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Home My WebLink About03-2012NELSON LEVINE de LUCA & HORST BY: RICHARD J. BOYD, JR., ESQUIRE I.D. # 84035 Four Sentry Parkway - Suite 300 Blue Bell, PA 19422 (610) 862-6522 DOUGLAS & HOLLY MILLER 2839 Myrtle Drive Mechanicsville, PA 17055 ORF'S CARPET TOWN d/b/a ABBEY CARPET CLEANING SYSTEM 1920 Paxton Street Harrisburg, PA 17104 Plaintiffs and A.O. SMITH WATER PRODUCTS, STATE INDUSTRIES, INC. 500 Lindahl Parkway Ashland City, TN 37015 CO. d/b/a Defendants PRAECIPE TO ISSUE WRIT OF SUMMONS ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. t33 - atx. ARBITRATION TO THE PROTHONOTARY: Kindly issue a Writ of Summons Defendant in the above-captioned matter. commencing an action against the named NELSON LEVINE deLUCA & HORST RICHAI~ J. BOYD, J~. / /' ( Attorney for Plaintiffs Dated: 4/24/03 NELSON LEVINE de LUCA & HORST BY: RICHARD J. BOYD, JR., ESQUIRE I.D. # 84035 Four Sentry Parkway - Suite 300 Blue Bell, PA 19422 (610) 862-6522 DOUGLAS & HOLLY MILLER 2839 Myrtle Drive Mechanicsville, PA 17055 Plaintiffs ORF'S CARPET TOWN d/b/a ABBEY CARPET CLEANING SYSTEM 1920 Paxton Street Harrisburg, PA 17104 and A.O. SMITH WATER PRODUCTS, CO. d/b/a STATE INDUSTRIES, INC. 500 Lindahl Parkway Ashland City, TN 37015 Defendants ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY ARBITRATION WRIT OF SUMMONS TO: ABBEY CARPET CLEANING SYSTEM 1920 Paxton Street Harrisburg, PA 17104 and A.O. SMITH WATER PRODUCTS, CO. d/b/a STATE INDUSTRIES, INC. 500 Lindahl Parkway Ashland City, TN 37015 YOU ARE HEREBY NOTIFIED that the above Plaintiff has commenced an action against you in the above litigation. BY THE PROTHONOTARY DATED: SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-02012 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MILLER DOUGLAS ET AL VS ORF'S CARPET TOWN D/B/A ABBEY 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: ORF'S CARPET TOWN DBA ABBEY CARPET CLEANING SYSTEM but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within WRIT OF SUMMONS On May 9th , 2003 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dep Dauphin Co 18.00 9.00 10.00 25.50 .00 62.50 05/09/2003 R. fThomas Kline -- - Sheriff of Cumberland County NELSON LEVINE DELUCA HORST Sworn and subscribed to before me this /y ~ day of~ ~2~5 A.D. ! ; Prothonotary t ' The Court of Common Pleas of Cumberland County, Pennsylvania D~uglas Miller et al VS. Orf's Carpet Town dba Abbey Carpet Cleaning System SERVE: s~ne 03-2012 civil Now, April 30, 2003 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff.' Sheriff of Cumberland County, PA lNlow~ within Affidavit of Service ,20 at o'clock ~ M. served the upon by handing to and made known to copy of the original So answers, the contents thereof. Sworn and subscribed before me this ~ day of ,20 Sheriffof COSTS SERVICE MILEAGE AFFIDAVIT County, PA F:\FILES\DATAFILE~DonegaI3050\Documents\235 pral/a jr Created: 02/22/02 04:48:25 PM Revised: 05/15/03 04:05:19 PM 3050.235 DOUGLAS & HOLLY MILLER, Plaintiffs Vo ORF'S CARPET TOWN, d/b/a ABBEY CARPET CLEANING SYSTEM and A. O. SMITH WATER PRODUCTS, CO., d/b/a STATE INDUSTRIES, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2012 JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Enter the appearance of MARTSON DEARDORFF WILLIAMS & OTTO on behalf of Defendant, Orf's Carpet Town, d/b/a Abbey Carpet Cleaning System. Dated: May 15, 2003 MARTSON DEARDORFF WILLIAMS & OTTO By ~'~~ ~.(.(N)~,~~j Daniel r. Deardorff, Esq"ire ' -" (/~ I.D. No. 17837 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attomeys for Defendant Orf's Carpet Town, d/b/a Abbey Carpet Cleaning System RULE AND NOW, this I{~ day of/0~l/ ,2003, a Rule is issued upon the Plaintiff to file a Complaint within twenty (20) days from' service hereof or suffer a judgment of non pros. Prothonotary CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Richard J. Boyd, Jr., Esquire NELSON LEVINE de LUCA & HORST Four Sentry Parkway - Suite 300 Blue Bell, PA 19422 A. O. Smith Water Products, Co., d/b/a State Industries 500 Lindahl Parkway Ashland City, TN 37015 MARTSON DEARDORFF WILLIAMS & OTTO BY~ani~J. ~Th~n~ i~~/~{~ Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: May 15, 2003 NELSON LEVINE de LUCA & HORST BY: · RICHARD J. BOYD, JR., ESQUIRE I.D. # 84035 Four Sentry Parkway - Suite 300 Blue Bell, PA 19422 (610) 862-6522 ATTORNEYS FOR PLAINTIFFS DOUGLAS & HOLLY MILLER 2839 Myrtle Drive Mechanicsville, PA 17055 Ve ORF'S CARPET TOWN d/b/a ABBEY CARPET CLEANING SYSTEM 1920 Paxton Street Harrisburg, PA 17104 and A.O. SMITH WATER PRODUCTS, STATE INDUSTRIES, INC. 500 Lindahl Parkway Ashland City, TN 37015 Plaintiffs CO. d/b/a Defendants 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 TItIS 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 ItELP. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 03-2012 ARBITRATION AVISO Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita a o en persona o con un abogado y entregar a la corte en forma escr/ta sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Adernas, la corte puede decidir a favor del demandante y require que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTAT DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SINO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICO. VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE IENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. COURT ADMINISTRATOR 230 E. Water Street Lock Haven, PA 17745 (570) 893-4016 COURT ADMINISTRATOR 230 E. Water Street Lock Haven, PA 17745 (570) 893-4016 NELSON LEVINE de LUCA & HORST 'BY: RICHARD J. BOYD, JR., ESQUIRE I.D. # 84035 Four Sentry Parkway - Suite 300 Blue Bell, PA 19422 (610) 862-6522 ATTORNEYS FOR PLAINTIFFS DOUGLAS & HOLLY MILLER 2839 Myrtle Drive Mechanicsville, PA 17055 ORF'S CARPET TOWN d/b/a ABBEY CARPET CLEANING SYSTEM 1920 Paxton Street Harrisburg, PA 17104 and A.O. SMITH WATER PRODUCTS, STATE INDUSTRIES, INC. 500 Lindahl Parkway Ashland City, TN 37015 Plaintiffs CO. d/b/a Defendants COMPLAINT COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 03-2012 ARBITRATION Carpet"), is, upon information and belief, a business entity organized and existing under the laws of this Commonwealth, with a principal place of business located at the address in the above caption. 3. Abbey Carpet is, upon information and belief, engaged in the business of, among other things, providing water extraction and home restoration services and did provide such services to Plaintiffs. 4. Defendant, A.O. Smith Water Products Co., d/b/a State Industries, Inc. ("State Industries"), is, upon information and belief, a business entity which is organized and existing under property. Defendant, Orf's Carpet Town, d/b/a Abbey Carpet Cleaning System ("Abbey located at the address listed in the above caption, and who resided in the house located on that Plaintiffs are adult individuals who, at all times relevant hereto, owned the property hereby aver: Plaintiffs, by and through undersigned counsel, and by way of Complaint against Defendants, the laws of a foreign state, with a principal place of business located at the address in the above caption, and which regularly conducts business within Cumberland County. 5. State Industries, is, upon information and belief, a corporate entity that manufactures, assembles, distributes and/or offers for sale, inter alia, residential hot water heaters, including the hot water heater found within the Plaintiff's home. 6. On or about May 1, 2001, Plaintiffs' finished basement was flooded with water as a result of a defective lower element on their hot water heater. The hot water heater was designated as a State Industries product, with model # CD5 52 20RS961 and serial # K96353823. 7. Thereafter, Abbey Carpet was contracted by Plaintiffs to clean and restore the finished basement. Plaintiffs are not in receipt of a copy of the contract, but it is believed to be in the possession of Abbey Carpet. 8. Abbey Carpet was negligent in the manner in which it attempted to clean and restore the basement and its employee only served to cause more damage to the basement area. The negligent acts include, but are not limited to, not utilizing dehumidifiers and otherwise failing to properly extract the water to prevent the formation of mold; failing to remove all wet carpet padding; and not having enough employees assigned to the cleaning job to ensure it was done properly. 9. Pursuant to the above, Plaintiffs were caused to suffer damages to their real and personal property in an amount not in excess of Fifty Thousand Dollars ($50,000). COUNT I - NEGLIGENCE OF STATE INDUSTRIES 10. Plaintiffs incorporate herein by reference the preceding paragraphs as though same were fully set forth at length. 11. The aforementioned damages were the direct and proximate result of the negligence, carelessness, recklessness, and/or other liability producing conduct of State Industries, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i. failing to properly assemble, inspect and/or test the hot water heater; ii. failing to determine that the hot water heater was not in compliance with applicable standards/specifications; do 111. iv. failing to properly warn that the hot water heater was defective and could fail; distributing and/or selling the hot water heater to Plaintiffs when State Industries knew or should have known that it would be inadequate for its intended purpose; failing to provide Plaintiffs with instructions/warnings regarding the proper care, maintenance and/or servicing of the hot water heater so as to prevent the incident. failing to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a) above; failing to adequately warn Plaintiffs of the dangers and hazardous conditions of the hot water heater, which State Industries knew or should have known would result from the careless and negligent conduct set forth in subparagraph (a) above; failing to provide, establish, and/or follow proper and adequate controls so as to avoid the problems enumerated in subparagraph (a) above; and failing to perform the services set forth in subparagraph (a) above in conformity with the prevailing industry specifications and standards. 12. As a result of the damages directly and proximately caused by the negligence and/or other liability producing conduct of State Industries, Plaintiffs sustained and incurred damages to their real and personal property, along with the imposition of additional expenses, in an amount not in excess of Fifty Thousand Dollars ($50,000.00). attorney fees, circumstances. WHEREFORE, Plaintiffs demand judgment in their favor and against State Industries in an amount not in excess of Fifty Thousand Dollars ($50,000.00). plus interest, costs of suit, reasonable delay damages, and such other relief as the Court deems appropriate under the COUNT II - NEGLIGENCE OF ABBEY CARPET 13. Plaintiffs incorporate herein by reference the preceding paragraphs as though same were fully set forth at length. 14. The aforementioned damages were the direct and proximate result of the negligence, carelessness, recklessness, and/or other liability producing conduct of Abbey Carpet, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: Co do ii. failing to properly clean the finished basement, as set forth above, which led to the formation of mold mad which required more extensive and costly cleaning; failing to properly determine that the failure to use dehumidifiers and other water extraction equipment and, thereby, leaving the basement water soaked would lead to the formation of mold and the destruction of real and personal property; iii. failing to have enough employees working on the water extraction so as to prevent the formation of mold and the destruction of real and personal property; iv. failing to recommend and/or warn Plaintiffs that they should retain another cleaning company to properly complete the job; Vo failing to provide Plaintiff with instructions/warnings regarding the proper care, maintenance and/or cleaning of the basement so as to prevent the formation of mold and to prevent the destruction of real and personal property; failing to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a) above; failing to provide, establish, and/or follow proper and adequate control so as to avoid the problems enumerated in subparagraph (a) above; and failing to perform the services set forth in subparagraph (a) above in conformity with the prevailing industry specifications and standards. 15. As a result of the damages directly and proximately caused by the negligence and/or other liability producing conduct of Abbey Carpet, Plaintiffs sustained and incurred damages to their real and personal property, along with the imposition of additional expenses, in an amount not in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiffs demand judgment in their favor and against Abbey Carpet in an amount not in excess of Fifty Thousand Dollars ($50,000.00). plus interest, costs of suit, reasonable attorney fees, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT III - BREACH OF WARRANTY BY STATE INDUSTRIES 16. Plaintiffs incorporate herein by reference the preceding paragraphs as though same were fully set forth at length. 17. At the time of contracting for the sale and/or distribution of the subject hot water heater, State Industries had reason to know of the particular purpose for which the hot water heater would be used and knew that its skill and judgment were being relied upon to furnish a suitable product. Thus, State Industries breached the implied warranty of :fitness for a particular purpose as set out in the Uniform Commercial Code (hereinafter "UCC") 13 Pa. C.S.A. § 2-315 in that the hot water heater was not fit for the particular use for which such products are intended. 18. In addition, State Industries breached its implied warranty of merchantability as set out in the U.C.C. at 13 Pa. C.S.A. § 2-314 (c) in that the hot water heater was not fit for the uses for which it was intended. 19. In addition, State Industries breached any and all express warranties made or relating to the subject water heater that became part of the basis of the bargain for sale of the product in derogation of 13 Pa. C.S.A. § 2-313. 20. Plaintiffs' damages, as set forth above, occurred as a direct and proximate result of State Industries' breach of their implied warranties of fitness for a particular purpose and merchantability as set out in 13 Pa. C.S.A. § 2-315 and § 2-314 (c) and as a result of State Industries' breach of their expressed warrantees in derogation of 13 Pa. C.S.A. § 2-313. WHEREFORE, Plaintiffs demand judgment in their favor and against State Industries in an amount not in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, reasonable attorney fees, delay damages, and such other relief as the Co'urt deems appropriate under the circumstances. COUNT IV - STRICT LIABILITY OF STATE INDUSTRIES 21. Plaintiffs incorporate herein by reference the preceding paragraphs as though the same were fully set forth at length. 22. State Industries is engaged, and at all times relevant hereto was engaged, in the business of selling and distributing, inter alia, hot water heaters to consumers. 23. State Industries distributed and/or sold the subject hot water heater in a defective condition, unreasonably dangerous to Plaintiffs and their property. 24. State Industries knew or should have known that the hot water heater would, and did, reach the Plaintiffs' property without substantial change from the condition in which originally sold. 25. The aforementioned defects consisted off (a) design defects; (b) manufacturing defects; (c) component defects; (d) a failure to warn of the design, manufacturing, and/or component defects; and/or (e) a failure to properly instruct as to. the appropriate operating and maintenance procedures for safe use of the hot water heater. 26. For these reasons, State Industries is strictly liable to Plaintiffs for their damages under Section 402A of the Restatement (2d) of Torts, the Restatement (3d) of Torts, and the applicable case law of the Commonwealth of Pennsylvania. 27. As a direct and proximate result of the aforementioned defects, Plaintiff sustained and incurred damage to their real and personal property, along with the imposition of additional expenses, in an amount not in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiffs demand judgment in their favor and against State Industries in an amount not in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, reasonable attorney fees, delay damages, and such other relief as the Court deems appropriate under the circumstances. BY: .//: NELSON LEVINE de LUCA & HORST RICHA;~ J. BOYD,'JR. ~'[' ( Attorney for Plaintiffs VERIFICATION RICHARD J. BOYD, JR. hereby states that he is the attorney for the Plaintiffs and that the facts contained in the foregoing Complaint are tree and correct to the best of his knowledge, information and belief. He understands that the statements herein are made subject to the penalties of 18 Pa.. C. S. Section 4904 concerning falsification to authorities. NELSON LEVINE de LUCA & HORST RICHARD J. BOYD, JR2 Attorney For Plaintiffs CERTIFICATE OF SERVICE I hereby certify that a copy of the attached Plaintiff's Complaint has been sent via certified mail to the following: Via Certified (7099 3400 0012 8089 8028) ORF'S CARPET TOWN d/b/a ABBEY CARPET CLEANING SYSTEM 1920 Paxton Street Harrisburg, PA 17104 and Via Certified (7099 3400 0012 8089 8035) A.O. SMITH WATER PRODUCTS, CO. d/b/a STATE INDUSTRIES, INC. 500 Lindahl Parkway Ashland City, TN 37015 NELSON LEVINE de LUCA & HORST BY: .i , ~ / Attorney For Plaintiffs DOUGLAS & HOLLY MILLER, Plaintiffs ORF'S CARPET TOWN d/b/a ABBEY CARPET CLEANING SYSTEM and A.O. SMITH WATER PRODUCTS, CO. d/b/a STATE INDUSTRIES, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ARBITRATION NO. 03-2012 DEFENDANT ORF'S CARPET TOWN'S PRELIMINARY OBJECTIONS Defendant ORF'S CARPET TOWN, by and through its undersigned counsel, sets forth the following Preliminary Objections: 1. Rule 1028 o fthe Pennsylvania Rules of Civil Procedure permit preliminary objections when the pleading fails to conform to a rule of court and where a pleading is insufficiently specific. 2. Rule 1029(0 of the Pennsylvania Rules of Civil Procedure require items of special damage to be specifically stated. 3. Plaintiffs have filed a Complaint against two Defendants alleging damages to their real and personal property in an amount not in excess of $50,000. 4. Plaintiffs' Complaint does not set forth any items of special damage even though it is alleged that Defendants' negligence caused damages to Plaintiffs' real and personal property. 5. Defendant Orf,s Carpet Town will be prejudiced in attempting to defend this case when there is another Defendant, especially when the alleged damages are not specifically itemized or attributed to one or the other Defendant. 6. Plaintiffs' Complaint also requests "reasonable attorney fees" without setting forth any basis in fact or law to justify the award of reasonable attorney fees. WHEREFORE, Defendant Orf's Carpet Town demands that Plaintiffs be required to plead their special damages against each Defendant and that Plaintiffs' request for reasonable attorney fees be stricken. Respectfully Submitted, MARTSON, DEARDOREF, WILLIAMS & OTTO Daniel K. Deardorff, Esquire /fl I. D. Number 17837 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Orf's Carpet Town Dated: June 6, 2003 CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Preliminary Objections were served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Richard J. Boyd, Jr., Esquire NELSON LEVINE de LUCA & HORST Four Sentry Parkway - Suite 300 Blue Bell, PA 19422 A.O. SMITH WATER PRODUCTS, CO. d/b/a STATE INDUSTRIES 500 Lindahl parkway Ashland City, TN 37015 MARTSON DEARDORFF WILLIAMS & OTTO Ami J. Thur0na ' Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: June 6, 2003 N~LSON LEVINE de LUCA & HORST BY: RICHARD J. BOYD, JR., ESQUIRE I.D. # 84035 Four Sentry Parkway - Suite 300 Blue Bell, PA 19422 (610) 862-6522 ATTORNEYS FOR PLAINTIFFS DOUGLAS & HOLLY MILLER Plaintiffs ORF'S CARPET TOWN d/b/a ABBEY CARPET CLEANING SYSTEM and A.O. SMITH WATER PRODUCTS, CO. d/b/a STATE INDUSTRIES, INC. Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 03-2012 ARBITRATION PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached Verification for the Verification of the undersigned on the previously filed Complaint. Nelson Levine de Luca & Horst BY: ~L~' ~'~'~' ~ //RICHARD J./~(~YD, ~ ~' Attorney for Plaintiffs VERIFICATION CONSTANCE HEFFNER hereby states that she is a duly authorized representative of Nationwide Mutual Fire Insurance Company, the real party in interest, and that the facts contained in the foregoing Complaint are true and correct to the best of her knowledge, information and belief. He understands that the statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 concerning falsification to authorities. DATED:~_ NER CERTIFICATE OF SERVICE I hereby certify service of a true and correct copy of the within Praecipe To Substitute Verification was made upon all parties listed below by United States Mail, postage prepaid: Daniel K. Deardorff, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 A.O, Smith Water Products, Co. d/b/a State Industries, Inc. 500 Lindahl Parkway Ashland City, TN 37015 Nelson Levine de Luca & Horst · ? BY. ~5rf~'- //RICHARD J. t$q~YD, JR. ://' Attorney for Plaintiffs NELSON LEVINE de LUCA & HORST BY: RICHARD J. BOYD, JR., ESQUIRE I.D. #84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 DOUGLAS & HOLLY MILLER Plaintiffs ORF'S CARPET TOWN d/b/a ABBEY CARPET CLEANING SYSTEM and A.O. SMITH WATER PRODUCTS, CO. d/b/a STATE INDUSTRIES, INC. Defendantsi ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 03-2012 AFFIDAVIT OF SERVICE I, RICHARD J. BOYD, JR., affirm that I served a Writ of Summons on defendant, A.O. Smith Water Products Company d/b/a State Industries, Inc., by depositing a true and correct copy thereof enclosed in a postage-paid envelope, in an official depositor under the exclusive care and custody of the U.S. Postal Service employing Certified Mail on May 7, 2003. A copy of the cover letter to the defendant and a copy of the Return Receipt PS Form 3811 documenting service of the Writ of Summons dated May 9, 2003, are attached hereto as Exhibit A. Nelson Levine de Luca & Horst DATED: June 17, 2003 BY: RICHARD J. B(~YD, JR. Attorney for Plaintiffs EXHIBIT "A' ~NELSON ' ,.EVINE · de LUCA & I-,~RST ~~ATTORNEYS AT LAW May 7, 2003 Certified Mail 7099 3400 0012 8089 8073 and Regular U.S. Mail A.O. Smith Water Products Co d/b/a State Industries, Inc. 500 Lindahl Parkway Ashland City, TN 37015 Philadelphia Office: Four Sent~ Patio.ray, Suite 300 Blue Bell, PA 19422 Phone: 610.862.6500 Fax: 610.862.6501 New Jersey Office: 212 Carnegie Center, Suite 206 Princeton, NJ 08540 Phone: 609.919.6320 Fax: 609.520.1863 Interact: www. nldhlaw, com Richard $. Boyd Direct: 610.862.6522 rboyd~nldhlaw, com Rcply to PA Office Douglas & Holl ller. X Abbey Carpet Cleaning System and A.O. smith Water Products,XCo,-/ Docket No. 03-2012 Dear SirorMadam: Enclosed please find a Writ of Summons directed to you. As indicated, the named Plaintiffs have instituted a lawsuit against your company. You should immediately notify your insurance cartier or your claims department of this matter. Failure to do so could result in denial of insurance coverage and/or a judgment being entered against you. Your immediate attention is essential. Sincerely, BOYD, JR. ! (6nl~orsernen Required) DOU Miller Name (Please P#nt Clear/y) (to be completed by maileO · ......................... [ 50'0 'Li. ndahl' Parkway ............................ Complete item~ 1,2, and 3. Nso complete A. [] Print ~r ~fne A~chthiBcBrdtol~bBbkofllle~hmlPleCe, II ~ B / ?ou:~ .. A.O. Smith Water Products d/b/a State Industries In 500 Lindahl Parkway Ashland City, TN 37015 Number PS Form 3811, August 2001 Insured Mm1 [] C.O.D. 4. Ree,Mct ed Deli~ (E,."b'a Fee) 7099 3400 0012 8089 8073 D~mest]c Return Receipt CERTIFICATE OF SERVICE I, RICHARD J. BOYD, JR., hereby certify that I served a tree and correct copy of the within Affidavit of Service on Defendant A.O. Smith Water Products Company d/b/a State Industries, Inc., upon the following via U.S. Mail, postage prepaid: A.O. Smith Water Products, Co. d/b/a State Industries 500 Lindahl Parkway Ashland City, TN 37015 Ami J. Thmnma, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Nelson Levine de Luca & Horst DATED: June 17, 2003 ./RICHARD J. B~OYD, JR. ~/ Attorney for Plaintiffs DOUGLAS & HOLLY MILLER, Plaintiffs ORF'S CARPET TOWN d/b/a ABBEY CARPET CLEANING SYSTEM and A.O. SMITH WATER PRODUCTS, CO. d/b/a STATE iNDUSTRIES, 1NC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ARBITRATION NO. 03-2012 STIPULATION OF PLAINTIFFS AND DEFENDANT ORF'S CARPET TOWN 1. On or about May 28, 2003, Plaintiffs filed a Complaint against Defendant Orf's Carpet Town and Defendant A.O. Smith Water Products, Co. 2. On or about June 6, 2003, Defendant Off's Carpet Town filed Preliminary Objections on the basis that Plaintiffs' Complaint did not specifically state the items of special damage and Plaintiffs requested "reasonable attorney fees." The above parties have agreed to resolve these Preliminary Objections by this Stipulation. 4. 5. Plaintiffs' request for reasonable attorney fees shall be stricken from the Complaint. Plaintiffs' request for damages as set forth in paragraphs 9, 12, 15, 20, and 27 of their Complaint shall be stricken and replaced as follows: Plaintiffs request damages against Defendant Orf's Carpet Town d/b/a Abbey Carpet Cleaning System in the amount of$15,102.34 and Plaintiffs request damages against Defendant A.O. Smith Water Products, Co., d/b/a State Industries, Inc., in the amount of $5,358.43. 6. The above parties agree that Plaintiffs' Complaint shall be modified as set forth in this Stipulation. Intending to be legally bound this Stipulation, the parties execute this Stipulation through their counsel: ~/~ J. Bo~d, Jr., Es~uir4 ,r aniel K. Deardorff, Esquir ,~/t~ Attorney for Defendant Orf's Carpet Town d/b/a Abbey Carpet Cleaning System Date: DOUGLAS & HOLLY MILLER, Plaintiffs ORF'S CARPET TOWN, d/b/a ABBEY CARPET CLEANING SYSTEM and A. O. SMITH WATER PRODUCTS, CO., d/b/a STATE INDUSTRIES, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2012 JURY TRIAL OF TWELVE DEMANDED DEFENDANT ORF'S CARPET TOWN'S ANSWER WITH NEW MATTER AND CROSSCLAIM TO PLAINTIFFS' COMPLAINT TO: DOUGLAS & HOLLY MILLER, and their attorney, RICHARD J. BOYD, JR., ESQUIRE A. O. SMITH WATER PRODUCTS, CO., d/b/s STATE INDUSTRIES, INC. YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER AND CROSSCLAIM WITHIN TVqENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MY BE ENTERED AGAINST YOU. AND NOW, comes Defendant Orf' s Carpet Town, by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and Answers Plaintiffs' Complaint as follows: 1. Admitted based on information received. 2. Denied as stated. It is admitted that Defendant Orf's Carpet Town is a business entity located at 1920 Paxton Street, Harrisburg, PA 17104. It is denied that Defendant Orf's Carpet Town currently does business as Abbey Carpet Cleaning System. To the contrary, Abbey Carpet Cleaning System is no longer in existence and ceased doing business in early 2002. 3. Denied as stated. The answer to paragraph 2 is incorporated herein by reference. In addition, Abbey Carpet Cleaning System was a business which provided carpet cleaning and did not provide water extraction or home restoration services. 4-6. Defendant Orf's Carpet Town is without sufficient knowledge or information to admit or deny this averment. Proof thereof is demanded. 7. Denied as stated. It is admitted that Abbey Carpet Cleaning System was contacted with regard to cleaning the carpet in the basement. It is denied that Abbey Carpet Cleaning System was intended to restore or extensively clean Plaintiffs' basement. To the contrary, another company named Service Master was expected to perform the extensive cleanup and restoration. 8. Denied as stated. It is denied that Abbey Carpet Cleaning System was negligent in the manner in which it attempted to clean and restore the basement or that it caused more damage to the basement area. It is denied that it was negligent in not utilizing dehumidifiers or failing to properly extract water to prevent the formation of mold or failing to remove all wet carpet padding or failing to have enough employees assigned to the job to properly get it done. To the contrary, Abbey Carpet Cleaning was never hired for a total cleanup or restoration of this basement. Abbey Carpet Cleaning was hired simply on an emergency basis to perform some initial cleanup. At all times, it was anticipated that Service Masters would come in and perform the total cleanup with fans, dehumidifiers, sufficient employees, and other equipment to thoroughly restore and clean the basement. In addition, Abbey Carpet Cleaning System only charged $363.00 for its initial cleanup because it never was to perform a thorough cleanup or full restoration. Service Master later came in and submitted a bill of over $15,000.00 for its thorough cleanup and restoration of the basement. 9. It is denied that Defendant Orf's Carpet Town is liable to Plaintiffs for any damages. The answers to paragraphs 7 through 8 are incorporated herein by reference. COUNT I - NEGLIGENCE OF STATE INDUSTRIES 10-12. These averments are against another party not Defendant Orf's Carpet Town. Accordingly, it is not necessary for Defendant Orf's Carpet Town to respond to these averments. COUNT II - NEGLIGENCE OF ABBEY CARPET 13. Defendant Orf's Carpet Town incorporates herein by reference the answers set forth in the proceeding paragraphs as though the same were fully set forth herein. 14. It is denied that Defendant Abbey Carpet Cleaning System was negligent in any manner what so ever. The answers set forth in paragraphs 7 through 8 of this answer are incorporated herein by reference. 15. It is denied that Defendant Abbey Carpet Cleaning System was negligent or caused any damages to the Plaintiffs. Proof thereof is demanded. WHEREFORE, Defendant Orf's Carpet Town demands judgment in its favor and against Plaintiffs. COUNT III - BREACH OF WARRANTY BY STATE INDUSTRIES COUNT IV - STRICT LIABILITY OF STATE INDUSTRIES 16-27. These averments are directed another Defendant, not Defendant Orris Carpet Town. Accordingly, no answer is required from Defendant Orris Carpet Town. WHEREFORE, Defendant Orris Carpet Town demands judgment in its favor against Plaintiffs. NEW MATTER 28. Plaintiffs by their actions are comparatively negligent. 29. Plaintiffs by their actions assume the risk of injury and damages. 30. Defendant Orris Carpet Town, which was doing business as Abbey Carpet Cleaning System back around May 1, 2001, was never hired for a total cleanup or restoration by the Plaintiffs. It was only hired on an emergency basis to perform some initial cleanup. It was never intended to bring in numerous employees, dehumidifiers, fans, and other equipment to totally clean or restore the area. It was simply hired for some initial cleanup and presented a bill for only $363.00 31. At all times, the parties intended that another company called Service Master was to come in to perform total cleanup and restoration of this basement. Service Master was expected to bring in dehumidifiers, fans, and sufficient employees to perform a full cleanup and restoration. In fact, this was done and the bill from Service Master was over $15,000.00. 32. Defendant Orris Carpet Town was never presented this claim until on or about February 20, 2002, at which time its division known as Abbey Carpet Cleaning System had gone out of business. This lawsuit was never filed until on our about May 1, 2003. Accordingly, Defendant Orris Carpet Town has been prejudiced by this delay in presenting this claim because the employees of Abbey Carpet Cleaning System are no longer with Defendant Orris Carpet Town and the records are no longer available to Defendant Orris Carpet Town. Defendant Orris Carpet Town sets forth the above as the legal defense known as laches. 33. It is believed that the damaged property is no longer in existence or available to be inspected by Defendants. For this reason, Defendant Orris Carpet Town raises the defense of spoliation. 34. Defendant Orris Carpet Town questions whether the damages presented by Plaintiffs are the actual value of the property allegedly damaged or whether instead the damages represent the replacement value of the alleged property damage. WHEREFORE, Defendant Orf's Carpet Town demands judgment in its favor against Plaintiffs. CROSSCLAIM AGAINST A. O. SMITH WATER PRODUCTS, CO., d/b/a STATE INDUSTRIES, INC. 35. In the event that the Plaintiffs are entitled to a recovery against the Defendants, it is asserted that Defendant A. O. Smith Water Products, Co., d/b/a State Industries Inc., is solely liable to the Plaintiffs or jointly liable to Defendant Orf's Carpet Town for purposes of contribution and/or indemnification. 36. The basis for liability of Defendant A. O. Smith Water Products, Co., d/b/a State Industries Inc., are the facts set forth in Count I, Count 11I and Count IV of Plaintiffs' Complaint, which are incorporated herein by reference solely for the purpose of this crossclaim. WHEREFORE, Defendant Orf's Carpet Town demands judgment against Defendant A. O. Smith Water Products, Co., d/b/a State Industries Inc. Respectfully Submitted, MARTSON DEARDORFF WILLIAMS & OTTO Dani~ K. Deardoril; Esqmre /~/v I.D. No. 17837 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Orf's Carpet Town, d/b/a Abbey Carpet Cleaning System Dated: VERIFICATION The foregoing Answer with New Matter and Crossclaim is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities, which prfiv~that if I make knowingly false averments, I may be subject to criminal penalties. /~__~///~,J '~gVe~ ~4~l~er, Orf's Carpet Town ! CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Answer With New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Richard J. Boyd, Jr., Esquire NELSON LEVINE de LUCA & HORST Four Sentry Parkway - Suite 300 Blue Bell, PA 19422 A. O. Smith Water Products, Co., d/b/a State Industries 500 Lindahl Parkway Ashland City, TN 37015 MARTSON DEARDORFF WILLIAMS & OTTO P~rni J. Tl~umma' Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: RICHARD J BOYD, JR., ESQUIRE PA I.D. # 84035 NELSON LEVINE de LUCA & HORST, LLC FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 610-862-6522 DOUGLAS & HOLLY MILLER Plaintiffs ORF'S CARPET TOWN d/b/a ABBEY CARPET CLEANING SYSTEM and A.O. SMITH WATER PRODUCTS, CO. d/b/a STATE INDUSTRIES, INC. Defendants ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 03-2012 ARBITRATION PRAECIPE TO MARK SETTLED, DISCONTINUED AND ENDED TO THE PROTHONOTARY: Kindly have the docket reflect that the above-referenced matter has been settled, discontinued and ended. NELSON LEVINE DE LUCA & HORST ,'TRichard J Boydf, Jr., Esquire ,~× Attorney for Plaintiffs Date: September 19, 2003 Doc #: 45547.doc 1 RICHARD J BOYD, JR., ESQUIRE PA I.D. # 84035 NELSON LEVINE de LUCA & HORST, LLC FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 610-862-6522 DOUGLAS & HOLLY MILLER Plaintiffs ORF'S CARPET TOWN d/b/a ABBEY CARPET CLEANING SYSTEM and A.O. SMITH WATER PRODUCTS, CO. d/b/a STATE INDUSTRIES, INC. Defendants ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 03-2012 ARBITRATION CERTIFICATE OF SERVICE I, Richard J Boyd, Jr., Esquire, hereby certify that a true and correct copy of the Praecipe to Settle, Discontinue and End was made on September 19, 2003, upon counsel listed below by United States Mail, postage prepaid. James A. Niquet, Esquire Crivello Carlson & Mentkowski 710 N. Plankinton Avenue Milwaukee, WI 53203 and Daniel K. Deardorff, Esquire: Martson, Deardorff, Williams & Otto 10 East High Street Carlyle, PA 17013 NELSON LEVINE DE LUCA & HORST Richard J Boyd/Jr., Esqu~ Attorney for Plaintiffs Date: September 19, 2003 Doc #: 45547.doc