate

cause of the injuries, damages and losses allegedly incurred

by Plaintiff.

SIXTH AFFIRMATIVE DEFENSE

Under 28 U.S.C. §2412(d)(1)(A), Plaintiffs cannot

recover attorney's fees from the United States of America.

SEVENTH AFFIRMATIVE DEFENSE

The United States Postal Service may not be sued eo

nomine.

Case 2:02-cv-04397-NS Document 2 Filed 07/10/2002 Page 4 of 8
VRP:FTCA:BARKSDALE:ANSWER.REV

-5-

EIGHTH AFFIRMATIVE DEFENSE

The plaintiff has no direct claim against the Federal

Defendant. The Federal Defendant may be found liable for

indemnity or contribution to KHL Market Square, Inc. only if

the defendant KHL Market Square is held to be liable to the

plaintiff.

Federal Defendant reserves the right to amend its

Answer with additional defenses of which it may become aware

as discovery progresses, and to raise any other matter

constituting an avoidance or affirmative defense.

WHEREFORE, Federal Defendant prays that Plaintiff take

nothing by way of her Complaint, that the same be dismissed,

and that judgment be awarded in favor of Federal Defendant,

together with costs, and for such other and further relief

as the Court deems appropriate in this case.

NEW MATTER CROSS-CLAIM

1. Federal Defendant avers that pursuant to the lease

agreement Defendant KHL Market Square, Ltd. owned,

controlled and/or maintained the area of the parking lot

where Plaintiff allegedly fell.

2. Federal Defendant avers that pursuant to the lease

agreement, the area where Plaintiff allegedly fell was

owned, controlled and/or maintained by Defendant KHL Market

Case 2:02-cv-04397-NS Document 2 Filed 07/10/2002 Page 5 of 8
VRP:FTCA:BARKSDALE:ANSWER.REV

-6-

Square, Ltd. and that Defendant KHL Market Square, Ltd. had

the exclusive responsibility to maintain and/or repair the

subject property.

3. If Plaintiff was not injured solely by her own

negligence, carelessness and/or recklessness, Federal

Defendant avers that Plaintiff was injured either solely or

in part by the negligence of Defendant KHL Market Square,

Ltd.

WHEREFORE, Federal Defendant demands judgment in its

favor and against KHL Market Square, Ltd. either jointly

and/or severally, in any amount awarded against Defendant

KHL Market Square, Ltd., or that Defendant KHL Market

Square, Ltd. indemnify and hold harmless Federal Defendant

or be subject to contribution to Federal Defendant for any 

Case 2:02-cv-04397-NS Document 2 Filed 07/10/2002 Page 6 of 8
VRP:FTCA:BARKSDALE:ANSWER.REV

-7-

amounts recovered by Plaintiff.

Respectfully submitted,

PATRICK L. MEEHAN

United States Attorney

 

JAMES G. SHEEHAN

Assistant United States Attorney

Chief, Civil Division

 

VIRGINIA R. POWEL

Assistant United States Attorney

Attorney I. D. No. 32230

615 Chestnut Street, Ste. 1250

Philadelphia, PA 19106-4476

Phone:(215) 861-8263

Fax: (215) 861-8349

OF COUNSEL:

Joseph R. Doyle

United States Postal Service

Law Department, National Tort Center

P.O. Box 66640

St. Louis, MO 63166-6640

(314) 872-5120

Case 2:02-cv-04397-NS Document 2 Filed 07/10/2002 Page 7 of 8
VRP:FTCA:BARKSDALE:ANSWER.REV

-8-

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing Answer to Joinder Complaint and Affirmative

Defenses was served upon all interested parties by

depositing same in the United States mails, postage prepaid,

July 11, 2002, addressed to:

Dale G. Larrimore, Esquire

Deutsch, Larrimore & Farnish, P.C.

1800 JFK Boulevard, Suite 500

Philadelphia, PA 19103

Brian M. Marriott, Esquire

Plakins, Rieffel & Ray, P.C.

140 East State Street

P.O. Box 1287

Doylestown, PA 18902

 

VIRGINIA R. POWEL

Assistant United States Attorney

Case 2:02-cv-04397-NS Document 2 Filed 07/10/2002 Page 8 of 8