HomeMy WebLinkAbout00-04304
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RANDALL E. JONES and
DEBORAH A. JONES,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
v.
CIVIL ACTION LAW
NO. 00- .l..J20j
CI~t'C y~
SEARS, ROEBUCK & CO.,
Defendant
JURY TRIAL DEMANDED.
NOTICE TO DEFEND
TO: Sears, Roebuck & Co.
c/o C.T. Systems
1635 Market Street
Philadelphia, PA 19103
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within Twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so the case may proceed without you and a jndgment may be entered
against you by the Court without further notice for any money claimed in the Complaint or for
any other claim or relief requested by the Plaintiffs. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166 or (800) 990-9108
Document #: 168465.1
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RANDALL E. JONES and
DEBORAH A. JONES,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
v.
CML ACTION LAW
NO. 1JtJ. '130 Y Cin;R ~
SEARS, ROEBUCK & CO.,
Defendant
JURY TRIAL DEMANDED.
COMPLAINT
1. Plaintiffs Randall E. and Deborah A. Jones, Husband and Wife ("Plaintiffs"),
are adult individuals residing at 128 Lancaster Boulevard, Mechanicsburg, Cumberland
County, Pennsylvania, 17055.
2. Defendant Sears, Roebuck & Co. ("Sears") is a corporation, duly organized and
existing under the laws of the State of New York, with a registered agent at c/o C.T. Systems,
1635 Market Street, Philadelphia, Pennsylvania, 19103, and at all times hereto was engaged in
the business of selling and installing appliances in the Commonwealth of Pennsylvania.
3. Defendant Sears maintains a store located at 3595 Capital City Mall, Camp Hill,
PA, 17011. Plaintiffs' selected and purchased the herein referred to refrigerator and
installation/service agreement at this location.
4. At all times relevant hereto Plaintiffs owned, operated and possessed a property
located at 128 Lancaster Boulevard, Mechanicsburg, Cumberland County, Pennsylvania,
17055.
Document #: 168465.1
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5. AIl of the acts alleged to have been done or not to have been done by Sears,
were done or not done by Sears, their agents, servants, workmen, and/or employees, acting in
the course and scope of their employment with and/or on behalf of Sears.
6. On or about July 18, 1998, Plaintiffs entered into a Sales Agreement/Contract
with Sears to furnish, deliver and install a new refrigerator. (A copy of the Sales Receipt is
attached hereto and incorporated herein as Exhibit A.)
7. On or about Jwy 20, 1998, Sears, acting by and through their duly authorized
agents, servants, workmen, and/or employees delivered said refrigerator to Plaintiffs'
residence and installed this refrigerator, connecting an existing ice maker line to the new
refrigerator before plugging said refrigerator into the electrical outlet in the residence.
8. The refrigerator was improperly installed by Sears and a water leak reswted.
9. The water leak caused extensive physical damage to the Plaintiffs property
including damages to the building itself as well as the contents of the home.
10. As a reswt of the water damage, Plaintiffs have sustained actual damages
including, but not limited to, the items outlined in Exhibit "B" attached hereto and incorporated
herein by reference, which were either permanently damaged or which needed to be repaired.
COUNT I
BREACH OF CONTRACT
Randall E. and Deborah A. Jones v. Sears
11. Preceding Paragraphs 1 through 10 of this Complaint are incorporated herein by
reference as though fully set forth at length.
12. Sears had expressed and implied covenants to furnish the best skills and
judgment, to perform its work in a workman-like manner, and to safeguard the interest of the
Plaintiffs herein.
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Document #: 168465.1
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13. Sears breached the expressed and implied covenants by failing to perform its
work in a workman-like manner; failing to use proper skill and judgment; failing to perform
their obligations to the satisfaction of Plaintiffs; and failing to properly install the purchased
refrigerator.
14. As a direct result of Sears' breach of the expressed and implied covenants and
contracts, Plaintiffs were damaged, and the premises and personal property of Plaintiffs
sustained extensive damages in the amount of $ 8,158.17, and a claim is made therefor.
WHEREFORE, Plaintiffs demand judgment against Sears in an amount within the
limits of compulsory arbitration, together with costs of suit/collection, attorneys' fees, interest,
and/or damages for delay, as the law may allow.
COUNT II
NEGLIGENCE
Randall E. and Deborah A. Jones v. Sears
15. Preceding Paragraphs 1 through 14 of this Complaint are incorporated herein by
reference as though the same were fully set forth at length.
16. Defendant had a duty to exercise reasonable care in performing its obligations
under the Sales Contract and in general and not to destroy, deface, damage or impair the
premises or property located at 128 Lancaster Boulevard, Mechanicsburg, Cumberland
County, Pennsylvania, 17055.
17. Defendant breached its duty of care by failing to exercise reasonable care in
performing its obligations required by the Sales Contract and in general which resulted in
damage to the Plaintiffs' premises and personal property as aforesaid.
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Document #: 168465.1
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18. The aforesaid damages were caused directly, proximately and/or substantially
by the carelessness, negligence, and/or recklessness of Defendant in the following particulars:
a. Failing to install properly the purchased refrigerator;
b. Failing to connect properly the purchased refrigerator to the
existing icemaker line;
c. Failing to advise Plaintiffs that a new ice maker line would be
necessary; and
d. Failing to warn Plaintiffs of the possibility of leakage from the
existing ice maker line.
19. As a result of Defendant's aforesaid carelessness, negligence, and/or
recklessness, Plaintiffs were damaged, and the premises and personal property of Plaintiffs
sustained extensive damages in the amount of $ 8,158.17, and a claim is made therefor.
WHEREFORE, Plaintiffs demand judgment against Sears in an amount within the
limits of compulsory arbitration, together with costs of suit/collection, attorneys' fees, interest,
and/or damages for delay, as the law may allow.
COUNT III
BREACH OF WARRANTY
Randall E. and Deborah A. Jones v. Sears
20. Preceding Paragraphs I through 19 of this Complaint are incorporated herein by
reference as though the same were fully set forth at length.
21. Defendant Sears in marketing, selling, distributing and installing the refrigerator,
expressly and/or impliedly warranted to the general public and to the Plaintiffs that said
refrigerator and the accompanying installation service would be performed in a reasonable and
professional manner and would be frey from defects.
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Document #: 168465.1
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22. Further, Defendant Sears impliedly warranted that said refrigerator and the
accompanying installation service were fit for the specific use and purpose for which they were
intended and that it would not cause injury or damage to the Plaintiffs, Plaintiffs' property or
others.
23. The subsequent purchase of the said refrigerator and the accompanying
installation servIce was effectuated and carried out in reliance upon said warranties and
representations.
24. The installation of the refrigerator was not completed properly as set forth herein
in its intended and/or ordinary manner as expressly and impliedly warranted by Defendant Sears.
25. Defendant Sears breached the above stated warranties by failing to inspect,
maintain, sell, market and distribute said refrigerator and the accompanying installation service
such that they would be free from defects, be of merchantable quality, and be fit for the ordinary
and specific use to which they were put.
26. The said refrigerator and the accompanying installation service were not of a
merchantable quality; rather, they were unfit, unsafe, and not usable for the purpose for which
they were intended. Such condition of the said refrigerator and the accompanying installation
service constituted a breach of Defendant's implied warranty of merchantability, which was a
proximate cause of the aforesaid damages sustained by the Plaintiff.
27. Further, as a merchant who had reason to know of the use of the subject purchase,
and as a merchant who knew that the buyers were relying on the merchant's skill in specifying
the purpose of the purchase, Defendant breached certain warranties of fitness for a particular
purpose.
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Document #: 168465.1
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28. As a direct, proximate and/or substantial result of Defendant's breach of the
aforesaid warranties, the Plaintiffs incurred the aforesaid damages.
WHEREFORE, Plaintiffs demand judgment against Sears in an amount within
the limits of compulsory arbitration, together with costs of suit/collection, attorneys' fees,
interest, and/or damages for delay, as the law may allow.
Respectfully submitted,
By
Dmoo 6jd~ / Or)
Freis J. afferty, IV, Esquire
ttorne .D. No. 84009
P.O. Box 5300
Harrisburg, P A 17110-0300
(717) 238-8187
Attorneys for Plaintiffs
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Document #: 168465.1
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There are two sides to this form. Read both sides. You must complete. all spaCIJS on this form.
. . SWORN STATE!YIENT IN PROOF OF lOSS
Property Involved in this proot of Loss ft ,; jd~ 4f.{ 61J/--h1xr .
Policy limit ~unts for this Line Of. coverage / rf:i, 1117 , / t1d, 1# ' .
AGENT -ni;; ~ ~
ADDRESS L~ Ji.J f . ri4 . POLlCY#: 1/, 7& l36tf (, CJ
CLAIM NUM8ER .3- t//& 3.10 EFF. DATE .5.,pm V EXP DATE ..:1:lu~A,51
Name of insured as it appears on POIiCy~j Q",r<''' J t4t. ~~ Xczu,.~..jJ ~
Addilionai Loss Payable,,!f/lly _ / _ _t7
Mortgagee. if any Jf/ tJ.O f!o ,
r /7d.J3-
Pnncipallocatlon of involved property
Loss Location g~
Time of Loss Date of Loss ? k-19 F
Cause ot Loss a)a:fi;.; J)~,,--
OCCUPANCY: .
The building described, or containing the property described. was occupied at the time of the loss as a I
and for no other purpose whatsoever. .
TITLE & INTERESr:
At the time of the loss my/our inlerest in the property involved was ~
named above was AS THEIR INTEREST APPEARS
(on what records)... -' _
No other person or persons or companies had interest In or liens on the property involved, except ~ ~
fr....,;{~ At~;.d/ry
Interest of the mortgagee or loss payee
CHANGES:
Since the policy was issued. there have been no assignments of interest, or change . 'nterest, or change in use, occupancy. possession. location or
exposure of the involved property, excepl -n..e-
TOTAL INSURANCE: . '.- ,:, .
At the time of the loss, the total ,amount of, insurance on lhe involved property was $ i '/, , IJ77J , which included the policy listed above
and any othe' policies of coverage. If other policies existed; they are'listed on the, reverse side in SCHEDULE A. If no other policies or contracts of insur-
ance existed in any .form, written or oral, valid or invalid, in any name, 10 cover the property invoived In this claim, IIwe have so indicated. by writing
"NO OTHER INSURANCE" In SCHEDULE A. .
itemization or explanation of the loss shown below appears in SCHEDULE 8 on the reverse side of lhis fonn. Necessary documentation is attached and
made part of lhis Proof ot Loss. If estlmales o~,lis"ngs are attached,l/We have mentioned this In SCHEDULE 8.
(Full replacement cost figures should be inSerted.only when. considered in the adluslmenl)
FULL REPLACEMENT COST
ACTUAL CASH VALUE
The whole loss and damage was ...............
THE AMOUNT (less deductible of $ c2 S?J ,pt)
this date is $ 79tJ:1, / 7
I
.&illdvn tiJ ~
4type of coverage)
on
Value of involved property was _...................
) CLAIMED UNDER THIS POLICY FOR
REPLACEMENT COVERAGE: If the policy requires proof of replacemenl and such replacemenl has not been made as yet. I/We understand that I/We must
furnish such proof by , In order to claim the additional amount.)
(over)
PENNSYLVANIA: Any person who knowingiy and wilh intent to injure or defraud any insurer files an applicalion or claim containing any false, incomplete
or misleading information shall. upon conviction, be subject to imprisonment for up to seven years and payment of a tine of up to $15,000.
OHIO: Any person who. with Intent to defraud or knowing that he is facilitating a fraud against an insurer. submits an application or files a ciaim containing
a false or deceptive stalement is guilty ot insurance fraud.
INDIANA: A person who knowingly and with intent to defraud an insurer files a statement of claim containing any false, incomplete, or misleading informa-
tion commits a lelony.
C-236 (4.92)
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ThiS loss was not caused by" any a'ct. aesign. procurement, or omission on my/our part; nOlhing has been done by or with my/our knowledge or consent to
violale the conditions of the policy or to render il void, . .
No articles are mentioned here. or in the attached schedules except items lost, destroyed or damaged in this loss. No property that was saved or salvaged
has been concealed or claimed as totally lost l!We have not attempted to deceive Motorists MutuaJ'lnsurance Company or its representative as to the
extent at the loss. Any other information that may be required will be furnished by me/us and considered as part of the Proof of Loss.
Schedule A and B are made, a part of this instrument is/are made a part
of lhe Proof of Loss. All supporting documentation supplied as evidence of value or amount of loss is made a part of this Proof of Loss. l!We attest and
swear 10 the validity of truthfulness of all information.
The furnishing of this incomplete form. or the preparation of the form, in part or whole by k ~-
of Motorists Mutual Insurance Company, is not a waiver of any of the rights of Motorists Mutual Insurance Company:
. a representative
SCHEOlJLE A . APPORTIONMENT
Policy #
Coverage Dates
(Other policies)
Company Name
AmI. of Ins"
Property Covered
SCHEDULE B . EXPLANATION OR ITEMIZATION OF LOSS
K8nneIII LNoIadSch' ,Ill Se,al
~1WP..~~=
ISslorif""'res ~ 15.2001
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RECEIPT FOR PAYMENT: Received Of Motorists Mutual Insurance Company, ~" Dollars ($ 19tJ?/7 )
in full satisfacfon and indemnity fer all claims and demands upon Motorists Mutual Insurance Company on account (If this loss ~.nd!or dam~lJe: Thp policy
is (State whether reduced, reduced and reinstated. canceled, or unchanged by payment)
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ALL INFORMATION SUPPLIED TO Motorists Mutual Insurance Company BY THIS PRO
Stale Of f IZ It/I1fi Y t 1/ 1ff11 #-
County. r" fl'tntf/ec..t4-'Ho
Notary Public
Dale_
?OO)
/(signed)
Date
SUBROGATION:
l!We assign, by separate signature. any and all claims or causes of action of all kind and nature to Motorists Mutual Insurance Company, up to the extent
of the payment made to us/me. l!We agree that MOlonsts Mutuallnsuance Company may enforce these claims in such manner as shall be necessary or
appropriate for fhe insurer. either in its own name or in mine/ours; and Ihat l!We will furnish such papers, information or evidence necessary for the pur.
pose ofentorcing that claim. demand, or cause of action.
(s~ed)
or settlement of such claim. demand or cause of action against anoth~rty has been made"
X f1L u. ~-~
(signed) /
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VERIFICATION
I, Deborah A. Jones, hereby certifY that the following is correct:
The facts set forth in the foregoing Civil Complaint are based upon information which I
have furnished to counsel, as well as upon information which has been gathered by counsel and/or
others acting on my behalf in this matter. The language of the Civil Complaint is that of counsel
and not my own. I have read the Civil Complaint, and to the extent that it is based upon
information which I have given to counsel, it is true and correct to the best of my knowledge,
information, and belief. To the extent that the content of the Civil Complaint is that of counsel, I
have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set
forth in the aforesaid Civil Complaint are made subject to the penalties of 18 Pa. C.S.A. ~4904
relating to unsworn falsification to authorities.
Dated: 3/25/2000
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Deborah A. Jones
Document #: 168465.1
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VERIFICATION
I, Randall E. Jones, hereby certify that the following is correct:
The facts set forth in the foregoing Civil Complaint are based upon information which I
have furnished to counsel, as well as upon information which has been gathered by counsel and/or
others acting on my behalf in this matter. The language of the Civil Complaint is that of counsel
and not my own. I have read the Civil Complaint, and to the extent that it is based upon
information which I have given to counsel, it is true and correct to the best of my knowledge,
information, and belief. To the extent that the content of the Civil Complaint is that of counsel, I
have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set
forth in the aforesaid Civil Complaint are made subject to the penalties of 18Pa. C.S.A. ~4904
relating to unsworn falsification to authorities.
Dated: S/25/ ~
Randall E. Jone{~"'"
Document#:16846~1
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2000-04304 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
JONES RANDALL E ET AL
VS
SEARS ROEBUCK & CO
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
SEARS ROEBUCK & CO
but was unable to locate Them
in his bailiwick. He therefore
deputized the sheriff of PHILADELPHIA
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On August
10th , 2000 , this office was in receipt of the
attached return from PHILADELPHIA
Sheriff's Costs:
Docketing
Out of County
Surcharge
DEP. PHILA CO
18.00
9.00
10.00
116.00
.00
153.00
08/10/2000
METZGER, WICKERSHAM
~
R homas ~~i //
Sheriff of Cumberland County
Sworn and subscribed to before me
this i'l ~ day of (J,. r'.r-
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In The Court of Common Pleas of Cumberland County, Pennsylvania
Randall E. Jones~nd Deborah A. Jones .
VS.
Sears Roebuck & Co.
c/o CT Systems~. No. 7.000-410.
1635 Market St., Philadelphia, PA 19103
. Now, Tllnj:::> ?7
,20--0.0-' I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Philadelphia
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff. /./ .d'
. r~~"~~~
Sheriff of Cumherland County, PA
Affidavit of Service
Now,
,20_,at
o'clock
M. served the
within
upon
at
by handing to
a
copy of the original
and made known to
the contents thereof.
So answers,
Sheriff of
County, PA
Sworn and subscribed before
methis~dayof ,20_
COSTS
SERVICE
MILEAGE
AFFIDAVIT
$
$
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{SHERIFF'S RETURN - SUMMONS/COMPLAINT
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COMMON PLEAS NO.
COUNTY COURT
VERSUS
TERM. JI(loo
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NO. If'] () 'f
Clo Q r c.otf P SyJT€.M
o Defendant
SERVED AND MADE KNOWN TO
Adov.f J.J4fVJkE-i::J
E8 Defendant Company
by handing a true and attested cop.y of the within Summons/Complaint. issued in the above captioned matter
on JUi..-Y;;)./ .,. ,dmI.IQ ,at 10:00 o'clock,,4 M., E.S.T./~.
at I C, 3 S" M;q {( K'L:," S -r: , in the County of Philadelphia,
State of Pennsylvania, to
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o (1) the aforesaid defendant, personally;
o (2) an adult member of the family of said defendant, with whom said defendant resides, who stated that
his/her relationship to said defendant is that of
o (3) an adult person in charge of defendant's residence; the said adult person having refused, upon re-
quest, to give his/her name and relationship to said defendant;
o (4) the manager/clerk of the place of lodging in which said defendant resides;
C1:!!. (5) agent or person for the time being in charge of defendant's office or usual place of business.
o (6) the and officer of said defendant Company;
So Answers,
JOHN O. GREEN, Sheriff
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12.38 (Rev. l1Al7)
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RANDALL E. JONES and
DEBORAH A. JONES,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
v.
: CIVIL ACTION - LAW
: NO. 00-4304
SEARS, ROEBUCK & CO.,
Defendant
ENTRY OF APPEARANCE
TO: CUMBERLAND COUNTY PROTHONOTARY
Kindly enter the appearance of the undersigned on behalf of Defendant, Sears, Roebuck
& Co., in connection with the above-referenced case.
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
DATE: rJr'D
BY: ([J.
II T J cMAHON, ESQ.
100 Pine S et - 4th Fl.
P.O. Box 803
Harrisburg, P A 17108-0803
I.D.52918
(717) 232-9323
ATTORNEY FOR DEFENDANT
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CERTIFICATE OF SERVICE
I, Melissa M. Kain, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do
hereby certify that on this:2~';.y of August, 2000 served a copy of the foregoing document via
First Class United States mail, postage prepaid as follows:
Francis J. Lafferty, IV, Esquire
METZGER, WICKERSHAM, KNAUSS & ERB
P.O. Box 5300
Harrisburg, PA 17IlO-0300
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MELISSA M. KAIN
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RANDALL E. JONES and
DEBORAH A. JONES,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
v.
: CIVIL ACTION - LAW
: NO. 00-4304
SEARS, ROEBUCK & CO.,
Defendant
NOTICE TO PLEAD
TO: Plaintiffs
c/o Francis 1. Lafferty, IV, Esquire
METZGER, WICKERSHAM, KNAUSS & ERB
P.O. Box 5300
Harrisburg, P A 17110-0300
You are hereby notified to plead to the enclosed New Matter of Defendant within twenty
(20) days from service hereof or a default judgment may be filed against you.
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
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BY:
Ti othy ilhon, Esquire
LD. No. 91
100 Pine Street, 4th Floor
P.O. Box 803
Harrisburg, P A 17108-0803
(717) 232-9323
Attorneys for Defendant
DATE: q - (1-00
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RANDALL E. JONES and
DEBORAH A. JONES,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
CIVIL ACTION - LAW
: NO. 00-4304
SEARS, ROEBUCK & CO.,
Defendant
ANSWER WITH NEW MATTER OF DEFENDANT
SEARS. ROEBUCK &' CO. TO PLAINTIFFS' COMPLAINT
I. It is admitted only that Plaintiffs are who they say they are. The
remaining allegations of this paragraph are denied.
2. Admitted.
3. Admitted.
4. Denied in accordance with Pa.R.C.P. 1029(e).
5. Admitted in part; denied in part. It is admitted that Defendant, a
corporation, acts through agents, servants, workmen and/or employees. By way of
further answer, and because the specific agents, servants, workmen and/or employees
through whom Defendant is alleged to have acted with regard to material allegations set
forth in Plaintiffs' Complaint are not identified, the remaining allegations of this
paragraph are denied with proof thereof demanded ifrelevant.
6. Admitted in part; denied in part. It is admitted that on or about July 18,
1998 Plaintiffs purchased a refrigerator from Defendant. The remaining allegations of
this paragraph are denied on the basis that they constitute conclusions of law to which no
further responsive pleading is required.
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7. Admitted in part; denied in part. It is admitted only that on or about July
20, 1998 the refrigerator was delivered to Plaintiffs' residence by individuals acting on
behalf of Defendant and further that those individuals installed the subject refrigerator in
Plaintiffs' residence. The remaining allegations of this paragraph are denied because
Defendant after reasonable investigation and inquiry lacks information sufficient to form
a belief as to the truth thereof and accordingly the same are denied and proof thereof is
demanded if relevant.
8. Denied in accordance with Pa.R.C.P. 1029(e).
9. Denied in accordance with Pa.R.C.P. 1029(e).
ro. Denied in accordance with Pa.R.C.P. 1029(e).
COUNT I
BREACH OF CONTRACT
Randall E. and Deboralt A. Jones v. Sears
11. Defendant incorporates by reference its responses to paragraphs I through
ro above.
12. Denied. The allegations of this paragraph constitute conclusions oflaw to
which no further responsive pleading is required and accordingly the same are denied and
proof thereof is demanded ifrelevant.
13. Denied. The allegations of this paragraph constitute conclusions of law to
which no further responsive pleading is required and accordingly the same are denied and
proof thereof is demanded ifrelevant.
14. Denied. The allegations ofthis paragraph constitute conclusions oflaw to
which no further responsive pleading is required and accordingly the same are denied and
proof thereof is demanded if relevant.
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WHEREFORE, Defendant Sears, Roebuck & Co. demands judgment in its favor
and against Plaintiffs together with such other interest as this Court shall deem
appropriate.
COUNT II
NEGLIGENCE
Randall E. and Deborah A. Jones v. Sears
15. Defendant incorporates by reference its responses to paragraphs 1 through
14 above as if set forth at length herein.
16. Denied. The allegations of this paragraph constitute conclusions oflaw to
which no further responsive pleading is required and in accordance with Pa.R.C.P.
I 029( e) and accordingly these allegations are denied and proof thereof is demanded if
relevant.
17. Denied. The allegations of this paragraph constitute conclusions oflaw to
which no further responsive pleading is required and in accordance with Pa.R.C.P.
1 029( e) and accordingly these allegations are denied and proof thereof is demanded if
relevant.
18. Denied. The allegations set forth in this paragraph together with subparts
(a) through (d) are denied as conclusions oflaw. By way of further answer, Defendant
specifically denies the allegations of carelessness, negligence and/or recklessness as set
forth in this paragraph together with its subparts. To the contrary, Defendant acted with
reasonable care under the circumstances described by Plaintiffs in their Complaint.
19. Denied in accordance with Pa.R.C.P. 1029(e).
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WHEREFORE, Defendant Sears, Roebuck & Co. demands judgment in its favor
and against Plaintiffs together with such other interest as this Court shall deem
appropriate.
COUNT III
BREACH OF WARRANTY
Randall E. and Deborah A. Jones v. Sears
20. Defendant incorporates by reference its responses to paragraphs I through
19 above as if set forth at length herein.
21. Denied. The allegations of this paragraph are denied as conclusions of
law in accordance with Pa.R.C.P. 1029(e) and proof thereof is demanded if relevant.
22. Denied. The allegations of this paragraph are denied as conclusions of
law in accordance with Pa.R.C.P. J029(e) and proofthereofis demanded if relevant.
23. Denied. The allegations of this paragraph are denied as conclusions of
law in accordance with Pa.R.C.P. 1029(e) and proof thereof is demanded ifrelevant.
24. Denied. The allegations of this paragraph are denied as conclusions of
law in accordance with Pa.R.C.P. 1029(e) and proof thereof is demanded if relevant.
25. Denied. The allegations of this paragraph are denied as conclusions of
law in accordance with Pa.R.C.P. 1029(e) and proof thereof is demanded ifrelevant.
26. Denied. The allegations of this paragraph are denied as conclusions of
law in accordance with Pa.R.C.P. J029(e) and proof thereof is demanded if relevant.
27. Denied. The allegations of this paragraph are denied as conclusions of
law in accordance with Pa.R.C.P. 1029(e) and proof thereof is demanded ifrelevant.
28. Denied. The allegations of this paragraph are denied as conclusions of
law in accordance with Pa.R.C.P. 1 029( e) and proof thereof is demanded if relevant.
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WHEREFORE, Defendant Sears, Roebuck & Co. demands judgment in its favor
and against Plaintiffs together with such other interest as this Court shall deem
appropriate.
NEW MATTER DIRECTED TO PLAINTIFFS
29. Plaintiffs' Complaint fails to state a cause of action upon which relief may
be granted as a matter oflaw.
30. Plaintiffs' claims may be barred and/or limited by Plaintiffs' contributory
negligence.
31. Defendant reserves its right to raise one or more of those defenses
reserved by virtue ofPa.R.C.P. 1030.
32. No act or omission on the part of Defendant was a substantial factor in
bringing about Plaintiffs' damages, all such damages being expressly denied.
33. Plaintiffs' damages, if any, were caused in whole or in part by acts and/or
omissions on the part of persons or entities over whom Defendant had neither control nor
right of control.
34. Plaintiffs' damages may be barred or limited by Plaintiffs' failure to
mitigate those damages as required by law.
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WHEREFORE, Defendant Sears, Roebuck & Co. demands judgment in its favor
and against the Plaintiffs together with such other relief as this Court shall deem
appropriate.
Respectfully submitted,
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN,
DATED: q-//-OD BY:
Ti oth Mahon, Esquire
100 Pine Street - 4th Floor
P.O. Box 803
Harrisburg, P A 17108
I.D. No. 52918
(717) 232-9323
ATTORNEY FOR DEFENDANT
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VERIFICATION
The undersigned hereby verifies that the statements in the foregoing Answer with New
Matter to Plaintiffs' Complaint are based upon information which has been furnished to counsel
by me and information which has been gathered by counsel in the preparation of the defense of
this lawsuit. The language of the Answer with New Matter to Plaintiffs' Complaint is that of
counsel and not my own. I have read the Answer with New Matter to Plaintiffs' Complaint, and
to the extent that it is based upon information which I have given to counsel, it is true and correct
to the best of my knowledge, information and belief. To the extent that the contents of the
Answer with New Matter to Plaintiffs' Complaint, are that of counsel, I have relied upon my
counsel in making this verification. The undersigned also understands that the statements therein
are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to
authorities.
DATE:
9- 4-00
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CERTIFICATE OF SERVICE
I, Melissa M. Kain, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do
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hereby certify that on this day of September, 2000 served a copy of the foregoing document
via First Class United States mail, postage prepaid as follows:
Francis 1. Lafferty, IV, Esquire
METZGER, WICKERSHAM, KNAUSS & ERB
P.O. Box 5300
Harrisburg, PA 17110-0300
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MELI SA M. KAIN
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RANDALL E. JONES and
DEBORAH A. JONES,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
v.
CIVIL ACTION LAW
NO. 00-4304
SEARS, ROEBUCK & CO.,
Defendant
JURY TRIAL DEMANDED.
PLAINTIFFS' REPLY TO DEFENDANT'S NEW MATTER
29. Conclusion of law, no reply required. If a reply is required, the averments are
denied pursuant to Pa.R.C.P. No. 1029(e). On the contrary, Plaintiffs' Complaint states
claims and causes of action against Defendant upon which relief may be granted.
30. Conclusion of law, no reply required. If a reply is required, the averments are
denied pursuant to Pa.R.C.P. No. 1029(e). On the contrary, Plaintiffs were not negligent.
Moreover, the Defendant has failed to specify how Plaintiffs' are negligent.
31. Conclusion of law, no reply required. If a reply is required, the averments are
denied pursuant to Pa.R.C.P. No. 1029(e) and 1030(note).
32. Conclusion of law, no reply required. If a reply is required, the averments are
denied pursuant to Pa.R.C.P. No. 1029(e). On the contrary, the acts and/or omissions of
Defendant were a substantial factor in bringing about Plaintiffs' damages.
33. Conclusion of law, no reply required. If a reply is required, the averments are
denied pursuant to Pa.R.C.P. No. 1029(e). By way of further answer, Defendant has failed to
specify who caused Plaintiffs' damages. Moreover, Defendant is the party liable for Plaintiffs'
damages.
Document #: 184982.1
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34. Conclusion of law, no reply required. If a reply is required, the averments are
denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Defendant has failed to
specify how Plaintiffs failed to mitigate their damages.
WHEREFORE, Plaintiffs demand that Defendant's New Matter be dismissed and that
judgment be entered in their favor and against Defendant for the damages requested in
Plaintiffs' Complaint filed in this action.
, KNAUSS & ERB, P.C.
By
ancis . afferty, IV, Esquire
!.D. N .84009
3211 North Front Street
P.O. Box 5300
Harrisburg, P A 17110-0300
(717) 238-8187
Attorneys for Plaintiffs
Dated: Septemberd6 2000
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Document #: 184982.1
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VERIFICATION
The undersigned hereby certifies that he is the attorney for PlaintiftS Randall E. Jones and
Deborah A. Jones and that the facts in the foregoing Reply to Defendant's New Matter are true
and correct to the best of his knowledge, information and belief, and that said matters relating to
the Reply to Defendant's New Matter are as known to the undersigned as to the clients Plaintiffs
Randall E. Jones and Deborah A. Jones, said knowledge being based upon information contained
in the attorney's fIle in this matter, and further states that false statements herein are made subject
to the penalties of 18 Pa. C.S.A. 94904 relating to unsworn falsification to authorities.
Dated: September 26, 2000
Document #: 185960.1
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CERTIFICATE OF SERVICE
I, Francis J. Lafferty, IV, Esquire, of the law firm of Metzger, Wickersham, Knauss &
Erb, P.C., hereby certify that I served a true and correct copy of Plaintiffs' Reply to
Defendant's New Matter with reference to the foregoing action by first class mail, postage
prepaid, this (J. day of September, 2000 on the following:
Sears, Roebuck & Co.
c/o Timothy J. McMahon, Esquire
Marshall, Dennehey, Warner, Coleman & Goggin
100 Pine Street, 4th Floor
P.O. Box 803
Harrisburg, P A 17108-0803
M, KNAUSS & ERB, P.C.
Document #: 184982.1
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RANDALL E. JONES and
DEBORAH A. JONES,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
v.
: CNIL ACTION - LAW
: NO. 00-4304
SEARS, ROEBUCK and CO.,
Defendant
WITHDRAWAL OF APPEARANCE
TO THE PROTHONOTARY:
Kindly withdraw the appearance of Timothy J. McMahon, Esquire, of the firm of Marshall, Dennehey,
Warner, Coleman & Goggin on behalf of the Defendant, Sears, Roebuck and Co., in the above-captioned case.
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
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BY:
Mahon, Esquire
Attorney I. . No. 52918
4200 Crums Mill Road, Suite B
Harrisburg, P A 17112
(717) 651-3505
Attorneys for Defendant,
Sears, Roebuck and Co.
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RANDALL E. JONES and
DEBORAH A. JONES,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
v.
: CIVIL ACTION - LAW
: NO. 00-4304
SEARS, ROEBUCK and CO.,
Defendant
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance of Sharon M. O'DollTIell, Esquire, of the firm of Marshall, DellTIehey,
Warner, Coleman & Goggin on behalf ofthe Defendant, Sears, Roebuck and Co., in the above-captioned case.
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
on M. O'DollTIell, Esquire
orney LD. No. 79457
200 Crums Mill Road, Suite B
Harrisburg, PA 17112
(717) 651-3503
Attorneys for Defendant,
Sears, Roebuck and Co.
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RANDALL E. JONES and
DEBORAH A. JONES,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
v.
: CIVIL ACTION - LAW
: NO. 00-4304
SEARS, ROEBUCK and CO.,
Defendant
CERTIFICATE OF SERVICE
I, Joanne M. Farrell, an employee with the law firm of Marshall, Dennehey, Warner, Coleman &
Goggin, do hereby certifY that on this \t!:'" day of September, 2001, served a copy of the foregoing
documents via First Class United States mail, postage prepaid as follows:
Francis J. Lafferty, IV, Esquire
METZGER, WICKERSHAM, KNAUSS & ERB
P.O. Box 5300
Harrisburg, PA 17110-0300
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RANDALL E. JONES and
DEBORAH A. JONES,
Pla,intiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION- LAW
v.
NO. 00-4304
SEARS, ROEBUCK and CO.,
Defendant
PRAECIPE FOR DISCONTINUANCE
TO THE PROTHONOTARY:
Kindly mark the above-referenced matter Settled, Ended and Discontinued with prejudice.
Respectfully submitted,
METZGER, WICKERSHAM,
KNA~ & E
DATE:
1j~6-
BY:
Counsel for Plaintiffs