HomeMy WebLinkAbout96-06932
~
~.
'." ,
~l ,
\1; "
;'1') -1Jt
~'
f
,~
~
"
~
t
'~
~
.......
'. ..
.0
~.
,
.J;
I.
Ii
I..,
.,
.,
IiI
"
1'1
'j,
),
/
',I
I,
I'
"
I'
II
,
,
I,
ii,
"
Ij
.,
. I
"
\-)1
;1
, .
;';11,
'J
,"
.,
'i
..,
~.
'.. 'II r~
(I' .;J
" ni..~
~f ,.
c.: , 1.,'J
i" .... ';~
".,
..1/ u..
r_ I"
... .r ' ill
" Ill.:~
.i.I
..
~\:' . dfE
.
I.. H-
~j p- d
,~.
"
\~
~)
:t: 'll r:.~ "
Ii- .u
f-; "7 \':1:
)1".
r "
"- ...... )"",
'f. '" oS
u. "::1
.'
,. .H
I.
I. '.- II J l'_j~
llY" . :~J~
.
f: .- "j
II. b:
(:) 0
1i: VI 'I"
... f;
.!~ I''''
fi,; .:.:, 1.5
,~ h
~i"'; rt
t:,... 1~1
I ,..., ~~
.I - ,.
I' " "- 1111
..
.. ~i;
j .d
"'j 8 ")
.... t:.J
"
'>- 'tI
~,.. ..,
1"":, I,t,~ J",.. "
ut' ;-'J
h' ,.., : ;.l~
. " I.,". '.'!
Sl[ ,.
r.... ' r;l
fDL .- I.i,
[J~ I' ,I " Jill
I ~~
'-''I b~
<,
I'
,I
" '
.
, . .
"
,
!i "
1,1
" ,
' ,
,
I
.,
'j
"
,,'I,
"
'I
'L"
I'll,
tI; (:
~}~
J~1
en "(1
11;11
Hit!
d
;iL
f)
"Ii\!
',Ii
'~.
1,\
'I
,1
.,
Ii
~ !
&ih~1
!i1i'l!
'II' i
"
I"
..!
.;
'J!
\ ,~: )
'i:
,":
j'Y\"Q~I'lnt\tr'Yl.,~.1
~ATBY u. T~VXS/
phintUr
v.
X" TKI OO~T or OONNO" PulAB
Ol1NBIRUlfD OOUNTY, PINNBYuVlUUA
"0. 915 -&93:1
OATI.PXuuAR, XNO.,
HYSTI. OONPANY, now known ..
NAOCO BUXuDXNG KATIRXALS
HANDuXNG GROUP, X"O., and
JAOk NoOuAXN,
Dahlld.nt.
OXVIu AOTIO" . uAW
JURY TRIAL DBNANPIO
PQNPLAINT
AND "OW, comes the Plaintiff, Patsy 'l'ravis, by and through her
attorneys, HANDulR " WUlHBR,
and maltes the within Complaint
against Defendants Caterpillax', Inc., Hyster Company, now known as
NACCO auilding Materials Handling Group, Inc., and .Jack McClain,
and in support thereof avers as follows I
1. Plaintiff, patsy Travis, is an adult individual ourrently
reRiding at 672 Randol' Street, Harrisburg, Dauphin County,
Pennsylvania 17110.
2. Defendant, Caterpillar, Inc., is a Delaware oorporation
doing business in Pennsylvania, with a registered place of service
looated at 1635 Market Street, Philadelphia, Philadelphia County,
commonwealth of Pennsylvania 19103.
3. Defendant, Hyster Company, now known as NACCO Building
Materials Handling Group, Inc., hereinafter Hyster, is an Oregon
oorporation certified to do business in Pennsylvania, with a
registered place of service located at 1635 Market Street,
1
Philadelphia, Philadelphia County, Commonwealth of Pennsylvania
19103.
4. Defendant, Jaok MoClain, is an adult individual with a
ourrent mailing address of % Aycock, Inc., 8261 Derry Street,
Hummelstown, Dauphin County, Commonwealth of Pennsylvania 17036.
5. On or about January 27, 1995, ~laintiff, Patsy Travis,
was working at a place of business known as True Temper, Inc./
Huffy Corporation, in Camp Hill, Cumberland county, ~ennsylvania.
6. Or about January 27, 1995, Defendant, Jack McClain, was
operating II lift truck a/k/a forklift, hereinafter referred to as
forklift, on the premises of True 'rempel', Inc./ Huffy Corporation
while ~laintiff, Patsy Travis, was on the premises. Dofendant
MoClain was operating the forklift within the scope of his
employment with Aycook, Inc., an independent contractor.
7. At all times material hereto, Defendant, Hyster, acting
on its own and/or through its agents, servants, and/or employees,
was engaged in the design, fabrication, manufacture, assembling,
marketing and/or sale of the make and model forltlift used by
Defendant, Jack MoClain, on January 27, 1995.
8, Alternatively, at all times material hereto, Defendant,
Caterpillar, Ino., acting on its own and/or through its agents,
sarvants, and/or employees, was engaged in the design, fabrication,
manufaoture, assembling, marketing and/or sale of the make and
model forklift used Joy Defendant, Jaok Moclain, on January 27,
1995.
2
9. On ox- about January 27, 1995, Pefendant, Jack McClain Willi
opex-8ting the fox-klift when he ran over Plaintiff' II foot, caulling
the injux-iell dellcribed hereinafter.
10. It ill believed and therefore averred that llaid forklift
did not have a llignal or "beeper" that llounded when it wall moving
in x-everlle.
11. Alternatively, if llaid forklift did have a signal ox-
"beeper" that llounded when it wall moving in reverse, it did not
have a llhut-down sYlltem that would prevent the operation of the
forklift or any type of flallhing light mechanism that would warn
nearby individuals in the event that the "beeper" was not
functioning and/or audible.
12. As a direct and proximate rellult of the negligence of
Pefendant, Jack McClain, and/or the defective product of Pefendant,
Caterpillar, Inc., or Pefendant, lIyster, the forklift ran over the
right foot of Plaintiff, Patsy Travis, who suffered llerioull bodily
injuriell, which will hereinafter be more fully described.
PATSY TRAVIS v. CATIRPILLAR. INO.
COUNT I
Strict Liability
13. Paragraphs 1-12 of this complaint are incorporated herein
all if llet forth at length.
14. Upon information and belief, the accident of JanUary 27,
1995, wherein Plaintiff, Patsy Travis, was injured, was aaused by
the defective condition nf the forklift, which defect existed at
3
the time the forklift left Defendant's care, custody, and control,
and rendered the forl<lift unreasonably dangerous to those nearby
its operation.
15. As the ~esult of the defective nature of the forklift,
Defendant is strictly liable to Plaintiff pur~uant to S402A of the
Restatement (Second) of Torts for the following reasons I
(a) failing to properly and adequately design the
forklift, including but not limited to the installation of a
pack-up beeper, installation of a flashing light to warn those
in the vicinity of the for)<lift of the presence of the
forklift or the installation of a shut-down mechanism that
would prevent the operation of the forklift if the back-up
beeper or flashing light became non-functioning,
(b) failing to properly and adequately manufacture the
forklift, including but not limited to the installation of a
back-up beeper, installation of a flashing light to warn those
in the vicinity of the forklift of the presence of the
forklift or the installation of a shut-down mechanism that
would prevent the operation of the forklift if the back-up
beeper or flashing light became non-functioning"
(c) selling a product which was defectively designed,
(d) selling a product which was defectively
manUfactured,
(e) failing to warn Plaintiff, Patsy Travis, of the
dangerous nature of the forklift, and
4
(f) manufaoturing and selling a produot that was
unreasonably dangerous as aforesaid.
16. As A direct result of the defects in the fOl'klift as
duoribed above, Plaintiff, Patsy 'l'ravls, has auffared aevere
injuries inoluding, but not limited to, a crush injury of the right
foot, fraotures of the aecond, third, and fourth toea of the right
foot, fraotures of the seoond and third metatarsala of the right
foot, and multiple lacerations of the toes, all of which required
emergenoy surgery, the ins6rtion or uuage of pins and a cast, and
oontinuing' medical treatment.
17. As a direct result of the defects in the forklift as
desoribed above, Plaintiff, Patsy Travis, has auffered great
physioal pain, discomfort, and mental anguish, and wi 11 continue to
endure the same for an indefinite period of time in the future, to
her great physical, emotional and financial detriment and loss.
18, As a direct result of the defects in the forklift as
desoribed above, Plaintiff, Patsy Travis, has been, and will in the
future be, hindered from performing the duties required by her
usual ocoupation and from attending to her daily duties and chores,
to her great loss, humiliation and embarrassment.
19. As a direct result of the defects in the forklift as
described above, Plaintiff, Patsy Travis, has been compelled, in
order to effect a cure for aforesaid injuries, to expend large sums
of money for medicine and medical attention. Plaintiff, Patsy
Travis, oontinues to receive treatment and incur expenses of said
5
injuries, and will most likely continue to do so in the future, to
her great detriment and loss, and a olaim is made therefore,
20. As a dinot result of the defects in the forklift as
describod above, Plaintiff, Patsy Travis, has suffsred lost wages
and the ability to earn wages by means of gainful employment, and
may continue to suffer such impair.mant in the future, and a claim
is made therefore.
21. Plaintiff, Patsy Travis, believes, and therefore avers,
that her injuries are pcrmanent in nature.
WHIlIRIlIII'ORI, Plaintiff, Patsy 'l'ravis, seelts damages from
the Defendant, Caterpillar, Inc" in an amount in excess of twenty-
five thousand ($25,000.00) Dollars, which amount exceeds the
jurisdiction requirement for compulsory arbitration.
COl1N'l' II
Negligence
22. Paragraphs 1-21 of this Complaint are incorporated herein
as if set forth at length.
23. The negligence of Defendant consisted ofl
(a) failing to discover t.he defect in the forklift when
Defendant knew or should have known that such a defect
existed,
(b) failing to take steps necessary to repair the
forklift,
(c) failing to properly test the forklift,
6
(d) manu~aoturing, designing and selling a ~oX'kli~t
witnout an adequate warning system, including but not limited
to a baok-up beeper, flashing light or power shutdown
meonanism if the back-up beeper or flashing light became non-
funotional/ and
(e) failing to provide any warnings regarding the ul!!e of
the forltlift in a reverse mode.
24. AI!! a direct result of Defendant's negligsnce, Plaintiff,
Patsy Travil!!, hal!! suffered the injuriel!! and damages as set forth
above in Paragraphs 16 through 21 as though fully set forth herein.
WHIR.roRlIl, Plaintiff, Patsy '1'ravis, seeks damages from the
Defendant, Caterpillar, Inc" in an amount in excess of twenty-five
thousand ($25,OOO.00l Dollars, which amount exceeds the
jurisdiotion requirement for oompulsory arbitration.
COUN'l:' I II
Breaoh of Warranty
25. Plaintiff, Patsy Travis, incorporates and makes part of
this Count paragraphs 1 through 24 of this complaint as fully set
forth.
26. At the time Defendant sold the forklift, Defendant
warranted, both expressly and impliedly, that the forklift wal!! free
from defeots, and was safe and suitable for the uses for which it
was intended.
7
27, O~fendant breaol1ed the aforellaid warl:anties, poth expreu
and implied, Py providing Il forltlift whioh wall defective all more
fully delloribed above.
28. All a direot rellult of Defendant'll breach of itll exprellll
and implied Wllrrantiell, Plaintiff, PatllY Travia, haa auffered the
injuriea and damages aet forth above in Paragrapha 16 through 21 ae
though fully Ilet forth herein.
WHIR.rORB, Plaintiff, Patsy 'l'ravis, seolts damagea from
Oefendant, caterpillar, Ino., in an amount in excess of twenty- five
thousand
($2~,OOO.00)
DOllars,
which amount exceeds
the
jurisdiotion requirement for compulaory arbitration.
PATSY TRAVIS v. KYST.a CO~PANY. now known as NACOO BUINPING
~T.RIALS HANDLING GROUP. IN~
COl1N'1' IV
Stricr. Liability
29. Plaintiff, Patsy Travis, incorporatea and makes part of
this Count, paragraphs 1 through 28 of thia Complaint aa fully set
forth.
30, Upon information and belief, the aocident of January 27,
1995, wherein Plaintiff, Patsy Travis, W~s injured, waa caused by
the defective condition of the forklift, which defect existed at
the time the forklift left Defendant's care, cuatody, and contl:.'ol,
and rendered the forklift unreasonably dangerous to thoae nearby
its operation.
8
,
31. As the result of the defective nature of the forklift,
Defendant is strictly liable to Plaintiff, Patsy Travis, pursuant
to S402A of the Restatement (Seoond) of Torts for the following
l'easonlill
(a) failing to properly and adequately design the
forklift, including but not limited to the installation of a
back-up beeper, installation of a flashing light to warn those
in the vicinity of the forl(lift of the presence of the
fOl'klift or the installation of a shut-down mechanism that
would prevent the operation of the forkJ.ift if the back-up
beeper or flashing light became non-functioning,
(b) failing to properly and ad~quately manufacture the
forklift, inoluding but not limited to the installation of a
baok-up beeper, installation of a flashing light to warn those
in the vioinity of the forklift of the presence of the
forldift or the installation of a shut-down mechanism that
Would prevent the operation of the forklift if the back-up
beeper or flashing light beoame non- funct toning,
(c) selling a product which was defectively designed,
(d) selling a product which was defectively
manUfactured,
(e) failing to warn plaintiff of the dangerous nature of
the forklift, and
(f) manufacturing and selling a product that was
unreasonably dangerous as aforesaid.
9
32. All II direot rllllult of thl! defects in the forklift 8S
desoribed above, Plaint iff 1 Patsy 'l'ravis, has suffered the injuries
and damages set forth above inParagl:aphll 16 tlu"ough 21 as though
fully set forth herein.
mrlRlrORl, PlaintHf, Patsy 'l'ravis, seel(s damages from
Oehndant, Hyster Company, now known as NI\CCO Building Materials
Handling Group, Inc., in an amount in excess of twenty- five
thousand
($25,000.00)
Dollars,
which amount exceeds the
jurisdiotion requirement for compulllory arbitration,
ClOUN'l' V
~.gli".nc.
33. Plaintiff, Patsy Travis, incorporatea and makes part of
this Count, paragraphs 1 t.hrough 32 of this Complaint as fully set
forth.
34. The negligence of Defendant consisted ofl
(a) failing to discover the defect in the forklift when
Defendant knew or should have known that such a defeot
existed,
(b) failing to take steps necessary to repair the
forklift,
(0) failing to properly test the forklift,
(d) manufacturing, designing and selling a forklift
,
without an adequate warning system, including but not limited
to a back-up beeper, flashing light or power shutdown
10
mechanism it the back-up beepor or flashing light became non-
functional, and
(e) failing to provide any warnings regarding the use of
the forklift in a reverse mode.
35. As a direct result of Defendant's negligence, Plaintiff,
Patsy Travis, has suffered the injuries and damages as set forth
above in Paragraphs 16 through 21 as though fully set forth herein.
WHIRIFORI, Plaintiff, Patsy 'l'ravis, seeks damages from
Pefendant, Hyster Company, now known as NACCO Building Materials
Handling Group, Inc., in an amount in excess of twenty-five
thousand ($25, OOQ. 00 l Dollars, which amount exceedl3 the
jurisdiction requirement for compulsory arbitration.
COUNT VI
Breaoh of Warranty
36. Plaintiff, Patey Travis, incorporates and makes part of
this count, paragraphs 1 through 35 of this Complaint as fully set
forth.
37. At the time Defendant sold the forklift, Defendant
warranted, both expressly and impliedly, that the forklift was free
from defects, and was safe and suitable for the uses for which it
was intended.
38. Defendant breached the aforesaid warranties, both expresl3
and implied, by providing a forklift which was defective as more
fully described above.
11
39. As a direot result of Defendant's preaoh of its express
and implied warranties, Plaintiff, Patsy'rravis, has suffered the
injuries and damages set forth above in Paragraphs 16 through 21 as
though fully set forth herein.
WHlalroal, Plaintiff, Patsy 1'ravis, aeeks damages from
Defendant, Hyster Company, now known as NI\CCO auilding Materials
Handling Group, Ino., in an amount in exoess of twenty-five
thousand ($25,000.00) Pollars, which amount exceeds the
jurisdiotion requirement for compulsory arbitration.
ml.llli'L'lll
PATSY TRAVIS v. ~~QK MoOLAIn
40. Plaintiff, Patsy Travis, incorporates and makes part of
this count, paragrapha 1 through 39 of this Complaint as fully set
forth.
41. The ocourrenoe of aforesaid events and the resultant
injuries was the direot and proximata result of the negligence of
the Defendant, Jaok MoClain, more specifically set forth as
follows I
(a) In failing to keep a proper lookout for pedestrians
behind and around the forklift as he wae operating
itl
(p) In failing to give such warning as was necessary to
make pedestrians aware that he was operating said
forklift I
12
(0) In tailing to operate uid torltlift at lIuah a
lIpeed, and under Much control, that he could lItop
it prior to injuring the Plaintiff, and
(d) In recklessly and dangerously operating said
forltlift in such a manner as to cause said injuries
to Plaintiff.
42, As a result of the negligence of Defendant, Plaintiff,
patllY Travis, has suffered the injuriell and damages set forth above
in Paragraphs 16 through 21 as though fully set for.th herein.
WKJla.roa., Plaintiff, Patsy Travis, seel<s damages from
the Defendant, Jaclt McClain, in an amount in excess of twenty-five
thousand ($25,000.00)
Dollarll, which amount exceeds the
jurisdiction requirement for compulsory arbitration.
KANDLBR & WI.~.a,
Oatel {;-3-=.97
re
"
BYl
W.
I.
P.
Attorney for Plaintiff
13
.~t."'~"'1 "nU"N - fLlMMONI 'COM"~~INl
!
() /' /
fJ;r 1f! ' 1111t""
J) II vn"Ufi
!!I L~lclfl/ll( lit:'
(j! /I/~ (1)/" !ivy
tN' Jlr
mm:D ANn MMJE KNOWN To__./lA!/lqu/jji;;/IL
iA Al/-11.)/
CO~WOH "~~~a NO, (1ldlu ,)(,,-/
cO~~l COU"~I ~/J
7,:..- "67 JZ Htil>',lP
HO, 1 f!;ltJ/ ~ 11
t!l CI Do/andonl
/ i .., ....../.
a.J{ ~uelcndol11 Compony
by hO'ld~jl)( 10 t"ue I~IJ otleated copy of the wlthli.J)plmonB complt:t: ,IBBued In lho 01VO coplloned motlel
01, .., I)J . I ~ ..,' , , 19 7'/. .-,01 1L<' - o'doc~,.. /t _ M., E:.S,T.lD,S.T,
..' , I , , " /",
I')J ~ I' ',.' ') / I I /.. .,
01 ____ ___ L J) ,'I.II~IJJ' _~L ;nIJ.J; /(I1~/. ,..,.In th/~ ,Co,y ollhll~d~lphlo,
. f P I It'" J., 'A '\?/>1, y. (' I .1,,'/', //1.1'/;/'11 /(7/1';
Stol~ 0 annBY van a, 0 _,- /J.. L ,./...IL I.. - . I (.1 I' Li'j_' .".__Lf~L'u_ u._
1 '-;', '
,., (I) the aforcBald dololldant, pmonolly:
,-oJ (2) on odultmembol 01 tho lomlly 01 Bold dolal1donl, wlth whom Bold delandonl raBldoa, who aloted lhol
hls'her relolionahlp 10 sold delandont IB Ihol 01 ___._.__,_____.________._________
II (31 on odull porBon III r.hor9c or dolandont'a rasldcllce: Iho sold odult porBJI1 hovln9 ,efused, upon reo
quaat, to 91vc hla/her nome ond relolionshlp 10 Bald d%ndont;
[J (41 Ihe man0gel/del~ ollhe ploco of lod91n9 111 which Bold defendanl ,oBldes:
~~ 0gent or person for the lime beln9 In dlor9c 01 dolandanl's oWce or usual ploca 01 businesp,
CI (v) lhe ','u .m_" ,_ u __ ond olllcer 01 sold defendonl Company;
It '5I.\BSC\\\\li~
,,'\IIl<< \\lr. l' '" 4B!
--.--'
,11\0 \\l'\"~--
"~O,\~
.~"I>>I~~llloll<
l>Io\Il~al G~IJI'/ pu\)\kl
Jlldull$ 1~~:~b~I~(i\fe~\~,~~~lt~ge
PI,\\I\lIG.\,'\OIl e,p\I.'
If '.. I'h. 1~,~.I; MyCQl1\1 if*'
rlJUl'
So Answa,s,
JiJHN C, OIiUI'l, 5hetlll
, ,/'-'
t/(1! ~;;h:
i:
'/. ,
, ~ ,,~.-If
/jl I
, I { "
I
II,.' "
M., y Jlnll Bnyde,
11..1 t"th, t111~ljly
Office of the Sheriff
RlIlph (3, MC~III1I.,
Ohl., rI"""ly
Willi 1m T Tully
1;01101101
MIChuol~, Rlnanll"
~.U"lu"'I."'I)I I1l1P,,'Y
1I0"phln C IIIml y
1I."""''''ij, P""".ylvlIlIl. 1/101
(/17) n.t~OOQ
J. It. l.otwiak
Bher it't
COMNONWIA~TH 0' PBNNSYl.VANIA
COUNTY 0' DAUPHIN
SHBItI"'S ItBTURN
Ho. 0816-T - - -96
OTHE~ COUNTY NO, 96-6932
AND NOW. Deoember 31, 199/1 lit ll,40N>\served the within
WRIT OF IlU/tIONS
MCCLAIN JACK
CIO AYCOCl(, IN<:,
Bn KLINE - V,P, OF ACCOUNT
the or 19lnlll WRIT OF IlUMMONIl
him/her the contents thereof at
Ilworn and BUblcribed to
be!,O~e me thill 6~H dllr of ~ANUAlW', 199'7
"j;::t1) (~I. -r)a-"'fll())
. ~ -
I PROTHONOTARY'
TIl
upon
bV personally handing to
1 true attented copy(ies) of
and making known to
8261 DBRRY IlT,
HUMMBLIlTOWN, PA
17036-0000
90 'f~
~"rr or Da.phl.
County, Pa.
BV
Sheri!f'lI COlltel
$29.25 PO 12/30/96
~CPT NO 088032
Ii.
..
1M line ....ClJrT 1;1'
I\.
Pllt~y J.. 'l'rllv ia
1...:aTllllt.;d r 1<::-.;) "I ....;.;..::._.~I' .i-. j.... -:::......,., / I r:::. H;;' Y I 'fer:l 0
'IS.
JOllk MllCltlin
:'!Q.
l.(,...(,l' 'l;l C j\,' 1
'1'1~,J;;J1.l_.----,
'0
..,..-
~ow. Dee t 26 j p.J1J 6
~9---. I, S:~-:'R1:='!I' 0:: C':.~I3~A.'rn COr..'""X':'Y, ?A.., eo
hC"'..by CcplC:::: r.!:.I Sl:.cI..!i 01
Dauntl in
C'::U::17 to e.:tl:':'J14 ~ 'N;'!;
t!:1J Cl:J:u=ri.c11 bo:l.:.t :::lI.li: :u t.!:.= ~ :.::li riJk 0' r.:o ?tOl.i.::C3.
.",.,""'~,lfll /~
i"" :~!!.:.r"H'3;.r<. 1 _4ir1..-Lt!
!lien:! ct C".....~d C:UOI1, 1':.
.
AmdaTit Qr Seme:s
;tow, ~9 .. Ol.:!~c. :-rc. lc::-.-d
. -..
t!:t~tl:l:1
',trot1
~l
Icy =cili:1i t.Q
l C"':P'Y 01 co ori~.::..l -
"
:l:d ~ Ic.~ III :.!:..It ':c:tte::.~ .. '
t:.c~t.
<: '
....q a.::.swc:.
!lu:dil ot
COUAIT, P:.
=:t!:1.s_b.,cl
ti?_
cem
SD.,...,1CZ
:-rau....GZ
.~"7!D,.I, V17
!
5Wllr: .\lid IUf:=oJ:d bdcro
---~-_..--_.
!
.
. -.
lOt) \..QUrT CT .....:rnrnCi' rl<::-Ol '-', 1...J..._...;"I_l/...........l.,,'''/1 r:::dl:;,YIVCr.ld
I'ptBY ,I.. 'l'rov i II
'IS.
HYBter COlllpony
~QI
lJ (, - (~ [) :1 ~ J~ j V '1 'I' Q rill
, 0
-........ ....--
~QW,
Per:. 26. 1996
~9__ I. S}O-:'~!I' OF C';;;.(!D!.A.'1D coti'l':'Y, PA.., do
hc:!;y CcplC:::: t!:o !l:.ciii 01
Philode1phio
C'::UOI7 to C::Il:'J14 t!:ls ','y':::,
=:.s Cl:J:u== bo:!:l.r ~ :u t.!:.= ~ :.::a. :I~ 0' r.!:o P!OI.i.::C3.
{'
" "".t
....' (". , "-:""'. .~~.~
,(,~.....",........~; -( ~,
5hU'~ ct Su::!:l~d C:\lllI1, 1':.
ASdaTit or Semc::t
~QW, ~9 , :.c . 0' :lea '.t. lc::-.-d
t!:o witl:l:1
.
'~roll -
~c
by:::U:cili:1i t.Q
l C":t7Y ci co ct".;bJ -
..
,.
Ula. ~ CO'o'lU III t!::.o :::tCCt1 thc:=L
!q 1WW=i.
!lu:dil 01
COUAIT, P::.
==:.!:!s_e::."fcl
t9_
cem
SD.,'Y1O:
:-rm...:.ACZ
!
5Wllr: .\lie! IUI:u::il:d bdcro
A...::mA Vi:7
---~---_.
s
,_.~
I.
e; .~
.'~
I
..
."""
'I I 'I
"
Ii
.,
!
II ~!
, I
llll ~
!
.1
I.
II"
I
,
,
. ' .'
. .
.~~
'. './1;
1'\ II
~
~
.
'II '1
~
'j
. >~.."...... -.' ,.....
2, Admitted and Denied. Plnlntlft Is not employed by Ayoook. Ino, ond
oon8llquently has no first hond knowledgo os to whether Ayoook. Ino, owned or
leosed ony 11ft truoks/torkllfts monuhlotured by Coterplllor, Ino. Plaintiff bollevaR and
therefore overs that on Ayoook. Ino, employee, Jaok MoCloln. operllted the 11ft
truok/forkllft that struok her, Pllllntlff further believes end tharefore Ilvers, subjeot to
oonflrmatlon through the Dlsoovery prooess. thot the 11ft truok/torklltt that struok her
wos manufllotured by Cllterplllar,
3, Admitted os olarlfled. Plaintiff was employed by True- Temper (Huffy
Corporatlonl when she was struok on January 27. 1996 by 0 11ft truok/forkllft baing
oparllted by Jllok MoCIIlln, Plaintiff does not hove first hand knowledge whether the
warehousa Ilt whloh the Inoldent hoppened wes ownerJ by True- Temper,
4. Denied os olarlfled, On JllnLlary 27, 1996. Plaintiff wos struok by 0 11ft
truok/forkllft being oporated by Jaok MoClaln, Plaintiff was on employee of True-
Temper (Huffy Corporation), The Inoldent happanad at Plaintiff's plaoe of
employment. Plaintiff doas not hava first hand knowledge whether tha warehousa at
whloh the Inoldent heppened was owned by True.Temper.
S, Admitted as olarlfled, On January 27,1996. Jaok MoClaln was operating
o forkllft/llft truok at a wllrehouee at which Plaintiff wae working, Plaintiff wes
employed by True-Temper (Huffy Corporation), Plolntlff does not hllve first hand
knowledge whether the warehouse et which she wae working wae In fact Qwned by
True- Temper, Plaintiff believes and therefore avers. subject to confirmation through
2
the Discovery process, thetthe IIfltruck/forkllflthat struck her was manufllcturod by
Ceterplllllr,
6, Denied es clorltled. On Jenuary 27, 1996, Plelntlff enerts thot Jeck
McCleln, Iln Aycock, Inc, employoe, wes operotlng II forkllfllllfltruck thlltstruok her,
Plaintiff bllllevlls end therefore evors that the IIfltruck/forkllft bolng opereted by Jaok
McCleln WIl8 e Ceterplllllr 11ft truok/forkllft, however. If It Is later vurlfled through the
Dlsoovery procoss that the forkllftlllft truok In quostlon wos manufllctured by Hyster,
she will amend her pleedln9s aocordlngly, Further, Plaintiff Is without firsthand
knowledge whethor the warehouse at which this Incident took place was QYYJJ,gg by
True Tempar.
7. Denied as clerltled. Plaintiff bellevlls and therefore overs that tho 11ft
truck/forklift that struck her on January 27, 1996 did not hava a back-up safety alarm.
By way of clllrlflcatlon, Plaintiff does not hove firsthand knowledge whether Aycock,
Inc, owned or leased eny Ceterplllar forkllftlllft trucks on JIlnuary 27, 1996, howevar,
PIIllntlff believes end therefore avers that, the forkllftlllft truck that struok her was
operateQ by on Aycook employee known os Jaok MoCleln,
B, Admitted as olarltled, Plaintiff believes and therefore overs that the
forkllftlllft truok that struck her on January 27, 1995 and whloh was operated by an
Ayoook employee, Jaok MoClaln, did not hove 0 book-up safety elarm, Plaintiff
believes and therefore avers, subjeot to confirmation through the Dlsoovery process,
that the forklift/lift truok that struok her was manufaotured by Caterpillar, Further,
Plaintiff does not have sny first hand knowledge os to whether Ayoook owned or
3
..
.
04
,
~
3. On February 3, 199'7, plaintiff filed he~' complaint, A
true and con'act copy of thF.! Complaint ia att.ached hereto all
JJ:xhibit "A",
4, In the complaJ.nt, plilintiff attempts to set forth
claillls for strict liability, negligence and breach of warranty
against Caterpi llar Inc, and Hyster Company all well as negligence
claima against Jack McClain,
5, All of Plaintiff'a clailllS Bre baaed upon an accident
that occurred to plaintiff on January 2'7, 1995, On that day,
plaintiff had her foot allegedly run over by a lift truck at her
place of work, ~.6 of Complaint,
I. 'ailure Of Pleadipq 10 Con~orm To Law Or Rule Of Court
6, Rule 1019 of The Pennaylvania Rulea of Civil Procedure
requirea a pleading to state all lIIaterial facts in a concise and
aUllunary form,
7. Remarl<abl y, despite the fact that the Complaint allegea
that plaintiff was run over by only ~ lift truc)< (forldiEt),
plaintiff has sued .t.wJ different lift truck manufacturers, namely
Caterpillar and Hyster,
6, Although the Pennsylvania Rulea of civil Procedure
allow alternative pleading of causes of action, the Rules do not
allow a plaintiff to alternatively plead the key facts relating
to causes of action unleas the person has conducted a reasonable
investigation to aacertain the facts.
9, In the preaent case, the Complaint muat be stricken for
failure to conforlll to Rule of Court since the pleader could
\ III )r)l'W.WI'Ii
- 2 "
..
04
"
ascertuin the indent if icat ion of thtl 1 Ht t rucJ{ and has failed to
obtain this inforlllation,1
II. ,ailure To State A PJ~ee Of Action
10, PlaintHf'a Complaint haa failed to identify a /lpedfic
product manufacturer of the lift truck, lindeI' Pennaylvania .law,
a /lpecific p~'oduct lIIanufactllre~" mllat bE! identified or p.l.,intiff
llannot lIIaintain the cauaea of action for atrict liability,
negligence or breallh of warranty.
11, In its negligent counts, plaintiff a.lao claima that
defendant lIIanufacturers wen, negUgent bellause they faUI'ld to
take steps necesaary to repair the lift truck, However, under
Pennsylvania law, the lIIanufacturer haa no duty to repair,
lIIaintain, or aervice a product which ia sold by it,
12. Pursuant to Rule 1028 of the Pennsylvania Rules of
ci vii ProceduJ:e, plaint if f' a (:omplaint must be dismissed because
it fails, as a matter of law, to state any valid clailllS against
Caterpi llar.
III. Ineufficient S~~ity In A Pleadinq
13, Pespite having over two years to prepare her complaint,
and the fact that plaintiff worka at the place of the accident,
plaintiff'a Complaint is woefully inadequate with respect to its
fact pleading in the following respects I
Caterpillar is perplexed by plaintiff's alternate
pleading since the available evide~ce ehowe that the
lift truck wae a Hyeter, See Exhibit "9" attached to
thie Memorandum,
11)11!)I'''- ,WI",
- 3"
4
..
"
o. The Complaint faila to adequately describe the
lift truck involved in the accident, including the manufacturer's
name and the varioue featurea of the lift truck,
b. The COlllplaint faila to allege whether or not the
lift truck involved in the accident actually contained any back"
up alarm/
c, If the lift truck did have a back-up alarm, the
Complaint fails to allege whether the back" up alarm was working
on the day of the accident,
d, Plaintiff alleges certain injuriea, but states that
there are additional onea which are not concisely alleged in the
Complaint, For example, plaintiff atates that she has suffered
injuries including, but not Jimited to, a crush injury and other
inj uries,
14, purauant to Rule 1028 of the Pennsylvania Rules of
Civil Procedure, plaintiff's Complaint lacks the specificity
needed under the Rule and the COlllplaint must be re-pled or
dismissed,
I III )f1l'W,Wllli
-4-
~
1.~I""",lhl"l II ,.Vl. 'I""
P~T$Y ~. T~VX$, I
Pl.intiff I
I
v. I
I
a~TI~Ji'X~l:I~ll, XNC., I
HV$TIll OOHP~, now ~nawn.. I
N~COO BUIl:IPING HATIllX~l:I$ I
PANPl:IXNG allOUP, INC., and I
JAC~ MaC~AXN, I
Oefendent. I
..
XN TNI OOURT or COMMON P~'~S
Ct1MJllltl:lANP CotJmV I PltmSY~VANIA
No. 96 -6932
CXVX~ AOTION - ~AW
JijNJ TltIA~ OI~IO
~51J4~J.AINT
AND NOW, comes the Plaintiff, Patsy Travis, by Bnd through her
attorneys, PANP~IlR , WIIlNBlt,
and makes the within complaint
against Defendants caterpillar, lno" Hyster company, now known ae
NI\CCO allilding Materiah Handling Group, Io.:]., IInd Jao~ MoClain,
and in allpport thereof avers as follows;
1, t:>laintiff, Patay'l'ravis, is an adult individual currently
residing at 672 Randor Street, Harrisburg, Dauphin, Coun~~,
Pennsylvania 17110.
2, Defendant, Caterpillar, lnc" if! a De laware oorporation
doing business in Pennsylvania, with a registered plaoe of servioe
located at 16]5 Market Street, philadelphia, philadelphia county,
commonwealth oC Pennaylvania 19103,
3, Defendant / Ilyster company, now known as NI\CCO Building
Materials Handling Group, Inc" hereinafter Hyster, is an oregon
corporation eel't.Jfiad to do bualnllss in Pennsylvania, with a
register.ed place of aervlcll loedted at 1635 Market Street,
1
~
~
philaddllhia, Philadelphia county, commonwealth of Pennsylvania
19103,
4. r.ltlfendont, ,lack MllClain, ia an adult individual with a
current mailing addreae of % Ayoollk, Inc., B~61 Derry Street,
Hummelstown, Pauphin County, Commonwealth of l'enn/lylvania 17036.
6, On or apout .1anuary 27, 1995, plaintiff, Patsy Travis,
was working at a place 01' businesa lmown alll 'rrue Temper, Inc ,/
lIuffy corporation, in Camp lIill, cumberland County, Pennsylvania.
6, Or about January 27, 1995, Defendant, Jaok MoClain, was
operating a lift truck a/k/a forklift, hereinafter referred to as
forklift, en the premises of 'I'rue 'I'emper, Inc./ Huffy corporation
while l'laintiff, patay 'l'ravis, was on the premi/les, DlStendant
McClain wae operating the forklift within the soope of his
emplOYlllent with Aycock, Inc" an independent contractor.
7, At all tillles material hereto, Defendant, Hyster, acting
on its own and/or through its agents, servants, and/or employees,
was engaged in the design, fabricat ion, manufacture, assembling,
marketing and/or aale of the make and model forklift used by
Defendant, Jack McCluin, on January 27, 1995,
11. 1\1l:ernntlvtlly, ill'. all. timea material hereto, Defendant,
Caterpillar, Inc., acting on ita own and/or through its agents,
servants, and/or elllployeea, waa engaged in the de/lign, fobrioation,
manufacture, assembling, rnarkating and/or sale of the make and
morlel forklift ullud lJy llufendant, Jack McClain, on January 27,
199[; .
2
..
..
9, On 01' apout January 2'1, 1995, iletendant, Jaok MoClain wall
opel:ating the for.klHt when he ran ovar Plaintift'll foot, oau/ling
the inllldllll detlGd~ltllJ hIl1'llinnf.tllr,
10, It ia belillved and therefore averred thht /laid forklift
did not have a aignlll or "beeper" that Bounded when it wali! moving
in l'everlle,
11, Alternatively, if lIaid forklift did havA a /lignal or
"peeper" that lIounded when it wan moving in reverBe, it did not
have a shut -down Byntem that would prevent the operation of the
forklift or any type of flaahing light mechaniam that would warn
nearby individualB in the event that the "beeper" waa not
functioning and/or audible,
12, 1\11 a direllt and proximate rellult of the negligence of
Defendant, .Jack McClain, and/or the defective product of Pefendant,
caterpillar, lnc" or Petllndant, Hyster, the forklift ran over the
right foot of Plaintiff, L'atsy 'l'ravill, who lIuffered serious podUy
injuries, which will hereinafter pe more fully described,
~ATSY TRAVIS v. CAtIB~ILLAR. INC.
cOUN'l' I
Strict Liability
13, Paragraphs 1- lZ of thia complaint are incorporated herein
all if aet forth at length,
14, upon infonlllltlon and pelief, the aocident of January :17,
1995, wli'Ut.dn Plaintiff., L'atllY 'l'ravia, war! injured, wall caulled by
the rlef.ective condition of. the f.orklift, which defect exillted at
3
J
.
the time the forklift left pefendant'a care, oustody, and control,
and rendered the forl<lift unreasona\:lly dl3ngeroUS to t~lose nearby
itfl operation,
15, I\tI the l'etlult (If the defective nature of the forklift,
Defendant ia atrictly liable to Plaintiff pursuant to g4Q2~ of the
llel3tatement (second) of 'l'ol:ts for the following real3onl3l
(a) failing to properly and adequately design the
forklift, including put not limited to the installation of a
\:lack-UP beeper, inatallation of a flaahing light to warn those
in the vicinity of the forklift of the presence of the
forklift or the installation of a shut-down mechanism that
would prevent the operatiqn of the forklift if the back-UP
beeper or flaahing light \:lecame non- functl,oning I
(p) failing to properly and adequately manufacture the
forklift, including but not limit~d to the installation of a
nack-up \:leeper, installation of a flashing light to warn thol3e
in the vicinity of the forlclift of tne presence of the
forklift or the installation of a shut-down mechanism that
would prevent the operation of the forklift if the bacl<-UP
beeper or flashing ll'lht became non-functioning"
(e) selling n product which Wa13 defectively designed,
(d) sell inq a product which WllS defectively
n\anufnctured,
(u) fa\\\n'J I'll warn plaintiff, patsy Travis, of the
,iangerq\la nat.\\r'O of the forkliftl and
0\
..
.
(f) manufacturing and selling a product that was
unreasonably dangeraus as aforesaid.
~6, As 11 direct remlit, at the defects in the forlclift aa
deaodRod above, ~'~aintJ.n, l'atflY 'l'rllvh, has suffered severe
injudell including, Rut not limitad to, a crullh injury of the dght
foot, fractures of the second, third, and fourth toes of the right
foot, fractures of the second and third metatarsals of the right
foot, and nwltiple lacerations of the toes, all of which required
emergency surgery, the insertion Dr usage of pins and a cast, dnd
continuing medical treatment,
17, As a direllt result at the defects in the forklift as
described above, Plaintiff, Patsy Travis, has suffered great
phyeical pain, discomfort, and mental anguish, and will continue to
endure the same for an indefinite period of time in the future, tc
her great phys ical, emot ional and financl.al detriment and 101113.
18, 1\s a direct result of the defects in the forklift 'S's
deeoribed above, Plaintiff, Patsy Travis, has been, and will in the
future be, hindered from performing the dutiell required by her
usual. occupation and from attending to her daily duties and chores,
tn htH' C)rtlill". JOSfJ, hllmlliation and embarr.assment,
19, 1\ll iI direct result of the defects in the forklift as
deecribed above, l'laintiff, Patsy 'rravis, has been oompelled, in
order to effect a cure tor aforeeaid injuries, to expend large sums
of mCJney for medicJ.lle and medical attention, Plaintiff, Patsy
Travis, continues to receive treLitment and incur expenses of said
5
I
.
injuries, and will most likely oontinue to do so in the future, to
her great detriment and lOllS, and a olaim is made therefore,
:10, All a di rllot result of the dlltllots in the forklift as
desoribed obove, Plaintiff, pntoy Travio, has suffered lost wages
and the ability to fliHn Wllgell by lIIeanll of gainful employment, and
may continue to lluff13r euch impairment in the future, and a claim
is lIIade therefore,
21, Plaintiff, Patsy Travis, balieves, and therefore avers,
that her injurillll are plIrlllanent in nature,
WHIRlrORl, Plaintiff, Patsy Travis, Ileeks damages from
the Defendant, Caterpi llar, Inc" in an 1l000unt in oxceso of twenty-
five thousand ($25,000,00) Dollars, which amount exoeeds the
jurisdiction requirement for compulsory arbitration,
COt1N'1' II
Negligenoe
:12, Pnagraphs 1- 21 of thie Complaint are incorporated herein
as if net forth at length.
23, 'I'he negligence of Pefendant consisted of I
(a) falling to discover thll defect in the forklift when
fll'fenrlanl: knew or ehould havlI known that such a defect
existed,
(n) fa i lin'J to toke utepo neceslIBry to repair the
forklift,
(0) failtng to properly teet the forkliftt
6
.
(dl manufacturing, designing and Belling A torklitt
without an adequate warning syatem, including put not limited
to a back-up l.leepel', flaahin~J liflht 0):' POWll):, Lhutdown
Illlll.lhaniam if tht! baelt-up beeper Ol' flaahing light became non-
functional, and
(e) fai ling to provide any warnings ):'egarding the uae of
the fOl'kli ft in II rever/Je mode,
24. hs a direct reault of Defendant's negligence, Plaintiff,
Patay Travia, haa Iluffered the injuriee and dsmages aa set fo):'th
apove in Paragrapha 16 through 21 6a though fully set fo):'th herein,
WHIRlroRl, Plaintiff, Patay 'l'rllvis, seeks damageB trom the
Defendant, caterpillar, Inc" in an amount in excess ot twenty- five
thousand (~25,OOO,OO) Dollara, which amount exceeds the
jurisdiction requirement for eompulaory arbitration,
COUN'l' I II
Breaoh of Warranty , ,
25. Plaintiff, Patey Travia, incorporates and mskes part of
thia Count paragrapha 1 through 24 of this complaint as fully Bet
forth,
26, At the t1llle Defendant lIo1d the forklift, Defendant
warranted, both expnHla1y ilnd impliedly, that the forklift WAS free
frolll .Iufcctu, and wau Ilafe and suitable for the uses for which it
was intended.
'I
.
27, Pefendant breaohed the aforesaid Wllrranties, both express
and i IIIp lied , by providing a forklift whioh was defeotive lIS more
fully described above,
26, As a direct result of Defendant's breach of its express
and illlplied warranties, Plaintiff, Patay Travis, hBa auffered the
injuriea and damagea set forth above in Paragraphs 16 through 21 as
though fully llet forth herein,
WHIRlrORl, Plaintiff, Patsy Travis, seeks damages from
Pefendant, Caterpillar, Inl). I ill an amount in excess of twenty-five
thousand
($25,000,00)
Dolla ra,
which amount exceedll the
jurisdiction requirelllent for cnlllpulsory arbitration.
'~TSY TRAVIS v. HYS1BR cO~P~. now known .. MAcao BOJ~DINa
~1BRIALS HANDLING GROUP. INC.
COUNT IV
Strict Liability
29, Plaintiff, Patay Travis, incorporatee and makes part of
,
this count, paragraphs 1 through 20 of this Complaint all fully set
forth.
)0, Upon inl'orll1at.ion and belief, the accident of January 27,
1995, where in Pla int H f, Patsy 'rravis, waa injured, was caused by
the defective condition of the forklift, which defect existed at
the time the forklift left Defendant's care, custody, and control,
and L'elldered the forklift unreasonably dangerolls to those nearby
ltu oplH'ation,
II
31, AJI the rellult of the defeotive Ilature of the forklift,
Defendant is lltriotly liable to ~laintiff, Patsy TraviJl, pursuant
to 8402/\ of the rleBtotemel1t (socond) of Torts for the following
relll30lllll
(II) tailillg to proptlrly and adequately design the
forltlift, inc1udinu put lIot limited to the installBtion of a
pack-lip beep~r, inatallntion of a t:laahing light to warn those
in the vicinity of the forJtlift of the presenoe of the
forklift or the Inatll11al'.ioll of a ahut-down lI1echaniam that
would prevent the operation of the forklift if the back-up
beeper or flaahing light became non-functioning,
(bl failing to properly and adequately manufacture the
forkli ft, includinu but not limited to the iustallation of a
back-up beeper, inatallation of a flashing light to warn those
in the licinity of the forklift of the presence of the
forklift or the inatallation of a ellut-down mechaniam that
would prevellt t:he operation of the forklift if the back-up
beeper at' flallhing light became non-functioning,
(c) ~lollillg a product which was defectively designed,
(d) /Jelling a product which was defectively
1IIIlIluf.lll!tured,
(e) fall ill'] to warn Plaintiff of the dangerous nature of
the forklif.t, alld
(1) lIIalluf.acturing and selling a product that WBS
unreasonably dangerous an aforessid,
9
.
32, (HI a direot reault of the defeotll in the forltlHt as
dellod\:led apl~vll, Ptaintitf, patay 'l'ravia, hall Iluffered th., injurillll
and dllmagell Bet forth above in paragrapha 16 Lhrough ~l aa though
fully lJet forth hl!ruin,
W\tIJtlroJtI, 1'laintHf, PatllY 'l'ravia, lIeeltll damllgea from
Defendant, HYlJtlHo COlllpllny, noW known all NI\CCO auilding Materialll
Handling Group, Inc" in an Bmount in exceall of twenty- five
thoUlland ($25,000,00) pollarll, which amount exoeeds the
judadiotion requirement for compulaot'y ar\:litration,
coUNT V
Negligenoe
33, plaintiff, Patsy Travis, incorporates and maltes part of
thill count, paragraphll 1 through 32 of this complaint as fully set
forth,
)11,
The negligence of Pefendant conaisted ofl
(a) failing to di,ecover the defect in the forklift when
pefendant knew or should have known that such a defect
exillted/
(bl
forkliftl
(ll) failing to properly tellt thl! forklift I
(d) manufacturing, designing and selling a forklift
withoUt. an adequate warning aYlItem, including but not limited
to a \Jllck-U~) beeper, flallhing light or power ehutdown
failing to tllke atepll necesBary to repair the
10
lIIeohanhm if the /Jack-up beeper or flallhing light became non-
functional, and
(.;) failing to provide any wBrningll regarding the Ulle of
the forklift in a reverlle mode,
]5, Au a direct reault of Pefendont'n negligence, Plaintiff,
Pat.IlY 'I'rllvla, hall fJllffel'ed thlj injlldo/J and damllgell all lIet forth
above in PIIl'lIgnlphs 16 through 21 IlD thollgh fully Ilet forth herein,
wnlRlrOltll, Plaintiff, Patay 'l'l'avia, lIeekll damagell from
Defendant, IIYllter Company, now known all NACCO aUilding Materials
Handling Group, Inc., in Iln amollnt in excesll of twenty-five
thousand ($25,000,001 1)01111rll, which amount exceedll the
jurisdiotion requirement for compUlsory arbitration,
COUNT VI
Breeoh of Warranty
36, Plaintiff, Patsy 'I'ravis, incorporatoll and makell part of
thill COllnt, parngl'aphs 1 through 35 of thill Complaint all fully Sltt
forth.
].,. At. the t: illle Defendant sold the forklift, Defendant
warrallte,l, bath axpl'CtJfJly alld impliedly, that the forklift wae free
frolll defecta, and Wao oafe and auitable for the usell for Which it
waa intended,
30, Pefendant breached the aforesaid warrantiell, both exprellll
and implied, by p\'lwiding Il forldift which wall defective all more
fully ,hHlc:rlblld dllUVlil,
11
39, ~~ a direot result of Pefendant'~ breBoh of it~ express
and implied warranties, plaintiff, Patsy Travis, has suttered the
injuries and damages set forth above in Paragraphs 16 through 21 as
though fully set forth herein,
WUBIlB,OIlI, Pla int it f, Patsy 'I'ravia, ~eeks damsges from
Defendant, JlYllter Company, now )<nown AS N~CCO Building MatltriBls
Handling Group, Ino" in al\ amount in exoese of twenty-five
thouaand (1$25,000,00) L1011ara, which amount I\lxoeeds the
jurilldiotion requireml\lnt Cor oompulllory arbitration,
Q,QUN'l' VII
iMll.. 'J'RjWIfUw_JAqJl: NoCItAm
40, Plaintiff, Patsy Travis, incorporates and makes part of
this count, paragraph~ 1 through 39 of this Complaint as fully set
forth,
41 , 'I'he occun'ence of Aforesaid events and the resultant
injurie~ wall the direct and proximate result of the negligence bf
the Defendant, Jack McClain, lIIore speoifioally set forth as
folloW~ I
(a) In fa il ing to keep a proper lookout for pedestrians
behind and ar.Qund the forltlift as he wa~ operating
itl
(b) In failing to give such warning as was neoessary to
make pedelltrianfl aware that he was operating said
forkliftl
12
~ " I
. I' I
I " ,
W. SCOTT HENNING, ESQUIRE, stetes that he Is the ettorney for the party
filing the fora going dooument; that he nlakes this allldevlt es en attorney, baoause the
pllrty hll represents leoks sulllolont knowledge or Informetlon upon whloh to make e
verlfloatlon end/or because he hos greater parsonel knowledge of the Informatlol1 and
ballef than that of the party for whom he makes this affldavltl and that ha has
sulllolent knowledge or Informlltlon end belief, based upon his Investigation of the
metters averred or denied In the foregoing document; end thet this statement Is mede
subject to the penalties of 18 pe C,S, 54904 relating to unsworn falllfloatlon to
authorities,
Datetd' 3~'1 J
Ii,.' I
t,'
"
:W~~;
,
, ,
, " I
PATSY L, TRAVIs,
V,
CATERPILLAR, INC" HYSTER
COMPANY and JACK MoCLAIN,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND cOUNTY, PENNA,
Plelntllf
,
.
: NO, 96.6932
I
,
,
: JURY TRIAL DEMANDED
!',ij:RTlfICA TE OF Sj:RVIC~
AND NOW, this 3rd day of February, 1997, I hereby oertlfy that I have, on this
date, served the foregoing Plalntlll's complaint upon all parties by sending II true and
oorreot oopy of same 10 their attorney of reoord via first olass United Stlltes mall,
pOlltegs prepaid and addressed as follows:
Cherlell W. Rubondall, II, Esqulra
210 Walnut Slreet
POBox 11963
Harrisburg PA 1710B-1963
Lisa M, DIBernardo, Esquire
110 South Northern Way
York PA 17402-3737
Ron sid L, Daughtery, Esquire
1 BOO Liberty place
Phllodelphle P A 19103- 7 395
BY~
,-W" ot ennlng, Esquire
\. D, , 32298
31 erket Street
P t 011I08 Box 1177
errlsburg PA 17108.1177
(717) 238.2000
Attorneys for Plaintiff
, '
. .. ~ .
I ,_ _
I II 10
~=~~u rJ;~~11l
"QIIIIllr~ll_'
I'J""D llll\Mll1
CIWlL'" C1I.l<INl
.".., JIIl_NIW V.........
'~IO~t.Wol\Mll"'"
""IO~OC .....
LAW OPPICEII
O~IFF'TH, .T~ICI<LlR, Ll!RM~! 'OL YMO' . C~I<I~'
ltQ II, N~T1-dlft~ W^V
VO~K, PENNSVLVNlI^ mQ~.3m
IllIPlIONllml,.",1l1l1
,M IIl1 111~' 1
IffljMHI~!J~
IllCIWLI......II...
L1j~''!!..'y~!'!.'.t:
'C"II~
UQlJnt"""N""U'
"'"IW"ijIlV,M I 1:111"110
,........ 11111111'''11
,..,..,....,.....-
......llnIr l"'ilIH'1lIl
December 14, 1996
W, Scott Henning/ Esquire
Handler and Wiener
319 Market Street
~.O, Box 1177
Harrisburg, PA 17106
REI Patey L, Travia va, Aycock, ~nq,
No, 00436,1996
Dear Mr, Henning I
You requestlld some information concerning the sbove-captioned matter,
The Aycock employee that waa driving the forklift that made contact with
Ma, 'l'ravia wall Jack McC1Bin, The forklift waa owned Py 'l'ru-~'emper,
However, it ia our bolief that the forklift was manufactured by a compBny
cll11ed Hyster, ~ trust that this answers the two qUllstions you had.
Very truly yours,
(~ (f)) rF>>~t7
Jotm-,r'\~ANHl\!:l< II
jsh/llycock, ltr
11
t
'I
I'
IN ~H~ COUR~ or COMMON ~L~~B or CUMa~RL~NP COUN~Y, ~mNNBYLV~I~
P~~'BY /.I, 'rl\AVIB,
Civil Aotion - Law
r,
~la~ntitt
va.
No, 96-6932
CATF.R~X/.lLAR, INC" HYBT~R COMPANY,
and JACK MCCLAIN,
PlltendBnts
JURY TRIAL pmMANP~p
Nonc~ ~'O PLE~o
Tal Hyster Company
0/0 Charlee W, RubendalL, Esquire
Keeter, Wood, Allen & Rahal
210 Walnut Btreet
Har.risburg, PA 17101
You are hereby notitied to file a wr.itten response to the
enclosed cross-Claim within twenty (20) days from service hereof or a
judgment may be entel:ed a'lainllt you,
GRIFIi'ITII, S'l'RIC1<U1R, LIERMAN,
SOLYMOB & CALKINs
av (t'iVr'Z;~-
LISA M. PiBERNARPO, ESQUIRm
Attorney I,D, 56684
Attorney for Deft, MCClain
110 South Northern Way
YOl:k, PA 17402
~elllphonel (717) 757-7602
IN THIS COlJR'I' OJ!' COMMON PLIST\13 OJ!' ClJMI3ISI~LT\NO COUN'I'Y, PENNI3YLVIIN IT\
PII'I'SY I" TRAVIS,
civil Action - LaW
Plaintiff
vs,
No. 96--6932
CIITIl:RPILLIIR, INC" HYS'I'EI~ COMPANY,
and JIICK MCCLAIN,
Oefendant9
JUIW 'l'IUAL DEMIINOIW
pll)ltlJ>ANT JACK NCCLAIlf I S
I'NS'JIR. NO to.TTIR AND CROSS-CJ.AIM
IINP NOW, comes the Defendant, Jack McClain, by and through nis
attorneys, Griffith, Strickler, Lerman, Solymos & Calkins, and files the
within /'Inswer, New Matter and Cross-Clailll and in support thereof avers
as follows I
I. Admitted upon information and belief,
2, Admitted upon information and belief,
3, Admitted upon information and belief.
4, Admitted,
5, Penied. After reasonable investigation, enswering Defendant
is without knowledge or information sufficient to form a belief e9 to the
truth or veracity of the allegations contained in paragraph 5 of
Plaintiff's Complaint and the same are denied and strict proof thereof
is demanded et the time of trial,
6,
Admitted in pertl denied in part,
It is admItted that
Pefendent Jack McClain was operating a forklift on tho prellllses of True
Temper, Inc,/HuffY corporation on or about January 27, 19% wit.hin the
scope of his omploymont with I\ycock,
lnc,
Mtor roasonable
invutiljation, Petendant lacka knowledlje or intormat.ion lIutticient to
torm a peUet alS to the truth or veracity ot the remaining alleljationa
contained in paraljraph 6 or Plaintiff'lI complaint and the aame are denied
and atrict proot thareof ill domandad at tha time of trial.
7, Denied, After reaaonablo investil/ation, anawerinl/ Defendant ia
Without knowladl/e or informstion lIufficiont to form a beliaf aa to the
truth or varacity of the allegationa contained in paragraph 7 of
Plaintiff' 9 Complaint and the same ara denied and atrict proof thereof
is demandad at the time of trial,
B, penied, After raaaonablll inveat iga tion, anllwering Defendant
ill without knowledge or information aufficiant to fOl'm a beUaf aa to the
truth or veracity of the allegationa contained in paragraph B of
Plaintiff' a Complaint and tha aallle ara danied and strict proof thareof
ia demanded at the tillle of trial,
9. Denied. After reaaonable inveatigation, anawering Pefandant
ia without knowladga or information sufficient to form a belief aa to the
truth or veracity of the allagations containad in paragraph 9 of
Plaintiff' II Complaint and the aama ara denied and atrict proof thereof
ia demanded at the time of trial,
10, Denied, After reallonable inveatigation, answering Defendant
is without knowledge or information sufficient to form a beUef aa to the
truth or veracity of the allegations contained in paragraph 10 of
plaintiff' a Complaint and the aama aral denied and atrict proof thereof
ia demanded at the time of trial,
~
11, Denied, After reB~onable inVQati9~tion, an~Werin9 Defendant
ia without knowledge or information aufficlent to form a belief aa to the
truth or veracity of the alleqationa contained in paraql:'aph 11 of
Plaintiff' a Complaint and the same are denied and strict proof thttreof
Is demanded Bt the tillle of trial.
12, Penied, The allegations rnisad in paragraph 12 state a
conclusion of law to which no responsll is rllquir.ed, '1'0 the extent a
response is deemed necessary, it is specifically denied thilt Pefendant,
Jack McClain waa negligent, snd strict proof thereof is demanded at time
of trial,
PATSY TRAVIS V. CAT.aPI~~. INC.
COtlN'll I
Striot Liability
13, - 21, No response required aa the allegations ralaed in Count
I are directed to a Defendant other thsn answering Defendant, Jack
McClain,
cotlN'll n
N.'lU'l.no.
22, - 24, No responae required aa the allegations raised in Count
II are direqted to a Defendant other than answering Defendant, JBck
McClain,
J
WHI!:Rl!:f'ORE, Defendant, Jack McClain demanda that jlld'iJlllant lJe entered
Bgilinst Plaintiff togethar with coats of aUit, plus auch other relief aa
this HonortllJle COUJ,'t may deem appropriate undel.' the circulllatancee,
~
43, Paragraphs 40 - 43 alJove are inllorporated herein by reference
as though set forth in full,
44, 'l'he Plaintiff's complaint fails to atate a causa of action
upon which relief can lJa qrantad,
45. 1'ha Plaintiff's Complaint may be baned lJy applicable statutes
of limitation,
46. Plaintiff's claillls lIIay be barred and/or lilllited by tho
doctrines of Hes Judicata and/or Collateral Estoppal.
47, Plaintiff's claima lIIay be barrod and/or lilllited by the
Pennsylvania COlllparative Negligonce Act and/or any other applicable
comparative negligence act,
48, Plaintiff's alleged damages and/ol.' losaes were austained
aolely as a result af the activities and/or condUct or omissions on the
part of the Plaintiff, Patsy 1., navis,
49, Plaintiff's alleged damages and/or losses were sustained
aolely as a result of the activities and/or conduct or omissions on the
part of the agents, workmen, employees and/or servants of Plaintiff's
employer,
50. Plaintiff's claims are baned and/or limited because the
Plaintiff and/or agents, aervants, representatives, workmon or employees
6
of Plaintiff's employer failed to properly instruct or warn the PLaintiff
befor$ allowing her to undertake the sctions which she claillls caused her
injuries and dalllages,
51. Plal.ntiff's claims are barred and t1ro limited bec;luse tho
Plaintiff and/or the agents, representatives, employees, worklllen or
servants of Plaintiff's employer fillled to properly and ,1dequat.eLy
IIIdintain t.ha real est.at.e, and fixt.ures which form a part thereof,
Including but not limited to the metal working are,l of Plaintiff's
employer,
52, The Plaintiff, Patsy L, Travis, assumed the risk of any injury
or damages she claillls,
53, The acts, omissions, contributory negligence and/or assumption
of risk of the Plaintiff, Patsy L, Travis, constitutes il suparseding or
intervening cause of. the 'llleged losses and dtlmilgea, Lf any, ilS set forth
in Plaintiff's Complaint,
54, The acts, omissions, negligence or othar liability producing
conduct of agents, representatives, workmen, servants or employees of
Plaintiff'a elllployer, or others, conatltutad a superseding and/or
intervening cause of the Plaintiff's allagad inj uries and d<1l11ages,
55, Plaintiff failed to take re,lsoJwble measures to cure the
injury or prevent further injury or loss from taking pLace and did fail
to mitigate the damages asserted,
56, The Plaintiff did violate safety rules and regulations as
enacted by federal, atate and local governments and these violations were
intentional and reckless,
7
WHEREFORE, Oetendant, JBck McClain demands jud9ment in nis tBvor and
agoinst P1Bintitt, toqether with costa ot suit,
~" ~TT.R IN TN. ~~_or A Q~'.-CLAIN
J'URlUANT TO .lA.,R,Q, p, 33D21d'
J.Q~ NOC1.in v, C.~ill.~. InQ. and py~t.~ C~.nv
a7, Paraqraphs 40 - 56 above ars incorporatod herein by reference
as though set forth in full,
aa, For purposes of this cross-Claim, the alleqations and Counts
aqainst the respective Co-Defendants, caterpillar, Inc, and Hyeter
COlllpany as aet forth in Plaintiff's Ccmplaint are incorporated herein by
reference as thouqh eet forth in full,
59, If the incident described in Plaintiff's COlllplaint occurred ae
alleqed therein, then Defendants, Caterpillar, Inc, and Hyster Company,
are solely liable to the Plaintiff,
60, In the alternative, Dofend.1nts Caterpillar, Inc, and Hyeter
company are jointly and/or severally liable with answering Deff,lndant,
Jack McClain, and/or Defendants, Caterpillar, Inc, and Hystf,lr Company
are liable over to answerinq Defendant, Jack McClain for contribution and
indemnity, the existence of any liability on the part of answerinq
Oefendant, Jack McClain beinq strictly denied.
61, Defendant, Jack McClain asserts this Cross-Clailll against
Defendants, Caterpillar, Inc, and Hyster Company to preeerve hie right
of contribution and/or indeMnity,
WHEREFORE, Defendant, Jack McClain demands that any Judgment entered
in favor of the Plaintiff be entered solely against Defendants,
Caterpillar, Inc, and Hyster Company.
In the alternativo, llofendllnt,
Jack McClain demands that in the event Judgment Ie entol'l'd iHJ,llnal It,
Q
\1
'~
(,,','
r!
'I
I
;Ii
ill
j'li
I"
I',
I
"
,/ ')1' ,
!, "
,'I
,
I,
;1
I ,
'I 'I ,
I ,
'I I , i
Ii '.'1 II
, ,
I
"
i,'1
I
,
"
)
"
,I
(
1
"
'I
:'
.
I,
I
l,l
"
I
.
'/
. ,.
-4,
2, On January 1'7, 19%, caterpUlar ruled pli~intHf tlJ
file a complaint in the lIIatter,
], On February 3, 1997, plaintiff filed her complaint. A
tt.ue and correct copy ot: the Complaint ia attached hereto as
Exhibit "A",
4, In the complaint, plaintiff attempts to set fOJ:th
claims for strict liability, negligence and breallh of warnll1ty
against Caterpillar Inc, and Hyster Company aa we 11 as negligence
clailllS against Jack McClain,
5, All of Plaintiff's claima are based upon an accident
that occurred to plaintiff on JanuaJ:Y 2'7, 1995. On that day,
plaintiff had her foot allegedly run over by a lift truck at her
place of worl<, liWl. 16 of Complaint,
6, On or about February 20, 1997, Defendant Jack McClain
filed an Answer, New Matter and Crosaclaim to Complaint, A true
and correct copy of the Answer, New Matter and Croseclaim is
attached hereto as Exhibit "B",
7, In the Croseclaim of Jack McClain, the factual
allegations of plaintiff's complaint are incorporated therein and
Defendant Jack McClain has crossclaillled against caterpill~r, even
though there are no factual averlllents whioh establish that the
lift truck involved in the accident was manufactured by
Caterpillar,
1l)lH'141,WrG
-2-
.
/
x. '1I.,J..uu-.DLR1..AdJ,nljJ '1'0 CopforJll '1'0 Law OJ' Rul, Qf CQ~rt
II, 11111" J I) J 9 ot The Pennsylvania Rulea of Ci v11 Procedure
111'1111''''1 ,I pl'''ldlnlJ to statu all material facts in a concise and
1IIIIIHlloII Y "HIII,
'I, HtIllIiH'I<i1ply, deapite the fact that the COlHplaint alleges
th'll pl,lintitt WlHl run over by only Qllil lift truck (for)<lift),
plldnlll'l holll ~llled .t..\'J.Q different Uft truck manufacturers, namely
\'i1I'llpillo'll' nnd Hyster,
II), Although the Pennsylvania Rules of civil Procedure
,11 low i11trJrnative pleading of causes of action, the Hules do not
,Illuw II plnlntiff to alternatively plead the key facts relating
I U CllllIHlS of act ion unleaa the peraon has conducted a reasonable
lllvt'Jutl'liltion to aacertain the facts,
11. In the pl'esenl: case, the Answer, New Matter and
("IHItJ<:lolim ot l.Jefendant Ji.lcl< McClain muat be stricl<en for failure
10 '!lJlIl:1.l1.'l1l to I,ule of COUl't since the pleader could ascertain the
I <lnnl, if Icatioll of the J.i ft t ruck and has failed to obtain this
lllt'onllilt ion, !natead, the pleader, Defendant Jacl< McClain, has
1'''lle<l upon the deficient allegations in the complaint,
II. failure To State A Cau.. Of Action
12, The Answer, New Matter and Crossclaim of Defendant Jack
McClaIn to Plaintiff's Complaint has failed to identify a
IIpecifill product manufacturer of the lift truck, Under
Pennsylvania law, a speoific produqt manufacturer must be
\<l111H .I,WI'I,
-3-
.
.
identified or plaintiff cannot lIIaintain the causea of action for
strict liability, negligence or breallh of warranty,
13, 1n the croasclaim, whillh incorporates plaintiff's
negligent counts, there are claims that Defendant manufacturers
were negligent because they failed to take steps necessary to
repair the lift truck. However, under Pennsylvania law, the
manufacturer haa no duty to repair, maintain, or service a
product which ia sold by it,
14, Pursuant to Rule 102B of the Pennaylvania Rules of
civil Procedure, tho Answer, New Mattar and Croaaclailll must be
dislllissed because it fails, as a matter of law, to state any
valid claims against Caterpillar,
III. In.uffiai.nt Sp.aifiaity In-A Pl..di>>q
15, Despite having over two years to prepare her complaint,
and the fact that plaintiff works at the place of the accident,
plaintiff's Complaint is woefully inadequate with respect to its
fact pleading in the following reapectsl
a, The COlllplaint fails to adequately describe the
lift truck involved in the accident, including the manufacturer's
nallle and the various features of the lift truck,
b, The Complaint fails to allege whether or not the
lift truck involved in the accident actually contained any back-
up alarm,
c, If the lift truck did have a back-up alarm, the
Complaint fails to allege whether the back-up alarm was working
on the day of the accident,
11)111"/011.\11"1,
-4-
..
j.yl......I.IIIl In.vl.,,,,,,l
v,
I
,
,
I
I
I
I
I
I
I
I
IN THI COURT or CONNON '~.AS
cmUIIltlJANJ:) COUNTY" PINNSYlJVAlfIA
No. 91$.6932
PAT/JY ~. TRAVXS
Pla1n~Ut
CATIRPIlJ~AR, INC.,
"yaTla CO"PANY, nDW ~nown ..
NlOCO ~UIlJPINO "^TIRIA~S
"ANJ:)lJINO oaOUI', INC., .nd
JACK HcC....AIN,
Pehndant.
CIVI.... ACTION - ....AW
JURY TRIAlJ OIHANPIO
(lgHI'LAIN'l'
ANJ:) NOW, aomeQ the Plaintiff, Patsy Travis, by and through her
attorneYB, HANJ)~la 61 WIIIK.a, and makllQ the within Complaint
againllt Defendantll Catel."piUal.", Ina" Jlystel." company, now known u
NMCO auilding Mal:edala lIandling Group, Ino" and Jaok MoClain,
and in support thel."eof avers as followst
1, J:l1aintiff, Pal:sy 'l'ravis, is an adult individual ourrently
residing at 672 Randol." Street, llal:'dsburg, Dauphin Cou,,~y.,
Pennsylvania 17110,
2, Defendanl:, Cal:Ol:'pillal:', Ina., is a Delaware oorpol:'at10n
doing business in Pennsylvania, with a I:'egistered plaoe of servioe
looal:erl at 1635 Mat:\eet at t'oel:, Philadelphia / Philadelphia County,
COllllllonwealth of J?ennsylvania 19103.
3, Defendant, lIyster Company/now known as NACCO auilding
Materials Ilandling Group, Ina., hereinafter "yeter, is an Oregon
aorpot'Bt j,on oerti tied to do business in Pennsylvania, with a
regintered plaae of serviae loaated at 1635 Market Street,
1
,
-4
Philadelphia, Philadelphia COUllty, Commonwealth of Penmlyl vania
19103.
4, Defendant, Jack MoClain, ill an adult individual with a'
ourrent mailing addreee of % Aycock, Ino., 8~61 Perry Street,
Hummeletown, Dauphin Counl:y, Conunonwealth of Peml/ilylvania 17036.
5. On or about January 27, 1995, Plaintiff, Patsy Travis,
wae worlting at a place of l.JUsiness Imown all True Temper, Inc,/
"uffy Corporation, in Camp lIill, Cumberland County, I?ennsylvania.
6, Or about January 27, 1995, Ilefendant, Jack MoClain, was
operating a lift truck a/Ie/a forklift, hereinafter referred to 811
forklift, on the premises of True Temper, Inc./ Huffy Corporation
while Plaintiff, Patey Travle, wae on th~ premises. Defendant
McClain W81S operating the forklift within the scope of hill
employment wHh Aycoal(; Inc., an independent contraotor,
7. At all times Illaterial hereto, Defendant, Hyoter, acting
on ite own and/or through its agente, Ilervante, and/or employses,
wae engaged in the deelgn, f.abrioation, manufacture, assembling,
marl(eting and/or Ilale of the make and model forklift used by
Defendant, Jack McClain, on January 27, 1995,
0, Alterllotlvuly, at all tilllell material hereto, Pefendant,
Caterpillar, Inc" acting on its own and/or through its agents,
servants, and/or employees, wae engaged in the design, fabrication,
manufacture, aseembling, marketing and/or sala of the make and
Illodel f.url(li ft lllleLl hy lJefendant, .ll1ole McClain, on January :17,
1995,
2
~
9, on or "bout January 27, 199B, Pefendant, Jack McOlain w..
operating the fOJ:'klift when he un over VlaintifflQ foot, cauQinll
the injuriee deeoribed hereinafter,
10, It ie believed and therefore Bverred that "aid forklift
did not have a "igna1 OJ:' "beeper" that /lounded when it wee moving
in rever/le.
11, Alternatively, if. /laid forltlift did have a /lignal or
"beeper" that /lounded when it wall moving in reveue, it did not
have a /lhut-down eyetelll that would lll:'event t,he operation of the
forklift or any type of flashing light meohanism that would warn
nearby individuals in the event that the "beeper" w.. not
functioning and/or audible,
12, Ae a direot and proximatel:'esult of the negligence of
Defendant, Jaok MoClain, and/oJ:' the defective product of Defendant,
caterpillar, Ino" or Defendant, Hyeter, the forklift ran over the
right foot of Plaint!.f.f, Vat/lY 'l'ravill, who /luffered /leriOU8 bodU'Y
injudes, whioh will hel:'einafter be mOl:'e fully de/lcdbed,
,ATSY TRAVIS v. OATB~P~L~AR. INO.
COUNT I
Sl:t'iol: Liabilil:y
1.3, Paragraphs 1-12 of thie complaint are incorporated herein
B/l if /let f.or.th at length,
l.4, tlllon infor.mation and belief, the' accident of January 27,
1996, ~lerein Plaintiff, Patsy Travis, was injured, was cau.ed by
the clef-eotive oondition of the fol:'ltl.tfl:, which defect existed at
3
<I
thl1l timl1l the fOl:"klift left Defendant's oare, oustody, and oontrol,
and I:"endered the forklift unreasonaply dangerous to those nearby
its opel:'otion,
15, 1\", the I:'eoult of the defeotive nature of the forklift,
Pefendant io stl:'iotly liable to Vlaintiff pUI:'SUBnt to 54021\ of the
Ilestatemllnt (Seoond) of 'I'ol:'l:s fol:' the following reasons I
(a) failing to ~'Npet'ly and adequately dedgn the
fOl:'kli ft, iJ')ollldin\) but not limited to the installation of a
back-up beeper, installation of a flashing light to warn those
in the vioini ty of the forklift of the presenoe of the
forklift or the installation of a shut-down meohanism that
would prevent the operation of the fOl:'klift if the baok-up
beepeX' or flashing ll.ght becamo 1l01l- funotioning,
(b) failin\) to pl:'opel:'ly and adequately manufaoture the
fOl:'klift, inoluding but not limited to the installation of a
haok-up beepeX', installation of a flashing light to warn those
in the vicinity of the forltlift of the presenoe of the
fOl:'klift or the installation of a shut-down meohanism that
would prevent the opel:'fltion of the forklift if the baok-up
heepel:' 01:' flaBhlng Ught became llon- funotioning, ,
(c) Belling a pl:'oduct whlen waa defeotively deaigned,
(d) lIell.i.ng a pl:'oduot whioh was defeotively
manufaotul:'ed,
(1I) fulllnu to wllrn J:>lulntUf, Patsy Travis, of the
dl\ngen)llll nrltlll:e of the fQl:'klJ,ft I and
11
.
(f) manufaoturing and aelling a product that was
unreaaonably dangeroua Be aforenaid,
16, 1\a 11 dirf.lat nUlull: ol! the defeota in the forklift:. u
de/lodl:led IIhove, l'lainl:l fr, l>atuy 'l'rsvill, hila /luffered /lever.,
injurieQ J.nol.udin9, put not limited to, a oruah injury of thl! right
foot, fraoturea of the /leoond, third, and fourt:.h toea of the riaht
foot, fraoturea of the aeoond Bnd third metatarllBll9 of the X'iaht
foot:., and multiple laoeral:iona of the tOEHl, all of whiah required
emergenoy aurgery, the iHoert.l.on or uallgo of pin/l Ilnd a caat, and
oontinuing medioal tl:'eatment,
17, Tla a direot reeult of the dofeota in the forklift 811
deaoribed a/:love, Plaint if f, Patay 'l'rBvis, haa auffered great
phY/'lical pain, diaoomfort, end mental anguiah, and will continue to
endure the l3allle for an indefinite period of t:.ime in the future, to
her great phyaical, emot ional and tinanoial detriment and loaa,
16, 1\a a direot l'eeult of the defeota in the forklift' 'irS
desoril:led al:love, PlalHI:.l.fr., l>atsy 'l'rnvie, haa l:Ieen, and will in the
future pe, hindel:'erl r.rom performing the dutiea required by her
uaua). oooupation and from attending to her daily dutiea and chores,
to hon' oreal: loss, 1111111,11 lnt.l.on and emhon:aesment,
19, 1\s a direal: rOllult of the defeats in the forklift as
desoribed apove, Plaintir.f, PatllY 'l'ravis, haa been compelled, in
order to effeot a aure for aforeaaid injuries, to expend 111rge /lums
of money for medloine nnd lIIedical nttention, Plaintiff, Patsy
TravJa, continues t,o r.eoe.l.ve treatment and incur expenseR of aaid
5
.
injurie~, and will mOQt likely oontinue to do ~o in the future, to
ner great detriment and 101111, and a olaim ill made therdon,
;10. f\Jj /J diJ:eol: t'eQult of tho dofeots in the forJdUt IIJ
dellodbed above, l'lll intift, llotllY 'l'rl1vill, hall /luffered 10/lt wagell
and the llbility to flam wagell by meonll ot gainful employment, llnd
may oontinue to Buffer II110h impairment in the future, and a oleim
ill made there ton.
21, plaintiff, PatllY TraviQ, beliove/l, and therefore averil,
chat her injurie/l 01.'0 perlllonent in nature,
WHIRlrORl, plaintiff, Pat/lY 'l'ravill, lIeekll damagell from
the Oefendant, caterpillar, 1M" in an amount in exoells of twenty-
five l:lloulland ($25,000,00) Dollars, whioh amount exoeedll the
jurilldiotion requirement for oompulBory arbitration.
OOlffl'l' n
NegUgenoe
;1;1, Paragraph/l 1..21 of this Complaint are inoorporated hevei'll
a/l if Bet forth at length.
23, 'l'he negl.l.genoe of. pefendant oonr.Jisted of I
(a) failing to discover the def.ect in the forklift when
Oef.endant: lmew or /lhould have known that lIuoh a defeot
existed,
(h) falling to tBI(~ /lteps nece/lBBry to repair the
fot'kUft,
(0) r.al Uuu to properl.y tellt the forklift I
Ii
..
(dl manufaotul"ing, designing and llelling a forklift
without an adequate warning llYlltem, inoluding put not limited
to a baok-up lJeeper, flallhing light or power llhutdown
meohanhm if the boole-up beeper or f lallhing light beoame non-
funotional/ and
(e) failing to provide any wamLng/J regarding the Ilse of
the forklift in a r~VQr/Je mode,
24, A/J a direot reault of Defendant's negligenoe, Plaintiff,
Patay Travi/J, hBs suffered tho injuries and damsges ae /Jot forth
apove in Paragraphs 16 through 21 ae thoUgh fully set forth herein.
WHBRBPORB, Plaintiff, Patsy Travis, oeeks damages from the
Defendant, Caterpillar, lno" in an amount in exoellS of twenty-five
thou/JBnd ($25,000,00) Dollars, whioh amount exoeedll the
juri/Jdiotion requirement for oompuleory arbitration.
OOUN'l' III
Preach of Warranty . , I
25, Plaintiff., Patey 'l'ravie, inoorporBtee and makee part of
th.ie CC)unt parllgr.aplw 1 through 24 of. thill Complaint ae fully /Jet
forth.
26, At the I:Jme llefendant aold the forkJ.ift, Defendant
warranted, both eXl-'>reaaly and impliedly, that the forklift wu free
from def.eot/l, and wao /laf.e and auitable for the uses for whioh it
was i.ntendfld,
7
.
:27, Pefendant prellohed the afol'esaid warranties, poth eXpre/lB
and !.ml1lled, by I1rovidJ.IIV 11 torlellr.t whiuh wes defeotive as more
fully de~ori~ed aRove,
:lll, /Is a direot rallult of Dafendant's breaoh of its exprellll
snd implied warranties, Plaintiff, Pntsy Travis, has suffered the
injuries and damageS Bet fortll above in Paragraphs 16 through :l1 all
though fully set fOl'th herein,
WHIR.rORI, J?laintHf, J?al:sy '1'I:8vis, lIeeles damages from
Defendant, Caterpillar, Ino" in an Ilmount in exoess of twenty-five
thoulland ($25,000,001 Dollarll, whioh amount exoeeds the
jurisdiotion requiremont for oompulsory arbitration.
WilY TRAVIS v. 1l1STJllR aOMP6lN. poW known ,a. ~cco BUILDING
HATIBRIALS n~!4N~ CJ8Q1l". INC.
aOtm'l' IV
striat JJiabiUty
29, Plaintiff, Patsy 'i'ravis, illoorporate/J and make/J part of
, "
this count, paragraphs 1 through 20 of this Complaint all fully eet
forth,
30, Upon inf.orlllation Bnd bellof, the aooident of January 27,
1995, where!.n 1'1ailltHf., PiltSY 'I'ravilJ, was injured, was oaused by
the defeotive conditi.on of. the foddlft, whioh defeot existed al:
the time the forklift left Defendant's oare, oustody, and oontrol,
and l'lllldered the for'lellft llllreBllonably dllngerou/J to those nearby
itfJ opar'Btioll,
o
31. 1H~ the re/jult of the defeotive natur" of the forklift,
Defendant ill IItdotly Hable to PlaintIff, PatllY 'l'rnvis, purlluont
to 8402A of the Reatotemllnl: (Seoond) of Tortll for the following
reoaOlUl1
(a) fai ling t() ~n'opady lInd adequately dollign thl!!
forltlHt, inoludIng hut not 1J.mJted to the inatnllation of a
hook-up beeper, inatn Uat ion of n f Inflhing light to warn those
in the vioinity of the f.orlt1J.fI: of. the prellenoe of the
forltlJ.ft llr tho Inntnllation of a f1hllt-down meohanin," that
would prevent the ol'lerntion of the f.orkl1ft if the baol<-up
beeper or flallhing light beoame non-funotioning,
(bl failing to properly and adequately manufaoture the
forklift, inoluding but not limited to the installation of a
baole-up beeper, inatallation of II t.loflhing light to warn thoBe
in the vioinJ,ty of the fodtlil!t of the presenoe of the
forklift or the ilwtallation of. a ahut -down meohanir3m t;hat
would prevent the ol'leratIon of. the forklift if. the back-up
beeper ot' F.lauhlng ll.uht beoame non- nmotioning I
(0) nelling n ~ll:odllot wht,oh wan defeotively delllgned,
(d) eelllWJ 11 produot whioh wall dehol:ively
manllf.aotllred,
(e) falling tl1 warn l'lnint.lf.f of the dangerous nal:ure of
the f.ot'ld, ift I IIn,l
(I:) manuJ'urJtudng nnd nfllllnu II produot I:hal: WBe
llnreaoonably ,llIngerollll 110 af.ore/mid,
!J
3:1. 1\/3 a dil:'eat l:'e/3ult of the defeot/3 in the forklift IUJ
ducribed above I Plaint iet, [latlJY 'l'l:'avilJ, h8IJ lIufhnd the injurie/3
and dalllagelJ lJet fOl:'th o,lJOVtl in PaJ:'Bgl'aphlJ 16 thl:'ough 21 8IJ though
fully /let fOl:'th herein,
WHIRlrORl, l)lf\l.ntiff, patay 'l'ravia, lJeeklJ damag8IJ from
Oef1mdant, IIYlJter cOlllpany, now Imown aa NI\CCO auUding Matedal/3
lIandlinl1 GI:'OUP, lno" l.n an amount in exaelJlJ of twenty-five
thoulJand ($25,000,00) 1>011al:'IJ, which amount exceedlJ the
juri/3diction nquirement fol:' aOlllpulJJol:'Y arbitration,
OOUN'l' V
negligence
33, Plaintiff, Pal:/3Y Travis, inool:'porates and makes part of
thiIJ Count, paJ:'BgraphlJ 1 thl:'ough 32 of. thiIJ Complaint alJ fully IJ8t
forth.
34,
'l'he negligflnce of Defendant oonaiated of I
(a) failing to diaaover the defect in the forklift ~hen
Defendant knew or should have known that auch a defeat
exlBted,
(II)
fnrltlf,n,
(0) faili.ng to pt'operly test.: l:he fOl:'klift I
(d) manufaoturing, designing and aelling a forklift:
without an ade'lllatc warning sYlltelll, including but not limited
I",) II hllrJlt-Ul) hacllfl):" f:lallh1ng 11ght or power shutdown
failing to \:al(e Jj\:epll neoeaaary to repair the
10
msahanblll if l:he /'>aolt-up lJeeper or flallhing light beaame non-
funotional/ and
(e) fail.J II\J t(l provide any wUl'Ilinga regarding the use of
the forklift in a reverne mode,
35, TIll a direct result: of Pefelldant'n negligenoe, Plaintiff,
PatllY 'i'niVllI, hall SllfCot'eo the illjlldotJ UIIO damages as set forth
above in Paragraphs 16 tht'ollgh n all though fully set forth herein,
WlIJlRJlrORJl, Plaillt if f. , Patsy 'l'rav ill, /leeka dlllllsgell from
Defendant, Ilyater Company, now Imown all NTlCCO auilding Mater1all3
Handling Group, lna" ill an amollnt in exaesll of twenty-five
thousand ($25,000,00) Dollars, whiah amount exoeeds the
j urisdiotion requirement for oompulsory adJitration,
aOUN'l' VI
areaoh of Warranty
36. Plaintiff, Vllt/lY Travis, inoorporates Bnd makes part of
this Count, paragrallhl'l 1 through 35 of thls Complaint as fully eet
forth,
37. TIt the timl!l Defendant aold the forklift, Defendant
warranted, both axprlHlIlly and J.mpliodly, that the forklift was free
from defects, and waa aafe and muituble for the uses for whioh it
was intended,
30. nefendant breaohed the aforeaaid warranties, both express
alld ,Impl.l,ed, by pt'lIv,t,dlllH a for.ltllft. whioh wall defeot:lve as more
fill I y litWIn' UJed allUvtl,
1.1
39, All a direot l'et.lUlt of PefendBnt' B puaoh of itll eXJlUll1l
and implied warnntielJ, Plaintiff, Patey 'l'raviu, hall Iluffered the
injudl!a and damagelll /let fUl"th apovc ill PBl'flgnpha 16 tlll'ough :11 U
though fully /let forth here ill ,
WlflllllrOIlB, I?laintiff, l)atl3Y 'I'ravi.a, lleeltl3 damagell from
PefelldulIl:, JlYl3ter COlllllallY, nQ\.{ Imown Ofl NACCO Building Mllterillla
IIandUng Group, ~1I0" in an alllolml: in exoe/Je of twenty-five
thou/JBnd (~~5, 000 ,l)l)) I)(lllar/J, which amount exoeedll the
jurhdiotj,on requirement fOl' OOmpulllory e):bitration,
OOUNT VII
P~TSY TR~VIS v. JAOK McOLAIN
40. Plaintiff, PateY'fravill, incorponl:ell and makell part at
thi/l Count I pal:llgraphll 1. through 39 of th,ill Complaint all fully /let
fOl.th,
1\ t, '1'he OOOUn'611oe of afore/Jaid eventll and the rellultant
injudea wall the direol; !lnd proximate reault of the negligenoe' of
the nefendant, Jaok M()Claill, more specifioally eet F.orth ae
followe I
(a) III fuiling to keep a propel' lookout for pedeatriana
behlll') illld 1l)~[)Il11d tho fo):lclif.t all he waB operating
itl
(b) In failing to give suah warni.ng all Wile neoeellary to
mal(e pedoetdalH.l aWare that he waa operating eaid
fOl"leU f.t I
12
IN "'liE COtJl\T or COMMON VI,EM of' ctJMaEI~I.I\NP COtJN'I'Y, I'Ji:NNSYINI\NII\
PATSY L" 'I'MVIS,
Civil A~tion - Law
l'lllintitf
va,
No, 96-6932
CATl-:Il.PILI.AR, INC " ItYIJTEI~ COMPANY,
and JACK MCCI.I\lN,
Dllfllndllnt.1I
JURY TRIAL DEMANDED
12J.I1tm&iLo1~l< MCCLAlN.!..g
~HI~IN-MaIiE~B-CLAI~
AND NOW, ,:elno.JU tho.! lJo.J("nd,"l\, ,J.I,'k ~.-:Cl"in, by and thrO\lqh his
.)ttornllYU, GriOi'II, ~i':n,'kl,'I', 1."l'II:,H\, :','l'",,,,,~ f, <:i11kll'J/J, and l'i hHI lh,~
withil\ Answllr, NoW Moltt.l,r ilnd Cr'"I."-<:!,lllll ,1n<l In HlIf1port. tho.Jroof IIvors
,1S follows I
1. Admlttod upon informiltion and beliEl! .
2, Admi t ted llpOI1 lnformatlon ilnd ReliElf,
J, /\dmi t ted upon inforrnat lon and beliOlf,
4- Awni nod,
5, Penied, /'If to r l'o"sonablo in'Jastlqation, answEldnq DefElndant
ill without knowledgo.! or information sufficient to form a bEllief all to thEl
truth or vElrllcity af tho i1l1cgationll ccntllinEld in paragraph 5 of
I'laintiff's complaint and tho 81llllEl Ilre denied and atrict proof thereof
is demanded Ilt the timll of trial,
6,
Admitted in pllrtl denied in part,
It is admlttod that
Defendllnt Jllck McClain WIIS operating a forklift on the prllmisOls of True
Temper, Inc,/lIuffy Corporation on or about Janllllry 27, 1995 within the
scope of his emploY/llo.!nt with Aycock,
Inc.
After rll,laollablll
invlllltiqBtion, Oefendant lockll knowled'}lI o/: information lIutticillnt to
form II peUef all to the truth or vero(jity of the remoinin'1 olle'}4tions
contained in paraqraph 6 of Plaintitt's Complaint and tho ellme are denied
and IItl.'ict proof thereot ill demalldod ,n tho time ot t.l.'ial,
7, Pllnied, Atter reolJollablo invonti'jatlon, 'lnawol'i/lOj CofQndant ilJ
without knowlodge or intormat.ion aurficiQnt to farm II bolief ae to tho
truth or veradty of the alloJ'j,ltioll/l contail101d in paroqraph 7 of
Plaintiff' II Complilillt alld tho 8illlloJ 'U') donioJd ,md IJUict proof theroot
ia delllanded at tho tillle of trial,
ij, Denied, Aftor reaBollilblo iI1V'JBtigation, ilnllwllrin'J Defendal1t
ia without knowlodqoJ or I.nformilu'JI1 5uttLdont to form il btlJ.1ef ae to tllO
truth or voracity of the alLogationa contaillod in paragraph e of
Flalntl.:t'~: <, :'-F:,l~t-,l ,)r.d tl',l! :',11" itl: !t:lll(:,i .lr.,t bl.1':'~ I-r: : ~~,' l"'~
ie demanded at tho time of trial.
9, Penied, Aftor roalJOIHlblolJ invelJt.1gation, answering Dehndant
ie without knowled'le or information IIllfndent to form II bolief ae to the
truth or veracity of the ilLlegatione contained in paraqraph 9 of
Plaintitt's Complaint and the same are denied and strict proof thereof
ill demanded at the time of trial,
10, Denied. After rellsonablo investigation, answerinq Defendant
is without knowledge or information sufficient to form a belief liS to the
truth or veracity of the allogatione contained in paragraph 10 of
Plaintiff'e Complaint and the eamo aro denied and etrict proof ther~of
is demanded at the time of trial,
~
..
WHEI\ErOI\E, PetendBnt, Jack McChin del1loJnds thst jll<IQl1lllnt pe entlll:'ed
against Plaintiff togllthllr with COllts of sUit, plus such othlll:' relillf as
th1ls lIonoraplll Court may dllllm appropr iiHII undllr thll c1I:'CUmlltanclIs,
NIlW HATTIR
43, Paragraphs 40 - 4] above aru incorpol:'atlld hllrllin by retllrllnclI
all though set forth In full,
44, Thu Plaintiff's Complaint falls to state a caUSQ of action
upon which relict can bu qrantud,
45, The Plaintiff's Ccmplaint may be barred by appllcablll statUtes
at lllnltiltlon,
46, Plaintiff's claims may bo barrud and/orlimltllct by thu
doctrines of I'OR Ju~lcntn nn~/or collntoral Estopplll.
47, Plaintiff's claims may bll barrlld and/or limited by the
Pllnnaylvania Comparative Negligencu Act and/or any other applicable
cOl1lparative negligence act,
48. Plaintiff'S alleged damagas and/or losses were sustained
solely as a result of the activities and/or conduct or omissions on the
part of the Plaintiff, patoy L, Travis,
49, Plaintiff's allllged damages and/or losses wero sustained
solely as a result of the activitiEs and/or conduct or omissions on thll
part of the agents, workmen, employees and/or servants of Plaintiff's
employer,
50. Plaintiff's claims are barred and/or limited because the
Plaintiff andlor agonto, servants, representatives, workmen or employees
6
'.
WHI!:~~rOp.E, Oefendant, Jack McClain demanda judqment in hia faVor 4nd
al/einat ~IQintiff, tal/ether with coata of Hllit,
I'IJ' """'TlJUtf THI ~,.~,. ,. CI\OII"-C~Il1
lUUUANT TOJA.,B,.&..L.,a.a,UJ.dl
l1.IJlJL.NcClain v, Ct.l;,UJ;l~ilJL-lJlQ..,_.Il5LIb'U.I.. CClIlpany
51, ~eregrQphll 40 - 56 obove ore in~orporotqd herein by reference
aa thouqh aet forth in full,
5ij, lIor purpollell of thiH Cr,'-'""-I:lolilJl, the ,Illeg,ltionll and Countll
,lgainllt the rellpactl.vo Co-f)(ll'''nd<llltll, C,lterpillor, lnc, and IIYllter
cOlnpany as lIet forth in PI.lintUf' II COll1ploHnt ,1/.0 In~orporatlld herein by
plferen"" ,III though Bot f"rth ill I'll I,
59, If tho incident JOHcribed in PlointLft'B Complaint occurred as
'llloJl'1"J tl;\lL'Hn, th\lll L\llcl;J,II;t", ~,lt"qJL"LIL, In-::, dnJ IIYllt\lr C'-'lIlpdny,
are Holely liable to the Plaintiff,
60, In the altllrnativo, lJufund~nt" Cilt"rplllar, Inc. and Ityster
company are jointly and/or severally li.lble With answering Defendant,
Jack McClain, and/or DofendantB, c,lterplllolr, lnc, and HYBter Company
are liable over to answering DOfendant, Jack McClain for contribution and
indemnity, the existllnce of any liability on the part of answering
Defendant, Jack McClain being strictly deniod,
61, Defendant, Jack McCI,lin aBsertll this CraBs-Claim againBt
Defendants, caterpillar, Inc, Ilnd Hyster company to preserve hi., right
of contribution and/or indemnity,
WHEREFORE, Defendant, Jack McClain demanda that any judgment entered
in favor of the Plaintiff be entered solely against Defendanta,
Caterpillar, Inc, and Hyster Company.
In the alternative, Defendant,
Jack McClain demands that in the event judgment is entered against it,
B
':
YlJl.;J:,I CATIOJf
I, Ronald ~, Paugherty, hereby state thBt I am an attorney
for Caterpillar, Inc" that r am authorized to make thia
Verification on ita behalf, and that the facta aet forth in the
foregoing Preliminary Objectiona to complaint are true and
correct to the beat of my knowledge, information, and belief,
Thia Verification ia made aubject to the penaltiea of 16 Pa, C,S,
5 4904, relating to unaworn falaification to authoritiea,
Pated, 2/25/97
Il)I)I)('C1Ffwpa
I ,
"
11 ';.; Ii.
l~ i ~ ',1;)
'tl ,,~ I '\I'~
l~:, ; "~I~
=\.ti r:; '11.l\!!
'~ ~''fi
I
, I
I
I,
H,
~ i
I
,
'i ,! ~
, "
I
-I ~ t:1
. I ~ r I i~
lilil!
I ,
I .
I
,
,
. .
,
I
I,
I
, .
i; :I
415, Dltnled, The ellegatlon set forth In peragreph 46 Is e oonoluslon of law
to whloh no rllsponslve pleedlng Is required, however, to the extant thet The
Honorable Court deems e response neollssery, the Plelntl" denies thet her Complaint
may be barred by the epplloeble 6tetute of Limitations,
46. Denlad, The allegetlon set forth In peregraph 461. a oonoluslon of law
to whloh no responsive pludlng Is requlrad, howavar, to thf/ extent that The
Honorable Court daems a response nacessary, the Plalntl" denies that har Complaint
Is berred end/or IImltad by the dootrlne of Res Judloata or Collaterel Estoppel,
47. Denied, The allegetlon set forth In paragraph 471s a oonoluslon of law
to whloh no responsive plaadlng Is requlrad, however, to the extent that The
Honoreble Court deems a response necessary, the Plaintiff denies that her Complaint
Is barred and/or limited by the Pennsylvania Comparative Negligence Act and/or Imy
other applicable Comparative Negligence Act,
46, Denied. It Is denied that Plaintiff's damages and/or losses were osused
In any way by her activities or conduct or omissions end proof to the contrery Is
de mended at the trial of this matter,
49, Penled. It Is denied thet Plelntlff's demeges end/or losses were oeused
by or the result of any eotlvltles or conduct or omlssltms on the pert of the egents,
workmen, employees end/or servsnts of Plaintiff's employer, and proof to the contrary
Is demended et the trlel of this mstter,
60, Penled. It Is denied thet Plaintiff's olelm Is berred end/or limited beceuse
the Plelntlff's employer, through Its egents, servents, representetlves, workmen or
2
\
employeel telled to properly Instruct or warn the Plalntlft, and proof to the contrary
Ie demllnded lit the trllll of this mlltter.
61. Denied. It Is denied that Pllllntltt's claim should be barred or limited
beollullthe Plelntlff or the egents, represllntlltlvell, employees, workmen or lorvents
of Plelntltt's employer fslled to properly and adequately malntoln the rODI estate and
fixtures comprising a part of the rODI estate Inoludlng, but not limited to, the metal
working area of Plaintiff's employer, end proof to the contrary Is demanded atthe trllll
of this mslter.
62. Denied. The allrlgatlon set forth In Paragraph 62 Is a oonoluslon of law
to which no responsive pleading Is required, however, to the extent thet The
Honorllble Court deems a reeponee neoeseary, It Is denlad that the Plaintiff assumed
the risk of any Injury or damagee thst she olalms and proof to the oontrery Is
demanded at the trial of this matter.
63. The allegation set forth In Paragraph 63 Is 0 conclusion of low to which
no responsive plesdlng Is required, however, to the extent that tho Honorable Court
deems 0 response necessary It Is don led that Plaintiff assumed the risk of her Injury I
It Is denied thllt she was oontrlbutorlly negligent, It Is further denied that any aot,
omlBBlon, aBBumptlon of the risk of her Injury and/or contributory negllgenoe on the
part of the Plaintiff was 0 super Be ding or Intervening causa of her Injury, end proof to
the contrary Is demanded at the trial In this molter.
64. Denied. The allegation set forth In Paragraph 641s e conoluslon of law
to which no responsive pleading Is required, howevar, to the extent that The
3
Honorllble Court deems a response neoessary, It Is denied that thare were any aots,
omlnlons, nsgllgenoe or other liability produolng conduct of agents, representatives,
workmen, servants or amployees of Plaintiff's employer, or others, which constitute
a superseding or Intervening oause of the Plaintiff's Injuries and damages, and prcof
to the contrary Is demanded at the trial of this molter.
66. Denied. It Is denied thet the Plaintiff failed to take reasonabla measures
to oure the Injury or provent further Injury or loss from taking placll. It Is denied thet
the Plaintiff failed to mitigate her demages, and proof to the contrary Is demanded at
the trial of this malter.
66. Denied. The Defendent's ellagatlon os set forth In Peragraph 66 Is very
brood end vsgue. It does not specify what safety rules and ragulatlons the Plaintiff
Is deemed to hevD violated. This allegation Is a ooncluslon of law to which no
responsive plaadlng Is required, howaver, to the extent that The Honorable Court
deems It naoClssary, the Plaintiff danles that she violated any safety rules end
regulations, Federal, State or Local, that gave rise to the Injuries that she sustained
os a result of being struck by the forklift being operated by the Defendant, and proof
to tha oontrary Is demanded at the trial of this malter.
f'EPLY TO NEW MATTER IN THE NATURE Op A COUNT~R.CLAIIVJ
AQAJNOT CO-Dt:FENDA~TB
67-61. No response Is required to the allegations of the Cross-Claim since they
are dlreoted by the Defendant to tho Co-Defendants. To the extent applloable end
4
~
W. SCOTT HENNING, ESQUIRE, statu thst he Is the attorney for the pllrty
filing tha foragolng document; that he makes this affidavit as an attorney, bllclluse the
pllrty hll represents lacks sufflolent knowledge or Informstlon upon which to make a
varlfloatlon and/or beolluse he hils greater personal knowledge of the Information and
ballef thlln that of the party for whom he makes this affidavit; and that he hils
sufflolent knOWledge or Information and belief, based upon his Investigation of the
mlltters IIverred or denied In the foregoing document; and that this statement Is mllde
subject to thll penalties of 1 B Pe C.S. 14904 rellltlng to unsworn flllsltlcatlon to
authorltllls.
Datet
g ...5~97
,
.~
\,
'! I
,
/ '
,"
/
't{ I~
1~' :!:
, '~,!' ~~i'
~" li.-
l' ,.,
j, ;;:'\
J' "'~
~' ~
,';
".\
",;5
/'1
..
, .;.~
;.;:..
, il)
tIt,;
"'j(ll
11,d.:
13
'"
,
,
, ffi
: ~ I
i I~' ~ I
I
, 1~I:tl
I
,
,
ii,
. '.
, ,
. .
PATSY L. TRAVIS
Plaintiff
t IN THE COURT OF COMMON PLEAS
t CUMIIERLAND COUNTY, PENNSYLVANIA
I
I JURY TRIAL DEMANDED
~
t NO. 90.6932 CIVIL TERM
I
t
t
t
v.
CATERPILLAR, INC" HYSTER
COMPANY Bnd JACj( McCLAIN,
Defendants
eLAJl'1ITIPP'S RESPONse TO PIJt:~IMINARY OBJeCTIONS OF
QADRPIJ.l.AR. INC. TQ eJ.AJ1mFF'S CQMfJ.AINT
Plaintiff, by Ilnd through her ettorne'ls, Hendler end Wiener, hereby responds
to the Prellmlnery Objections of Caterpillar, Inc. to Plaintiff's Complaint as followsl
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
6. Admitted.
6. PBrBgraph 6 Is II stlltement of IBW to whloh no responsive plelldlng Is
required. The wordlno of PennsylvBnle Rule of Civil Prooedure No.1 019 speaks for
Itself .
7. It Is Boknowledged thBt the ComplBlnt alleges that Plaintiff WBS run over
by a forl(lIft/llft truok and It IB aoknowledged that the Plaintiff has Instituted a oause
of ectlon IIgalnst two dltterllnt 11ft manufacturers, namely Ceterplller, Inc. end Hyster
Compeny. The rellon that thlll oocurred Is due to the tact thet the Plelntlff at one
point In time had Indicated thet the forklltt In queetlon was possibly a Caterpillar
forklift. At e later point In time Plaintiff IIdvlsed Plaintiff's counsel that she wes of the
belief thllt th" forklift thet struck her wos 0 Hyster Forklift. Prior to filing suit vllrlous
IIttempts were mllde to oontoct the workllrs' compenslltlon Insuranoe oompllny to
obtllln their InveatlgBtlve file so as to datarmlne If there wes anything In the workers'
compensation Insurance oompany's Investigative file und reports that would Indicate
the mllnuflloturer of the forklift and the speolflc make und model of the forklift. The
workers' oompensBtlon Insurance ourrler responded by Indicating thet they did not
hove IIny suoh Investigative meterlals. Altempts were also made with the Plaintiff's
employer to geln acoellB to the premises to view the site of the Incident and look at
the forklift In question, however, such aooess was denied absent a Court Order. As
e mlltter of preoeutlon suit was flied naming Caterpillar es II defendllnt with the
ontlolpatlon that discovery would verify the proper mllnufeoturer of the forklift.
B. Denied. The allegutlon set forth In paragraph B Is a conclusion of law
Involving IIn Interpretlltlon of the Pennsylvania Rules of Civil Procedure. The Rules of
Civil Prooedure regarding alternative pleading speak for themselves.
9. For the reDBOnSl8t forth In response to peregraph 7 and 8, os well os the
other responses contelned herein, the allegation set forth In paragraph 9 Is denied.
Moreover, the ellegatlon In paragraph 9 Is 0 request for relief, IInd Pllllntlff submit.
that the requested relief should be denied.
2
10. Denied. The allegation Slit forth In parsgraph 10 Is a conclusion of law
to which no responsive pleading Is required, however, to the extant thet the Court
deems II response neoQsl$ary, the Plaintiff al8ertsthat the Dafendllnt Is contending
thllt Pennsylvanllllaw requires the naming of a speolflc product manufaoturar. This
principI!I of law mllY bll correot In oertllln sltuntlons and be applloable to those
situations In which a detendant nsmlls a number of mllnufaoturers beoeuse It ollnnot
be determined or ascertained who speolflcally menufllctured the product that caused
herm to thll plaintiff. In the subjeot oase thll Plelntlft speclfloally named two
defendants and the defendant manuflloturers In the alternative as e matter of
precaution. Information has been gathered as part of the discovery process that Is
Indicating that the forklift In question was Indeed a Hyster Forklift, as opposed to II
Caterplllllr Forklift and to the extent that this Informlltlon Is verified as eccurete, It Is
entlolpllted that the pertles cen enter Into a 6tlpulatlon to allow the withdrawal of
Caterpillar, Ino. from the eubjeot prooeedlngs.
11. Denied. The allagetlon set forth In pllragreph 11 Is a ooncluslon of IIIW
to whloh no responsive pleedlng Is neoessary.
12. Denied. The allegetlon set forth In paragraph 12 Is e conoluslon of lew
to whloh no responsive plelldlng Is necessary. To the extent that the Honorable Court
deems II response necessary, It Is speolfloally denied that the Plaintiff's Complaint falls
to state B valid clluse of lIotlon against Defendent Ceterplllar, Inc.
13. Denied. The sllegatlon set forth In psragraph 13 Is a oonoluslon os law
to whloh no responsive pleading Is necessary, however, to the extent thllt the
3
Honorllble Court deems a response neoessary, the Plein tiff Inoorporates her reply to
pllrllgraphs 1 through 12 herein. It Is denied that the pleedlngs set forth In the
Complaint lire Inadequate. Detendant hOB mls-oherooterlzed eome of the faotual
everments set forth In the Complaint ond has taken them out of oontext. For exomple,
the Defendllnt alllerte thllt Plaintiff desorlbes her Injuries as "Inoludlng, but not limited
to a orush Injury." A review of parllgraph 16 of tha Complaint Indlclltes that there Is
a speolflc delineation of the naturll ot the crush Injury and what body parte were
Involved In the Injury.
14. Denied. The alleglltlon set forth In peragraph 14 Ie a oonoluslon of law
to which no responsive plesdlng Is neoesBary, however, to the extent that the
Honoroble Court deems e response neoessary, the Plaintiff donles that the Complaint
lacks the specificity needed under Rule 102B of the Pennsylvania Rules of Civil
Procedure.
WHEREFORE, Plaintiff requests the Honorable Court to dismiss the Preliminary
ObJeotlons flied by Defendant Caterpillar, Inc.
Respectfully Submitted,
HANDLER AND WIENER
"
4
, '
i~ .~ ?~~
, I~:" ;,':'. ) :',\";
;J ~,.. 'j-: ,
I' 'h;!
'f t-. 'I((~
", .w; ~r uHf!
, ~ ~ ~
::t!":"I"
r,o'; " ,.
:'1' ,
,\'1
Ii'
, ": J
'M "
I
,..1 " ~
;1 \' 1)
Ii
1
"
~
,:1
Iii
. ~~'
~, 'I
,
~~j ~ .. It
~, 'B '[4,,:\ W'
I .n 4 ~l 'Tl
"I. .~ ~
'2 t ~
a, ~'
~ ~l t,~
I 1 'ofi ~.8 ,I
,
I ~~S ~
, .~ 'r~ ~i
~
,. rj
~iI~ ~1
I
<llf< _
, ~ ~~ ~'...
H ~ .,.,
Cl [~I~r.I-t( ~
~.I ;::. -'.> (,) t~
,
.
,II
;,1"
'!' r ~"
'" l' ,'i I.
F, i I
, ...-.....
.~
..,'.
.. .
- .
IN THI COU~T OF OOHMON f~EAS, OUHSEP~NO COUNTY, fENNSY~VANIA
PATSY ~. T~VIS, l
l
plaintitt l
l
V. l OIVI~ ACTION - LAW
l
CATEPPI~LAR, INO., HYSTEP COMPANY, I No. 911-lI!132
and JAC~ MCOLAIN, I
I
Oetendantl I
AMI.I. .ITH .1. HATTIR or
~.'I.PAMT IYITI. COK'AMY,
~D. I~CO HATIRIA~' "'p~Ild dROU,. I~
NOW COMES detendant Hyster oompeny, now NACCO Materials
Handlin9 GroUp, Inc., by its attorney., Reeter, Wood, Allen'
~ahal, to anawer plaintitt'. oomplai,nt, averring as tollowsl
1. Denied. Atter reasonable investigation, detendant
H~ater oompany (hereinatter reterred to as "Hyst8r"), now NACeo
Materiala Handling Group, Inc. (hereinatter reterred to as
"NACCO"), 18 without knowledge or intormation sutricient to torm
a beliet aa to the truth ot the averment.
2. Denied. Atter reasonsble investigation, NACCO is
withQut knowledge or intormation sutticient to torm a beliet sa
to the truth ot the averment.
3. Admitted in part and denied in part. Hyster. oompany, an
Ore90n corporation, merged into a Delaware corporation ot the
aallle name on December 31, 1993. The name ot the successor entity
waa chBnged to NAceo Materials Handling Group, Inc. on January 1,
..
... .
.. .
111.. By w.y or rurther IIn.wer, "ACCO, Hy.ter'. .ucce..cr in
intere.t, i. II bu.ine.. ccrporlltion with it. princip.l pl.ce or
bu.ine.. loc.ted .t 2701 "orthwe.t Vllu9hn, Suite 100, P. O. Box
2102, Portland, ore9on 97208. "Hy.ter co~pany" i. now In a..u~ed
bu.ine.. na.e or "ACCO.
.. Denied. Arter rea.onllble inve.ti9ation, "ACCO i.
without knowledge or infor~ation lIutticient to tor~ a belier ..
to the truth or the aver~ent.
5. Denied. Arter rea.onable inve.tiiation, NACCO i.
without knowledge or intor~ation .urricient to ror~ a belier a.
to the truth or the averment.
6. Denied. Atter realonable invelti9ation, NACCO ie
without knowledge or intormation lutricient to torm II belier a~
to the truth or the IIver~ent.
7. Denied. Atter reallonable invelltiiation, NACCO il
without knowledge or intormation lurticient to torm a beliet a.
to the truth or the averment. By way of further anllwer, NACCO
.peoiriclIlly deniel thllt it d.liined, tabricated, manutactured,
.....bl.d, .lIrketed, or lold the IUbject forklitt, until proor to
the contrllry i. provided.
8. Denied. Atter rea.onllble inveeti9ation, NACCO il
without knowledqe or intormation lutticient to form a beliet III
to the truth ot the averment.
-2-
,
I'"~
~\
,
,
,
,
I'
"
..
8. p.ni.d. Aft.r r.lI.on.bl. 1nv..t1~at1on, MACCO 1.
without knowledq. or 1nfor~et1on .uff1c1.nt to for~ . b.li.f a.
to the truth ot the av.r~.nt.
10. p.n1ed. Att.r r.lI.onllbl. inv..t1gllt1on, MACCO 1.
without knowl.dq. or 1ntor~at1on .utt1c1.nt to for~ II b.l1.f II.
to the truth ot the av.rm.nt. ~y way ot furth.r IIn.w.r, NAOCO
.p.c1fically d.ni.. that it de.ign.d, tabr1cat.d, manutllctur.d,
....~bl.d, ~ark.t.d or .old the .ubj.ot torklift, until proof to
the contrary i. prov1d.d.
11. P.nied. Att.r rea.onllbl. inveatiqat1on, MACCO ia
without knowl.dg. or intormat1on aUff1c1ent to form II beli.f a.
to the truth of the averment. By WilY of turther an.w.r, MACCO
.p.cificallY d.n1.a that it deaign.d, fabricated, manufllotur.d,
aaa.~bl.d, ~arket.d or aold the aUbject forklift, until proof to
the contrBry ia provided.
13. P.ni.d. Pllraqraph 12 ia a conclusion of law, or II
mix.d concluaion of law and fllot, to which no response n..d b.
mild. by MACCO. If a reapons. 1a deemad necesllllry by the court,
MACCO d.ni.. thllt it. prcduot wile involved in the subjeot
accid.nt until proof to the contrary ill provided. By way of
furth.r IIn.w.r, if a MAC CO produot was involved in the subjeot
.v.nt, which i. Ip.cificlllly denied, laid produot wa. not
d.f.ctiv. in any manner whatsoever.
-3-
,
~ ,
. ,
'~T'Y TalVX. V. C~T'.'X~~, XNC.
COUNT X
.t~iot ~ia_ility
13. NAaao inoorporllte. herein by reterenoe it. re.pon.e. to
plrlqraph. 1 throuqh 12 ot plaintitt'. oomplaint a. it the .ame
w.r. .et torth in tull.
14-21. The IIverment. ot the.e pllrllqraph. are direoted to a
det.ndllnt other thIn NACCO, and no response i8 required trom thi.
IInDwerinq detendant. It responses to one or more ot these
IIverment. are deemed neoessllry by the Court, the same are denied
in their entirety, for the reason that atter rsasonable
inve.tiqation, NACCO llloks knowledqe or intormlltion sUffioient to
form II belief as to their truth.
WHBRBFORE, NACCO re.peotfully request a this Honorable court
to di.mi.. plaintiff'S oomplaint and to snter jUdqment in its
fllvor, toqether with oosts of suit and any other relief this
Court deem. tair and just.
'~T'Y TalVX. V. C~T'.'XLLll, XIC.
COUNT XI
leqliqeDoe
22. NAcao inoorporates herein by referenoe its responlles to
paraqraph. 1 throuqh 21 ot plaintiff'S oomplaint as if the same
were .et forth in full.
23-24. The averments of these parllqraphll are direoted to a
defendant other thIn NACCO, and no re.ponse i. required from thi.
-4-
. ,
- ,
. .
anlw.rin9 d.f.ndllnt. If r.epone.1 to on. or mor$ of th.l.
Iv.r..nte ar. d....d n.o.eellry by the court/ the III.e Ire denied
in th.ir .ntir.ty, for the r.lllon that aft.r r.aeonabl.
inv.lti9I1tion/ "~CCO lllcke knowl.dg. or infor.ation eUffici.nt to
for. a b.lief III to their truth.
WHEREFORE, N~CCO relpeotfully r.quelltll this Honorable Court
to dis.ile plllintiff/e oomplaint and to enter judgment in ite
fllvor/ together with oosts of suit and any othor relief this
court dee.s fair and just.
'ATIY TaAVII V. OATI.'ILLAR, tHO.
OOUHT XXX
Ireacb of .arranty
2~. N~CCO inoorporates herein by referenoe its responses to
paragraphs 1 through 24 of plaintiff/s oomplaint IS if the same
were set forth in full.
26-28. The averments of these paragraphs are direoted to a
d.fendant other thIn NACCO/ and no response is required from this
anewering defendant. If responses to one or more of theBe
av.rmente are deemed necessary by the court, the same are denied
in their entirety, for the reason that after reasonable
investigation, NACCO lacks knowledge or information sufficient to
form a b.lief ~s to their truth.
WHEREFORE/ NACCO respectfully requests this Honorable Court
to diemiee plaintiff'S oomplaint and to enter judgment in its
-5-
, ,
tIVO~, together with ooete of lIuit and any other relief this
oourt deeme tair and juet.
'.TIV TIAVII V. IV.TI. OO.'''V,
MO' lMOWl .. MACOO "T'.I~' ...~LING GROQ', INO.
~Ir
Itriat Liab lity
~9. "AeeO inoorporate. herein by referenoe ite re.pon.es to
parag~aph. 1 through 28 of plaintiff'. oomplaint a. if the same
Were let forth in fUll.
30. Penied. After reasonable investigation, "AceO is
without knOWledge or information sUffioient to form a beliet IS
to the truth of the averment. By way ot furthflr answer, "ACCO
epecifioally denies that it designed, fabrioated, manufaotured,
aesembled, marketed or sold the sUbjeot forklift, until proot to
the oontrary is provided. It it i8 proven that the sUbjeot
forklift was a "ACeO produot, "ACeO denies that said produot WIIS
d.f.otive or unreasonably dangerous in any respeot whatsoever
wh.n it left its oare, oustody and control. On the oontrary, the
forklift in question, if a "Aeeo produot, was free of defuot in
all re.peots.
31. Penied. After reason3ble investigation, "AeeO is
without knowledge or information sUffioient to form a beliet as
to the truth of the averment. By way ot further answer, "ACCO
specifioally denies that it designed, tabrioated, manutaotured,
as.embled, mllrketed or sold the subjeot forklift, until proof to
-6-
t~e Qontrllry il provided. If it il proven t~at the lubjlct
forklitt Will II NAOCO prcduct, NACCO denie. that laid product wal
detective or unrelllonllbly dangeroul in any re.pect whatloever
when it lett itl care, cUltody and control, or that NACCO il
Itrictly lillble to plaintift. in regllrd to the alleged aotl and
omillionl let forth in .ubparagrllph. (II) through (f) of thil
aver.ent. On the oontrary, the forklift in question, if a NACCO
product, was free of defeot in all respects.
32. Denied. After reasonable investiglltion, NACCO is
without knowledge or information IIUfficient to form a belief as
to the truth of the averment. By way of further answer, NACCO
Ipecifically denies that it designed, fabrioated, manufaotured,
allsllmbled, marketed, or sold the subjeot forklift, until proof to
the oontrary is provided. If it is proven that the subjeot
forklift Wal a NACCO produot, NACCO denies that said produot was
defective or unreasonably dangerous in any respeot whatsoever
when it left its oare, oustody and oontrol. on the oontrllry, the
forklift in que.tion, if a NACCO produot, was free of defeot in
1111 respects.
WHEREFORE, NACCO respeotfully requests this Honorable CQurt
to dilmi.. plllintiff's oomplaint and to enter judgment in its
favor, together with costs of suit and any other relief this
Court de.ms fair and jUst.
-7-
, .
'ATIV TaAVXI V. NVITla OON'IMVl
10. aro.. AI laaoo KATlaXALI IAIDLXla aaou" XIO.
COUIT V
le,liveDoe
33. NAOOO inoorporate. herein by reterenoe its re.ponses to
pllrll9raphs 1 throu9h 32 ot plaintitt's oomplaint IS it the same
Were set torth in tull.
34. Denied. Atter rea.onllble investiglltion, NAOOO i.
without ~nowledge or intormation euttioient to torm a beliet IS
to the truth ot the averment. By WilY of turther answer, NAoeO
speoitioally denies that it designed, tabrioated, manutaotured,
IIssembled, marketed or sold the sUbjeot torklitt, until proot to
the oontrllry is provided. It it is proven that the subjeot
torklitt WIIS a NAeeo produot, NAeeo denies that said produot was
deteotive or unreasonably dangerous in any respeot whatsoever
when it lett its Ollre, oustody and oontrol, or that NAeeo was
ne91igent in IIny respeot in regard to the design, tabrioation,
manutaoture, aesembly, mllr~eting or eale ot the torklitt,
inoluding, but not limited to, the aots ot alleged negligsnoe eet
torth at subparagraphs (a) through (e) in this aVerment. On the
oontrary, NAeeo lIoted with due oare in 1111 respeote in oonneotion
with the tor~litt in question, it laid unit wae indeed a NAeeo
produot.
35. Denied. Atter rellsonable investigation, NAeeo is
without knowledge or intormation euttioient to torm a beliet as
-8-
to t~e truth of thM av.r..nt. By way of further an.w.r, "ACCO
.p.cifically d.nie. that it d..i9n.d, fllbricllted, .anufactur.d,
.....bl.d, .lIr~.t.d cr .old the .ubj.ct for~lift, until proof to
the contrllry i. prcvided. If it i. prov.n that the .ubject
forklift wa. a "ACCO product, "ACCO d.nie. thllt it wa. n.91igent
in IIny re.p.ct What.o.v.r in r.9ard to the d..i9n, fabricaticn,
.lInufllctur., 1I....bly, .arketin9 cr .ale of the for~lift in
qu..tion. on the contrary, "ACCO IIcted with due car. in 1111
r..p.ct. in connection with the tor~lift in question, it .aid
unit was inde.d II "ACCO product.
WHEREFORE, "ACCO re.pecttully reque.ts this Honorable Court
to di..il. plllintitt'. complaint IInd to enter jUd9.ent in its
favor, t09.ther with COlts ot suit and any other reliet this
court de e.. fair and just.
'ATSY TIAVIS V. KVST'. CON'~Y,
lOW 110.. A' IACCO MAT.RlaLS aa.DLIIO OROU', IIC.
COUIT VI
Ire.ob of Wlrr.nty
36. "ACCO incorporate. herein by reterenca its re.pon.e. to
pllrll9rllph. 1 throu9h 3~ ot plllintitt'. complaint as it the .a.e
w.re .et torth in full.
37. Denied. After relllonllble investi9l1tion, NACCO i.
without knowledge or intormlltion sUfticient to form a beliet ae
to the truth of the averment. By way ot further answer, NACCO
Ip.oifiolllly dsnie. that it de.i9ned, fabricated, manutactured,
-9-
. .
....~~l.d, ~ark.t.d or .old tn. .ubj.ct torklitt, until proot to
tn. contrary i. provided. It it i. proven that the .ubject
torklitt was a NAcao product, NACCO denies that .aid produot WI.
d.t.ctiva, unr.lI.onllbly dllng.rou., un.llt. or unauited tor the
UII.a tor whioh it Will intended. On the contrary, the torklitt in
qu.ation, it II NAoao produot, was tree of detect in all reapecta
and waa both aate and suited for the uses for which it waa
int.nded.
38. Denied. After reasonable investigation, NACCO is
without knowledge or intormation sutficient to torm a beliet aa
to the truth ot the averment. By way of turth~r answer, NACCO
.pecitically denies that it designed, manufactured, tabricllted,
a.a.~bled, ~arketed or sold the subject torklitt, until proot to
the contrary ia provided. It it is proven that the subject
torklitt waa a NACCO product, NACCO denies that said product was
detective, unreasonably dangerous, unsate or unsuited tor ehe
u... for Which it was intended. NACCO specifioally denies that
it br.Boh.d any express or implied wllrranty in regard to the
torklitt in question. On the oontrllry, the forklift in question,
it a NACCO product, was tree ot deteot in all respects and was
both .ate and suited for the uses for which it was intended.
39. Denied. Atter reasonable investigation, NACCO is
without knowledge or information suttioient to torm a belief as
to the truth ot the averment. By way of further answer, NACCO
-10-
.p.citioally d.ni.. that it d..iqn.d, manufaotur~d, tabriollt.d,
....mbl.d, mllrk.t.d or .old the ,ubj.ct torklitt, until proot to
the oontrary i. provided. If it i. proven that th~ ,ubj.ct
torklitt wa. a NACCO produot, NACCO denie. that aaid product Wlla
det.ctiv., unre..onllbly dllnqerou., unaafe or unauit.d for the
ua.. for which it WI' int.nd.d. NACCO apecifically deni.a that
it br.llch.d any expreall or implied warranty in reqard to the
forklift in quelltion. On the contrary, the forklift in queation,
it a NACCO produot, was tree of defect in 1111 respects and wlla
both ellfe and auited for the uses for which it wea intended.
wnEREFORE, NACCO reapeotfully requeats this Honorable Court
to diami.. plaintiff' a oomplllint IInd to enter jUdqment in ita
favor, toqether with coats of suit and any other relief this
Court deems fair and just.
'AT" TJAV!' V. JACK NoCLA!"
COU", V!!
..qliq.no.
40. NACCO inoorporates herein by referenoe its reaponaes to
paraqrllpha 1 throuqh 39 of plaintiff'S complaint IS if the same
were aet torth in full.
41-42. The avermenta ot theae paraqrapha are directed to a
detendant other thIn NACCO, and no reaponse is required trom thill
IIn.werinq defendllnt. If responses to one or more of the~e
av.rmenta Ire d.emed neoessary by the court, the aame are denied
-11-
in tbeir e~tir~ty, for the reI son tbllt after reasonable
inv..tigation, NACCO llloks knowledge or information sUffioient to
for. a belief IS to their trutb.
WH.~.roR., NACCO re.peotfully requests this Honorable court
to di..is. plaintiff's oomplaint and to enter jUdgment in its
favor, together with oosts of .uit and a~y other relief this
Oourt deem. fair and just.
~.. MATT..
43. Tbll oomplaint fails to state a olllim upon which relief
oan be granted.
44. Thll damages allegedly sustained by plllintiff were
oaused solelY, or were oontributed to, by plaintiff's own
negligenoe, laok of due ollre, or other fault on her part. The
degree of such negligenoe was equal to or greater than any fault
of NACCO, wbicb is speoifioally denied.
45. The damages oomplained of by plaintiff resulted from
unoontrollable circumstances, or the oonduot of third parties
over whioh NAOCO hId no oontrol or right of control, or whioh
oould not reasonably be antioipated by NACCO.
46. Plaintiff'S cause of aotion is barred, in whole or in
part, by the Pennsylvania comparative Negligenoe statute, 42 Pa.
O.S. 5 7102 at aRg., or the doctrines of oomparative and
contributory negligence.
-12-
47. It the ,ubject forklift wa. i"d.ed a "~CCO product,
which i. .pecifically denied until prove" otherwi.., pllli"tift or
third partiea alter.d lI"d mi.u.ed the forklift and were guilty of
i"terve"in9, euper.edinq n.91iqe"ce in cau.i"q the ,ubject
accident, a. follow'l
(II) The .ubject forklift, it proven to be a N~CCO
product, Willi free from defect at the ti~e ot ite
mllnutectuu and introduotion into the scullm of
commerce IInd was thereatter altered and/or poorly
maintllined in such ~a"ner as to qreatly increase the
ri.k of har~ IIs.ociated with its use, and said
alterations and poo~ ~lIintenanoe were the cause of any
alleged malfunction of the forklitt.
(b) The subjeot torklift, if proy.n to be a NACCO
produot, wae modified and/or misused by plaintiff or
other third parties, IInd such modifioation and/or
mieu.e wae the .01. or oontributing oause of the
inoident de.oribed in the oomplaint. suoh modifioation
and/or mi.us. WIIS equal to or greater than any fault of
N~CCO, whioh i. denied, in oausing the inoident
de.oribed in the oomplaint.
(0) In alterinq and misulling the subjeot forklift:
(if proven to be a NACCO produot), plaintiff or other
-13-
third pllrtie. aoted reoklee.ly and .uoh aot.
oon.tituted .uper.eding, intervening negligenoe.
(d) Plaintitt or other third pllrtie., inoluding
~ut not limited to detendant "oClllin, were negligent in
tailing to tollow the maintenance and operational
guideline. tor the torklitt in que.tion, it proven to
~a a NAOCO produot.
(e) Plaintitt's or other third pllrtiell' tailure
to tollow the explioit warnings and instructions on use
thllt accompanied the su~jeot tQrklitt (it proven to ~e
II NACCO product) was the sole oau.e ot the accident,
and/or that tailure super.eded any other cause.
(t) Plaintitt's co-workers, supervisor(s),
employer(s) or other third partiell who was/were charged
with the re.ponsibility tor operating and maintaining
the .ubject torklitt (it proven to be a NACCO produot)
understood the moditied oondition ot the torklitt and
voluntarily and unreasonably proceeded to allow
detendant Moclain or others to u.e it in ite altered
oondition.
(9) The damages 1I11eged in the complaint were the
re.ult ot mieu.e or IIbuse to Which persons, tirms or
oorporlltions other than NACCO had sUbjected the sUbject
torklitt, it proven to be II NACCO product.
-14-
48. The conduct cf pla1nt1ff, 1nclud1nq acts IInd fll11ures
to act, estops pla1nt1ff fro. recovery aqa1nst NACCO.
48. The dll.llqes alleqed 1n pla1nt1tf's co.pla1nt were
caused by the neq11qenoll, lack of due care, defect1ve product,
1ntent1onal act, recklessne.s, brellch of Wllrrllnty, or other fault
of II person, corporllt10n, f1rm, contrllctor, asso01at~on,
90vernmental ent1ty or aqency, or orqan1zat10n (or more than one)
other than NACCO, 1te aqente, off1cere, director., eervants,
e.ployees, subsid1l1ries, predeces.orll, or related corporat10n..
~O. Plaint1ff aeeumsd the riak for the injuries alleqedly
sustllined by her becauee IIhe vOluntarily chose to encounter a
known r1l1k.
~1. If the subject forklift is proven to be a NACCO
product, 1ts use by defendant McClain or others at the time of
the incident deacribed in the complaint waa unforeaeeable,
abnor.al IInd unintended by NACCO and constituted misuse of the
forklift.
62. Plaintiff ia barred from recovsry becauae plaintiff's
own neqliqence, lack of due care, or other fllult cllused or
oontributed to the clluse of the incldent deacribed in the
complaint, IIlternatively, plllintiff's recovery, if any, must be
di.inished in the proportion that the culpable conduct of
plaintiff beare to the culpable conduct of all partiee and other
-16-
per.on. found to have aau.ed the incident described in the
complaint.
53. At 1111 time. material hereto, NACCO lIoted reasonably,
properly IInd prUdently, and was It no time negligent or carele.s
in regard to the de.ign, mllnufacture IInd sale of the SUbject
forklift, if said forklift i. proven to be a "ACCO product.
54. In the 1I1ternative, if IIny negligence on the part of
NACOO i. found to exi.t, which is specifioally denied, such
negligence wa. not the proximllte cause of plaintiff's allegad
injurie. and/or damages.
55. "0 act or omis.ion on the part of NACCO was the cau.e,
in law or fllct, of plaintiff'. allegod injuries and/or damllge..
56. The negligence, careles.ne.., reokle..ne.. and/or
wilful behavior of plaintiff and/or defendant Hcclain and/or
other. oonstituted an intervening and .uperseding cau.e of
plaintiff'. alleged injuries and/or damage..
WHEREFORE, "ACCO re.pectfully requests this Honorable Court
to dismills plaintiff's complaint and to enter judgment in it.
favor, together with cost. of .uit and any other relief this
court deeme fair and jUllt.
"16"
. .
... HATT.. I. TN. .ATU.. 0' A O.O..C~AIN
14AI..T D.'..DAIT JAG. NaC~AI.
.va.VAIT TO 'A. a. OIV. .. ..I.(d)
~7. N^CCO inoorporate. by reterence, II. it tully set tort~
~erein, t~e tor8qoinq anewer and new matter to plaintiff'.
oomplllint.
58. If, II. II rellult ot t~e mattere 1I11eqed in plllintiff'.
oomplllint, NACCO i. held liable to plaintiff for all or part of
~er alleqed damaqe., IIny suoh liability on ~he part of NACCO
beinq apeoifioallY denied, defendant KOClain, as t~e party .olely
liable tor .uo~ dllmaqe., is liable over to NACCO by way ot
oontribution lind/or indemnitiolltion, for ell such damaqes as
NAaao may be required to pay to plaintift.
~9. In the 1I1ternative, if IS a result of the matters
alleqed in plaintitt'lI complaint, NACCO ie held liable to
plllintitf for 1111 or any part of her alleqed damaqes, any such
lillbility on the part of NACCO beinq specifically dellied,
detendllnt Kcalain i. jointly and/or severally liable to plaintitt
tor suoh damaqes and i. liable over to NACCO for any damaqe. that
NAaCO mllY be required to pay to plaintiff.
WHEREFORE, NACCO joins defendant Koclain as an additional
defendant for t~e purpose of as.ertinq a orossclaim pursuant to
Pa. R. civ. P. 2262(d) on the alternative theories of sole
lillbility to plllintift, joint and several liability with NACCO,
and/or lillbility over to NACCO by way of contribution and/or
-17-
,
..
IN THI COURT 0' COMMON P~EAS, CUMBERLAND COUNTY, PENNSY~VANIA
PATSY ~. TRAVIS, I
plaintiff I
I
I
v. I OIVI~ ACTION - LAW
I
OATERPI~~, INO., HYSTER COHPAHY, I No. 911-11932
and JAC~ MCCLAIN, I
I
Defendants I
RI'~V 0' ~.'.N~aMT NVIT.. OON'AHV,
HOW HAOOO MAT.RIALI HANDLING GROU', INO.,
TO HIW MATTia IN T.. NATUR. 0' A oaOII-OLAIN
o. D....DAHT JAO~ ~DQLAIH
NOW OOHES defendant Hyater oompany, now NAeeo H~terial.
Handling Group, Inc. (hereinafter referred to as "MACCO"), by it.
attorney., ~eefer, Wood, Allen' Rahal, and replies to the new
~atter in the nature of a cross-claim of dsfendant Jack Hcelain
(hereinafter referred to as "HcClain"), averring as followsl
67-68.
plaintiff' .
NAceo incorporates by rsference herein its answer to
complaint IS if set forth at length.
69-61. Denied. The.e averments constitute legal
conclu.ion. to which no responsG is required. To the extent that
a respon.e i. deemed required, the same are hereby denied.
WHEREFORE, NACCO rellpectfully requestll this Honorable Court
to di.mi.. the cross-claim of Hcclain against MACCO, and to enter
. ,.-,
.' .J
. ,.
I'" . .
"
.."
/: .,.
1..),1 I
{,,' \' ,~ . -'I
,/
ill, , "
, 'I
. . ".
l'J -
c; d
.
.' I
,..
...
...
IN 'rill!: COUf{'l' Oli' COMMON P~r::1\S Oli' CUMal!:lt~ANDCOUN.l.Y.PI!:NNSY~VANIA
I?A'l'SY ~. 'l'~VIS,
civil Action - ~aw
Plaintift,
va.
No. 96-6932
CA'l'l!:RI?I~l,AR, INC., HYS'I'I!:R COMPANY,
and JACK MCC~AIN,
Defendanta.
JURY 'I'RIA~ DIl:MANDl!:D
Q~nHDW JACK t<<ICLAIH'. ~IJfJIR TO QIII~~. HYlTIR
CCNPAHY. HOlt HACCQ taTIRIAL. ~~IlfO l3ROlIt, JNC.'.
lOOf taT.,.R IN THI NATQJII or A QJ'088CLAJN
AND NOW, comea the Defendant, J~ck McClain, by and th~ough his
atto~neys, ~isa M. DiBe~na~do, and G~iftith, St~ickle~, ~e~man,
Solymoa & Calklna, and files this AnsWfJr Matte~ in response to
Defendant, Hyste~ Company, Now Nacco Mate~iala Handling G~OUp, Inc.'s
New Matte~, and states as followsl
57. No ~esponge ~equi~ed.
5B. Denied. 'l'he allegations raised in pa~ag~aph 5B state II
conclusion of law to which no ~esponse is ~equl~ed.
59. Denied. 'l'he allegations raised in pa~ag~aph 59 state a
conclUsion of law to which no ~esponse is ~equi~ed.
WHl!:RIi:FORI!:, Defendant McClain demands thst Defendant Hyster
Company's Croasclaim be dismissed and judgment ente~ed in his favor
plus auch other relief as this Cou~t deems just and equitable under
the circumatances.
aycQck. doc
GRIIi'FI'l'H, S'l'RICK~Ii:R, LIi:RMAN,
SOLYMOS & CALKINS
BY 4ttL J~
LISA . DiBIi:R AR 0, l!:SQUmE
Attorney 1.0. 566B4
Attorney for Dett. McClain
110 South Northern Way
York, PA 17402
'l'elephonel (717) 757-7602
~
".
,
(,
~, <11
' It,
t' 1.:;:
~-
r .. ','r
- ,
~. "1
Iii , ,I.. , "
~I: "
) :'j
" "t' . .
I'" 'I
tl~ IJt!,j
,[ C
" 1'/
I ' ~! ;:~U
{' ,..... ..,
.1 Q\ I.,J
il
no I
~~j .
r
t\
1~
n
"
,
,
,
I
" I
, ~ 8
I ~ h,q
, , i r t I
, , ! i ! I e
,
! L ~
~. '
,
,
.[
"
,I
.,
"
!'
1"1
I.
i' I~ '
,
i!1
. '
.
PATSY L. TRAVIS,
V.
CATERPILLAR, INC., HY6TER
COMPANY, end JACK MCCLAIN,
Defand ants
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNA.
:
: NO, 96.6932
:
:
I JURY TRIAL DEMANDED
PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT
HYSTER COMPANY, NOW NACCO MATERIALS HANDUNG GROUP, INC.
AND NOW, oomes Plaintiff by and through her attorneys, Handler and Wiener,
and submits her Reply to New Mstter as follows:
43. Denied. The allegation set forth In Paragraph 43 la e oonoluslon of low
to which no responsive pleading Is required, howllver, to the extent that The
Honorable Court deems II response necessary, the Plaintiff speclfloslly denies that the
Complaint falls to state a claim upon whloh relief oan be granted es It pertains to
Defendant Hyster Company.
44. Denied. The ellegatlon set forth In Paragrsph 44 Is 0 oonoluslon of law
to whloh no responsive pleading Is required, however, to the extent that The
Honorllble Court deems a response necessary, tha Plelntlff speclfloally denies that the
damages that she sustalnod wore oaused solely, or contributed to, by Plaintiff's own
negllgenca, laok of dua care or other fault, and It Is speclfloelly denied that IIny
contributory or comparative negllgenoe on bahalf of the Plaintiff were equal to or
greeter than the fault the Defendant NACCO/Hyster Company, and proof to the
contrary Is demended at the trial In this mallar.
46. Denied. It Is denleci that tho damages sustained by the Plaintiff were
oaused by unoontrollable olroumstanoes or the oonduot cf third parties over which
NACCO had no control or olroumstanoeo whloh Defendant NACCO could reaoonably
have antlolpated, and proof to tho oontrary Is demanded at the trial In this mater.
46, Denied, The allegation set forth In Paragraph 46 Is 0 conclusion ot low
to whloh no responsive pleading Is required, however, to the extent that The
Honorable Court deems 0 response neoessary, It Is speolfloally dsnled that her oouse
of aotlon Is barred, In whole or In part, by the Comparative Negllgsnce Statute or the
Dootrlnes of Comperatlve and Contributory Negllgenoe, and proof to the contrary Is
demanded at the trial In this malter.
47. Denied. It Is denied that tho subjeot forklift was altered or misused by
the Plaintiff or other third parties and It Is further denied that there was Intervening or
superseding negligence on tha part of the Plaintiff or allY third party In any of the
respeots set forth In Subparagrephs (01 through (g) and proof to the oontrary Is
demanded at the trial In this malter.
48. Dsnled. The allegetlcn set forth In Paragraph 48 Is a ooncluslon of law
to whloh no responsive pleading Is requlrad, The ellegatlon In Pllregraph 48 Is also
vogue In that It does not Indicate what Bets or failures to Dot on the pllrt of the
Plaintiff would stop her from reoovery, howevsr, to the extent that The Honorable
Court deems a response necessllry, the Plaintiff speolfloally dsnles that any acts or
failures to act on her port would In any way estop her from seeking reoovery from
Defendant NACCO/Hyster Company, and proof to the oontrery Is demanded at the trial
In this matter.
49. Denied. The allegation set forth In Paragraph 491s11 conclusion of IlIw
to whloh no responsive pleading Is raqulred, however, to the extant thllt The
Honoreble Court doems a response necClssary, the Plaintiff donles thllt the damagas
sustained by the Plaintiff ware oauBed solely by the nallllgence, lock of due care,
defeotlve produot, Intentional eot, recklassness, breaoh of warranty or other fault of
e person, corporation, firm, contractor, assoolatlon, governmental entity or agency,
or organization other than Defendant NACCO/Hyster Compsny, and proof to the
contrary Is demanded at the trial In this matter,
60. Denied. The allegation oet forth In Paragraph 60 Is a conclusion of law
to which no responsive pleading Is requh'ed, however, to the extent t.hat The
Honorable Court deems a response neoesoary, It Is specifically denied that the Plaintiff
essumod the risk of the Injurlas,!.no suotalned and It Is further denlad that she
voluntarily chose to enoountor 0 known risk, and proof to the oontrary 10 demanded
at the trial In this matter.
61 . Denlad. It 10 denied that tho usa of the subjeot forklift by Defendant
MoClaln was unforosooablo, abnormal and not Intended by NACCO and thoroby
constituted a misuse of the forklift, and proof to the contrary Is demanded at the trial
In this matter.
62. Denied. Plaintiff Inoorporates her responso to Paragraph 44 and 46
herein. By way of further answer, Plaintiff denlas that she should be barrad from
recovery bacause of her own nogllgenoe, look of due oare on the theory that Plaintiff's
own negligence, lack ct due core or other fault caused or contributed to the couse of
the l/1oldent d8l0rlbed In the Complaint and It Is further danled that the Pllllntlff W81
In B/1Y WilY negligent so as to olluse e diminishment of the raoovery to which he Is
e/ltltllld, and proof to thll contrary III demanded at the trial In this matter.
63. Denllld. It Is denied that Defendant NACCO/Hyster Company ected
reBlo/1l1bly, properly IInd prudently end It Is further denied that they were at no lime
negligent or carllloss In regard to the design, manufacture and sale of the subject
forklift, and proof to the contrary Is demandod at the trial In this matter, By way of
furthllr IInswer, Pial/111ft Incorporates the allegetlons of negligence, strlot liability and
brelloh of warrsnty ao set forth In her Complaint,
64. Denied. The alleglltlon set forth In Peragraph 641s a conoluslon of law
to which no responslvo pleading Is required, however, to the extent that The
Honorable Court deems a response neoessery, the Plaintiff speclfloally denies that
negllgllnce on the pllrt of the Defendant NACCO/Hyster Company was not a proximate
CIIUII of the PllIlntltf's Injuries and damagss, and proof to the contrary Is demanded
et the trial In this matter.
65. Denied. It Isspeolfloally denied that no act or omission on the part of
Defendent NACCO/Hyster Compeny was the cause and/or foot of Plelntlff's Injuries
end dllmllges IInd proof to the oontrary Is demanded at the trial In this mattsr.
66. Denied. The alleglltlon set forth In Paragraph 56 Is a oonoluslon of law
to whloh no reeponslve pleading Is required, however, to the extent that The
Honorllble Court deems a response necessery, It Is denied that any negligence,
cereleuness, reoklessness end/or Willful behavior of Plalnllff, the Defendant McClain
Dnd others oonstltuted an Intervening or superseding oause of Plaintiff's Injuries and
l; ~) ~
-
i~ ,.~ 11
,',
( ..'i ') \
~ ,'. ~.~
f-\ u.. I,~~j
)i
q ~
f.I, }~
I.
.1(1 ~I l'.il
I';
tj ..'- ~
r.JI
,.
"
2. Subsequently, a second cause of action wall tiled In the COllrt of Common
Pleas of Cumborlond County, Pennoylvanlo on Deoomber 24, 1996 to Docket No. 96-
6932 nDmlng the oporotor ot tho torklltl, Caterpillar, Inc. and Hyster Company, ell
Defendants,
3. A third causa of action was Inltlatod by tho Plaintiff II' the Court ot Common
Pleu of Cumberland County, Pennsylvonle to Dooket No. 97-447 on Jonuary 27, 1997.
This cause of ootlon weslnltieted by the Plaintiff beoause of her oonoern whether Hyster
Compeny, as Identified In the prevluus suit, wes tha proper Hyster Company. A sllerch
of certain reoords Indloated that thllre wero varloulI companies throughout the United
States thot bore the neme "Hyster" or "Hyster Forklift" os part of tholr names,
4. An Entry ot Appearance hes beon entored on beholf of Aycook, Ino. and It IS
employee, Jock McCleln, by Lisa M, DIBernardo, Esquire of Griffith, Strlokler, Lerman,
Solymos & Calkins.
6. An Entry of Appearance has been entored on behelf of Caterplllor, Ino. by
Roneld 1.., Dougherty, Esquire of White & Williams,
6. An Entry of Appeoranoe has been entered on behalf of Hystor Company,
now NACCO Handling Group, Ino" by Charles W, Rubendall, II, Esquire of Keefer, Wood,
Allen and Rahel, LLP.
7. Informal dlsoovery has rllvooled that the forklift In question Is apparontly not
B piece of equipment manufaotured by Caterpillar, Ino., Including an Affidavit of a True
Temper employee (co-workerl of the Plaintiff and statements mede by Jaok McClain, end
consequently, the parties hereby agroe to dismiss, with prejudice, Caterplllor, Ino, from
the suit prooeedlngs.
8. The pllrtl811 hereby Bgroe and stlpulata that the proper nome of the corporate
entity that manufacture 0 forklifts with the brond nome known os "Hyster" Is Hyster
Compllny, now known as NACCO Meterlals Handling Group, Inc, Based on this
representation, the Plaintiff hereby agrees to discontinue with prujudloe the aotlon to
Dooket No. 97-447, Cumberland County Court of Common Pleus.
9. The parties hereby agreu that the two suits docketed to No. 96-6438 and
No. 96-6932 shllll be consolidated and that the oaptlon of eeld proceedings shall bo
designated liS tollowsl
v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 96-6438
: NO. 96.6932
PATSY L. TRAVIS,
Plaintiff
AYCOCK, INC., HYSTER COMPANY
n/k/ll NACCO MATERIALS HANDLING
GROUP, INC., end JACK MCCLAIN,
Defendonts
,
,
. : JURY TRIAL DEMANDED
WHEREFORE, the aforesuld parties, by und through their attorneys, hereby request
the Court to IBllue on Order consolidating the Dooket No, 96,6438 and Docket No. 96-
6932 end Issue an Order oonflrmlng that Dooket Number 97.447 Is dlsoontlnued without
prejudice, and also Issue an Order authorizing the dismissal, with prejudloe, of Caterpillar,
Inc. from Dooket No, 96-6932,
~
.
1'"'1
~
......
..
II)
l'
f '1
\) '" q
'-' -"'I) ~ ~
'" ~ j.
I' S)
, , , ' "'6
, tJ
' , 0 ) '1=1
,
I, 1.1 ~ (--J..
" ' I, , ~ V
, l
, I
.. ,-. J
" , ~' , , ',)
.1
".. I~)
[)" r
ct.,' '-=:
I,,'
!.'f :' .. .'
-. I
rF' !
c,
, '
I] 1~::1 ,
. '.
(I' I
"
. I-'J
" 1'''
( ,-n
1.)1
,.
II.
"
"
"