HomeMy WebLinkAbout01-0754 FX
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JOHN J. SCHIETROMA, M.D.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
No.OI-'7Stt Civil Term
ESC SHARP LAN, a/k/a
ESC MEDICAL SYSTEMS
Defendant
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the
claims set forth in the following pages, you must take action within twenty (20) days after
this Complaint and Notice are served, by entering a written appearance personally or by
attorney and filing in writing with the Court your defenses or objections to the claims set
forth against you. You are warned that if you fail to do so the case may proceed without
you and a judgment may be entered against you by the Court without further notice for
any money claimed in the Complaint or for any other claim or relief requested by the
Plaintiff. You may lose money or property or other rights important to you,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
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USTED HA SIDO DEMANDADNA EN CORTE. Si usted desea defenderse de
las demandas que se presentan mas adelante en las siguientes paginas, debe tomar
accion dentro de los proximos veinte (20) dias despues de la notificacion de esta
Demanda y Aviso radicando personal mente 0 par medio de un abogado una
comparecencia escrita y radicando en la Corte por escrito sus defensas de, y
objecciones a, las demandas presentadas aqui en contra suya. Se Ie advierte de que si
usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin
usted y un fallo por cualquier suma de dinero reclamada en la demanda 0 cualquier otra
reclamacion 0 remedio solicitado por el demand ante puede ser dictado en contra suya
por la Corte sin mas aviso adicional. Usted puede perder dinero 0 propiedad u otros
derechos importantes para usted.
USTED DEBE LLEVAR ESTA DOCUMENTO A SU ABOGADO
IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A
UNO, LLAME 0 VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE
PUEDE ENCONTRAR ASISTENCIA LEGAL.
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Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
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JOHN J. SCHIETROMA, M.D.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
No. 01- 7S'l Civil Term
ESC SHARPLAN, a!kla
ESC MEDICAL SYSTEMS
Defendant
COMPLAINT
1. Plaintiff, JOHN J. SCHIETROMA, M.D., now is, and at all times mentioned was,
practicing medicine and doing business in an office located at Pennview Place, 220
Grandview Avenue, Camp Hill, East Pennsboro Township, Cumberland County,
Pennsylvania.
2. Defendant, ESC SHARPLAN, also doing business as ESC Medical Systems, is a
corporation organized and existing under the laws of Massachusetts, with its principal
place of business located at 100 Morse Street, Norwood, Massachusetts.
3. Defendant, at all times herein, also operated offices located at 100 Crescent Road,
Needham, Massachusetts and 5 Pearl Court, Allendale, New Jersey.
COUNT I . BREACH OF CONTRACT
4. Paragraphs 1 through 3 above are herein incorporated by reference and made a
part hereof.
5. At all times mentioned, Defendant was in the business of selling the Photoderm
VLlPL machine, among other products for use in the medical field.
6, On or about 6 March 1997, Plaintiff purchased from Defendant a Photoderm VLlPL
machine (hereinafter referred to as "Photoderm") for the purpose of the treatment of leg
veins.
7. Prior to the Plaintiffs purchase of the Photoderm, Defendant advertised and
represented to Plaintiff that the Photoderm was developed to provide noninvasive treat-
ments of leg veins with no needles and injections, and further, that the Photoderm was
.
capable of treating all leg veins from the smallest spider veins to veins four millimeters
(4 mm) or more in size.
8. Plaintiff relied upon Defendant's representations and purchased the Photoderm at a
purchase price of One Hundred Thirty-Five Thousand Five Hundred Dollars ($135,500).
9. Plaintiff further purchased a hair removal upgrade at a cost of Seven Thousand Five
Hundred Dollars ($7,500) and extended warranties at an additional cost of Three
Thousand Three Hundred Dollars ($3,300).
10. Plaintiff purchased the Photoderm for use for its ordinary purpose as a machine to
be used for the noninvasive treatment of leg veins of up to four millimeters (4 mm) in
size.
11. Defendant breached the contract to sell the Photoderm by delivering non-conform-
ing goods to Plaintiff.
12. Plaintiff did not, and could not, learn of the non-conformity until the Photoderm
machine had been utilized over a period of time.
13, Plaintiff has incurred costs in physician time in setting up and learning the
Photoderm in the amount of Eight Thousand Dollars ($8,000)
14. Plaintiff has incurred costs in staff time in setting up and learning the Photoderm in
the amount of Five Thousand Dollars ($5,000).
15. Plaintiff has incurred costs in advertising and promoting the use of the Photoderm
in the amount of Forty-Three Thousand Eight Hundred Seven Dollars ($43,807).
16. By letter, dated 23 December 1999, Plaintiff notified Defendant he was revoking
acceptance of the Photoderm and demanding that Defendant return the purchase price
to Plaintiff and pay Plaintiff for all of the costs incurred by Plaintiff for training and
education of physicians and staff and the set-up of the Photoderm by physicians and
staff, and, since Plaintiff has been ready, willing and able to return the Photoderm to
Defendant, made tender to Defendant thereof at that time.
WHEREFORE, Plaintiff requests that the court:
1. Award judgment in favor of Plaintiff and against Defendant in the amount
ofTwo Hundred Three Thousand One Hundred Seven Dollars ($203,107); and
2. Award the Plaintiff costs of this suit, including attorneys' fees; and
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3. Grant the Plaintiff such other and further relief that this court considers
just and proper.
COUNT II . BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
17. Paragraphs 1 through 16 above are herein incorporated by reference and made a
part hereof.
18. At the time of the sale, Defendant was notified and knew of the purpose for which
the Photoderm was being purchased, and then and there warranted to the Plaintiff the
Photoderm to be of merchantable quality and fit for a particular purpose.
19. Plaintiff relied upon Defendant's above-described warranties and used the
Photoderm for the purpose described above, but the Photoderm, being of unmerchant-
able quality and wholly unfit for such purpose, failed to treat any but the smallest veins
successfully.
WHEREFORE, Plaintiff requests that the court:
1. Award judgment in favor of Plaintiff and against Defendant in the amount
of Two Hundred Three Thousand One Hundred Seven Dollars ($203,107); and
2. Award the Plaintiff costs of this suit, including attorneys' fees; and
3. Grant the Plaintiff such other and further relief that this court considers
just and proper.
COUNT III - BREACH OF IMPLIED WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE
20. Paragraphs 1 through 19 above are herein incorporated by reference and made a
part hereof.
21. Plaintiff relied upon Defendant's above-described warranties and used the Photo-
derm for the particular purpose described above, but the Photoderm, being wholly unfit
for such particular purpose, failed to treat any but the smallest veins, successfully.
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WHEREFORE, Plaintiff requests that the court:
1, Award judgment in favor of Plaintiff and against Defendant in the amount
of Two Hundred Three Thousand One Hundred Seven Dollars ($203,107); and
2. Award the Plaintiff costs of this suit, including attorneys' fees; and
3. Grant the Plaintiff such other and further relief that this court considers
just and proper.
MILLER & ASSOCIATES, PC
Dated: 1 ~"\ 1bO\
William E. Miller, Jr., Esqu'
Anthony E. Marrone, quire
1822 Market Stre
Camp Hill, PA 17011
(717) 737-9211
(717) 737-9215
ID Nos. 07220 and 48182
Attorneys for Plaintiff
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VERIFICATION
I, JOHN J. SCHIETROMA, M.D., do hereby verify that the statements made in
the Foregoing Complaint are true and correct to the best of my knowledge, information
and belief.
I understand that false statements made herein are subject to the penalties of 18
Pa. C.S. 94904 relating to unsworned falsification to authorities.
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JO N J. SC Ell OMA, M.D.
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JOHN J. SCHIETROMA, M.D.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
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No.Ol-754
Civil Term
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ESC SHARPLAN, a/kla
ESC MEDICAL SYSTEMS
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AFFIDAVIT OF RETURN OF SERVICE
Arthur Montgomery
, being duly sworn according to law, deposes and
says:
1.
He is a competent adult, age 46
, who is not a party to the above
action.
2. On 9 February, 2001, at 11: 35 am(hour), service of the
Complaint in the above action was made by the undersigned by handing to
Jill Cunningham ,whois authorized agent in charge
of the Defendant Company.
3. Service occurred at 100 Morse Street, Norwood, Massachusetts, which is
Defendant's regular place of business.
Subscribed and sworn to before
me this 9 day of February, 2001
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MARIANNE ABANY
Notary public .
My Commission Explles
March 22, 2002
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LA't'IN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY
BY: ROBERT J. HAFNER, ESQUIRE
Identification No.: 44105
51 0 Walnut Street - 10th Floor
Penn Mutual Tower
Philadelphia, PA 19106
(215) 627-0303
Attorney for defendant,
ESC Medical Systems, Inc.
JOHN J. SCHIETROMA, M.D.,
COURT OF COM:MON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
ESC SHARPLAN, a/ka
ESC MEDICAL SYSTEMS, lNC.,
NO. 01-754
CIVIL TERM
Defendant
JURY TRIAL DEMANDED
NOTICE OF FILING OF NOTICE OF REMOVAL
TO: PROTHONOTARY - CUMBERLAND COUNTY COURT OF COM:MON PLEAS
Pursuant to the requirements of 28 U.S.C. S 1446, defendant, ESC Medical Systems, Inc., files
herewith a copy of the Notice of Removal filed in the United States District Court for the Middle District
of Pennsylvania on March 2, 2001.
LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY
DATE: 3hJ/tJ /
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BY: ~~ffiJ
Attorney for defendant,
Ese Medical Systems, Inc.
JS44 CIVIL COVER SHEET
. (Rev. Q7/89)
The JS-44 civil ~overs.hee~and the information contain.e~ herein neither replace n~rsupplementthe filing and service of pleadings or other papers as required by law, except as provided
by local rules at court. This form, approved by the JudIcIal Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose ifinitiating
) the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
I (a) PLAIN'I'lFF
John Schietroma, M.D.
Penn view Place
220 Grandview A venue
Camp Hill, Pennsylvania
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(b) COuNTY OF REsrQENCE OF ERST USTED PLAINTIFF Cumberland
(EXCEPT IN U.S. PLAINTIFF CASES)
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DEFENDANT
ESC Medical Systems, Inc.
100 Morse Street
~WOOd, Massnsels 0
~Y RESIDENCE OF u':'o DEFENDS
(IN U.S. PLAINTIFF CASES ONLY)
IN LAND CONDEMNATION CASES, USE THE WCATION OF THE TRACT
OF LAND INVOLVED
90
NOTE:
(c) ATTORNEYS (FIRM NAME. ADDRESS, AND TELEPHONE NUMBER
Robert J. Hafner, Esquire
LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY
510 Walnut Street, Snite 1000, Philadelphia, PA 19106
(215) 627-0303
A TTORNEVS (IF KNOWN)
William E. Miller, Jr., Esquire
Anthony E. Marrone, Esquire
1822 Market Street
Camp Hill, PA 17011
(717) 737-9211
III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACEAN,fNONEBOX
(For Diven1ty Ca>ies Only) FOR PLAINTlFF AND ONE BOX FOR DEFENDANT)
PTF OEF PTF OEF
Citizen of This State Ci:I I 0 I Incorporated or Principal Place 04 04
of Business in This Slalc
Citizen of Another State 0 2 0 2 Inco'1lOrated amt Principal Place 0 S 181 5
of Business in AnOlhcr State
Citizen or Subject ora 0 3 0 3 foreign Nation 0 6 0 6
Foreign Country
II. BASIS OF JURISDICTION (PLACEAN,fNONEBOXONLY)
o I U.S Governmenl 0 3 Federal Question
Plaintiff (V,S, Government Not a?any)
o 2 U.S. Go"emmenl
Defenda/lt
181 4 Diversity
(Indicate Citizenship of
Parties lnltemlIl)
IV. CAUSE OF ACTION (CITE THE u.s. CIVIL STATUTE UNDER WHICHYQU ARE FilING AND wPJ'IE A BRlEFSTATEMENT OF CAUSE.
DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
Plaintiffhas sued ESC for breach of contract and other causes of action in relation to a product purchased fromESC. Jurisdiction is based
upon 28 O.S,c. ~ 1332 in that plaintiff and defendant are citizens of different states.
C(lNTRACT 'fORTS FORFEITURE/PENALlY BANKRUPTCY OTHER STATUTES
OllOlnsurailce PERSONAL INJURY PERSONAL INJURY 0610 Agriculture . 0442 Appeal 0400 State
0120 MariM [] 310 Airplane o 362P=nallnju.ty- o 620 Other Food &. Drug 2% use l5B Rr.a?pcrt\onmen\
0130 Miller Act [] 3]5 Airp]aneProduct MedMalpractice o 625 Drug Related Seizure of [] 423 Withdrawal [] 410 Antitl1l&l.
o 140 Negotiable 1I1litrumenl Liability [] 365 Personalllljwy~ Property 21 USC881 28USC 157 0430 Banks and Banking ,
[] 150 Recovery of Overpayment [] 320 Assau]t,Libe1& ProducILiabi1ity [] 630 Ljquor Laws [] 450 Commerce/ICC Rates/ete
& Enforcement of Judgment Slander [] 368 Asbestos Personal 0640 R.R.&Truck PROPERTY RIGHTS 0460 Deportation
0151 MedieilFeAct [] 330 Federal Employers' InjuryProduet [] 650 AirlineReg.'l 0820 Copyrights [] 470 RacketeerInflueneedand
o 152 Recov,eryofDefaulted Liability Liability 0660 Occupational 0830 Patent Corrupt Organizations
StudeJttLoans [] 340 Marine Safety/Health 0840 Trademark 0810 Selective Service
(Excl. Veterans) [] 345 MarineProduct PERSONAL PROPERTY D6900lher 0850 Securities/Commodities!
0 153 ReeoV.et"YofOverpayment Uability o 370 Other Fraud SOCIAL SECURITY Exchange
of Veteran's Benefits [] 350 Motor Vehicle [] 371 Truth in Lending LABOR [] 861 HIA(139ff) [] 875 Customer Challenge
0160 StockboldersSuits [] 355 MotorVehicle [] 380 Other Personal [] 710 FairLaborStandards [] 862 Black Lung (923) 12USC3410
~ 190 Other Contract ProductUability Property Damage Ao< [] 863 DlWCfDIWW (405(g)) [] 891 AgriculturalActs
[] 360 Other Personal [] 385 Property Damage 0892 EconomicStabilizatiOll
[] 195 ContraCt Product Liability [] 720 LaborlMgmt. [] 864 SSID Tile XVI
Injury ProductUability Relations 0865 RSI(405{g)) Ao<
[] 730 LaborlMgmt 0' 893 Environmental Matters
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS Reporting & 0894 EnergyAllocalionAct
[] 210 Land Condemnation FEDERAL TAX SIDTS [] 895 Fteedomof
[] 44] Voting 0510 Motions to Vacate Disclosure Act 0870 Taxes (U.S. Plaintiff Information Act
[] 220 Foreclosure [] 442 Employment Sentence [] 740 RailwayLabor
0230 Rent Lease & Ejectment or Defendant , 0900 Appeal of Fee Determination
o 240 Torts to Land 0443 Heusin&' Habeas Corpus: Ao< [] 871 IRS-Third Party Under Equal Access to
0245 Tort p(oduct Liability AcCOTlttllOdations Q 5200ent:ral 0790 Other Labor 26 USC 7609 Justice
0290 All Otller Real Property [] 444 Welfare 0535 Death Penalty Litigation 0950 Constitutionality of
CI 440 Other Civil Rights [] 540 Mandamus & Other 0791 EmpLRet lnc StateStalutes
[] 550 Other Security Act [] 890 Other Statutory
Actions
,
VI. ORIGIN
(PLACE AN X IN ONE BOX ONLY)
o I Original
Proceeding
~ 2 Removed from
State Court
[] 4 Reinstatedor
Reopened
o 3 Remanded from
Appellate Court
VII. REQUESTED IN CHECKIFTInSIS A
COMPLAINT: 0 UNDERF.RC'.23
VIII. RELATED CASE(S) IF ANY
DATE
CLASS ACTION
JUDGE
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Triltl5ferredfrom
05 another district
(specify)
Appeal to Distnct
01 Judge from
Magistrate
Judement
Check YES only if demanded in complaint:
JURY DEMAND 181 YES 0 NO
[] 6 Multidistrict
Litigation
DEMAND $
Excess of $100,000
DOCKET NUMBER
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYL VANIA
JOHN J. SCHIETROMA, M.D.,
FILED
,"'~;Rl\NTON
MAR - 2 2001
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CIVIL ACTION
Plaintiff
v.
ESC SHARPLAN, alka
ESC MEDICAL SYSTEMS, INC.,
No,
1: cv
01-0390
Defendant
JURY TRIAL DEMANDED
NOTICE OF REMOVAL
Defendant, ESC Medical Systems, Inc., by and through its attorneys, Lavin, Coleman, O'Neil, Ricci,
Finarelli & Gray, respectfully states in support of this Notice of Removal as follows:
1. There was commenced and is now pending in the Court of Common Pleas of Cumberland
County, Commonwealth of Pennsylvania, a certain civil action in which the above named, John J.
Schietroma, M,D., is the plaintiff and ESC Medical Systems, Inc. is the defendant
2. Plaintiff delivered original process to ESC Medical Systems, Inc. on or after February 8,
2001, by causing a copy of the Complaint filed in the aforementioned civil action to be delivered via United
States Mail to ESC Medical Systems, Inc., located at 100 Morse Street, Norwood, Massachusetts.
3. A true, correct and complete copy ofthe aforementioned Complaint is attached hereto as
Exhibit "A".
4, The amount in controversy in this matter, exclusive of interest and costs, exceeds the sum
of Seventy Five Thousand Dollars ($75,000.00).
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LAVIN, COLEMAN, O'NEIL, RICCI, F1NARELLI & GRAY' ATTORNEYS AT LAW
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5. ESC Medical Systems, Inc., avers that diversity of citizenship exists between the parties as
follows:
(a) Plaintiff is now and was at the time of the commencement of the aforementioned
action in the Cumberland County Court of Common Pleas a citizen and resident of the Commonwealth of
Pennsylvania; and
(b) ESC Medical Systems, Inc., is now and was at the time of the commencement of the
aforementioned civil action in the Cumberland County Court of Common Pleas a citizen of the State of
Massachusetts by virtue of the fact it is incorporated under the laws of the State of Massachusetts and
maintains its principal place of business in the State of Massachusetts.
6, The action between the plaintiff and defendant is one over which this Honorable Court
possesses original subject matter jurisdiction under the provisions of28 V.S,c, g1332 and is one which may
be removed to this Court by the noticing party pursuant to the provisions of28 U.S.c' SS 1441-1448,
7. This Notice of Removal is filed with this Honorable Court within the time for removal set
forth in 28 V.S.C. gI446(b) inasmuch as thirty (30) days has not passed since the receipt by the noticing
party of a copy ofthe paper from which it could first be ascertained that this case is one which is removable.
8. Written notice of the filing of this Notice of Removal will be given to the adverse party as
required by 28 V.S.C. gI446(b).
9. A true, correct and complete copy of this Notice of Removal will be filed with the
Prothonotary of the Court of Common Pleas of Cumberland County, Commonwealth of Pennsylvania, as
required by 28 V.S.C. gI446(d).
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LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY .ATIORNEYS AT LAW
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10, Pursuant to 28 U.S,c, S 1446(a) there is filed herewith and by reference made a part hereof
a true, correct and complete copy of all process, pleadings and orders served upon the noticing party in this
action,
WHEREFORE, defendant, ESC Medical Systems, Inc., prays that it may effect the removal ofthis
action from the Court of Conunon Pleas of Cumberland County, Commonwealth of Pennsylvania, to the
United States District Court for the Middle District of Pennsylvania.
Respectfully submitted,
LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY
BY:
;(~~O /~,_)
Robert J. er, Esq 're #44105
510 Walnut Street, Suite 1000
Penn Mutual Tower
Philadelphia, PA 19106
(215) 627-0303
Attorney for defendant,
Ese Medical Systems, Inc.
- 3 -
LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY. ATTORNEYS AT LAW
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02/15/01 THU 09:45 FAX
OllW SEATTLE
I4J 002
JOHN J. SCHlETROMA, M.D.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
No. crl' 7-j-Y Civil Term
ESC SHARP LAN, aMa
ESC MEDICAL SYSTEMS
Defendant
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the
claims set forth in the following pages, you must take action within twenty (20) days after
this Complaint and Notice are served, by entering a written appearance personally or by
attorney and filing in writing with the Court your defenses or objections to the claims set
forth against you. You are warned that if you fail to do so the case may proceed without
you and a judgment may be entered against you by the Court without further notice for
any money claimed in the Complaint or for any other claim or relief requested by the
Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
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02/15/01 TEU 09:45 FAX
OllW SEATILE
I4J 003
NOTICIA
USTEO HA SIOO OEMANOADNA EN CORTE. Si usted desea defenderse de
las demandas que se presentan mas adelante en las siguientes paginas, debe tomar
accion dentro de los proximos veinte (20) dias despues de la notificacion de esta
Oemanda y Aviso radicando personalmente 0 por medio de un abogado una
comparecencia escrita y radicando en la Corte por escrito sus defensas de, y
objecciones a, las demandas presentadas aqui en contra suya. Se Ie advierte de que si
usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin
usted y un fallo por cualquier suma de dinero reclamada en la demanda 0 cualquier otra
reclamaeion 0 remedio solicitado por el demandante puede ser dictado en contra suya
por la Corte sin mas aviso adieionaL Usted puede perder dinero 0 propiedad u elros
derechos importantes para usted,
USTED OEBE LLEVAR ESTA DOCUMENTO A SU ABOGADO
IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A
UNO, LLAME 0 VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE
PUEDE ENCONTRAR ASISTENC1A LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
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JOHN J. SCHIETROMA, M.D.
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.
Civil Term
ESC SHARP LAN, a/kJa
ESe MEDICAL SYSTEMS
Defendant
~QMP1.AINT
1. Plaintiff, JOHN J. seHIETROMA, M.D., now is, and at all times mentioned was,
practicing medicine and doing business in an office located at Pennview Place, 220
Grandview Avenue, Camp Hill, East Pennsboro Township, Cumberland County,
Pennsylvania,
2. Defendant, ESC SHARPLAN, also doing business as ESC Medical Systems, is a
corporation organized and existing under the laws of Massachusetts, with its principal
place of business located at 100 Morse Street, Norwood, Massachusetts.
3. Defendant, at all times herein, also operated offices located at 100 Crescent 'Road,
Needham, Massachusetts and 5 Pearl Court. Allendale, New Jersey.
COUNT I - BREACH OF CONTRACT
"
4. Paragraphs 1 through 3 above are herein incorporated by reference and made a
part hereof.
5. At all times mentioned, Defendant was in the business of selling the Photoderm
VUPL machine, among other products for use in the medical field.
6. On or about 6 March 1997, Plaintiff purchased from Defendant a Photoderm VUPL
machine (hereinafter referred to as "Photodermn) for the purpose of the treatment of leg
veins.
7. Prior to the Plaintiff's purchase of the Photoderm, Defendant advertised and
represented to Plaintiff that the Photoderm was developed to provide noninvasive treat-
ments of leg veins with no needles and injections, and further, that the Photoderm was
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capable of treating all leg veins from the smallest spider veins to veins four millimeters
(4 mm) or more in size.
8. Plaintiff relied upon Defendant's representations and purchased the Photoderm at a
purchase price of One Hundred Thirty-Five Thousand Five Hundred Dollars ($135.500).
9. Plaintifffurther purchased a hair removal upgrade at a cost of Seven Thousand Five
Hundred Dollars ($7,500) and extended warranties at an additional cost of Three
Thousand Three Hundred Dollars ($3.300),
10. Plaintiff purchased the Photoderm for use for its ordinary purpose as a machine to
be used for the noninvasive treatment of leg veins of up to four millimeters (4 mm) in
size,
11. Defendant breached the contract to sell the Photoderm by delivering non-conform-
ing goods to Plaintiff.
12. Plaintiff did not, and could not, learn of the non-conformity until the Photoderm
machine had been utilized over a period of time.
13, Plaintiff has incurred costs in physician time in setting up and learning the
Photoderm in the amount of Eight Thousand Dollars ($8,000)
14. Plaintiff has incurred costs in staff time in setting up and learning the Photoderm in
the amount of Five Thousand Dollars ($5,000).
"
15. Plaintiff has incurred costs in advertising and promoting the use of the Photoderm
in the amount of Forty-Three Thousand Eight Hundred Seven Dollars ($43,807).
16. By tetter, dated 23 December 1999, Plaintiff notified Defendant he was revoking
acceptance of the Phbtoderm and demanding that Defendant return the purchase price
to Plaintiff and pay Plaintiff for all of the costs incurred by Plaintiff for training and
education of physicians and staff and the set-up of the Photoderm by physicians and
staff, and, since Plaintiff has been ready,willing and able to return the Photoderm to
Defendant, made tender to Defendant thereof at that time.
WHEREFORE, Plaintiff requests that the court:
1. Award judgment in favor of Plaintiff and against Defendant in the amount
of Two Hundred Three Thousand One Hundred Seven Dollars ($203,107); and
2. Award the Plaintiff costs of this suit, including attorneys' fees: and
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3. Grant the Plaintiff such other and further relief that this court considers
just and proper.
COUNT II. BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
17. Paragraphs 1 through 16 above are herein incorporated by reference and made a
part hereof.
18: At the time of the sale, Defendant was notified and knew of the purpose for which
the Photoderm was being purchased, and then and there warranted to the Plaintiff the
Photoderm to be of merchantable quality and fit for a particular purpose.
19. Plaintiff relied upon Defendant's above-described warranties and used the
Photoderm for the purpose described above, but the Photoderm, being of unmerchant-
able quality and wholly unfit for such purpose, failed to treat any but the smallest veins
successfully,
WHEREFORE, Plaintiff requests that the court:
1. Award judgment in favor of Plaintiff and against Defendant in the amount
of Two Hundred Three Thousand One Hundred Seven Dollars ($203.107); and
2. Award the Plaintiff costs of this suit, including attorneys' fees; and
3. Grant the Plaintiff such other and further relief that this court considers
just and proper.
COUNT III . BREACH OF IMPLIED WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE
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20. Paragraphs 1 through 19 above are herein incorporated by reference and made a
part hereof.
21. Plaintiff relied upon Defendant's above-described warranties and used the Photo-
derm for the particular purpose described above, but the Photoderm, being wholly unfit
for such particular purpose, failed to treat any but the smallest veins, successfully.
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WHEREFORE. Plaintiff requests that the court
. 1 , Award judgment in favor of Plaintiff and against Defendant in the amount
of Two Hundred Three Thousand One Hundred Seven Dollars ($203.107); and
2. Award the Plaintiff costs of this suit, including attorneys' fees; and
3. Grant the Plaintiff such other and further relief that this court considers
just and proper.
MILLER & ASSOCIATES, PC
Dated: 1 rCot~,,'1 100 \
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William E. Miller, Jr., Esqujr€(
Anthony E. Marrone./E~quire
1822 Market Street/
Camp Hill. PA 17011
(717) 737.9211
(717) 737.9215
ID Nos. 07220 and 48182
Attorneys for Plaintiff
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VE;,RIFICA TlON
I, JOHN J. SCHIETROMA, M.D., do hereby verify that the statements made in
the Foregoing Complaint are true and correct to the best of my knowledge, information
and belief.
I understand that false statements made herein are subject to the penalties of 18
Pa. C.S. 34904 relating to unsworned falsification to authorities.
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( ,Y?"t--. / /:. . '~(:~~:l'.._,..... ~,'~/;J
JOfIN J. SClffE"T OMA, M.D.
Date: 7 1i:101\.l.~rl Z/H>/
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYL VANIA
JOHN J. SCHIETROMA, M.D"
CNIL ACTION
. Plaintiff
v,
ESC SHARPLAN, alka
ESC MEDICAL SYSTEMS, INC.,
No.
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, ROBERT J. HAFNER, ESQUIRE, hereby certify that a true, correct and complete copy of the
attached Notice of Removal was served upon counsel for plaintiff via United States Mail on March 1,2001,
at the address listed below:
William E. Miller, Jr., Esquire
Anthony E. Marrone, Esquire
1822 Market Street
Camp Hill, PA 17011
Attorneys for plaintiff,
John J Schietroma, M.D,
LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY
BY:
<~~A/
Robert 1. er, sq re
Attorney for defendant,
Ese Medical Systems, Inc.
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