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5. Defendant Schwinn Cycling and Fitness, Inc. bears
successor liability for the negligence, strict liability and breach
of warranty of its predecessor corporation, Schwinn Bicycle
Company, as set forth at length below because:
(a) Schwinn Cycling and Fitness, Inc. expressly or
impliedly agreed to assume such obligation;
(b) The transaction between the two companies amounted
to a consolidation or merger;
(c) Schwinn Cycling and Fitness, Inc. is merely a
continuation of Schwinn Bicycle Company;
(d) The transaction that resulted in the formation of
Schwinn Cycling and Fitness, Inc. was fraudulently entered into by
Schwinn Bicycle Company andlor its successor entities in order to
escape liability; and/or
(e) Schwinn Cycling and Fitness, Inc. acquired all or
substantially all of the manufacturing assets of Schwinn Bicycle
Company and undertook essentially the same manufacturing operation
as Schwinn Bicycle Company.
6. Defendant Nauti-Lis, Inc. T/D/B/A Bushey's Cycling and
Fitness Headquarters and T/D/B/A Bushey's Schwinn Cyclery is a
Pennsylvania corporation engaged in the business of selling
bicycles and cycling products.
7. Defendant Nauti-Lis, Inc. T/D/B/A Bushey's Cycling and
Fitness Headquarters and T/D/B/A Bushey's Schwinn Cyclery maintains
a retail store and a regular place of business in Lemoyne,
Cumberland County, Pennsylvania.
2
8. Defendant Nauti-Lis, Inc., T/D/B/A Bushey's Cycling and
Fitness Headquarters and T/D/B/A Bushey's Schwinn Cyclery is the
legal successor to Bushey's Schwinn Cyclery, Inc.
9. Defendant Nauti-Lis, Inc., T/D/B/A Bushey's Cycling and
Fitness Headquarters and T/D/B/A Bushey's Schwinn Cyclery bears
successor liability for the negligence, strict liability and breach
of warranty of its predecessor corporation, Bushey's Schwinn
cyclery, Inc., as set forth at length below because:
(a) Nauti-Lis, Inc. expressly or impliedly agreed to
assume such obligation;
(b) The transaction between the two companies amounted
to a consolidation or merger;
(c) Nauti-Lis, Inc. is merely a continuation of Bushey's
Schwinn Cyclery, Inc.;
(d) The transaction resulted in the formation of Nauti-
Lis, Inc. was fraudulently entered into by Bushey's Schwinn
Cyclery, Inc. and/or its successor entities in order to escape
liability; and/or
(e) Nauti-Lis, Inc., acquired all or substantially all
of the assets of Bushey's Schwinn Cyclery, Inc. and undertook
essentially the same business operation.
10. The facts and occurrences hereinafter related took place
on or about December 27, 1995 at approximately 10: 50 a. m., in
Taylor Eisenhauer's grandparents' home located at 2297 Fairfield
Circle, State College, Pennsylvania.
3
11. At said time and place, the minor Plaintiff was turning
one of the pedals a Schwinn Model #XR-6 exercise bicycle with his
right hand when his hand slipped off of the pedal and became caught
in the chain and sprocket assembly of the bicycle.
12. The fourth and fifth fingers of minor Plaintiff Taylor
Eisenhauer's right hand were amputated by the chain and sprocket
assembly of the Schwinn Model #XR-6 exercise bicycle.
13. The Schwinn Model #XR-6 exercise bicycle involved in the
aforesaid incident did not have a chain guard or sprocket assembly
guard on its left hand side.
14. The aforesaid Schwinn Model #XR-6 exercise bicycle had
been designed, fabricated, produced, manufactured, assembled, sold,
marketed, supplied, distributed and/or placed into the stream of
commerce by Schwinn Bicycle Company.
15. The aforesaid Schwinn Model #XR-6 exercise bicycle had
been designed, fabricated, produced, manufactured, assembled, sold,
marketed, supplied, distributed and/or placed into the stream of
commerce by Bushey's Schwinn Cyclery, Inc.
16. Prior to the aforesaid incident, no substantial change
had been made to the Schwinn Model #XR-6 exercise bicycle from the
condition that it was in when it was manufactured, assembled and
sold by the Defendants and/or their predecessor companies.
17. As a direct and proximate result of the negligence and
willful misconduct of the Defendants and/or their predecessor
corporations, and as a direct result of the defective and
unreasonably dangerous design of the Schwinn Model #XR-6 exercise
4
bicycle, Minor Plaintiff Taylor Eisenhauer auffered serious
injuries including, but not limited to, the amputation of the
fourth and fifth fingers of his right hand.
COUNT I - NEGLIGENCB
TAYLOR BISENHAUER, A MINOR, BY GBORGB W. BISENHAUBR AND
DBBRA A. BISBNHAUER, HIS PARBHTS AND NATURlU. GUARDIANS v.
SCII1fINN CYCLING AND FITNESS. INC.
IS. Paragraphs 1 through 17 of this Complaint are
incorporated herein by reference.
19. Plaintiff's injuries as alleged herein were a direct and
proximate result of the negligence of Schwinn Bicycle Company as
set forth in paragraphs 21 through 31 below.
20. As a direct and proximate result of the negligence of its
predecessor corporation, Schwinn Bicycle Company, as set forth in
paragraphs 21 through 31 below, Defendant Schwinn Cycling and
Fitness, Inc. is liable to the minor Plaintiff for the injuries
alleged herein.
21. Schwinn
Bicycle
Company
designed,
fabricated,
manufactured, and/or assembled the Schwinn Model #XR-6 exercise
bicycle involved in the aforesaid incident in such a fashion that
the minor Plaintiff's fingers were able to be drawn into the
sprocket assembly of the bicycle and amputated.
22. Schwinn
Bicycle
Company
designed,
fabricated,
manufactured, and/or assembled the Schwinn Model #XR-6 exercise
bicycle involved in the aforesaid incident in such a fashion that
it did not contain a chain guard on the left hand side of the
bicycle.
5
23. Schwinn Bicycle Company designed, fabricated,
manufactured, and/or assembled the Schwinn Model #XR-6 exercise
bicycle involved in the aforesaid incident in such a fashion that
it did not contain a guard or similar dovice around the sprocket
assembly on the left hand side of the bicycle.
24. Schwinn Bicycle Company designed, fabricated,
manufactured, and/or assembled the Schwinn Model #XR-6 exercise
bicycle involved in the aforesaid incident in such a fashion that
the chain and sprocket assemblies were not completely encased so as
to prevent inadvertent access.
25. Schwinn Bicycle Company designed, fabricated,
manufactured, andlor assembled the Schwinn Model #XR-6 exercise
bicycle involved in the aforesaid incident in such a fashion that
the it did not contain a mechanism that would permit the pedals and
chain of the exercise bicycle to become or remain stationary while
the wheel of the exercise bicycle was in motion.
26. Schwinn Bicycle Company failed to provide adequate,
reasonable and necessary safety devices on the Schwinn Model #XR-6
exercise bicycle to render the bicycle safe when used for its
intended purpose.
27. Schwinn Bicycle Company failed to provide adequate
warnings concerning the dangers associated with the exposed chain
and sprocket assembly of the Schwinn Model #XR-6 exercise bicycle
involved in the aforesaid incident.
28. Schwinn Bicycle Company failed to inspect the Schwinn
Model #XR-6 exercise bicycle involved in the aforesaid incident in
6
order to determine whether
competence to ensure the
foreseeable misusers.
29. Schwinn Bicycle Company failed to adequately inspect the
Schwinn Model #XR-6 exercise bicycle involved in the aforesaid
incident so as to have discovered the dangerous condition presented
by the absence of adequate warnings and/or one or more of the
safety mechanisms described in paragraphs 21 through 27 above.
30. Schwinn Bicycle Company sold and/or otherwise placed into
the stream of commerce the Schwinn Model IXR-6 exercise bicycle
involved in the aforesaid incident despite the fact that it lacked
adequate warnings and safety devices as described in paragraphs 21
through 27 above.
31. Schwinn Bicycle Company and Defendant Schwinn Cycling and
Fitness, Inc., failed to recall the Schwinn Model IXR-6 exercise
bicycle, or warn the Plaintiff of the potential dangers posed by
the lack of the aforesaid safety mechanisms, despite the fact that
it was aware, or should have been aware, of the dangerous condition
it was designed with
safety of foreseeable
reasonable
users and
created by the defects set forth above.
32. As a direct and proximate result of the negligence of the
Defendant and its predecessor corporation, Schwinn Bicycle Company,
as set forth above, Plaintiff Taylor Eisenhauer suffered
significant injuries including, but not limited to, the amputation
of the fourth and fifth fingers of his right hand.
33. The Schwinn Model #XR-6 exercise bicycle involved in the
7
aforesaid incident displayed no warning or limitation concerning
the use ot the bicycle on the basis of age, size or any other
characteristic of the user.
34. Plaintiff was a foreseeable user of the Schwinn Model
#XR-6 exercise bicycle.
35. Plaintiff was four years old at the time of the accident
and therefore can not, as a matter of law, be charged with
contributory negligence.
36. As a direct and proximate result of the aforesaid
injuries, minor Plaintiff Taylor Eisenhauer has incurred, and will
in the future incur, medical and rehabilitative expenses, and claim
is made therefor.
37. As a direct and proximate result of the aforesaid
injuries, minor Plaintiff Taylor Eisenhauer has undergone, and in
the future will undergo, great mental and physical pain and
suffering, great inconvenience in carrying out his daily
activities, and a loss of life's pleasures and enjoyment, and a
claim is made therefor.
38. As a direct and proximate result of the aforesaid
injuries, minor Plaintiff Taylor Eisenhauer has been, and in the
future will be, subject to humiliation and ridicule, and claim is
made therefor.
39. As a direct and proximate result of his injuries, minor
Plaintiff Taylor Eisenhauer has sustained a loss of earning power
and earning capacity, and claim is made therefor.
8
WHEREFORE, Plaintiff Taylor Eisenhauer, a minor, by George W.
Eisenhauer and Debra A. Eisenhauer, his parents and natural
guardians, demands jUdgment against Defendant Schwinn Cycling and
Fitness, Inc. in an amount in excess of Thirty-Five Thousand
Dollars ($35,000), exclusive of interest and costs, and in excess
of any jurisdictional amount requiring compulsory arbitration.
CO~ II - NEGLIGENCE
TAYLOR EISEHBAUBR, A MINOR, BY GEORGE .. EISBHRAUBR AND
DEBRA A. EISENHAUER, HIS PARENTS AND NATURAL GUARDIANS v.
NAUTI-LIS, INC. T/D/B/A BUSHEY'S CYCLING AND FITNESS
HEADOUARTERS and T/D/B/A BUSHEY'S SCHWINN CYCLERY
40. Paragraphs 1 through 17 of this Complaint are
incorporated herein by reference.
41. The minor Plaintiff's injuries as alleged herein were a
direct and proximate result of the negligence of BUShey'S Schwinn
Cyc1ery, Inc. as set forth in paragraphs 43 through 52 below.
42. As a direct and proximate result of the negligence of its
predecessor corporation, Bushey'S Schwinn Cyclery, Inc., as set
forth in paragraphs 43 through 52 below, Defendant Nauti-Lis, Inc.
T/D/B/A BUShey'S Cycling and Fitness Headquarters and T/D/B/A
BUShey'S Schwinn Cyclery is liable to the minor Plaintiff for the
injuries alleged herein.
43. BUShey'S Schwinn Cyclery, Inc. assembled, marketed and/or
sold the Schwinn Model #XR-6 exercise bicycle involved in the
aforesaid incident despite the fact that the bicycle was designed,
9
fabricated, manufactured and/or assembled in such a fashion that
the minor Plaintiff's fingers could be drawn into the sprocket
assembly of the bicycle and amputated.
44. Bushey's Schwinn Cyclery, Inc. assembled, marketed and/or
sold the Schwinn Moael #XR-6 exercise bicycle involved in the
aforesaid incident despite the fact that the bicycle was designed,
fabricated, manufactured and/or assembled in such a fashion that it
did not contain a chain guard on the left hand side of the bicycle.
45. Bushey's Schwinn Cyc1ery, Inc. assembled, marketed and/or
sold the Schwinn Model IXR-6 exercise bicycle involved in the
aforesaid incident despite the fact that the bicycle was designed,
fabricated, manufactured and/or assembled in such a fashion that it
did not contain a guard or similar device around the sprocket
assembly on the left hand side of the bicycle.
46. Bushey's Schwinn Cyclery, Inc. assembled, marketed and/or
sold the Schwinn Model IXR-6 exercise bicycle involved in the
aforesaid incident despite the fact that the bicycle was designed,
fabricated, manufactured and/or assembled in such a fashion that
the chain and sprocket assemblies were not completely encased so as
to prevent inadvertent access.
47. Bushey's Schwinn Cyclery, Inc. assembled, marketed and/or
sold the Schwinn Model IXR-6 exercise bicycle involved in the
aforesaid incident despite the fact that the bicycle was designed,
fabricated, manufactured and/or assembled in such a fashion that it
10
did not contain a mechanism that would permit the pedals and chain
of the exercise bicycle to become or remain stationary while the
wheel of the exercise bicycle wae in motion.
48. Bushey's Schwinn Cyclery, Inc. assembled, marketed and/or
sold the Schwinn HOdel IXR-6 exercise bicycle involved in the
accident despite the fact that it lacked adequate, reasonable and
necessary safety devices to render it safe when used for its
intended purpose.
49. Bushey's Schwinn Cyclery, Inc. failed to inspect the
Schwinn Model #XR-6 exercise bicycle involved in the aforesaid
incident in order to determine whether it was designed with
reasonable competence to ensure the safety of foreseeable users and
foreseeable misusers.
50. BUShey'S Schwinn Cyclery, Inc. failed to adequately
inspect the Schwinn Model #XR-6 exercise bicycle involved in the
aforesaid incident so as to have discovered the dangerous condition
presented by the absence of adequate warnings and/or one or more of
the safety mechanisms described in paragraphs 42 through 47 above.
51. BUShey'S Schwinn Cyc1ery, Inc. and Defendant Nauti-Lis,
Inc. t/d/b/a Bushey'S CYCling and Fitness Headquarters failed to
recall the Schwinn Model #XR-6 exercise bicycle, or warn the
Plaintiff of the potential dangers posed by the lack of the
aforesaid safety mechanisms, despite the fact that it was aware, or
should have been aware, of the dangerous condition created by the
design defects set forth above.
11
52. Bushey's Schwinn Cyclery, Inc. failed to provide adequate
warnings concerning the dangers associated with the exposed chain
and sprocket assembly when it assembled, marketed and/or sold the
Schwinn Model #XR-6 exercise bicycle involved in the aforesaid
incident.
53. As a direct and proximate result of the negligence of the
Defendant and/or its predecessor corporation as set forth above,
Plaintiff Taylor Eisenhauer suffered significant injuries
including, but not limited to, the amputation of the fourth and
fifth fingers of his right hand.
54. The Schwinn Model #XR-6 exercise bicycle involved in the
aforesaid incident displayed no warning or limitation concerning
the use of the bicycle on the basis of age, size or any other
characteristic of the user.
55. Plaintiff was a foreseeable user of the Schwinn Model
#XR-6 exercise bicycle.
56. Plaintiff was four years old at the time of the accident
and therefore can not, as a matter of law, be charged with
contributory negligence.
57. As a direct and proximate result of the aforesaid
injuries, minor Plaintiff Taylor Eisenhauer has incurred, and will
in the future incur, medical and rehabilitative expenses, and claim
is made therefor.
58. As a direct and proximate result of the aforesaid
injuries, minor Plaintiff Taylor Eisenhauer has undergone, and in
the future will undergo, great mental and physical pain and
12
suffering, great inconvenience in carrying out his daily
activities, and a loss of life's pleasures and enjoyment, and a
claim is made therefor.
59. As a direct and proximate result of the aforesaid
injuries, minor Plaintiff Taylor Eisenhauer has been, and in the
future will be, subject to humiliation and ridicule, and claim is
made therefor.
60. As a direct and proximate result of his injuries, minor
Plaintiff Taylor Eisenhauer has sustained a loss of earning power
and earning capacity, and claim is made therefor.
WHEREFORE, Plaintiff Taylor Eisenhauer, a minor, by George W.
Eisenhauer and Debra A. Eisenhauer, his parents and natural
guardians, demands judgment against Defendant Nauti-Lis, Inc.
T/D/B/A Bushey's Cycling and Fitness Headquarters and T/D/B/A
Bushey'S Schwinn Cyclery in an amount in excess of Thirty-Five
Thousand Dollars ($35,000), exclusive of interest and costs, and in
excess of any jurisdictional amount requiring compulsory
arbitration.
COUNT III - STRICT LIABILITY
TAYLOR EISENHAUER, A MINOR, BY GEORGE W. EISENHAUER AND
DEBRA A. EISENHAUER, HIS PARENTS AND NATURAL GUARDIANS v.
SCHWINN CYCLING AND FITNESS, INC.
61. Paragraphs 1 through 17 and Count I of this Complaint are
incorporated herein by reference.
62. The Defendant Schwinn Cycling and Fitness, Inc. is
strictly liable to the Plaintiff under the Restatement (Second) of
13
Torts, 5402(a), for the actions of its predecessor corporation,
Schwinn Bicycle Company, which supplied a product, the Schwinn
MOdel #XR-6 exercise bicycle, that was defective.
63. The Schwinn Model #XR-6 exercise bicycle involved in the
aforesaid incident contained design, fabrication, manufacturing
and/or assembly defects as set forth in paragraphs 21 through 27 of
Count I, which are incorporated herein by reference.
64. The Schwinn Model #XR-6 exercise bicycle involved in the
aforesaid incident was defective because it lacked adequate
warnings about the foreseeable dangers associated with the exposed
chain and sprocket assembly.
65. The Schwinn Model #XR-6 exercise bicycle contained or
displayed no warning or limitation concerning the use of the
bicycle on the basis of age, size or any other characteristic of
the user.
66. As a direct and proximate result of the defective nature
of the exercise bicycle as set forth above, Plaintiff Taylor
Eisenhauer suffered significant injuries including, but not limited
to, the amputation of two fingers on his right hand.
67. As a direct and proximate result of his injuries,
Plaintiff Taylor Eisenhauer has incurred, and will in the future
incur, medical and rehabilitative expenses, and claim is made
therefor.
68. As a direct and proximate result of his injuries,
Plaintiff Taylor Eisenhauer has undergone, and in the future will
undergo, great mental and physical pain and suffering, great
14
inconvenience in carrying out his daily activities, and a loss of
life's pleasures and enjoyment, and claim is made therefor.
69. As a direct and proximate result of his injuries,
Plaintiff Taylor Eisenhauer has been, and in the future will be,
subject to humiliation and ridicule, and claim is made therefor.
70. As a direct and proximate result of his injuries,
Plaintiff Taylor Eisenhauer has sustained a loss of earning
potential and earning capacity, and claim is made therefor.
WHEREFORE, Plaintiff Taylor Eisenhauer, a minor, by George W.
Eisenhauer and Debra A. Eisenhauer, his parents and natural
guardians, demands judgment against Defendant Schwinn Cycling and
Fitness, Inc. in an amount in excess of Thirty-Five Thousand
Dollars ($35,000), exclusive of interest and costs, and in excess
of any jurisdictional amount requiring compulsory arbitration.
COUNT IV - STRICT LIABILITY
TAYLOR EISENHAUER, A MINOR, BY GEORGE W. EISENHAUER AND
DEBRA A. EISENHAUER, HIS PARENTS AND NATURAL GUARDIANS v.
NAUTI-LIS, INC. T/D/B/A BUSHEY'S CYCLING AND FITNESS
HEADOUARTERS and T/D/B/A BUSHEY'S SCHWINN CYCLERY
71. Paragraphs 1 through 17 and Counts I and II of this
Complaint are incorporated herein by reference.
72. The Defendant Nauti-Lis, Inc. T/D/B/A Bushey'S cycling
and Fitness Headquarters and T/D/B/A Bushey'S Schwinn Cyclery is
strictly liable to the Plaintiff under the Restatement (Second) of
Torts, S402(a), for the actions of its predecessor corporation,
Bushey'S Schwinn Cyclery, Inc., which supplied a product, the
Schwinn Model #XR-6 exercise bicycle, that was defective.
15
73. The Schwinn Model IXR-6 exercise bicycle involved in the
aforesaid incident contained design, fabrication, manufacturing
and/or assembly defects as set forth in paragraphs 21 through 27 of
Count I, which are incorporated herein by reference.
74. The Schwinn Model IXR-6 exercise bicycle involved in the
aforesaid incident was defective because it lackad adequate
warnings about the foreseeable dangers associated with the exposed
chain and sprocket assembly.
75. The Schwinn Model IXR-6 exercise bicycle displ..yed no
warning or limitation concerning the use of the bicycle on the
basis of age, size or any other characteristic of the user.
76. As a direct and proximate result of the defective nature
of the exercise bicycle as set forth above, Plaintiff Taylor
Eisenhauer suffered significant injuries including, but not limited
to, the amputation of two fingers on his right hand.
77. As a direct and proximate result of his injuries,
Plaintiff Taylor Eisenhauer has incurred, and will in the future
incur, medical and rehabilitative expenses, and claim is made
therefor.
78. As a direct and proximate result of his injuries,
Plaintiff Taylor Eisenhauer has undergone, and in the future will
undergo, great mental and physical pain and sUffering, great
inconvenience in carrying out his daily activities, and a loss of
life's pleasures and enjoyment, and claim is made therefor.
16
79. As a direct and proximate result of his injuries,
Plaintiff Taylor Eisenhauer has been, and in the future will be,
subject to humiliation and ridicule, and claim is made therefor.
80. As a direct and proximate result of his injuries,
Plaintiff Taylor Eisenhauer has sustained a loss of earning
potential and earning capacity, and claim is made therefor.
WHEREFORE, Plaintiff Taylor Eisenhauer, a minor, by George W.
Eisenhauer and Debra A. Eisenhauer, his parents and natural
guardians, demands jUdgment against Defendant Nauti-Lis, Inc.
T/D/B/A Bushey's Cycling and Fitness Headquarters and T/D/B/A
Bushey's Schwinn Cyclery in an amount in excess of Thirty-Five
Thousand Dollars ($35,000), exclusive of intere&t and costs, and in
excess of any jurisdictional amount requiring compulsory
arbitration.
CLAIM V - BREACH OF WARRANTY
'1'Alt'LOR EISENHAUER, A MINOR, BY GEORGE W. EISENHAUER AND
DEBRA A. EISENHAUER, HIS PARENTS AND NATURAL GUARDIANS v.
SCHWINN CYCLING AND FITNESS, INC.
S 1. Paragraphs 1 through 17 and Count I of this Complaint are
incorporated herein by reference.
82. By promoting, selling, supplying and/or delivering the
Schwinn Model #XR-6 exercise bicycle involved in the aforesaid
incident, the Defendant and/or Defendant's predecessor corporation
expressly and/or impliedly warranted that the exercise bicycle was
merchantable, fit and safe for the ordinary purposes for which it
was sold.
17
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83. Defendant Schwinn Cycling and Fitnee8, Inc. and/or its
predecessor corporation, Schwinn Bicycle Company, breached both
express warranties and implied warranties of merchantability an6
fitness tor a particular purchase, as contained in Uniform
Commercial Code as adopted by the Commonwealth of Pennsylvania in
13 Pa.C.S.A 51101, n USL., by delivering and/or supplying the
Schwinn Model #XR-6 exercise bicycle in an unsafe, defective and
unfit condition as described above.
84. The resulting injuries to the minor Plaintiff were the
proximate result of said breach of warranties.
WHEREFORE, Plaintiff Taylor Eisenhauer, a minor, by George W.
Eisenhauer and Debra A. Eisenhauer, his parents and natural
guardians, demands judgment against Defendant Schwinn Cycling and
Fitness, Inc. in an amount in excess of Thirty-Five Thousand
Dollars ($35,000), exclusive of interest and costs, and in excess
of any jurisdictional amount requiring compulsory arbitration.
CLAIM V - BREACH OF WARRANTY
TAYLOR EISENHAUER, A MINOR, BY GEORGE W. EISENHAUER AND
DEBRA A. EISENHAUER, HIS PARENTS AND NATURAL GUARDIANS v.
NAUTI-LIS, INC. T/D/B/A BUSHEY'S CYCLING AND PITNESS
HEADOUARTERS and T/D/B/A BUSHEY'S SCHWINN CYCLERY
85. Paragraphs 1 through 17 and Count II of this Complaint
are incorporated herein by reference.
86. By promoting, selling, supplying and/or delivering the
Schwinn Model #XR-6 exercise bicycle involved in the aforesaid
incident, the Defendant and/or Defendant's predecessor corporation
18
. .' .
expressly andlor impliedly warranted that the exercise bicycle was
merchantable, fit and safe for the ordinary purposes for which it
was ~old.
87. Defendant Nauti-Lis, Inc. T/D/B/A Bushey's Cycling and
Fitness Headquarters and T/D/B/A Bushey's Schwinn Cyclery andlor
its predecessor corporation, Bushey's Schwinn Cyclery, Inc.,
breached both express warranties and implied warranties of
merchantability and fitness for a particular purchase, as contained
in Uniform Commercial Code as adopted by the Commonwealth of
Pennsylvania in 13 Pa.c.S.A 51101, ~ ~, by delivering andlor
supplying the Schwinn Model IXR-6 exercise bicycle in an unsafe,
defective and unfit condition as described above.
88. The resulting injuries to the minor Plaintiff were the
proximate result of said breach of warranties.
WHEREFORE, Plaintiff Taylor Eisenhauer, a minor, by George W.
Eisenhauer and Debra A. Eisenhauer, his parents and natural
guardians, demands jUdgment against Defendant Nauti-Lis, Inc.
T/D/B/A Bushey's Cycling and Fitness Headquarters and T/D/B/A
Bushey's Schwinn Cyclery in an amount in excess of Thirty-Five
Thousand Dollars ($35,000), exclusive of interest and costs, and in
excess of any jurisdictional amount requiring compulsory
arbitration.
~
Dav d S. W~snesk1, Esqu~re
I.D. NO. 58796
4503 North Front street
Harrisburg, PA 17110
Counsel for Plaintiff(s)
Dated: March 31, 1999
19
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HAMBURG & GOLDEN, P . C .
By: JAMES P. GOLDEN
MICHELE M. ROVINSKY
ALPA PATEL
I.D. Nos. 32169, 66587, 75651
1601 Market Street, Suite 565
Philadelphia, FA 19103-1443
215-255-8590
Attorneys for Defendant
Schwinn Cycling & Fitness Inc.
TAYLOR EISENHAUER, A Minor,
By GEORGE W. EISENHAUER and
DEBRA A. EISENHAUER, his
Parents and Natural Guardians
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 99-1930 Civil
v.
SCHWINN CYCLING & FITNESS, INC.,
and NAUTI-LIS, INC"
T/D/B/A BUSHEY'S CYCLING AND
FITNESS HEADQUARTERS and
T/D/B/A BUSHEY'S SCHWINN
CYCLERY, INC,
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter our appearance on behalf of defendant
Schwinn Cycling & Fitness, Inc.' The correct name of this
defendant is Schwinn Cycling & Fitness Inc,
Date: April 16, 1999
~
,T P. GOLDEN
MI ELE M, ROVINSKY
ALPA PATEL
HAMBURG & GOLDEN, P.C,
Attorneys for Defendant
Schwinn Cycling & Fitness Inc,
CERTIFICATE OF SERVICE
entry of appearance by regular mail to the fOllowing:
I certify that on April 16, 1999, I served the foregoing
David S, Wisneski
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
Taylor Eisenhauer, by
George W. Eisenhauer and
Debra A. Eisenhauer. his parents
Thomas J. Williams, Esquire
Martson. Deardorff, Williams, & Otto
10 East High Street
Carlisle, PA 17013
Attorney for Defendant Nauti-Lis, Inc.
~
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TAYLOR EISENHAUER, A Minor.
By GEORGE W. EISENHAUER and
DEBRA A. EISENHAUER, his
Parents and Natural Guardians
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No, 99-1930 Civil
v.
SCHWINN CYCLING & FITNESS, INC..
and NAUTI-LIS. INC.,
T/D/B/A BUSHEY'S CYCLING AND
FITNESS HEADQUARTERS and
T/D/B/A BUSHEY'S SCHWINN
CYCLERY, INC,
ST:I:PULAT:I:ON POR EXTENSION OJ' TIME
It is hereby stipulated between counsel for plaintiff,
Taylor Eisenhauer, by his parents George W. and Debra A.
Eisenhauer, and counsel for defendant, Schwinn Cycling & Fitness
Inc. that Defendant Schwinn Cycling & Fitness Inc, will have an
extension of time until June 1, 1999, to answer, plead or
otherwise respond to the complaint. There have been no previous
extensions of time,
J~EN
MICHELE M. ROVINSKY
ALPA PATEL
I.D. Nos. 32169. 66587, 75651
HAMBURG & GOLDEN. P,C,
1601 Market Street
Philadelphia, PA 19103-1443
215-255-8590
Attorneys for Defendant
Schwinn Cycling & Fitness Inc.
SIGNATURES CONTINUE ON NEXT PAGE
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"1101"
TAYLOR EISENHAUER, a Minor, by
GEORGE W, EISENHAUER and
DEBRA A. EISENHAUER, his PlIrcnts
wId Natural GUlIrdillns,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v,
CIVIL ACTION. LAW
NO, 99.1930
SCHWINN CYCLING AND FITNESS,
INC., and NAUTI-LIS, INC, TIDIBIA
BUSHEY'S CYCLING AND FITNESS
HEADQUARTERS and TIDIBIA
BUSHEY'S SCHWINN CYCLERY, INC.,
Defendants
JURY TRIAL DEMANDED
DF.FF.NDANT NAI1TI-I.IS.INC.'S ANSWF.R WITH NF.W MATTF.R ANn
CROSS CLAIM TO PLAINTIFFS' COMPLAINT
TO: TAYLOR EISENHAUER, a Minor, by GEORGE W, EISENHAUER and DEBRA A,
EISENHAUER, Plaintiffs, by their attorney, DAVID S. WISNESKI, ESQUIRE
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED NEW MATTER AND CROSS CLAIM WITHIN TWENTY (20) DAYS FROM
SERVICE HEREOF OR A JUDGMENT MAYBE ENTERED AGAINST YOU,
TO: SCHWINN CYCLING & FITNESS, INC" Defendant, and its attorney, ALP A PATEL, ESQ,
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED CROSS CLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A
JUDGMENT MAY BE ENTERED AGAINST YOU,
AND NOW, comes Defendant Nauti-Lis, Inc, by and through its attorneys, MARTS ON
DEARDORFF WILLIAMS & OTTO, and avers as follows in Answer to Plaintiffs' Complaint:
I. Denied, After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to Plaintiffs residence or date ofbirth,
2, Denied, After reasonable investigation, answering Defendllnt is without knowledge
or information sufficient to form a belief as to the state of incorporation or license of Defendant
Schwinn Cycling & Fitness, Inc,
3, Admitted,
4.5. Denied. Aller reasonable investigation, answering Defendant is without knowledge
or infommtion sufficient to foml a belief as 10 Ihe relationship of Defendanl Schwinn Cycling &
Fitness, Inc. witb Schwinn Bicycle Company. It is further denicd as a Icgal conclusion that requircs
no answcr.
6.7. Denied. Defendant .Nauti-Lis, Inc. docs not do busincss as Bushcy's Schwinn
Cyclery.
8.9. Denied as a lcgal conclusion. It is further dcnicd that Defcndant Nauti-Lis, Inc. is a
Icgal successor to Bushcy's Schwinn Cyclery, Inc.
10- I 3. Denicd. Aller reasonable investigation, answcring Defendant is without knowledge
or information sufficient to form a belief as to when or where any events took place.
14.15. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to fonn a bclicfas to thc manufacturer of the exercise bicycle referred to
in Plaintiffs' Complaint.
16. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to fonn a belief as to the condition or changes of the exercise bicycle
referred to in Plaintiffs' Complaint.
17. Denied as a conclusion oflaw. It is further denied that answering Defendant sold any
product that was defective or unreasonably dangerous.
COUNT I - NEGLIGENCE
Tqylnr Fi~enhaller a Minor hy <1eor:ge W Ri~enhaller ami nehra A F.i~enhaller,
his Parents and Natural Guardians v Schwinn Cycling and Fitness Ine
18.39. These allegations arc not directed to the answering Defendant.
2
COUNT II - N~:G1.1GENCE
Taylor Eisenhauer, a Minor hy Georgc W. Eisenhauer and Debra A Eisenhauer...
his Parents and Natural Guardians v. NauthLis.1nl:.l!dlhlll Bushcy.lCyclillll"nd
Fitness Headquancrs and Ildlhlll Bushey's Sehwinn C:yclel)'
r
f
f
r
!
.
40. Paragraphs 1-17 hcrcof arc incorporated hcrcin by reference thereto.
41. Denied as a conclusion of law. It is further denied that after reasonable investigation,
answering Dcfendant is without knowledge or infonnation sufficicnl to fonn a belicf as to whcthcr
the exercise bicycle rcferrcd to in the Plaintiffs' Complaint was sold and/or distributed by Bushey's
Schwinn Cyclcry, Inc.
42. Denied as a conclusion oflaw.
43. Denied as a conclusion of law. It is further dcnied that after reasonable investigation,
answering Defendant is without knowledge or infonnation sufficicntto fonn a belief as to whether
the exercise bicycle referred to in the Plaintiffs' Complaint was sold and/or distributed by Bushey's
Sehwinn Cyclery, Inc. It is further denied that any exercise bicycle was sold by Bushey's Schwinn
Cyclery, Inc. that was defective or unreasonably dangerous.
44-46. Denied that any bicycle sold by Bushey's Schwinn Cyclery, Inc. did not contain a
chain guard on the appropriate side of the bicycle.
47. . Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to the type of pedal and chain mechanism on the exercise
bicycle referred to in Plaintiffs' Complaint.
48. Denied. On infonnation received, Bushey's Schwinn Cyclery, Inc. did not sell any
bicycle that was not safe for its intended purpose.
49. Denied. On infonnation received, Bushey's Schwinn Cyclery, Inc. sold only safe
bicycles.
50. Denied. On infonnation received, Bushey's Schwinn Cyclery, Inc. did not sell any
bicycle with a dangerous condition, inadequate warnings or anyone of the allcgations described in
Paragraphs 42 through 47 of Plaintiffs' Complaint.
3
51. Denied. On infom13tion reecived, thcre was no rcason to recall any bicycle sold by
Bushey's Schwinn Cyclcry, Inc.
52. Dcnied. On information rcceived, Bushcy's Schwinn Cyclcry, Inc. provided adequate
warnings and instructions for all bicycles sold.
53. Denied. Allcr reasonable investigation, answering Dcfendant is without knowledge
or infonnation sufficient to form a belief as to the injurics, ifany, suffered by the Plaintiff.
54. Denied. After reasonable investigation, answering Defendant is without knowledge
or infonnation sufficient to form a belief as to warnings or limitations involved with the exercise
bicycle referred to in Plaintiffs' Complaint.
55. Denied. If Plaintiff was a four year old boy, it is doubtful he would need to use an
exercise bicycle.
56. Denied. Aller reasonable investigation, answering Defendant is without knowledge
or infonnation sufficient to form a belief as to the age of Plaintiff.
57. Denied. Aller reasonable investigation, answering Defendant is without knowledge
or infonnation sufficient to fonn a belief as to the medical expenses, if any, incurred by Plaintiff.
58. Denied. After reasonable investigation, answering Defendant is without knowledge
or infonnation sufficient to fonn a belief as to the pain and suffering, or the like, ifany, suffered by
Plaintiff.
59. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to fonn a belief as to the humiliation or ridicule, or the like, if any, suffered
by the Plaintiff.
60. Denied. After reasonable investigation, answering Defendant is without knowledge
or infonnation sufficient to form a belief as to the loss of earning capacity or power, if any, suffered
by Plaintiff.
WHEREFORE, Defendant Nauti-Lis, Inc. demands judgment against Plaintiff, plus costs.
4
COUNT III - STRICT I.IABILlTY
Taylor Eisenhaucr, a Minor, b)!JJcorgc W. Eisenbauer and Debra A Eisenhaucr,
his Paret1ls.llIlli.NalUraLGuanlians '/ Schwinn...Cy~ and Fitness.Jnc.
61- 70. Thesc ullcgations arc not dircctcd to thc answcring Dcfcndant.
COUNT IV. STRICT LIABILITY
Taylor Eisenhauer a Minor hy George W Eisenhauer and Dehra A Eisenhauer,
his Parents and Natural Guardians v Nauti.[ is Ine tJdlb/a Rushey's Cycling and
Fitness Headquarters and t/d/h/a Rushey's Schwinn CycleI)'
71. Paragraphs I through 17 and Counts I and II of this Answcr are incorporated hcrcin
by reference thercto.
72. Denied as a conclusion of law. On infom13tion rcceivcd, it is further spccifically
denied that any exercisc bicycle for which answering Defcndant is responsible was defcctive or
unreasonably dangerous.
73. Denied. On information receivcd, it is dcnicd that any bicycle sold or distributed by
answering Defendant was defective in its design or manufacture.
74. Denied. On information rcceivcd, it is denicd that any bicycle sold or distributcd by
answering Defendant was defective as to its warnings.
75. Denied. All bicycles sold by answering Defendant contained appropriate wamings.
76. Denied. After reasonable investigation, answering Defcndant is without knowledge
or information sufficient to form a belief as to the injury, if any, suffered by Plaintiff.
77. Denied. After rcasonable investigation, answering Dcfendant is without knowledge
or infonnation sufficient to fonn a belief as to medical and rehabilitative expenses, if any, incurred
by Plaintiff.
78. Denied. After reasonable i!1vestigation, answering Defendant is without knowledge
or information sufficient to form a belief as to pain and suff~ring, and the like, ifany, suffered by
Plaintiff.
5
NEW MATTER
89. Plaintiffs' action is barred by thc applicablc statutcs of limitations.
90. To the cxtcnt thc Plaintiffs claim sound in warranty, they arc barred for failure to
give prompt and timely notice.
91. Thc product in qucstion may havc been misused, abused, mishandled, inadequately
maintained and/or substantially modi lied.
92. If the Plaintiff suffcred the injuries alleged herein, which is denied, then recovery
herein is barred by his assumption of the risk of such injuries.
93. If the Plaintiffsuffcrcd the injuries allegedly herein, which is denied, those injuries
were the result of actions or inactions by other parties who answering Defendant has no control and
whose conduct it is not responsible.
94. Answering Defendant was not in existence when the product in question was sold.
95. Answering Defendants gave no warranties, either expressed or implied to Plaintiffs.
96. The exercise bicycle referred to in Plaintiffs' Complaint was being put through
unreasonable use at the time of the alleged injury that is the subject of this suit.
97. At the time of the injuries referred to in Plaintiffs' Complaint, the exercise bicycle
in question was not in the same or a substantially similar condition as it was when it left the
possession or control of the vendor, whoever that was.
WHEREFORE, answering Defendant demands judgment against Plaintiffs.
CROSS CLAIM PURSUANT TO PA. R.C.P. 2252(d)
Nallti.[ is Ine, Defendant v Sehwinn Cyeling & Fitne.s [ne, Defendant
98. Plaintiffs' Complaint is incorporated herein by reference thereto solely for the
purposes ofthis cross claim without admitting any of the allegations contained therein, except to the
extent set forth in the answer herein being filed by Defendant Nauti-Lis, Inc.
99. Ifit is judicially detennined that Plaintiffs' avennents in their Complaint are true and
CO!Tect and Plaintiffs are entitled to recover damages, then it is averred by Defendant Nauti-Lis, Inc.
that Defendant Schwinn Cycling & Fitness, Inc. is solely responsible to Plaintiff, and, therefore, is
7
alone liable or liable over to Dcfcndant Nauti.Lis, Inc. for thc causc of action and any damagcs thai
Plaintiffs declarcd in this suit on thc basis of avcnncnts found in Plaintiffs' Complaint and
incorporatcd hcrcin by refcrence thercto.
100. Defendant Nauti-Lis, Inc.joins Defendant Schwinn Cycling & Fitncss, Inc. to protcct
its right of contribution and indemnification (including their right to costs, expenses, fecs and
attomcy's fecs) in the evcnt it is judicially detennined that said Defendant Schwinn Cycling &
Fitncss, Inc. is jointly or scverally liable to the Plaintiffs, the existence of any liability on the part
of Defendant Nauti-Lis, Inc. being cxpressly denied.
WHEREFORE, Defendant Nauti-Lis, Inc. demands judgment against Defendant Schwinn
Cycling & Fitness, Inc. for indemnification of all sums that may be adjudged against Defendant
Nauti-Lis, Inc. in favor of Plaintiffs, as well as all costs, fees, expenses, and attomey's fees resulting
from said action, or, in the alternative, Defendant Nauti.Lis, Inc. demands judgment against
Defendant Schwinn Cycling & Fitness, Inc. for the appropriate part of the amount of damages and
costs awarded to said Plaintiffs.
CROSS CLAIM PURSUANT TO PA. R.C.P. 2252(d)
Nallti~T.iSt Tnc nefendant v CieOl::ge W Eisenhauer and Debra A Risenh3uer,
Additiona' Defendants
101. In the event it is judicially detennined that the exercise bicycle referred to in
Plaintiffs' Complaint was defective and/or unreasonably dangerous, then Plaintiffs George W.
Eisenhauer and Debra A. Eisenhauer, were negligent in their supervision of Plaintiff, Taylor
Eisenhauer, were solely and are jointly responsible for any injuries suffered.
102. Ifit is judicially detennined that Plaintiffs' averments that the exercise bicycle was
defective and/or unreasonably dangerous as true and correct, and Plaintiff is entitled to recover
damages, then it is averred by Defendant Nauti.Lis, Inc. that Additional Defendants are solely
responsible to Plaintiff, and, therefore, are alone liable or liable over to Defendant Nauti-Lis, Inc.
for the cause of action and any damages that Plaintiff declared in this suit on the basis of avennents
found in Plaintiffs' Complaint and incorporated hcrein by reference thereto.
8
.
TO: PlaintlftB Taylor EiBenha.uer, A Hinor.
By George W. Ehenhauer and Debra A.
Eisenhauer, his Parents and Natural
Cuardlana
You are hereby notified to plead to the
enclosed counterclaim within twenty (20) days
from service h~reof, or ft default judgment
may be entered against you.
~~lden. P.C.
Attorney for Defendant
Schwinn Cycling' Fitness Inc.
HAMBURG & GOLDEN, P.C.
By: JAMES P. GOLDEN
MICHELE M. ROVINSKY
ALPA PATEL
I.D. Nos. 32169, 66587, 75651
1601 Market Street, Suite 565
Philadelphia, PA 19103-1443
215-255-8590
TAYLOR EISENHAUER, A Minor,
By GEORGE W. EISENHAUER and
DEBRA A. EISENHAUER, his
Parents and Natural Guardians
v.
SCHWINN CYCLING & FITNESS, INC.,
and NAUTI-LIS, INC.,
T/D/B/A BUSHEY'S CYCLING AND
FITNESS HEADQUARTERS and
T/D/B/A BUSHEY'S SCHWINN
CYCLERY, INC.
TO: Defendant Naut!-Lis. Inc., t/d/b/a
Bushey'S Cycling and Fitness
Headquarters and t/d/b/e Bushey'.
Schwinn Cyclery, Inc.
You are hereby notified to plead to the
enclosed cro88clalm within twenty (20) days
from service hereof. or a deCault jud~nt
may be entered against you.
~
Halrllurg & Golden. P. C.
Attorney for Defendant
Schwinn Cycling & Fitness Inc.
Attorneys for Defendant
Schwinn Cycling & Fitness Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 99-1930 civil
ANSWER, NEW MATTER, NEW MATTER IN THE NATURE OF CROSSCLAIM
PURSUANT TO PA. R. CIV. P. 2252(d) AND COUNTERCLAIM OF
DEFENDANT SCHWINN CYCLING r. FITNESS INC.
ANSWER
1. Denied. After reasonable investigation, Defendant
Schwinn Cycling & Fitness Inc. ("SCF"), the correct name of
defendant Schwinn Cycling and Fitness, Inc., is without knowledge
or information sufficient to form a belief as to the truth of the
allegations in this paragraph, and they are denied.
2. Admitted.
3. Denied as stated. SCF is engaged in the business
of selling bicycles, fitness equipment and related products. SCF
admits, on information and belief, that its products reach
consumers in Cumberland County, Pennsylvania. By way of further
response, the allegations in this paragraph constitute conclusions
of law to which no response is required.
4. Denied. The allegations in this paragraph
constitute conclusions of law to which no response is required.
By way of further response, it is denied that SCF is the legal
successor to Schwinn Bicycle Company. SCF has never been
affiliated or associated with Schwinn Bicycle Company in any
manner.
5. (a)-(e) Denied. The allegations contained in
paragraph 5 (a) through (el constitute conclusions of law to which
no response is required. By way of further response, SCF is not a
successor corporation of Schwinn Bicycle Company. SCF has never
been involved in the manufacturing, designing, testing,
formulating, selling, maintaining, leasing and/or distributing of
the exercise bicycle, or any similar product, that forms the basis
of the complaint. The Schwinn Bicycle Company Model XR-6 exercise
2
bicycle was produced by Schwinn Bicycle Company, a company that
with eight of its affiliates filed voluntary petitions for relief
under Chapter 11 of Title 11 of the United States Code
("Bankruptcy Code") in 1992. After good faith, arms-length,
negotiations, a predecessor of SCF purchased certain of the assets
of Schwinn Bicycle Company, but under the Asset Purchase
Agreement, which was confirmed by the Bankruptcy Court, Schwinn
Bicycle Company retained all tort injury liabilities (irrespective
of date of occurrence) and expressly assumed all such liabilities.
SCF and its predecessor, Bicycle and Fitness Limited Partnership,
were completely different entities from Schwinn Bicycle Company
and had no relationship to Schwinn Bicycle Company. SCF has never
been affiliated or associated with Schwinn Bicycle Company in any
manner.
6. Denied. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 6, and they are denied.
7. Denied. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 7, and they are denied.
8. Denied. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 8, and they are denied.
9. Denied. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 9, and they are denied.
3
10. Denied. After reasonable investigation, SCF is
without knowledge or information sufficicnt to form a belief as to
the truth of the allegations in paragraph 10, and they arc dcnicd.
11. Denied. After reasonable investigation, SCP is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph II, and they are denied.
12. Denied. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 12, and they are denied.
13. Denied. It is denied that the Schwinn Bicycle
Company Model XR-6 involved in this incident did not contain a
chain guard on the left side. After reasonable investigation, SCF
is without knowledge or information sufficient to form a belief as
to the truth of the remaining allegations in paragraph 13, and
they are denied.
14. Admitted in part, denied in part. It is admitted
that the Schwinn Bicycle Company Model XR-6 was sold by Schwinn
Bicycle Company. SCF is without knowledge and information
sufficient to form a belief as to the truth of whether Schwinn
Bicycle Company designed, fabricated, produced, manufactured,
assembled, marketed, supplied and/or distributed the Schwinn
Bicycle Company Model XR-6 exercise bicycle. The remaining
allegations in paragraph 14 constitute conclusions of law to which
no response is required.
15. Denied. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 15 and they are denied.
4
16. Denied. SCF has never manufactured, assembled and
sold Scwhinn Model XR-6 exercise bicycles. No predecessor company
of SCF has ever manufactured, assembled and sold Scwhinn Model XR-
6 exercise bicycles. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the remaining allegations of paragraph 16, and they
are denied.
17. Denied. After a reasonable investigation, SCF is
without knOWledge and information sufficient to form a belief as
to the truth of allegations in paragraph 17 concerning the alleged
injuries suffered by minor plaintiff, Jared SChoenbrun, and they
are denied. The remaining allegations of paragraph 17 constitute
conclusions of law to which no response is required.
COUNT I
18. SCF incorporated herein its responses to paragraphs
1 through 17 as if set forth in full.
19. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of plaintiff Taylor
Eisenhauer's alleged injuries. The remaining allegations in
paragraph 19 constitute conclusions of law to which no response is
required.
20. Denied. SCF denies that Schwinn Bicycle Company is
a predecessor corporation of SCF. SCF has never been affiliated
or associated with Schwinn Bicycle Company in any manner. The
remaining allegations in paragraph 20 constitute conclusions of
law to which no response is required.
5
21. Denied. The allegations in paragraph 21 constitute
conclusions of law to which no response is required. and they are
denied.
22. Denied. The Schwinn BicYCle Company Model XR-6 had
a chain guard on the left side.
23. Denied. The Schwinn Bicycle Company Model XR-6 had
a chain guard on the left side.
24. Denied. The Schwinn Bicycle Company Model XR-6 had
a chain guard on the left side.
25. Denied. On information and belief. the Schwinn
Bicycle Company Model XR-6 had a mechanism that would permit the
pedals and chain of the exercise bicYCle to become or remain
stationary while the wheel of the exercise bicycle was in motion.
26. Denied. The allegations in paragraph 26 constitute
conclusions of law to which no response is required. and they are
denied. By way of further response, SCF denies that the exercise
bicycle was used for its intended purpose.
27. Denied. The allegations in paragraph 27 constitute
conclusions of law to which no response is required. and they are
denied. By way of further response, the exercise bicycle was
intended to be used by adults, not children, and the bicycle'S
brochure contained warnings as to dangers to children.
28. Denied. The allegations in paragraph 28 constitute
conclusions of law to which no response is required, and they are
denied.
29. Denied. The allegations in paragraph 29 constitute
conclusions of law to which no response is required, and they are
6
denied. By way of further response, the exercise bicycle was
intended to be used by adults, not children, and the bicycle's
brochure contained warnings as to dangers to children.
30. Denied. The allegations in paragravh 30 constitute
conclusions of law to which no response is required, and they are
denied. By way of further response, the exercise bicycle was
intended to be used by adults, not children, and the bicycle's
brochure contained warnings as to dangers to children.
31. Denied. The allegations in paragraph 31 constitute
conclusions of law to which no response is required. By way of
further response, SCF has never been involved in the
manufacturing, designing, testing, formulating, selling,
maintaining, leasing, servicing, repairing and/or distributing of
the exercise bicycle, or any similar product, that forms the basis
of the complaint.
32. Denied. The allegations in paragraph 32 constitute
conclusions of law to which no response is required. By way of
further response, Schwinn Bicycle Company is not a predecessor
corporation of SCF. SCF has never been affiliated or associated
with Schwinn Bicycle Company in any manner.
33. Denied. The exercise bicycle was intended to be
used by adults, not children, and the bicycle's brochure contained
warnings as to dangers to children.
34. Denied. The exercise bicycle was intended to be
used by adults, not children and, upon information and belief, the
bicycle's brochure contained warnings as to dangers to children.
7
35. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of plaintiff Taylor
Eisenhauer's age at the time of the alleged occurrence, and it is
denied. The remaining allegations in paragraph 35 constituto
conclusions of law to which no response is required.
36. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of the alleged
injuries suffered and medical and rehabilitative expenses incurred
by plaintiff Taylor Eisenhauer, and they are denied. The
remaining allegations in paragraph 36 constitute conclusions of
law to which no response is required.
37. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of the alleged
physical and mental pain suffered by plaintiff Taylor Eisenhauer,
inconvenience in carrying out his daily activities, and loss of
life's pleasures and enjoyment, and they are denied. The
remaining allegations in paragraph 37 constitute conclusions of
law to which no response is required.
38. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of the alleged
injuries, humiliation and ridicule suffered by plaintiff Taylor
Eisenhauer, and they are denied. The remaining allegations in
paragraph 38 constitute conclusions of law to which no response is
required.
39. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of the alleged
injuries and loss of earning power and capacity suffered by
8
plaintiff Taylor Eisenhauer, and they are denied. The remaining
allegations in paragraph 39 constitute conclusions of law to which
no response is required.
WHEREFORE, Schwinn CYCling & Fitness Inc. demands that
the court dismiss the complaint and enter judgment in its favor
and against the plaintiffs George, Debra and Taylor Eisenhauer
(the "Eisenhauers.), together with an award of costs and such
other and further relief that the court deems just.
COUNT II
40. - 60. SCF makes no answer to Count II as the
allegations in these paragraphs are not directed to SCF.
COt1N'1' II I
61. SCF incorporates herein its responses to paragraphs
1 through 60 as if set forth in full.
62. Denied. It is denied that Schwinn BicYCle Company
is a predecessor corporation of SCF. SCF has never been
affiliated or associated with Schwinn Bicycle Company in any
manner. SCF further denies that it, nor any of its predecessors,
ever supplied the Schwinn Bicycle Company Model XR-6 exercise
bicycle. The remaining allegations in paragraph 62 constitute
conclusions of law to which no response is required.
63. Denied. The allegations in paragraph 63 constitute
conclusions of law to which no response is required, and they are
denied. By way of further response, SCF denies that it, nor any
of its predecessors, ever designed, fabricated, manufactured
and/or assembled the Schwinn Bicycle Company Model XR-6 exercise
bicycle.
9
64. Denied. The allegations in paragraph 64 constitute
conclusions of law to which no response is required, and they are
denied. By way of further response. the exercise bicycle was
intended to be used by adults, not children, and the bicycle's
brochure contained warnings as to dangers to children.
65. Denied. The allegations in paragraph 65 constitute
conclusions of law to which no response is required, and they are
denied. By way of further response, the exercise bicycle was
intended to be used by adults, not children, and the bicycle's
brochure contained warnings as to dangers to children.
66. Denied. SCF is without knowledge and information
sufficient to form a belief as to the alleged injuries suffered by
plaintiff Taylor Eisenhauer, and they are denied. The remaining
allegations in paragraph 66 constitute conclusions of law to which
no response is required.
67. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of the alleged
injuries suffered and medical and rehabilitative expenses incurred
by plaintiff Taylor Eisenhauer, and they are denied. The
remaining allegations in paragraph 67 constitute conclusions of
law to which no response is required.
68. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of the alleged
physical and mental pain suffered by plaintiff Taylor Eisenhauer,
inconvenience in carrying out his daily activities, and loss of
life's pleasures and enjoyment, and they are denied. The
10
remaining allegations in paragraph 68 constitute conclusions of
law to which no response is required.
69. Denied. SCF is without knowledge and information
sufficient to fonn a belief as to the truth of the alleged
injuries, humiliation and ridicule suffered by plaintiff Taylor
Eisenhauer, and they are denied. The remaining allegations in
paragraph 69 constitute conclusions of law to which no response is
required.
70. Denied. SCF is without knOWledge and information
sufficient to fonn a belief as to the truth of the alleged
injuries and loss of earning power and capacity suffered by
plaintiff Taylor Eisenhauer, and they are denied. The remaining
allegations in paragraph 70 constitute conclusions of law to which
no response is required.
WHEREFORE, Schwinn cycling & Fitness Inc. demands that
the court dismiss the complaint and enter judgment in its favor
and against the Eisenhauers, together with an award of costs and
such other and further relief that the court deems just.
CLAIM IV
71. - 80. SCF makes no answer to Count IV as the
allegations in these paragraphs are not directed to SCF.
CLAIM V
81. SCF incorporates herein its responses to paragraphs
1 through 80 as if set forth in full.
82. Denied. It is denied that Schwinn Bicycle Company
is a predecessor corporation of SCF. SCF has never been
affiliated or associated with Schwinn Bicycle Company in any
11
manner. SCF further denies that it, nor any of its predecessors,
ever sold, supplied and/or delivered the Schwinn Bicycle Company
Model XR-6 exercise bicycle. The remaining allegations in
paragraph 82 constitute conclusions of law to which no response is
required, and they are denied.
83. Denied. It is denied that Schwinn Bicycle Company
is a predecessor corporation of SCF. SCF has never been
affiliated or associated with Schwinn Bicycle Company in any
manner. SCF further denies that it, nor any of its predecessors,
ever delivere,l and/or supplied the Schwinn Bicycle Company Model
XR-6 exercise bicycle. The remaining allegations in paragraph 83
constitute conclusions of law to which no response is required.
84. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of the alleged
injuries suffered by plaintiff Taylor Eisenhauer, and they are
denied. The remaining allegations of paragraph 84 constitute
conclusions of law to which no response is required.
WHEREFORE, Schwinn Cycling & Fitness Inc. demands that
the court dismiss the complaint and enter jUdgment in its favor
and against the Eisenhauers, together with an award of costs and
such other and further relief that the court deems just.
CLAIM V (incorrectly numbered)
85 - 88. SCF makes no answer to Claim V (incorrectly
numbered) as the allegations in these paragraphs are not directed
to SCF.
WHEREFORE, Schwinn Cycling & Fitness Inc. demands that
the court dismiss the complaint and enter jUdgment in its favor
12
and against the Eisenhauers, together with an award of costs and
such other and further relief that the court deems just.
FIRST NEW MATTER
NO SUCCESSOR LIABILITY
89. SCF incorporates herein its allegations in
paragraphs 1-88 as if set forth in full.
90. SCF is engaged in the business of selling bicycles,
fitness equipment and related products. SCF has never been
involved in the manufacturing, designing, testing, formulating,
selling, maintaining, leasing and/or distributing of the Schwinn
Bicycle Company Model XR-6 exercise bicycle, or any similar
product, that forms the basis of the complaint. Upon information
and belief, the Schwinn Bicycle Company Model XR-6 exercise
bicycle was produced by Schwinn Bicycle Company, a company that
with eight of its affiliates filed voluntary petitions for relief
under Chapter 11 of Title 11 of the United States Code
("Bankruptcy Code") in 1992. A predecessor of SCF purchased
certain of the assets of Schwinn Bicycle Company, but under the
Asset Purchase Agreement, which was confirmed by the Bankruptcy
Court, Schwinn Bicycle Company retained all tort injury
liabilities (irrespective of date of occurrence) and expressly
assumed all such liabilities. SCF and its predecessor, Bicycle
and Fitness Limited Partnership, were completely different
entities from Schwinn Bicycle Company and had no relationship to
Schwinn Bicycle Company.
13
91. The transaction pursuant to which certain assets of
Schwinn Bicycle Company were purchased specifically addressed the
aSflwnption of certain liabilities by tl.e buyer, Bicycle and
Fitness Limited Partnership, and the retention of certain
liabilities by Schwinn Bicycle Company. The Assumption Agreement,
which was approved by the Bankruptcy Court, provides:
. . . Buyer [Bicycle and Fitness Limited
Partnership] will not assume, undertake, accept or
be bound by or responsible for, and Seller [Schwinn
Bicycle Company] will be and remain liable for,
.the fOllowing:
All liabilities and obligations of Seller
[Schwinn Bicycle Company] for death, personal
injury, property damage or other damages based on
any tort action;
All liabilities and obligations of Seller
[Schwinn Bicycle Company] to the extent reSUlting
form [sic], caused by or arising out of, directly
or indirectly, the conduct of the Business or
ownership or lease of any of the Purchased Assets
prior to the Closing or the Excluded Assets
(including any properties or assets previously used
in the Business) at any time inClUding without
limitation product liability claims, warranty
claims, claims for returns or allowances . . .
* * *
92. The Bankruptcy Court, in its Order Approving the
Purchase, approved the provisions of the Asset Purchase Agreement
which provided that Bicycle and Fitness Limited Partnership would
not assume any tort or product liability obligations of Schwinn
Bicycle Company arising prior to the acquisition, January 20,
1993. The Bankruptcy Court further made the fOllowing findings of
fact and conclusions of law as set forth in paragraph Q of its
Order Approving the Purchase:
The Buyer [Bicycle and Fitness Limited
Partnership] is only buying the Purchased Assets
14
and is not a successor in interest to the Debtors
[Schwinn Bicvcle Comnanvl, nor does the Buyer's
[Schwinn Bicycle and Fitness Limited Partnership's]
acquisition of the Purchased Assets reflect a
continuity of the operations of the businesses of
the Debtors [Schwinn Bicycle Company] .
(Emphasis added.)
93. The Eisenhauers' claims against SCF based on the
theory of successor liability are barred, in whole or in part,
because (i) the Order Approving the Purchase approved the non-
assumption of tort and product liability obligations by Bicycle
and Fitness Limited Partnership and (ii) the Bankruptcy Court
found and concluded as a matter of law that Bicycle and Fitness
Limited Partnership is not a successor in interest to Schwinn
Bicycle Company nor did the acquisition reflect a continuity of
operations of Schwinn Bicycle Company.
94. The Eisenhauers' claims are barred, in whole or in
part, because SCF is not successor in interest to Schwinn Bicycle
Company under federal or state statutory or common law. SCF
expressly did not assume any tort or product liability obligations
of Schwinn Bicycle Company and Schwinn Bicycle Company expressly
agreed to retain such liabilities. SCF' predecessor's, Bicycle
and Fitness Limited Partnership, acquisition of certain of Schwinn
Bicycle Company's assets did not establish a de facto merger or
consolidation. SCF is not a continuation of Schwinn Bicycle
Company. SCF does not own or operate any manufacturing facility
formerly operated by Schwinn Bicycle Company nor has SCF continued
the exercise bicycle product line of Schwinn Bic~'cle Company,
15
thereby precluding the imposition of product line liability on
SCF.
SECOND NEW HATTER
CONTRIBUTORY NEGL%GENCE
95. The Eisenhauers' claims are barred, in whole or in
part, by the contributory negligence of George and Debra
Eisenhauer because, among other reasons, George and Debra.
Eisenhauer failed to properly supervise minor plaintiff Taylor
Eisenhauer when Taylor Eisenhauer was allegedly injured.
96. The Eisenhauers' claims are barred, in whole or in
part, by the contributory negligence of Taylor Eisenhauer.
97. The Eisenhauers' claims are barred, in whole or in
part, by the contributory negligence of co-defendant Nauti-Lis,
Inc. t/d/b/a Bushey's Cycling and Fitness Headquarters and t/d/b/a
Bushey's Schwinn Cyclery (collectively "Nauti-Lis").
98. The Eisenhauers' claims are barred, in whole or in
part, by the contributory negligence of third-parties over whom
SCF had no control.
THIRD NEW MATTER
COMPARATIVE NEGLIGENCE
99. The Eisenhauers' claims are reduced, in whole or in
part, by the doctrine of comparative negligence because, among
other reasons, plaintiffs George and Debra Eisenhauer failed to
properly supervise minor-plaintiff Taylor Eisenhauer at the home
of third-party defendants Edward and Frances Eisenhauer when
Taylor Eisenhauer was allegedly injured.
16
100. The Eisenhauers' claims are reduced, in whole or III
part, by the negligence of Taylor Eisenhauer.
101. The Eisenhauers' claims are reduced, in whole or in
part, by the negligence of co-defendant Nauti-Lis.
102. The Eisenhauers' claims are reduced, in wholo or in
part, by the negligence of third-parties over whom SCF had no
control.
FOURTH NEW MATTER
EXERCISE BICYCLE NOT USED FOR INTENDED PURPOSE
103. The Eisenhauers' claims are barred, in whole or in
part, because the incident and damages, if any, were caused by the
unintended, unauthorized and improper use of the exercise bicycle
by minor plaintiff, Taylor Eisenhauer. The exercise bicycle was
intended to be used by adults, not children and the bicycle's
brochure contained warnings as to dangers to children. Plaintiffs
George and Debra Eisenhauer, knew or had reason to know of the
intended use and warnings with respect to it unauthorized use.
Use of the product by Taylor Eisenhauer was the direct and
proximate cause of Taylor Eisenhauer's injuries.
FIFTH NEW MATTER
ASSUMPTION OF RISK
104. The Eisenhauers' claims are barred, in whole or in
part, by assumption of risk.
17
SXXTH NEW MATTER
ABUSE. MXSUSE AND ALTERATXON OF PRODUCT
105. The Eisenhauers' claims are barred, in whole or in
part, because the exercise bicycle was abused, altered, changed or
tampered with subsequent to the manufacture, distribution and/or
sale of the exercise bicycle.
SEVENTH NEW MATTER
FAX LURE TO FOLLOW XNSTRUCTXONS
106. The exercise bicycle contained printed instructions
concerning its care. Plaintiffs George and Debra Eisenhauer
failed to follow the instructions for the care of the exercise
bicycle. Taylor Eisenhauer's alleged injuries would not have
occurred if the George, Debra, Edward and Grace Eisenhauer
followed such instructions concerning the care of the product.
EXGHTH NEW MATTER
CLAXMS BARRED BY OWN ACTIONS
107. The Eisenhauers' claims are barred, in whole or in
part, by virtue of their own actions.
108. No action by SCF proximately caused the alleged
injuries.
NXNTH NEW MATTER
NO WRONGFUL OR INTENTIONAL CONDUCT BY SCF
109. If the Eisenhauers suffered any damage or loss,
such damage or loss was not caused by any wrongful or intentional
conduct on the part of SCF.
18
TEN'l'H mr:W MATTER
BARRED BY EOUITABLE DOCTRINES
110. The Eisenhauers' claims are barred, in whole or in
part, by the doctrines of waiver, laches, estoppel, and unclean
hands.
ELEVENTH NEW MATTER
COLLATERAL SOURCE
111. The Eisenhauers' claims are limited with respect to
collateral sources.
TWELFTH NEW MATTER
NO STRICT LIABILITY
112. SCF denies that it is strictly liable in tort.
THIRTEEN'l'H NEW MATTER
CLAIMS CAUSED BY OTHERS
113. Any injuries or damages suffered by plaintiff
Taylor Eisenhauer were caused by third person over which SCF had
no control.
FOURTEENTH NEW MATTER
STATUTE OF LIMITATIONS
114. The Eisenhauers' action is barred by the applicable
statute of limitations.
WHEREFORE, Schwinn Cycling & Fitness Inc. demands that
the court dismiss the complaint and enter jUdgment in its favor
19
'lIId tlgtlinst the Eisenhtluers, together with tin tlwtlrd of coato tlnd
such oth~r tlnd further relief thtlt the court deems just.
NJ:W MATTER IN THE NA'1'UIUI: OJ' A CROSSCLAIM
AGAINST NAU'1'I-LIS, INC. '1'/D/B/A BUSHEY'S CYCLING AND
J'I'1'NJ:SS HEADQUARTERS AND '1'/D/B/A BUSHEY'S SCHWINN CYCLERY,
INC. ("NAU'1'I-LIS') PURSUANT '1'0
PI.. R. CIV. P. 2252ldl
115. SCF incorporates herein its allegations in
paragraphs 1 through 113 as if set forth in full.
116. The Eisenhauers have sued defendant Nauti-Lis. Inc.
t/d/b/a Bushey's Cycling and Fitness Headquarters and t/d/b/a
Bushey's Schwinn Cyclery (collectively "Nauti-Lis") alleging
liability to the Eisenhauers.
117. Defendant Nauti-Lis is solely liable to the
Eisenhauers.
118. Defendant Nauti-Lis is liable over to the
Eisenhauers for contribution and/or indemnity if SCF is found
liable to the Eisenhauers.
119. Defendant Nauti-Lis is jointly and severally liable
with SCF to the Eisenhauers.
WHEREFORE, Defendant Schwinn cycling & Fitness Inc.
demands judgment in its favor and against Nauti-Lis, Inc. t/d/b/a
Bushey's Cycling and Fitness Headquarters and t/d/b/a Bushey's
Schwinn Cyclery for all sums for which SCF might be found liable
to the Eisenhauers, together with an award of costs and sucb other
and further relief that the court deems just.
20
VI!:R%I'ICA'l'%ON
I, JAMES P. GOLDEN, attorney for defendant Schwinn
Cycling & Fitness Inc., verify that I am authorized to make this
verification on behalf of Schwinn Cycling & Fitness Inc. I am
making this verification pursuant to Pa. R. Civ. P. 1024(c)
because Kevin Lamar, Senior Vice-President, Fitness Group, Schwinn
Cycling & Fitness Inc., and any other employee of Schwinn cycling
& Fitness Inc. who has knowledge or information, are outside the
court's jurisdiction and a verification cannot be obtained in time
for the filing of the answer, new matter, new matter in the nature
of a crossclaim and counterclaim.
I verify that the facts set forth in the foregoing
answer, new matter, new matter in the nature of a crossclaim and
counterclaim are true and correct to the best of my knowledge or
information and belief. The sources of my knowledge or
information are discussions I have had with Mr. Lamar and my
review of various documents maintained by Schwinn Cycling &
Fitness Inc.
This verification is made subject to the penalties of
18 Pa. C. S. ~ 4904.
~D-
WHEREFORE, Defendant Schwinn Cycling & Fitness Inc.
demands judgment in its favor and against Nauti-Lis, Inc. for all
sums for which SCF might be found liable to plaintiffs George,
Debra and Taylor Eisenhauer, together with an award of costs and
such other and further relief that the court jeems just.
Date: 11t1Uf ;}.~ ItCf '1<7
J~~N
MICH M. ROVINSKY
ALPA PATEL
I
I.
HAMBURG & GOLDEN, P.C.
Attorneys for Defendant
Schwinn Cycling & Fitness Inc.
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COMPLAINT
1. Schwinn Cycling & Fitness Inc. ("SCF") is a
Delaware corporation that is licensed to conduct business in the
Commonwealth of Pennsylvania. SCF is engaged in the business of
selling bicycles, fitness equipment and related products.
2. On information and belief, minor plaintiff Taylor
Eisenhauer, and his parents, George and Debra Eisenhauer are
residents of the Commonwealth of Pennsylvania.
3. On information and belief, defendant Nauti-Lis,
i
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Inc. is a Pennsylvania corporation.
4. On information and belief, Edward Eisenhauer and
Francis Eisenhauer, additional party defendants, are individual
adult residents of the Commonwealth of pennsylvania, residing at
2297 Fairfield Circle, State College, Pennsylvania, 16801. George
and Francis Eisenhauer are the grandparents of plaintiff Taylor
Eisenhauer.
5. Plaintiff Taylok Eisenhauer, by and through his
parents and natural guardians, George and Debra Eisenhauer,
alleges that he sustained permanent injuries to his right hand on
December 27, 1995, while he was turning one of the pedals of a
Schwinn Bicycle Company Model XR-6 exercise bicycle with his right
hand when it allegedly slipped off of the pedal and became caught
in the chain and sprocket assembly of the bicycle. The alleged
occurrence took place in the home of Taylor Eisenhauer's
grandparents, additional party defendants, Edward and Francis
Eisenhauer.
3
6. Plaintiffs Taylor, George and Debra Eisenhauer
allege damages against defendants SCF and Nauti-Lis, Inc. through
theories of successor liability, negligence, strict product
liability and breach of warranty. A copy of the complaint is
attached as Exhibit 1,
7. SCF has filed an answer, crossclaim and
counterclaim, denying the claims. A copy of the answer,
crossclaim and counterclaim is attached as Exhibit 2.
8. Nauti-Lis, Inc. has filed an answer, crossclaim and
counterclaim, denying the claims. A copy of Nauti-Lis's answer,
crossclaim and counterclaim is attached as Exhibit 3.
9. SCF has filed a reply to Nauti-Lis's crossclaim. A
copy of SCF's reply to Nauti-Lis's crossclaim is attached as
Exhibit 4.
10. Plaintiffs have filed a reply to Nauti-Lis's
counterclaim. A copy of their reply is attached as Exhibit 5.
COUNT I
11. SCF incorporates herein its allegations in
paragraphs 1 through 8 as if set forth in full.
12. At the time of the occurrences alleged in the
underlying lawsuit, the Schwinn Bicycle Company Model XR-6
exercise bicycle (the "exercise bicycle") was in the custody and
possession of additional party defendants Edward and Francis
Eisenhauer. The alleged occurrences in the underlying lawsuit
took place in the home of additional party defendants Edward and
Francis Eisenhauer.
4
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13. The Schwinn Bicycle Company Model XR-6 exercise
bicycle was intended to be used for exercise by adults and not for
riding or play by children, and the exercise bicycle's brochure
contained warnings as to dangers to children.
14. As instructed in the exercise bicycle brochure,
children should not be left unattended with the exercise bicycle.
rf the exercise bicycle is left unattended, the brochure provides
instructions to tighten the pedal resistance control to lock the
wheel and pedals so that they cannot be easily loosened by a small
child. Additional party defendants, Edward and Francis
Eisenhauer, kept the bicycle where it could be used by children
without adult supervision. Additional party defendants Edward and
Francis Eisenhauer left minor plaintiff Taylor Eisenhauer
unattended with the exercise bicycle and failed to lock the wheel
and pedals, contrary to the instructions in the exercise bicycle
brochure.
15. Additional party defendants Edward and Francis
Eisenhauer knew or should have known that children should not have
been allowed access to the exercise bicycle because the exercise
bicycle was not intended for use by children.
16. Upon information and belief, the exercise bicycle
had originally been equipped with a chainguard or other protective
device to enclose the sprocket and chain. Upon information and
belief, additional party defendants Edward and Francis Eisenhauer
abused, altered, removed, or tampered with the chainguard or other
protective device on the exercise bicycle so that the sprocket and
chain were no longer enclosed.
5
17. Additional party defendants Edward and Francis
Eisenhauer knew or should have known that abusing, altering,
removing or tampering with the chainguard or other protective
device would have exposed the sprockets and chain on the exercise
bicycle thereby creating a dangerous and unsafe condition for
children. Notwithstanding the foregoing, additional party
defendants Edward and Francis Eisenhauer allowed minor plaintiff,
Taylor Eisenhauer, access to the exercise bicycle resulting in the
alleged injuries.
18. Addi tional party defendants Edward and Francis
Eisenhauer knew or should have known that the exercise bicycle was
not intended for use by children. Notwithstanding the foregoing,
Edward and Francis Eisenhauer allowed Taylor Eisenhauer access to
the exercise bicycle resulting in the alleged injuries.
19. Additional party defendants Edward and Francis
Eisenhauer's conduct constitutes negligence.
20. Additional party defendants Edward and Francis
Eisenhauer are solely liable to plaintiffs.
21. Additional party defendants Edward and Francis
Eisenhauer are liable over to SCF if SCF is found liable to
plaintiffs.
22. Additional party defendants Edward and Francis
Eisenhauer are jointly and severally liable with SCF to the
plaintiffs.
6
WHEREFORE, Schwinn cycling & Fitness Inc. demands
jUdgment in its favor and against Edward and Francis Eisenhauer
for all sums for which SCF might be found liable to Taylor, George
and Debra Eisenhauer, together with an award of costs and such
other and further relief that the court deems just.
Date: June 8, 1999
J$~DEN
MICHELE M. ROVINSKY
ALPA PATEL
HAMBURG & GOLDEN, P.C.
Attorneys for Defendant
Schwinn Cycling & Fitness Inc.
7
TAYLOR EISENHAUER, A Minor,
By GEORGE W. EISENHAUER and
DEBRA A. EISENHAUER, his
Parents and Natural
Guardians,
IN THE .COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 11- /q2D
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Plaintiff
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SCHWINN CYCLING AND FITNESS,
INC., and NAUTI-LIS, INC.
T/D/B/A BUSHEY'S CYCLING AND
FITNESS HEADQUARTERS and
T/D/B/A BUSHEY'S SCHWINN
CYCLERY, INC.
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 an 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.OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Fourth Floor
Cumberland County Courthouse
CarliSle, PA 17013
(717) 240-6200
147554/LES
, ,
~
TAYLOR EISENHAUER, A Minor,
By GEORGE W. EISENHAUER and
DEBRA A. EISENHAUER, his
Parent. and Natural
Guardian.,
IN THE .COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
NO. 11- /q;0
~
Plaintiff
Y.
.
.
CIVIL ACTION - LAW-
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JURY TRIAL DEMANDED Q ~
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SCHWINN CYCLING AND FITNESS,
INC., and NAUTI-LIS, INC.
T/D/B/A BUSHEY'S CYCLING AND
FITNESS HEADQUARTERS and
T/D/B/A BUSHEY'S SCHWINN
CYCLERY, INC.
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 an 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 OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Fourth Floor
CUmberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
147554/LES
TAYLOR EISENHAUER, A Minor,
By GEORGE W. EISENHAUER and
DEBRA A. EISENHAUER, his
Parents and Natural
Guardians,
Plaintiff
v.
SCHWINN CYCLING AND FITNESS,
INC., and NAUTI-LIS, INC.
TIDIBIA BUSHEY'S CYCLING AND
FITNESS HEADQUARTERS and
TIDIBIA BUSHEY'S SCHWINN
CYCLERY,
Defendants
.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
:
CIVIL ACTION - LAW
.
.
:
JURY TRIAL DEMANDED
COMPLAINT
1. Plaintiff Taylor Eisenhauer, who was born on February 10,
1991, is a minor who resides with his parents and natural
guardians, George W. Eisenhauer and Debra A. Eisenhauer, in
Mechanicsburg, York County, Pennsylvania.
2. Defendant Schwinn Cycling and Fitness, Inc. is a Delaware
corporation that is licensed to conduct business in the
Commonwealth of Pennsylvania.
3. Defendant Schwinn CYCling and Fitness, Inc. designs and
produces bicycles and cycling products that are marketed, sold,
supplied and placed into the stream of commerce in such a manner
that they reach consumers in the Commonwealth of Pennsylvania,
including Cumberland County, Pennsylvania.
4. Defendant Schwinn Cycling and Fitness, Inc. is the legal
successor to Schwinn Bicycle Company.
113547/CLERKl
, .
. .
5. O.t.ndant Schwinn Cyoling and Fitn..., Inc. b.ars
succ..sor liability tor the negligence, strict liability and breach
ot warranty ot its predecessor corporation, Schwinn Bicycle
Company, as set torth at length below because:
(a) Schwinn Cycling and Fitness, Inc. expressly or
impliedly agreed to assume such obligation;
. (b) The transaction between the two companies amounted
to a consolidation or merger;
fc) Schwinn Cycling and Fitness, Inc. is merely a
continuation of Schwinn Bicycle Company;
Cd) The transaction that resulted in the formation ot
Schwinn Cycling and Fitness, Inc. was fraudulently entered into by
Schwinn Bicycle Company andlor its successor entities in order to
escape liability; andlor
(e) Schwinn Cycling and Fitness, Inc. acquired all or
substantially all of the manufacturing assets of Schwinn Bicycle
Company and undertook essentially the same manufacturing operation
as Schwinn Bicycle Company.
6. Defendant Nauti-Lis, Inc. TIDIBIA BUShey'S Cycling and
Fitness Headquarters and T/D/B/A BUShey'S Schwinn Cyclery is a
Pennsylvania corporation engaged in the business of selling
bicycles and CYCling products.
7. Defendant Nauti-Lis, Inc. T/D/B/A Bushey'S Cycling and
Fitness Headquarters and T/D/B/A BUShey'S Schwinn Cyclery maintains
a retail store and a regular place of business in Lemoyne,
Cumberland County, Pennsylvania.
2
.
.
8. Defendant Nauti-Lis, Inc., T/D/B/A Bushey's Cycling and
Fitness Headquarters and T/D/B/A Bushey's Schwinn Cyclery is the
legal successor to Bushey's Schwinn Cyclery, Inc.
9. Defendant Nauti-Lis, Inc., T/D/B/A Bushey's cycling and
Fitness Headquarters and T/D/B/A Bushey'S Schwinn Cyclery bears
successor liability for the negligence, strict liability and breach
of warranty of its predecessor corporation, Bushey's Schwinn
Cyclery, Inc., as set forth at length below because:
(a) Nauti-Lis, Inc. expressly or impliedly agreed to
assume such obligation;
(b) The transaction between the two companies amounted
to a consolidation or merger;
(c) Nauti-Lis, Inc. is merely a continuation of BUShey'S
Schwinn Cyclery, Inc.;
(d) The transaction resulted in the formation of Nauti-
Lis, Inc. was fraudulently entered into by Bushey's Schwinn
Cyclery, Inc. and/or its successor entities in order to escape
liability; and/or
(e) Nauti-Lis, Inc., acquired all or substantially all
of the assets of BUShey'S Schwinn Cyclery, Inc. and undertook
essentially the same business operation.
10. The facts and occurrences hereinafter related took place
on or about December 27, 1995 at approximately 10:50 a.m., in
Taylor Eisenhauer's grandparents' home located at 2297 Fairfield
circle, State College, Pennsylvania.
3
.,
r
I
,
i
i
f
11. At said time and place, the minor Plaintiff was turning
one of the pedals a Schwinn Model #XR-6 exercise bicycle with his
right hand when his hand slipped off of the pedal and became caught
in the chain and sprocket assembly of the bicycle.
12. The fourth and fifth fingers of minor Plaintiff Taylor
Eisenhauer's right hand were amputated by the chain and sprocket
assembly of the Schwinn Model IXR-6 exercise bicycle.
13. The Schwinn Model IXR-6 exercise bicycle involved in the
aforesaid incident did not have a chain guard or sprocket assembly
guard on its left hand side.
14. The aforesaid Schwinn Model #XR-6 exercise bicycle had
been designed, fabricated, produced, manufactured, assembled, sold,
marketed, supplied, distributed and/or placed into the stream of
commerce by Schwinn Bicycle Company.
15. The aforesaid Schwinn Model IXR-6 exercise bicycle had
been designed, fabricated, produced, manufactured, assembled, sold,
marketed, supplied, distributed and/or placed into the stream of
commerce by Bushey's Schwinn cyclery, Inc.
16. Prior to the aforesaid incident, no substantial change
had been made to the Schwinn Model #XR-6 exercise bicycle from the
condition that it was in when it was manufactured, assembled and
sold by the Defendants and/or their predecessor companies.
17. As a direct and proximate result of the negligence and
willful misconduct of the Defendants and/or their predecessor
corporations, and as a direct result of the defective and
unreasonably dangerous design of the Schwinn Model #XR-6 exercise
4
.
.
bicycle, Minor Plaintiff Taylor Eisenhauer suffered serious
injuries including, but not limited to, the amputation of the
fourth and fifth fingers of his right hand.
COUXT I - WlGLIGENCB
TAYLOR BISDlHAUBR, A KIIlOR, BY GBORGI .. BISBJlHAUBR AND
DBBRA A. BISDlHAUBR, HIS PARZIl'l'S UD IlATlJRAL GUARDIMlS v.
SCHWINN CYCLING AND FITNESS. INC.
18. Paragraphs 1 through 17 ot this Complaint are
incorporated herein by reference.
19. Plaintiff's injuries as alleged herein were a direct and
proximate result of the negligence of Schwinn Bicycle Company as
set forth in paragraphs 21 through 31 below.
20. As II direct and proximate result of the negligence of its
predecessor corporation, Schwinn Bicycle company, as set forth in
paragraphs 21 through 31 below, Defendant Schwinn cycling and
Fitness, Inc. is liable to the minor Plaintiff for the injuries
alleged herein.
21. Schwinn
Bicycle
Company
designed,
fabricated,
manufactured, and/or assembled the Schwinn Model #XR-6 exercise
bicycle involved in the aforesaid incident in such a fashion that
the minor Plaintiff's fingers were able to be drawn into the
sprocket assembly of the bicycle and amputated.
22. Schwinn
Bicycle
Company
designed,
fabricated,
manufactured, and/or assembled the Schwinn Model #XR-6 exercise
bicycle involved in the aforesaid incident in such a fashion that
it did not contain a chain guard on the left hand side of the
bicycle.
5
23. Schwinn Bicycle Company designed, fabricated,
manufactured, and/or assembled the Schwinn Model IXR-G exercise
bicycle involved in the aforesaid incident in such a fashion that
it did not contain a guard or similar device around tho sprocket
assembly on the left hand side of the bicycle.
24. Schwinn Bicycle Company designed, fabricated,
manufactur~d, and/or assombled the Schwinn Model IXR-G exercise
bicycle involved in the aforesaid incident in such a fashion that
the chain and sprocket assemblies were not completely encased so as
to prevent inadvertent access.
25. Schwinn Bicycle Company designed, fabricated,
manufactured, and/or assembled the Schwinn Hodel IXR-G exercise
bicycle involved in the aforesaid incident in such a fashion that
the it did not contain a mechanism that would permit the pedals and
chain of the exercise bicycle to become or remain stationary while
the wheel of the exercise bicycle was in motion.
2G. Schwinn Bicycle Company failed to provide adequate,
reasonable and necessary safety devices on the Schwinn Model IXR-G
exercise bicycle to render the bicycle safe when used for its
intended purpose.
27. Schwinn Bicycle Company failed to provide adequate
warnings concerning the dangers associated with the exposed chain
and sprocket assembly of the Schwinn Model #XR-6 exercise bicycle
involved in the aforesaid incident.
28. Schwinn Bicycle Company failed to inspect the Schwinn
Model #XR-6 exercise bicycle involved in the aforesaid incident in
6
.
designed with
of foreseeable
reasonable
order to determine whether it was
competence to ensure the safety
foreseeable misusers.
29. Schwinn Bicycle company failed to adequately inspect the
Schwinn Hodel #XR-6 exercise bicycle involved in the aforesaid
incident so as to have discovered the dangerous condition presented
by the absence of adequate warnings and/or one or more of the
safety mechanisms described in paragraphs 21 through 27 above.
30. Schwinn Bicycle Company Bold and/or otherwise placed into
the stream of commerce the Schwinn Hodel #XR-6 exercise bicycle
involved in the aforesaid incident despite the fact that it lacked
adequate warnings and safety devices as described in paragraphs 21
through 27 above.
31. Schwinn Bicycle Company and Defendant Schwinn cycling and
Fitness, Inc., failed to recall the Schwinn Hodel #XR-6 exercise
bicycle, or warn the Plaintiff of the potential dangers posed by
the lack of the aforesaid safety mechanisms, despite the fact that
it was aware, or should have been aware, of the dangerous condition
users
and
created by the defects set forth above.
32. As a direct and proximate result of the negligence of the
Defendant and its predecessor corporation, Schwinn Bicycle company,
as set forth above, Plaintiff Taylor Eisenhauer suffered
significant injuries including, but not limited to, the amputation
of the fourth and fifth fingers of his right hand.
33. The Schwinn Model #XR-6 exercise bicycle involved in the
..
ator.said incident displayed no warning or limitation concerning
the use ot the bicycle on the basis ot age, size or any other
characteristic ot the user.
34. Plaintitt was a foreseeable user of the Schwinn Model
IXR-6 exercise bicycle.
35. Plaintitt was tour years old at the time ot the accident
and there tore can not, as a matter of law, be charged with
contributory negligence.
36. As a direct and proximate result ot the atoresaid
injuries, minor Plaintiff Taylor Eisenhauer has incurred, and will
in the future incur, medical and rehabilitative expenses, and claim
is made therefor.
37. As a direct and proximate result of t.he aforesaid
injuries, minor Plaintiff Taylor Eisenhauer has undergone, and in
the future will undergo, great mental and physical pain and
suffering, great inconvenience in carrying out his daily
activities, and a loss of life's pleasures and enjoyment, and a
claim is made therefor.
38. As a direct and proximate result of the aforesaid
injuries, minor Plaintiff Taylor Eisenhauer has been, and in the
future will be, subject to humiliation and ridicule, and claim is
made therefor.
39. As a direct and proximate result of his injuries, minor
Plaintiff Taylor Eisenhauer has sustained a loss of earning power
and earning capacity, and claim is made therefor.
8
WHEREFORE, Plaintiff Taylor Eisenhauer, a minor, by George w.
Eisenhauer and Debra A. Eisenhauer, his parents and natural
guardians, demands judgment against Defandant Schwinn cycling and
Fitness, Inc. in an amount in Elxcess of Thirty-Five Thousand
Dollars ($35,000), exclusive of interest and costs, and in excess
of any jurisdictional amount requiring compulsory arbitration.
COURT II - NEGLIGENCE
TAYLOR EISBNJIAtJD, A KINOR, BY GEORGB W. IlISBIlHAUBR AND
DEBRA A. EISBNJIAUER, HIS PAREH'l'S AND NATURAL GUARDI~S v.
NAUTI-LIS, INC. T/D/B/A BUSHEY'S CYCLING AND PI'1'NBSS
HEADOUARTERS and T/D/B/A BUSHEY'S SCHWINN CYCLERY
40. Paragraphs 1 through 17 of this Complaint are
incorporated herein by reference.
41. The minor Plaintiff's injuries as alleged herein were a
direct and proximate result of the negligence of Bushey'S Schwinn
cyclery, Inc. as set forth in paragraphs 43 through 52 below.
42. As a direct and proximate result of the negligence of its
predecessor corporation, BUShey'S Schwinn cyclery, Inc., as set
forth in paragraphs 43 through 52 below, Defendant Nauti-Lis, Inc.
T/D/B/A Bushey'S cycling and Fitness Headquarters and T/D/B/A
Bushey'S Schwinn Cyclery is liable to the minor Plaintiff for the
injuries alleged herein.
43. BUShey'S Schwinn Cyclery, Inc. assembled, marketed and/or
sold the Schwinn Model #XR-6 exercise bicycle involved in the
aforesaid incident despite the fact that the bicycle was designed,
9
fabricated, manufactured and/or assembled in such a fashion that
the minor Plaintiff's fingers could be drawn into the sprocket
assembly of the bicycle and amputated.
44. Bushoy's Schwinn cyclery, Inc. assembled, marketed and/or
sold the Schwinn Model #XR-6 exercise bicycle involved in the
aforesaid incident despite the fact that the bicycle was designed,
fabricate~ manufactured and/or assembled in such a fashion that it
did' not contain a chain guard on the left hand side of the bicycle.
45. Bushey's Schwinn cyclery, Inc. assembled, marketed and/or
sold the Schwinn MOdel #XR-6 exercise bicycle involved in the
aforesaid incident despite the fact that the bicycle was designed,
fabricated, manufactured and/or assembled in such a fashion that it
did not contain a guard or similar device around the sprocket
assembly on the left hand side of the bicycle.
46. Bushey's Schwinn Cyclery, Inc. assembled, marketed and/or
sold the Schwinn Model #XR-6 exercise bicycle involved in the
aforesaid incident despite the fact that the bicycle was designed,
fabricated, manufactured and/or assembled in such a fashion that
the chain and sprocket assemblies were not completely encased so as
to prevent inadvertent access.
47. Bushey's Schwinn Cyclery, Inc. assembled, marketed and/or
sold the Schwinn Model #XR-6 exercise bicycle involved in the
aforesaid incident despite the fact that the bicycle was designed,
fabricated, manufactured and/or assembled in such a fashion that it
10
.,
did not contain a mechanism that would pormit the pedals and chain
ot the exercise bicycle to become or remain stationary while the
wheel ot the exercise bicycle was in motion.
48. Bushey's Schwinn Cyclery, Inc. assembled, marketed and/or
sold the Schwinn Model #XR-6 exercise bicycle involved in the
accident despite the tact that it lacked adequate, reasonable and
necessary .satety devices to render it sate when used tor its
intended purpose.
49. Bushey'S Schwinn cyclery, Inc. tailed to inspect the
Schwinn MOdel #XR-6 exercise bicycle involved in the aforesaid
incident in order to determine whether it was designed with
reasonable competence to ensure the safety of foreseeable users and
foreseeable misusers.
SO. Bushey's Schwinn CYclery, Inc. failed to adequately
inspect the Schwinn Model #XR-6 exercise bicycle involved in the
aforesaid incident so as to have discovered the dangerous condition
presented by the absence of adequate warnings and/or one or more of
the safety mechanisms described in paragraphs 42 through 47 above.
51. Bushey's Schwinn Cyclery, Inc. and Defendant Nauti-Lis,
Inc. t/d/b/a Bushey's cycling and Fitness Headquarters failed to
recall the Schwinn Model #XR-6 exercise bicycle, or warn the
Plaintiff of the potential dangers posed by the lack of the
aforesaid safety mechanisms, despite the fact that it was aware, or
should have been aware, of the dangerous condition created by the
design defects set forth above.
11
.,
52. Bushey's Schwinn cyclery, Inc. tailed to provide adequate
warnings concerning the dangers associated with the exposed chain
and sprocket assembly when it assembled, marketed and/or sold the
schwinn Hodel #XR-6 exerciss bicycle involved in the aforesaid
incident.
53. As a direct and proximate result ot the negligence of the
Defendant ~nd/or its predecessor corporation as set torth above,
Plaintiff Taylor Eisenhauer suffered significant . injuries
including, but not limited to, the amputation of the fourth and
fifth fingers of his right hand.
54. The Schwinn Hodel #XR-6 exercise bicycle involved in the
aforesaid incident displayed 'no warning or limitation concerning
the use of the bicycle on the basis of age, size or any other
characteristic of the user.
55. Plaintiff was a foreseeable user of the Schwinn Hodel
#XR-6 exercise bicycle.
56. Plaintiff was four years old at the time of the accident
and therefore can not, as a matter of law, be charged with
contributory negligence.
57. As a direct and proximate result of the aforesaid
injuries, minor Plaintiff Taylor Eisenhauer has incurred, and will
in the future incur, medical and rehabilitative expenses, and claim
is made therefor.
58. As a direct and proximate result of the aforesaid
injuries, minor Plaintiff Taylor Eisenhauer has undergone, and in
the future will undergo, great mental and physical pain and
12
sUffering, great inconvenience in carrying out his daily
activities, and a loss of lite's pleasures and enjoyment, and a
claim is made therefor.
59. As a direct and proximate result ot the aforesaid
injuries, minor Plaintiff Taylor Eisenhauer has been, and in the
future will be, subject to humiliation and ridicule, and claim is
made therefor.
60. As a direct and proximate-result of his injuries, minor
Plaintiff Taylor Eisenhauer has sustained a loss of earning power
and earning capacity, and claim is made therefor.
WHEREFORE, Plaintiff Taylor Eisenhauer, a minor, by George W.
Eisenhauer and Debra A. Eisenhauer, his parents and natural
guardians, demands jUdgment against Defendant Nauti-Lis, Inc.
T/D/B/A Bushey's cycling and Fitness Headquarters and T/D/B/A
Bushey's Schwinn Cyclery in an amount in excess of Thirty-Five
Thousand Dollars ($35,000), exclusive of interest and costs, and in
excess of any jurisdictional amount requiring compulsory
arbitration.
COUNT III - STRICT LIABILITY
TAYLOR EISENHAUER, A KINOR, BY GEORGE W. EISENHAUER AND
DEBRA A. EISENHAUER, HIS PARENTS AND NATllRAL GUARDIANS V.
SCHWINN CYCLING AND FITNESS. INC.
61. Paragraphs 1 through 17 and Count I of this Complaint are
incorporated herein by reference.
62. The Defendant Schwinn cycling and Fitness, Inc. is
strictly liable to the Plaintiff under the Restatement (Second) of
13
. .
..
Torts, 5402(a), for the actions of its predecessor corporation,
Schwinn Bicycle company, which supplied a product, the Schwinn
Model IXR-6 exercise bicycle, that was defective.
63. The Schwinn MOdel IXR-6 exercise bicycle involved in the
aforesaid incident contained design, fabrication, manufacturing
and/or assembly defects as set forth in paragraphs 21 through 27 of
Count I, w~ich are incorporated herein by reference.
64. The Schwinn Model IXR-6 exercise bicycle involved in the
aforesaid incident was defective because it lacked adequate
warnings about the foreseeable dangers associated with the exposed
chain and sprocket assembly.
65. The Schwinn Model IXR-6 exercise bicycle contained or
displayed no warning or limitation concerning the use of the
bicycle on the basis of age, size or any other characteristic of
the user.
66. As a direct and proximate result of the defective nature
of the exercise bicycle as set forth above, Plaintiff Taylor
Eisenhauer suffered significant injuries inClUding, but not limited
to, the amputation of two fingers on his right hand.
67. As a direct and proximate result o~ his injuries,
Plaintiff Taylor Eisenhauer has incurred, and will in the future
incur, medical and rehabilitative expenses, and claim is made
therefor.
68. As a direct and proximate result of his injuries,
Plaintiff Taylor Eisenhauer has undergone, and in the future will
undergo, great mental and physical pain and SUffering, great
14
, .
."
Torts, 5402(a), for the actions of its predecessor corporation,
Schwinn Bicycle Company, which supplied a product, the Schwinn
Model #XR-6 exercise bicycle, that was defective.
63. The Schwinn Model #XR-6 exercise bicycle involved in the
aforesaid incident contained design, fabrication, manufacturing
and/or assembly defects as set forth in paragraphs 21 through 27 of
Count I, wnich are incorporated herein by reference.
64. The Schwinn MOdel #XR-6 exercise bicycle involved in the
aforesaid incident was defective because it lacked adequate
warnings about the foreseeable dangers associated with the exposed
chain and sprocket assembly.
65. The Schwinn Model #XR-6 exercise bicycle contained or
displayed no warning or limitation concerning the use of the
bicycle on the basis of age, size or any other characteristic of
the user.
66. As a direct and proximate result of the defective nature
of the exercise bicycle as set forth above, Plaintiff Taylor
Eisenhauer suffered significant injuries including, but not limited
to, the amputation of two fingers on his right hand.
67. As a direct and proximate result of his injuries,
Plaintiff Taylor Eisenhauer has incurred, and will in the future
incur, medical and rehabilitative expenses, and claim is made
therefor.
68. As a direct and proximate result of his injuries,
Plaintiff Taylor Eisenhauer has undergone, and i.n the future will
undergo, great mental and physical pain and suffering, great
14
I"' .
inconvenience in carrying out his daily activities, and a loss of
life's pleasures and enjoyment, and claim is made therefor.
69. As a direct and proximate result of his injuries,
Plaintiff Taylor Eisenhauer has been, and in the future will be,
subject to humiliation and ridicule, and claim is made therefor.
70. As a direct and proximate result of his injuries,
Plaintiff . Taylor Eisenhauer has sustained a loss of earning
potential and earning capacity, and claim is made therefor.
WHEREFORE, Plaintiff Taylor Eisenhauer, a minor, by George W.
Eisenhauer and Debra A. Eisenhauer, his parents and natural
guardians, demands judgment against Defendant Schwinn Cycling and
Fitness, Inc. in an amount in excess of Thirty-Five Thousand
Dollars ($35,000), exciusive of interest and costs, and in excess
of any jurisdictional amount requiring compulsory arbitration.
COUNT IV - STRICT LIABILITY
TAYLOR EISENHAUER, A MINOR, BY GEORGE W. EISENHAUER AND
DEBRA A. EISENHAUER, HIS PARENTS AND NATllRAL GUARDIANS v.
NAUTI-LIS, INC. TIDIBIA BUSHEY'S CYCLING AND FITNESS
HEADOUARTERS and TIDIBIA BUSHEY'S SCHWINN CYCLERY
71. Paragraphs 1 through 17 and Counts I and II of this
complaint are incorporated herein by reference.
72. The Defendant Nauti-Lis, Inc. T/D/B/A Bushey'S Cycling
and Fitness Headquarters and T/D/B/A Bushey'S Schwinn Cyclery is
strictly liable to the Plaintiff under the Restatement (Second) of
Torts, 5402 (a), for the actions of its predecessor corporation,
Bushey'S Schwinn Cyclery, Inc., which supplied a product, the
Schwinn Model #XR-6 exercise bicycie, that was defective.
15
73. The Schwinn Hodel IXR-6 exercise bicycle involved in the
aforesaid incident contained design, fabrication, manufacturing
and/or assembly defects as set forth in paragraphs 21 through 27 of
Count I, which are incorporated herein by reference.
74. The Schwinn Hodel IXR-6 exercise bicycle involved in the
aforesaid incident was defective because it lacked adequate
warnings about the foreseeable dangers associated with the exposed
chain and sprocket assembly.
75. The Schwinn Hodel #XR-6 exercise bicycle displayed no
warning or limitation concerning the use of the bicycle on the
basis of age, size or any other characteristic of the user.
76. As a direct and proximate result of the defective nature
of the exercise bicycle as set forth above, Plaintiff Taylor
Eisenhauer suffered significant injuries inClUding, but not limited
to, the amputation of two fingers on his right hand.
77. As a direct and proximate result of his injuries,
Plaintiff Taylor Eisenhauer has incurred, and will in the future
incur, medical and rehabilitative expenses, and claim is made
therefor.
78. As a direct and proximate result of his injuries,
Plaintiff Taylor Eisenhauer has undergone, and in the future will
undergo, great mental and physical pain and suff.ering, great
inconvenience in carrying out his daily activities, and a loss of
life's pleasures and enjoyment, and claim is made therefor.
16
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79. As a direct and proximate result ot his injurie.,
Plaintift Taylor Eisenhauer has been, and in the tuture will be,
subject to humiliation and ridicule, and claim i. made theretor.
80. As a direct and proximate result ot his injuries,
Plaintitf Taylor Eisenhauer has sustained a loss ot earning
potential and earning capacity, and claim is made theretor.
WHEREFORE, Plaintift Taylor Eisenhauer, a minor, by George W.
Eisenhauer and Debra A. Eisenhauer, his parents and natural
quardians, demands jUdgment against Defendant Nauti-Lis, Inc.
T/D/B/A Bushey's cycling and Fitness Headquarters and T/D/B/A
Bushey'S Schwinn Cyclery in an amount in excess of Thirty-Five
Thousand Dollars ($35,000), exclusive of interest and costs, and in
excess of any jurisdictional amount requiring compulsory
arbitration.
CLAIM V - BREACH OF WARRA!l'1'Y
TAYLOR EISENHAUER, A MINOR, BY GEORGE W. EI8ENHAUER AND
DEBRA A. EISENHAUER, HIS PARENTS AND NATtlRAL GUARDIANS v.
SCHWINN CYCLING AND FITNESS. INC.
81. Paragraphs 1 through 17 and Count I of this Complaint are
incorporated herein by reference.
82. By promoting, selling, supplying and/or delivering the
Schwinn Model #XR-6 exercise bicycle involved in the aforesaid
incident, the Defendant and/or Defendant's predecessor corporation
expressly and/or impliedly warranted that the exercise bicycle was
merchantable, fit and safe for the ordinary purposes for which it
was sold.
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83. Detendant Schwinn Cycling and Fitness, Inc. andlor its
predecessor corporation, Schwinn Bicycle Company, breached both
express warranties and implied warranties of merchantability and
titness tor a particular purchase, as contained in Unitorm
Commercial Code as adopted by the Commonwealth of Pennsylvania in
13 Pa.C.S.A 51101, .c.t JWL., by delivering andlor supplying the
Schwinn Model #XR-6 exercise bicycle in an unsafe, defective and
unfit condition as described above.
84. The resulting injuries to the minor Plaintiff were the
proximate result of said breach of warranties.
WHEREFORE, Plaintiff Taylor Eisenhauer, a minor, by George W.
Eisenhauer and Debra A. Eisenhauer, his parents and natural
guardians, demands judgment against Defendant Schwinn Cycling and
Fitness, Inc. in an amount in excess of Thirty-Five Thousand
Dollars ($35,000), exclusive of interest and costs, and in excess
of any jurisdictional amount requiring compulsory arbitration.
CLAIM V - BREACH OF WARRAlI'rY
TAYLOR EISENHAUER, A MINOR, BY GEORGE W. EISENHAUER AND
DEBRA A. EISENHAUER, HIS PARENTS AND NATURAL GUARDIANS v.
NAUTI-LIS, INC. T/D/B/A BUSHEY'S CYCLING AND FITNESS
HEADQUARTERS and T/D/B/A BUSHEY'S SCHWINN CYCLERY
85. Paragraphs 1 through 17 and Count II of this Complaint
are incorporated herein by reference.
86. By promoting, selling, supplying andlor delivering the
Schwinn Model #XR-6 exercise bicycle involved in the aforesaid
incident, the Defendant andlor Defendant's predecessor corporation
18
,. ,
.
.
expressly andlor impliedly warranted that the exercise bicycle was
merchantable, tit and sate tor the ordinary purposes for which it
was sold.
87. Detendant Nauti-Lis, Inc. TIDIBIA Bushey's Cycling and
Pitness Headquarters and TIDIBIA Bushey's Schwinn Cyclery andlor
its predecessor corporation, Bushey's Schwinn Cyclery, Inc.,
breached Poth express warranties and implied warranties of
merchantability and titness for a particular purchase, as contained
in UnHorm commercial Code as adopted by the Commonwealth of
Pennsylvania in 13 Pa.C.S.A 51101, ~ ~, by delivering andlor
supplying the Schwinn Model #XR-6 exercise bicycle in an unsafe,
defective and unfit condition as described above.
BB. The resulting injuries to the minor Plaintiff ~ere the
proximate result of said breach of warranties.
WHEREFORE, Plaintiff Taylor Eisenhauer, a minor, by George W.
Eisenhauer and Debra A. Eisenhauer, his parents and natural
guardians, demands judgment against Defendant Nauti-Lis, Inc.
TIDIBIA Bushey's Cycling and Fitness Headquarters and T/D/B/A
Bushey's Schwinn Cyclery in an amount in excess of Thirty-Five
Thousand Dollars ($35,000), exclusive of interest and costs, and in
excess of any jurisdictional amount requiring compulsory
arbitration.
Dav d S. W~snesk~, Esqu~re
1.D. NO. 5B796
4503 North Front Street
Harrisburg, PA 17110
Counsel for Plaintiff(s)
Dated: March 31, 1999
19
,. .
.
VBRIFICATION
We, George W. Eisenhauer and Debra A. Eisenhauer, verify that
. the ~acts set forth in the foregoing Complaint are true and correct
to the best of our knowledge, information, and belief. We
understand that this verification is made subject to the provisions
of 18 Pa.C.s. 54904, relating to unsworn falsification to
authorities.
2J lvf:~
GeOr~iSenhauer
UP.. to Q. ?:'A,..lO-UJ.A..
Debra A. Eisenhauer
Date: 'j. ')0 . tlc;
ANSWER
1. Denied. After reasonable investigation, Defendant
Schwinn cycling & Fitness Inc. ("SCF"), the correct name of
defendant Schwinn Cycling and Fitness, Inc., is without knowledge
or information sufficient to form a belief as to the truth of the
allegations in this paragraph, and they are denied.
2. Admitted.
3. Denied us stated. SCF is engaged in the business
of selling bicycles, fitness equipment and related products. SCF
admits, on information and belief, that its products reach
consumers in Cumberland County, Pennsylvania. By way of further
response, the allegations in this paragraph constitute conclusions
of law to which no response is required.
4. Denied. The allegations in this paragraph
constitute conclusions of law to which no response is required.
By way of further response, it is denied that SCF is the legal
successor to Schwinn Bicycle Company. SCF has never been
affiliated or associated with Schwinn BicYCle Company in any
manner.
5. (a)-(e) Denied. The allegations contained in
paragraph 5 (a) through (e) constitute conclusions of law to which
no response is required. By way of further response, SCF is not a
successor corporation of Schwinn Bicycle Company. SCF has never
been involved in the manufacturing, designing, testing,
formulating, selling, maintaining, leasing and/or distributing of
the exercise bicYCle, or any similar product, that forms the basis
of the complaint. The Schwinn BicYCle Company Model XR-6 exercise
2
bicycle waD produced by Schwinn Bicycle Company, a company that
with eight of its affiliates filed voluntary petitions for relief
under Chapter 11 of Title 11 of the United States Code
("Bankruptcy Code") in 1992. After good faith, arms-length,
negotiations, a predecessor of SCF purchased certain of the assets
of Schwinn Bicycle Company, but under the Asset Purchase
Agreement, which was confirmed by the Bankruptcy Court, Schwinn
BiCYCle Company retained all tort injury liabilities (irrespective
of date of occurrence) and expressly assumed all such liabilities.
SCF and its predecessor, BiCYCle and Fitness Limited Partnership,
were compleLely different entities from Schwinn Bicycle Company
and had no relationship to Schwinn Bicycle Company. SCF has never
been affiliated or associated with Schwinn Bicycle Company in any
manner.
6. Denied. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 6, and they are denied.
7. Denied. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 7, and they are denied.
8. Denied. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 8, and they are denied.
9. Denied. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 9, and they are denied.
3
10. Denied. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 10, and they are denied.
11. Denied, After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph II, and they are denied.
12. Denied. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 12, and they are denied.
13. Denied. It is denied that the Schwinn Bicycle
Company Model XR-6 involved in this incident did not contain a
chain guard on the left side. After reasonable investigation, SCF
is without knowledge or information sufficient to form a belief as
to the truth of the remaining allegations in paragraph 13, and
they are denied.
14. Admitted in part, denied in part. It is admitted
that the Schwinn Bicycle Company Model XR-6 was sold by Schwinn
Bicycle Company. SCF is without knowledge and information
sufficient to form a belief as to the truth of whether Schwinn
Bicycle Company designed, fabricated, produced, manufactured,
assembled, marketed, supplied and/or distributed the Schwinn
Bicycle Company Model XR-6 exercise bicycle. The remaining
allegations in paragraph 14 constitute conclusions of law to which
no response is required.
15. Denied. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 15 and they are denied.
4
16. Denied. SCF has never manufactured, assembled and
sold Scwhinn Model XR-6 exercise bicycles. No predecessor company
of SCF has ever manufactured, assembled and sold Scwhinn Model XR-
6 exercise bicycles. After reasonable investigation, SCF is
without knowledge or information sufficient to form a belief as to
the truth of the remaining allegations of paragraph 16, and they
are denied.
17. Denied. After a reasonable investigation, SCF is
without knowledge and information sufficient to form a belief as
to the truth of allegations in paragraph 17 concerning the alleged
injuries suffered by minor plaintiff, Jared Schoenbrun, and they
are denied. The remaining allegations of paragraph 17 constitute
conclusions of law to which no response is required.
COUN'l' X
18. SCF incorporated herein its responses to paragraphs
1 through 17 as if set forth in full.
19. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of plaintiff Taylor
Eisenhauer's alleged injuries. The remaining allegations in
paragraph 19 constitute conclusions of law to which no response is
required.
20. Denied. SCF denies that Schwinn Bicycle Company is
a predecessor corporation of SCF. SCF has never been affiliated
or associated with Schwinn Bicycle Company in any manner. The
remaining allegations in paragraph 20 constitute conclusions of
law to which no response is required.
5
21. Denied, The allegations in paragraph 21 constitute
conclusions of law to which no response is required, and they are
denied.
22. Denied, The Schwinn Bicycle Company Model XR-6 had
a chain guard on the left side.
23. Denied. The Schwinn Bicycle Company Model XR-6 had
a chain guard on the left side.
24. Denied. The Schwinn Bicycle Company Model XR-6 had
a chain guard on the left side.
25. Denied. On information and belief, the Schwinn
Bicycle Company Model XR-6 had a mechanism that would permit the
pedals and chain of the exercise bicycle to become or remain
stationary while the wheel of the exercise bicycle was in motion.
26. Denied. The allegations in paragraph 26 constitute
conclusions of law to which no response is required, and they are
denied. By way of further response, SCF denies that the exercise
bicycle was used for its intended purpose.
27. Denied. The allegations in paragraph 27 constitute
conclusions of law to which no response is required, and they are
denied. By way of further response, the exercise bicycle was
intended to be used by adults, not children, and the bicycle's
brochure contained warnings as to dangers to children.
28. Denied. The allegations in paragraph 28 constitute
conclusions of law to which no response is required, and they are
denied.
29. Denied. The allegations in paragraph 29 constitute
conclusions of law to which no response is required, and they are
6
denied. By way of further reDponse, the exercise bicycle was
intended to be used by adults, not children, and the bicycle's
brochure contained warnings as to dangers to children.
30. Denied, The allegations in paragraph 30 constitute
conclusions of law to which no response is required, and they are
denied, By way of further response, the exercise bicycle was
intended to be used by adults, not children, and the bicycle's
brochure contained warnings as to dangers to children.
31. Denied. The allegations in paragraph 31 constitute
conclusions of law to which no response is required. By way of
further response, SCF has never been involved in the
manufacturing, designing, testing, formulating, selling,
maintaining, leasing, servicing, repairing and/or distributing of
the exercise bicycle, or any similar product, that forms the basis
of the complaint.
32. Denied. The allegations in paragraph 32 constitute
conclusions of law to which no response is required. By way of
further response, Schwinn Bicycle Company is not a predecessor
corporation of SCF. SCF has never been affiliated or associated
with Schwinn Bicycle Company in any manner.
33. Denied. The exercise bicycle was intended to be
used by adults, not children, and the biCYCle'S brochure contained
warnings 'as to dangers to children.
34. Denied. The exercise bicycle was intended to be
used by adults, not children and, upon information and belief, the
bicycle's brochure contained warnings as to dangers to children.
7
35. Denied. SCF is without Knowledge and information
sufficient to form a belief as to the truth of plaintiff Taylor
Eisenhauer'S age at the time of the alleged occurrence, and it is
denied. The remaining allegations in paragraph 35 constitute
conclusions of law to which no response is required.
36. Denied. SCF is without knOWledge and information
sufficient to form a belief as to the truth of the alleged
injuries suffered and medical and rehabilitative expenses incurred
~, plaintiff Taylor Eisenhauer, and they are denied. The
remaining allegations in paragraph 36 constitute conclusions of
law to which no response is required.
37. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of the alleged
physical and mental pain suffered by plaintiff Taylor Eisenhauer,
inconvenience in carrying out his daily activities, and loss of
life's pleasures and enjoyment, and they are denied. The
remaining allegations in paragraph 37 constitute conclusions of
law to which no response is required.
38. Denied. SCF is without knOWledge and information
sufficient to form a belief as to the truth of the alleged
injuries, humiliation and ridicule suffered by plaintiff Taylor
Eisenhauer, and they are denied. The remaining allegations in
paragraph 38 constitute conclusions of law to which no response is
required.
39. Denied. SCF is without knOWledge and information
sufficient to form a belief as to the truth of the alleged
injuries and loss of earning power and capacity suffered by
8
plaintiff Taylor Eisenhauer, and they are denied. The remaining
allegations in paragraph 39 constitute conclusions of law to which
no response is required.
WHEREFORE, Schwinn Cycling & Fitness Inc. demands that
the court dismiss the complaint and enter jUdgment in its favor
and against the plaintiffs George, Debra and Taylor Eisenhauer
(the "Eisenhauers"), together with an award of costs and such
other and further relief that the court deems just.
COUN'l' IX
40. - 60. SCF makes no answer to Count II as the
allegations in these paragraphs are not directed to SCF.
COUN'l' :r n:
61. SCF incorporat~s herein its responses to paragraphs
1 through 60 as if set forth in full.
62. Denied. It is denied that Schwinn BicYCle Company
is a predecessor corporation of SCF. SCF has never been
affiliated or associated with Schwinn BicYCle Company in any
manner. SCF further denies that it, nor any of its predecessors,
ever supplied the Schwinn Bicycle Company Model XR-6 exercise
bicycle. The remaining allegations in paragraph 62 constitute
conclusions of law to which no response is required.
63. Denied. The allegations in paragraph 63 constitute
conclusions of law to which no response is required, and they are
denied. By way of further response, SCF denies that it, nor any
of its predecessors, ever designed, fabricated, manufactured
and/or assembled the Schwinn BicYCle Company Model XR-6 exercise
bicycle.
9
64. Denied. The allegations in paragraph 64 constitute
conclusions of law to which no response is required, and they are
denied. By way of further response, the exercise bicycle was
intended to be used by adults, not children, and the bicycle's
brochure contained warnings as to dangers to children.
65. Denied. The allegations in paragraph 65 constitute
conclusions of law to which no response is required, and they are
denied. By way of further response, the exercise bicycle was
intended to be used by adults, not children, and the bicycle's
brochure contained warnings as to dangers to children.
66. Denied. SCF is without knowledge and information
sufficient to form a belief as to the alleged injuries suffered by
plaintiff Taylor Eisenhauer, and they are denied. The remaining
allegations in paragraph 66 constitute conclusions of law to which
no response is required.
67. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of the alleged
injuries suffered and medical and rehabilitative expenses incurred
by plaintiff Taylor Eisenhauer, and they are denied. The
remaining allegations in paragraph 67 constitute conclusions of
law to which no response is required.
68. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of the alleged
physical and mental pain suffered by plaintiff Taylor Eisenhauer,
inconvenience in carrying out his daily activities, and loss of
life's pleasures and enjoyment, and they are denied. The
10
remaining allegations in paragraph 68 constitute conclusions of
law to which no response is required.
69. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of the alleged
injuries, humiliation and ridicule suffered by plaintiff Taylor
Eisenhauer, and they are denied. The remaining allegations in
paragraph 69 constitute conclusions of law to which no response is
required.
70. Denied. SCF is without knOWledge and information
sufficient to form a belief as to the truth of the alleged
injuries and loss of earning power and capacity suffered by
plaintiff Taylor Eisenhauer, and they are denied. The remaining
allegations in paragraph 70 constitute conclusions of law to which
no response is required.
WHEREFORE, Schwinn CyCling & Fitness Inc. demands that
the court dismiss the complaint and enter judgment in its favor
and against the Eisenhauers, together with an award of costs and
such other and further relief that the court deems just.
CLAIM IV
71. - 80. SCF makes no answer to Count IV as the
allegations in these paragraphs are not directed to SCF.
CLAIM V
81. SCF incorporates herein its responses to paragraphs
1 through 80 as if set forth in full.
82. Denied. It is denied that Schwinn Bicycle Company
is a predecessor corporation of SCF. SCF has never been
affiliated or associated with Schwinn Bicycle Company in any
11
manner. SCF further denies that it, nor any of its predecessors,
ever sold, supplied and/or delivered the Schwinn Bicycle Company
Model XR-6 exercise bicycle, The remaining allegations in
paragraph 82 constitute conclusions of law to which no response is
required, and they are denied.
83. Denied. It is denied that Schwinn Bicycle Company
t
I
[
i
f
,
I
is a predecessor corporation of SCF. SCF has never been
affiliated or associated with Schwinn Bicycle Company in any
manner. SCF further denies that it, nor any of its predecessors,
ever delivered and/or supplied the Schwinn Bicycle Company Model
XR-6 exercise bicycle. The remaining allegations in paragraph 83
constitute conclusions of law to which no response is required.
84. Denied. SCF is without knowledge and information
sufficient to form a belief as to the truth of the alleged
injuries suffered by plaintiff Taylor Eisenhauer, and they are
denied. The remaining allegations of paragraph 84 constitute
conclusions of law to which no response is required.
WHEREFORE, Schwinn Cycling & Fitness Inc. demands that
the court dismiss the complaint and enter jUdgment in its favor
and against the Eisenhauers, together with an award of costs and
such other and further relief that the court deems just.
CLAIM V (incorrectly numbered)
85 - 88. SCF makes no answer to Claim V (incorrectly
numbered) as the allegations in these paragraphs are not directed
to SCF.
WHEREFORE, Schwinn CyCling & Fitness Inc. demands that
the court dismiss the complaint and enter jUdgment in its favor
12
and against the Eisenhauers, together with an award of costs and
such other and further relief that the court deems just.
"IRST NEW HATTER
NO SUCCESSOR LIABILITY
89. SCF incorporates herein' its allegations in
paragraphs 1-88 as if set forth in full.
90. SCF is engaged in the business of selling bicycles,
fitness equipment and related products. SCF has never been
involved in the manufacturing, designing, testing, formulating,
selling, maintaining, leasing and/or distributing of the Schwinn
Bicycle Company Model XR-6 exercise bicycle, or any similar
product, that forms the basis of the complaint. Upon information
and belief, the Schwinn Bicycle Company Model XR-6 exercise
bicycle was produced qy Schwinn Bicycle Company, a company that
with eight of its affiliates filed vOluntary petitions for relief
under Chapter 11 of Title 11 of the United States Code
("Bankruptcy Code") in 1992. A predecessor of SCF purchased
certain of the assets of Schwinn Bicycle Company, but under the
Asset Purchase Agreement, which was confirmed by the Bankruptcy
Court, Schwinn Bicycle Company retained all tort injury
liabilities (irrespective of date of occurrence) and expressly
assumed all such liabilities. SCF and its predecessor, Bicycle
and Fitness Limited Partnership, were completely different
entities from Schwinn Bicycle Company and had no relationship to
Schwinn BicYCle Company.
13
91. The transaction pursuant to which certain assets of
Schwinn Bicycle Company were purchased specifically addressed the
assumption of certain liabilities by the buyer, Bicycle and
Fitness Limited Partnership, and the retention of certain
liabilities by Schwinn Bicycle Company. The Assumption Agreement,
which was approved by the Bankruptcy Court, provides:
. . . Buyer [Bicycle and Fitness Limited
Partnership] will not assume, undertake, accept or
be bound by or responsible for, and Seller [Schwinn
Bicycle Company] will be and remain liable for,
.the following:
All liabilities and obligations of Seller
[Schwinn Bicycle Company] for death, personal
injury, property damage or other damages based on
any tort action;
r
I
All liabilities and obligations of Seller
[Schwinn Bicycle Company] to the extent resulting
form [sic], caused by or arising out of, directly
or indirectly, the conduct of the Business or
ownership or lease of any of the Purchased Assets
prior to the Closing or the Excluded Assets
(including any properties or assets previously used
in the Business) at any time including without
limitation product liability claims, warranty
claims, claims for returns or allowances . . .
* * *
92. The Bankruptcy Court, in its Order Approving the
Purchase, approved the provisions of the Asset Purchase Agreement
which provided that Bicycle and Fitness Limited partnership would
not assume any tort or product liability obligations of Schwinn
Bicycle Company arising prior to the acquisition, January 20,
1993. The Bankruptcy Court further made the following findings of
fact and conclusions of law as set forth in paragraph Q of its
Order Approving the Purchase:
The Buyer [Bicycle and Fitness Limited
Partnership] is only buying the Purchased Assets
14
and is not a successor in interest to the Debtors
(Schwinn Bicycle Comoany], nor does the Buyer's
[Schwinn BiCYCle and Fitness Limited Partnership's]
acquisition of the Purchased Assets reflect a
continuity of the operations of the businesses of
the Debtors [Schwinn Bicycle Company] .
(Emphasis added.)
93. The Eisenhauers' claims against SCF based on the
theory of SUccessor liability are barred, in whole or in part,
because (i) the Order Approving the Purchase approved the non-
assumption of tort and product liability obligations by Bicycle
and Fitness Limited Partnership and (ii) the Bankruptcy Court
found and concluded as a matter of law that Bicycle and Fitness
Limited Partnership is not a successor in interest to Schwinn
Bicycle Company nor did the acquisition reflect a continuity of
operations of Schwinn BiCYCle Company.
94. The Eisenhauers' claims are barred, in whole or in
part, because SCF is not successor in interest to Schwinn Bicycle
Company under federal or state statutory or common law. SCF
expressly did not assume any tort or product liability obligations
of Schwinn BiCYCle Company and Schwinn Bicycle Company expressly
agreed to retain such liabilities. SCF' predecessor's, Bicycle
and Fitness Limited Partnership, acquisition of certai.n of Schwinn
Bicycle Company's assets did not establish a de facto merger or
consolidation. SCF is not a continuation of Schwinn Bicycle
Company. SCF does not own or operate any manufacturing facility
formerly operated by Schwinn BiCYCle Company nor has SCF continued
the exercise bicycle product line of Schwinn Bicycle Company,
15
thereby precluding the imposition of product line liability on
SCF.
SECOND NEW MATTER
CONTR7BUTORY NEGLIGENCE
95. The Eisenhauers' claims are barred, in whole or in
part, by the contributory negligence of George and Debra
Eisenhauer because, among other reasons, George and Debra.
Eisenhauer failed to properly supervise minor plaintiff Taylor
Eisenhauer when Taylor Eisenhauer was allegedly injured.
96. The Eisenhauers' claims are barred, in whole or in
part, by the contributory negligence of Taylor Eisenhauer.
97. The Eisenhauers' claims are barred, in whole or in
part, by the contributory negligence of co-defendant Nauti-Lis,
Inc. t/d/b/a Bushey's Cycling and Fitness Headquarters and t/d/b/a
Bushey's Schwinn Cyclery (collectively "Nauti-Lis") .
98. The Eisenhauers' claims are barred, in whole or in
part, by the contributory negligence of third-parties over whom
SCF had no control.
TH7RD NEW MATTER
COMPARATIVE NEGLIGENCE
99. The Eisenhauers' claims are reduced, in whole or in
part, by the doctrine of comparative negligence because, among
other reasons, plaintiffs George and Debra Eisenhauer failed to
properly supervise minor-plaintiff Taylor Eisenhauer at the home
of third-party defendants Edward and Frances Eisenhauer when
Taylor Eisenhauer was allegedly injured.
16
100. The Eisenhauers' claims are reduced, in whole or in
part, by the negligence of Taylor Eisenhauer.
101. The Eisenhauers' claims are reduced, in whole or in
part, by the negligence of co-defendant Nauti-Lis.
102. The Eisenhauers' claims are reduced, in whole or in
part, by the negligence of third-parties over whom SCF had no
control.
FOURTH NEW MATTER
EXERCISE BICYCLE NOT USED FOR IN'l'ENDED PURPOSE
103. The Eisenhauers' claims are barred, in whole or in
part, because the incident and damages, if any, were caused by the
unintended, unauthorized and improper use of the exercise bicycle
by minor plaintiff, Taylor Eisenhauer. The exercise bicycle was
intended to be used by adults, not children and the bicycle's
brochure contained warnings as to dangers to children. Plaintiffs
George and Debra Eisenhauer, knew or had reason to know of the
intended use and warnings with respect to it unauthorized use.
Use of the product by Taylor Eisenhauer was the direct and
proximate cause of Taylor Eisenhauer's injuries.
FIFTH NEW MATTER
ASSUMPTION OF RISK
104. The Eisenhauers' claims are barred, in whole or in
part, by assumption of risk.
17
SIXTH NEW MATTER
.'
r
!
I
f-
r
1"
ABUSE. MISUSE AND ALTERATION OF PRODUCT
105. The Eisenhauers' claims are barred, in whole or in
part, because the exercise bicycle was abused. altered, changed or
tampered with subsequent to the manufacture, distribution and/or
sale of the exercise bicycle.
SEVENTH NEW MATTER
FAILURE '1'0 FOLLOW INSTRUCTIONS
106. The exercise bicycle contained printed instructions
concerning its care. Plaintiffs George and Debra Eisenhauer
failed to follow the instructions for the care of the exercise
bicycle. Taylor Eisenhauer's alleged injuries would not have
occurred if the George, Debra, Edward and Grace Eisenhauer
followed such instructions concerning the care of the product.
EIGHTH NEW MATTER
CLAIMS BARRED BY OWN ACTIONS
107. The Eisenhauers' claims are barred, in whole or in
part. by virtue of their own actions.
108. No action by SCF proximately caused the alleged
injuries.
NINTH NEW MATTER
NO WRONGFUL OR INTENTIONAL CONDUCT BY SCF
109. If the Eisenhauers suffered any damage or loss,
such damage or loss was not caused by any wrongful or intentional
conduct on the part of SCF.
18
TBH'l'H NEW MATTBR
BARRED BY EOUITABLE DOCTRINES
110. The Eisenhauers' claims are barred. in whole or in
part. by the doctrines of waiver, laches. estoppel, and unclean
hands.
ELEVEH'l'H NEW MATTER
COLLATERAL SOURCE
111. The Eisenhauers' claims are limited with respect to
collateral sources.
'l'WBLFTH NEW MATTER
NO STRICT LIABI:LITY
112. SCF denies that it is strictly liable in tort.
THI:RTEBH'l'H NEW MATTBR
CLAI:MS CAUSED BY OTHBRS
113. Any injuries or damages suffered by plaintiff
Taylor Eisenhauer were caused by third person over which SCF had
no control.
FOURTEBH'l'H NEW MATTBR
STATUTB OF LIMITATI:ONS
114. The Eisenhauers' action is barred by the applicable
statute of limitations.
WHEREFORE, Schwinn cycling & Fitness Inc. demands that
the court dismiss the complaint and enter judgment in its favor
19
and against the Eisenhauers. together with an award of costs and
such other and further relief that the court deems just.
NEW MATTBR IN '1'HB NA'J.'tJlU!: 01' A CROSS CLAIM
AGAINST NAO'1'I -LIS, INC. '1' ID/DI A Dt7SHBY' S CYCLING AND
I'I'l.'NESS HEADQt7AR'1'ERS AND '1'/D/D/A Bt7SHBY'S SCHWINN CYCLERY,
INC. ("NAt7'1'I-LIS') Pt7RSt7AN'l.' '1'0
PI... R. CIV. P. 22521dl
115. SCF incorporates herein its allegations in
paragraphs 1 through 113 as if set forth in full.
116. The Eisenhauers have sued defendant Nauti-Lis, Inc.
t/d/b/a Bushey's Cycling and Fitness Headquarters and t/d/b/a
Bushey's Schwinn Cyclery (collectively "Nauti-Lis') alleging
liability to the Eisenhauers.
117. Defendant Nauti-Lis is solely liable to the
Eisenhauers.
118. Defendant Nauti-Lis is liable over to the
Eisenhauers for contribution and/or indemnity if SCF is found
liable to the Eisenhauers.
119. Defendant Nauti-Lis is jointly and severally liable
with SCF to the Eisenhauers.
WHEREFORE, Defendant Schwinn Cycling & Fitness Inc.
demands jUdgment in its favor and against Nauti-Lis. Inc. t/d/b/a
Bushey's Cycling and Fitness Headquarters and t/d/b/a Bushey's
Schwinn Cyclery for all sums for which SCF might be found liable
to the Eisenhauers. together with an award of costs and such other
and further relief that the court deems just.
20
COONTERCLAIM
AGAINST GEORGE AND DEBRA EISENHAUER
120. SCF incorporates herein its allegations in
paragraphs 1 through 118 as if set forth in full.
121. Plaintiffs George and Debra Eisenhauer knew or
should have known that on or about December 27, 1995, Taylor
Eisenhauer was playing in his grandparents' home where they kept
an exercise bicycle.
122. Plaintiffs George and Debra Eisenhauer knew or
should have known that the exercise bicycle was located in Taylor
Eisenhauer's grandparents' home.
123. Plaintiffs George and Debra Eisenhauer knew or
should have known that the exercise bicycle was intended to be
used for riding by adults and that children should not be
permitted to ride, or play near, at or with the exercise biCYCle
without adult supervision.
124. Upon information and belief, neither plaintiffs
George nor Debra Eisenhauer was present when Taylor Eisenhauer was
allegedly injured.
125. Plaintiffs George and Debra Eisenhauer's conduct,
described above, constitutes negligence.
126. Plaintiffs George and Debra Eisenhauer's conduct is
the proximate cause of Taylor Eisenhauer's alleged injuries.
21
VERIFICATION
I, JAMES p, GOLDEN, attorney for defendant Schwinn
cycling & Fitness Inc., verify that I am authorized to make this
verification on behalf of Schwinn Cycling & Fitness Inc. I am
making this verification pursuant to Pa. R. Civ. P. l024(c)
because Kevin Lamar, Senior Vice-President, Fitness Group, Schwinn
Cycling & Fitness Inc., and any other employee of Schwinn Cycling
& Fitness Inc. who has knowledge or information, are outside the
court's jurisdiction and a verification cannot be obtained in time
f.or the filing of the answer, new matter, new matter in the nature
of a crossclaim and counterclaim.
I verify that the facts set forth in the foregoing
answer, new matter, new matter in the nature of a crossclaim and
counterclaim are true and correct to the best of my knowledge or
information and belief. The sources of my knowledge or
information are discussions I have had with Mr. Lamar and my
review of various documents maintained by Schwinn Cycling &
Fitness Inc.
This verification is made subject to the penalties of
18 Pa. C. S. ~ 4904.
\ cD-
.
'\P11.1Na.\1A1tt..1'iJ01rrfL(lO(\IU,ANlI
a..I O4IJ"""U UA"
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!OW...
TAYLOR EISENHAUER, a Minor, by
GEORGE W. EISENHAUER and
DEBRA A. EISENHAUER, his Parents
and Natural Guardians,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
NO. 99-1930
SCHWINN CYCLING AND FITNESS,
INC., and NAUTI-LIS, INC. TfDlBlA
BUSHEY'S CYCLING AND FITNESS
HEADQUARTERS and TfDlBlA
BUSHEY'S SCHWINN CYCLERY, INC., :
Defendants
JURY TRIAL DEMANDED
DEFENDANT N AUTM .IS, INC.'S ANSWRR WITH NEW MA TIER AND
CROSS CI .AIM TO PI.AINTIFFS' COMPI,AINT
TO: TAYLOR EISENHAUER, a Minor, by GEORGE W. EISENHAUER and DEBRA A.
EISENHAUER, Plaintiffs, by their allomey, DAVID S. WISNESKI, ESQUIRE
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED NEW MATTER AND CROSS CLAIM WITHIN TWENTY (20) DAYS FROM
SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU.
TO: SCHWINN CYCLING & FITNESS, INC., Defendant, and its allomey, ALP A PATEL, ESQ,
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED CROSS CLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A
JUDGMENT MAY BE ENTERED AGAINST YOU.
AND NOW, comes Defendant Nauti-Lis, Inc. by and through its attorneys, MARTSON
DEARDORFF WILLIAMS & OTTO, and avers as follows in Answer to Plaintiffs' Complaint:
1. Denied. After reasonable investigation, answering Defendant is without knowledge
~ or information sufficient to form a belief as to Plaintiffs residence or date of birth.
~ 2. Denied. After reasonable investigation, answering Defendant is without knowledge
~ or information sufficient to form a belief as to the state of incorporation or license of Defendant
g Schwinn Cycling & Fitness, Inc.
~ 3. Admitted.
4-5. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to the relationship of Defendant Schwinn Cycling &
Fitness, Inc. with Schwinn Bicycle Company. It is further denied as a legal conclusion that requires
no answer.
6-7. Denied. Defendant.Nauti-Lis, Inc. does not do busitiess as Bushey's Schwinn
Cyclery.
8-9. Denied as a legal conclusion. It is further denied that Defendant Nauti-Lis, Inc. is a
legal successor to Bushey's Schwinn Cyclery, Inc.
10-13. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to when or where any events took place.
14-15. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to the manufacturer of the exercise bicycle referred to
in Plaintiffs' Complaint.
16. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to the condition or changes of the exercise bicycle
referred to in Plaintiffs' Complaint.
17. Denied as a conclusion oflaw. It is further denied that answering Defendant sold any
product that was defective or unreasonably dangerous.
COUNT I - NEGLIGENCE
T'lY1or Hi.enhauer, a Minol:, by George W Hi.enhaner and Dehra A Hi.enhaner,
hi. Parent. and Natural Guardian. v Schwinn Cycling and Fit"".._ Tnc.
18-39. These allegations are not directed to the answering Defendant.
COUNT II- NEGLIGENCE
Taylor Hi.cohane!:, a Minor, hy Georgc W F.i.enhauer and Debra A Ri.enhauer:,
hi. Parent. and Natural Gnardian. v Nauti-I.is.lnc. tldlb/a Bu.ht:Y's Cycling and
Fitnc.. HeadquartcrR and tldlh/a Bu.ht:Y'. Schwinn C:yclery
40. Paragraphs 1-1'/ hereof are incorporated herein by reference thereto.
41. Denied as a conclusion oflaw. It is further denied that after reasonable investigation,
answering Defendant is without knowledge or information sufficient to form a belief as to whether
the exercise bicyclc referred to in the Plaintiffs' Complaint was sold and/or distributed by Bushey's
Schwinn Cyclery, Inc.
42. Denied as a conclusion oflaw.
43. Denied as a conclusion oflaw. It is further denied that after reasonable investigation,
answering Defendant is without knowledge or information sufficient to form a belief as to whether
the exercise bicycle referred to in the Plaintiffs' Complaint was sold and/or distributed by Bushey's
Schwinn Cyclery, Inc. It is further denied that any exercise bicycle was sold by Bushey's Schwinn
Cyclery, Inc. that was defective or unreasonably dangerous.
44-46. Denied that any bicycle sold by Bushey's Schwinn Cyclery, Inc. did not contain a
chain guard on the appropriate side of the bicycle.
47. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to the type of pedal and chain mechanism on the exercise
bicycle referred to in Plaintiffs' Complaint.
48. Denied. On information received, Bushey's Schwinn Cyclery, Inc. did not sell any
bicycle that was not safe for its intended purpose.
49. Denied. On information received, Bushey's Schwinn Cyclery, Inc. sold only safe
bicycles.
SO. Denied. On information received, Bushey's Schwinn Cyclery, Inc. did not sell any
bicycle with a dangerous condition, inadequate warnings or anyone of the allegations described in
Paragraphs 42 through 47 of Plaintiffs' Complaint.
3
51. Denied. On information received, there WM no reMon to recall any bicycle sold by
Bushey's Schwinn Cyclery, Inc.
52. Denied. On information received, Bushey's Schwinn Cyclery, Inc. provided adequate
warnings and instructions for all bicycles sold.
53. Denied. After reasonablc investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to the injuries, ifany, suffered by the Plaintiff.
54. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to warnings or limitations involved with the exereise
bicycle referred to in Plaintiffs' Complaint.
55. Denied. If Plaintiff was a four year old boy, it is doubtful he would need to use an
exercise bicycle.
56. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to the age of Plaintiff.
57. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to the medical expenses, if any, incurred by Plaintiff.
58. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to the pain and suffering, or the like, if any, suffered by
Plaintiff.
59. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form abelief as to the humiliation or ridicule, or the like, if any. suffered
by the Plaintiff.
60. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to the loss of earning capacity or power, if any, suffered
by Plaintiff.
WHEREFORE, Defendant Nauti-Lis, Inc. demands judgment against Plaintiff, plus costs.
4
COUNT III- STRICT LIABILITY
Taylor Ri.enhauer, a Minor, hy George W Ri.enhaller and DebraA. Ri.enhanel:,
hi. Parent. and Natural Guardians v Schwinn Cycling and Filnc.. Inc.
61-70. Thesc allegations arc not directed to thc answering Defendant.
COUNT IV - STRICT LIABILITY
Taylor Eisenhauer:, a Minor< hy George W Ri.enhaller and Dehra A Ei.enhauer:,
hi. Parent. and Natural Gllardian. v Nanti.I.i., Inc t/rllh/a Bushey'. C'.,ycling and
Fitne.. HeadquarterR and tldlh/a BII.hcy"s Schwinn C:ycletY
71. Paragraphs I through 17 and Counts I and II of this Answer are incorporated herein
by reference thereto.
72. Denied as a conclusion of law. On information received, it is further specifically
denied that any exercise bicycle for which answering Defendant is responsible was defective or
unreasonably dangerous.
73. Denied. On information received, it is denied that any bicycle sold or distributed by
answering Defendant was defective in its design or manufacture.
74. Denied. On information received, it is denied that any bicycle sold or distributed by
answering Defendant was defective as to its warnings.
75. Denied. All bicycles sold by answering Defendant contained appropriate warnings.
76, Denied. . After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to the injury, if any, suffered by Plaintiff.
77. Denied. After reasonable investigation, answering Defendant is without knowledge
or information suflicientto form a belief as to medical and rehabilitative expenses, if any, incurred
by Plaintiff.
78. Denied. After reasonable i!lvestigation, answering Defendant is without knowledge
or information sufficient to form a belief as to pain and suffering, and the like, if any, suffered by
Plaintiff.
5
79. Denied. After reasonable investigation, answering Defendant is without knowledge
or information lufficicnt to form a bclief as to thc humiliation and ridicule, if any, suffered by
Plaintiff.
80. Denied. After reasonable investigation, answering Defendant is without knowledge
or information sufficient to form a belief as to the loss of earnings or earning capacity, if any,
suffered by Plaintiff.
WHEREFORE, Defendant Nauti-Lis, Inc. demands judgement against Plaintiffs.
COUNT V - BREACH OF WARRANTY
T'lY1or Ri.enhaller, a Minor, hy George W Hi.enhaller and Debra A Ri.enhallel:,
hi. Parent. and Nalllral Gllardia"" V Schwinn Cycling and Pitne.., Tnc
81-84. These allegations are not directed to the answering Defendant.
COUNT V (SIC) BREACH OF WARRANTY
T~lnr Ri';P.nh~ueJ:, a Minor by GeOl:ge W Risenhaller and neh", A Ri~p.nhal1err
hi. Parent. and Natural Gllardian. v Nauti-J.i., Jnc tldlb/a RII.ht:Y'. C'.yc1ing and
Fitne.. HeadqllarterR and tldlh/a BII.hey's Schwinn C:yclery
85. Paragraphs 1 through 17 and Count II hereof are incorporated herein by reference
thereto.
86. Denied as a conclusion of law. It is further denied that any exercise bicycle sold by
answering Defendant, or for which answering Defendant is responsible, was not fit and safe for its
ordinary purposes.
87. Denied as a conclusion oflaw. It is further denied that answering Defendant sold or
distributed any bicycle that was not merchantable or fit for the purpose intended.
88. Denied as a conclusion of law.
WHEREFORE, Defendant Nauti-Lis, Inc. demands judgment against Plaintiffs.
6
NEW MATTER
89. Plaintiffs' action is barred by tho applicable statutes oflimitations.
90. To the extent the Plaintiffs claim sound in warranty, they are barred for failure to
give prompt and timely notice.
91. The product in question may have been misused, abused, mishandled, inadequately
maintained and/or substantially modified.
92. If the Plaintiff suffered the injuries alleged herein, which is denied, then recovery
herein is barred by his assumption of the risk of such injuries.
93. If the Plaintiff suffered the injuries allegedly herein, which is denied, those injuries
were the result of actions or inacliom by other parties who answering Defendant has no control and
whose conduct it is not responsible.
94. Answering Defendant was not in existence when the product in question was sold.
95. Answering Defendants gave no warranties, either expressed or implied to Plaintiffs.
96. The exercise bicycle referred to in Plaintiffs' Complaint was being put through
unreasonable use at the time of the alleged injury that is the subject of this suit.
97. At the time ofthe injuries referred to in Plaintiffs' Complaint, the exercise bicycle
in question was not in the same or a substantially similar condition as it was when it left the
possession or control ofthe vendor, whoever that was.
WHEREFORE, answering Defendant demands judgment against Plaintiffs.
CROSS CLAIM PURSUANT TO PA. R.C.P. 2252(d)
Nauti-Li., Ync Defendant v Schwinn Cycling & Fitne.s, Ync , Defendant
98. Plaintiffs'. Complaint is incorporated herein by reference thereto solely for the
purposes ofthis cross claim without admitting any of the allegations contained therein, except to the
extent set forth in the answer herein being filed by Defendant Nauti-Lis, Inc.
99. Ifit is judicially determined that Plaintiffs' averments in their Complaint are true and
correct and Plaintiffs are entitled to recover damages, then it is averred by Defendant Nauti-Lis, Inc.
that Defendant Schwinn Cycling & Fitness, Inc. is solely responsible jo Plaintiff, and, therefore, is
7
alone liable or liable over to Defendant Nauti-Lis, Inc. for the cause of action and any damages that
Plaintiffs declared in this suit on the basis of averments found in Plaintiffs' Complainl and
incorporated herein by reference thereto.
100. Defendant Nauti-Lis, Inc.joins Defendant Sehwinn Cycling & Fitness,lnc. to protect
its right of contribution and indemnification (including their right to costs, expenses, fees and
attorney's fees) in the event it is judicially determined that said Defendant Schwinn Cycling &
Fitness, Inc. is jointly or severally liable to the Plaintiffs, ihe existence of any liability on the part
of Defendant Nauti-Lis, Inc. being expressly denied.
WHEREFORE, Defendant Nauti-Lis, Inc. demands judgment against Defendant Schwinn
Cycling & Fitness, Inc. for indemnification of all sums that may be adjudged against Defendant
Nauti-Lis, Inc. in favor of Plaintiffs, as well as all costs, fees, expenses, and attorney's fees resulting
from said action, or, in the alternative, Defendant Nauti-Lis, Inc. demands judgment against
Defendant Schwinn Cycling & Fitness, Inc. for the appropriate part of the arnoant of damages and
costs awarded to said Plaintiffs.
CROSS CLAIM PURSUANT TO PA. R.C,P. 2252(d)
Nallti..T .W!;! Tnc r nefenrlant v George W Risenh~lIer ann nehra A Risenhauerr
Additional Defendant.
101. In the event it is judicially determined that the exercise bicycle referred to in
Plaintiffs' Complaint was defective and/or unreasonably dangerous, then Plaintiffs George W.
Eisenhauer and Debra A. Eisenhauer, were negligent in their supervision of Plaintiff, Taylor
Eisenhauer, were solely and are jointly responsible for any injuries suffered.
102. If it is judicially determined that Plaintiffs' averments that the exercise bicycle was
defective and/or unreasonably dangerous as true and correct, and Plaintiff is entitled to recover
damages, then it is averred by Defendant Nauti-Lis, Inc. that Additional Defendants are solely
responsible to Plaintiff, and, therefore, are alone liable or liable over to Defendant Nauti-Lis, Inc.
for the cause of action and any damages that Plaintiff declared in this suit on the basis of averments
found in Plaintiffs' Complaint and incorporated herein by reference thereto.
8
VERII"Ir.ATION
Robcrt J. Lis, who is President ofNauti-Lis, Inc. and acknowledgco that he hao the authority
to execute this Verification in behalf ofNauti-Lis, Inc. certifies that the foregoing Answer With New
Maller and Cross Claim is based upon information which has been gathered by my counsel in the
preparation of the lawsuit. The language of this Answer With New Maller and Crou Claim is that
of counsel and not my own. I have read the document and to the extent that the Answer With New
Maller and Cross Claim is based upon information which I havc 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
Answer With New Maller and Cross Claim 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 unsworn falsification to authorities, which provides that if I make knowingly false
averments, I may be subject to criminal penalties.
Nauti-Lis,lnc.
ROb~
11
CERTIFICATF. OF SERVICE
I, Tricia D. Eckenroad, an authorized agent for Martson, Deardorff, Williams & Olio, hereby
certify that a copy of the foregoing Answer with New MaUer and Cross Claim was served this date
by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as
follows:
David S. Wisneski, Esquire
ANGINO & ROVNER, P,C.
4503 North Front Street
Harrisburg, P A 1711 0-1708
Alpa Patel, Esquire
HAMBURG & GOLDEN, P.C.
1601 Market Street, Suite 565
Philadelphia, PA 19103
MARTSON, DEARDORFF, WILLIAMS & OTTO
~. Q~
.
By UVJ
ncia D. Ecke oad .
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: May 7,1999
10
.'\
WHEREFORE, Defendant Schwinn Cycling & Fitness Inc.
demands jUdgment in its favor and against Nauti-Lis, Inc. for all
sums for which SCF might be found liable to plaintiffs George.
Debra and Taylor Eisenhauer, together with an award of costs and
such other and further relief that the court deems just.
f
I
..,.
Date: 11<1Uf ,. ~ , tlle,,'7
J~
MICH M. ROVINSKY
ALPA PATEL
HAMBURG & GOLDEN. P. C .
Attorneys for Defendant
Schwinn Cycling & Fitness Inc.
2
. .
~
~
'"
;:;
.
f
i
~
~
92. Paragraph 92 of Defendant's New Matter states of
conclusion of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in paragraph 92 of Defendant's New Matter are denied in
accordance with Pa.R.C.P 1029(e).
93. Denied as stated. Plaintiff's injuries were solely a
direct and proximate result of the negligence of the Defendants
named in Plaintiff's complaint, all of whom are jointly and
severally liable to Plaintiff for such injuries, The remaining
averments in paragraph 93 of Defendant's New Matter are denied in
accordance with Pa.R.C,p. 1029(e),
94. Denied. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as to
the date on which the answering Defendant came into existence.
Regardless of whether answering Defendant was in existence when the
property in question was sold, it is nonetheless legally liable as
the successor corporation to the company that sold the exercise
bicycle.
95. Denied in accordance with Pa,R,C,P. 1029(e),
96. Paragraph 96 of Defendant's New Matter states of
conclusion of law to which no responsive pleading is required, To
the extent that a response is deemed necessary, the averments
contained in paragraph 96 of Defendant's New Matter are denied in
accordance with Pa,R,C.P 1029(e).
2
CERTIFICATE OF SERVICE
I certify that on June 10, 1999, I served the foregoing
praecipe by regular mail to the following:
David S. Wisneski
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
Taylor Eisenhauer, by
George W. Eisenhauer and
Debra A. Eisenhauer, his parents
Thomas J. Williams, Esquire
Martson, Deardorff, Williams, & Otto
10 East High Street
Carlisle, PA 17013
Attorney for Defendant Nauti-Lis, Inc.
AL~
,.,;
i
I
.
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'" '. " :'
, '
',' .... .
TAYLOR EISENHAUER, A Minor,
By GEORGE W. EISENHAUER and
DEBRA A. EISENHAUER, his
Parents and Natural
Guardian.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintift
NO. 99 136 Civil
'/'i 1'730
CIVIL ACTION - LAW
v.
SCHWINN CYCLING AND FITNESS,
INC., and NAUTI-LIS, INC.
T/D/B/A BUSHEY'S CYCLING AND
FITNESS HEADQUARTERS and
T/D/B/A BUSHEY'S SCHWINN
CYCLERY, INC.
Defendants
JURY TRIAL DEMANDED
PLAINTIPP'S REPLY TO NEW HATTER OF DEFENDANT
SCHWINN CYCLING AND PITNESS. INC.
AND NOW, comes the Plaintiff, Taylor Eisenhauer, a Minor, by
George W. Eisenhauer and Debra A. Eisenhauer, his Parents and
Natural Guardians, by and through his attorneys, Angino & Rovner,
.,..
P.C., and hereby enters the following reply to the New Matters of
Defendant Schwinn Cycling and Fitness, Inc.:
FIRST NEW HATTER
NO SUCCESSOR LIABILITY
89. No responsive pleading is required.
To the extent that
a response is deemed necessary, the allegations contained in
Paragraphs 1-88 of Defendant's Answer, to the extent that they do
not admit the corresponding allegations contained in Plaintiff's
Complaint, are denied pursuant to Pa.R.C.p, 1029(e),
90. It is admitted that seF is engaged in the business of
selling bicycles, fitness equipment, and related products and that
the model XR-6 exercise bicycle involved in the incident was
1
produced by Schwinn Bicycle Company. The remaining averments and
allegations contained in Paragraph 90 of Defendant's New Hatter are
conclusions of law to which no responsive pleading is required. To
the extent that a response is doomed necessary, all such
allegations and averments are denied pursuant to Pa.R.c.p. 1029(e).
By way of further response, SCF is the legal successor to Schwinn
Bicycle Company for the reasons set forth in Plaintiff's Complaint,
and it bears successor liability under Pennsylvania law for the
incident that is the SUbject of this litigation.
91. Denied as stated. It is admitted only that the
Assumption Agreement speaks for itself. Any inference or
suggestion that the Assumption Agreement serves to shield Schwinn
Cycling and Fitness, Inc,. from liability as a successor
corporation in the instant action is specifically denied. The
Bankruptcy Court and Appellate Court specifically held in the case
of Benonis vs. Schwinn that, in a case such as this one, the
Assumption Agreement does not serve to shield Schwinn Cycling and
Fitness, Inc., from successor liability under Pennsylvania law.
All remaining averments contained in Paragraph 91 of Defendant's
New Matter are denied pursuant to Pa.R.C,P. 1029(e).
92. Denied as stated. It is admitted only that the Order
Approving the Purchase speaks for itself, Any inference or
suggestion that the Order Approving the Purchase serves to shield
Schwinn Cycling and Fitness, Inc" from liability as a successor
corporation in the instant action is specifically denied, The
Bankruptcy Court and Appellate Court specifically held in the case
2
ot Benonis vs. Schwinn that, in a case such as this one, the Order
Approving the Purchase does not serve to shield schwinn cycling and
Fitness, Inc., trom successor liability under Pennsylvania law.
All remaining averments contained in Paragraph 92 of Defendant's
New Matter are denied pursuant to Pa.R.C.P. 1029(e).
93. Paragraph 93 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 93 of Defendant's New Matter are denied
pursuant to Pa.R.C.P. 1029(e), By way of further response, the
Bankruptcy Court and Appellate Court have specifically held in the
case of Benonis vs. Schwinn, that claims such as the Eisenhauer's
against SCF under the theory of successor liability are not barred,
in whole or in part, under pennsylvania law.
94. paragraph 94 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in paragraph 94 of Defendant's New Matter are denied
pursuant to Pa.R,C,P. 1029(e),
SECOND NEW MATTER
CONTRIBUTORY NEGLIGENCE
95. Paragraph 95 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 95 of Defendant's New Matter are denied
pursuant to Pa,R.C,P. 1029(e).
3
96. Paragraph 96 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 96 of Defendant's New Matter are denied
pursuant to Pa.R.C.p. 1029(e). By way of further response, the
minor Plaintiff, Taylor Eisenhauer, was 4 years old at the time of
the incident that is subject to this litigation, and therefore was
incapable of contributory negligence under Pennsylvania law.
97. Paragraph 97 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 97 of Defendant's New Matter are denied
pursuant to Pa.R.C.p. 1029(e),
98. Paragraph 98 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 98 of Defendant's New Matter are denied
pursuant to Pa,R.C,p. 1029(e).
THIRD NEW MATTER
COMPARATIVE NEGLIGENCE
99. Paragraph 99 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 99 of Defendant's New Matter are denied.
pursuant to Pa.R.C.p. 1029(e).
4
100. Paragraph 100 of Defendant's New Matter set. forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 100 of Defendant's New Matter are denied
pursuant to Pa.R.C.p. 1029(e). By way of further response, the
minor Plaintiff, Taylor Eisenhauer, was 4 years old at the time Of
the incident that is subject to this litigation, and therefore was
incapable of negligence, contributory negligence, or comparative
negligence under Pennsylvania law.
101. Paragraph 101 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 101 of Defendant's New Matter are denied
pursuant to Pa.R.C.p. 1029(e),
102. Paragraph 102 of Defendant's New ~Iatter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 102 of Defendant's New Matter are denied
pursuant to Pa,R.C.p. 1029(e).
FOURTH NEW MATTER
EXERCISE BICYCLE NOT USED FOR INTENDED PURPOSE
103. Paragraph 103 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 103 of Defendant's New Matter are denied
pursuant to Pa.R.C.P. 1029(e),
5
FIFTH NEW MATTER
ASSUMPTION OF RISK
104. Paragraph 104 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 104 of Defendant's New Matter are denied
pursuant to Pa.R.C.p. 1029(e).
SIXTH NEW MATTER
ABUSE. MISUSE AND ALTERATION OF PRODUCT
105. Denied pursuant to Pa.R.C.p. 1029(e).
SEVENTH NEW MATTER
FAILURE TO FOLLOW INSTRUCTIONS
106. Paragraph 106 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 106 of Defendant's New Matter are denied
pursuant to Pa.R,C.p. 1029(e)_
EIGHTH NEW MATTER
CLAIMS BARRED BY OWN ACTIONS
107. Paragraph 107 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 107 of Defendant's New Matter are denied
pursuant to Pa,R.C.P. 1029(e).
108. Paragraph 108 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
6
the extent that a response is deemed nec.esary, the averments
contained in Paragraph 108 of Defendant's New Matter are denied
pursuant to Pa.R.C.P. 1029(e).
NINTH NEW MATTER
NO WRONGFUL OR INTENTIONAL CONDUCT BY SCP
109. Paragraph 109 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 109 of Defendant's New Matter are denied
pursuant to Pa.R.C.p. 1029(e).
TENTH NEW MATTER
BARRED BY EOUITABLE DOCTRINES
110. Paragraph 110 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 110 of Defendant's New Matter are denied
pursuant to Pa.R.c.p. 1029(e),
ELEVENTH NEW MATTER
COLLATERAL SOURCE
111. Paragraph 111 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 111 of Defendant's New Matter are denied
pursuant to Pa.R,C.P. 1029(e).
7
TWELFTH Nn HATTER
NO STRICT LIABILITY
112. Paragraph 112 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required, To
the extent that a response is deemed necessary, the avernents
contained in Paragraph 112 of Defendant's New Matter are denied
pursuant to Pa,R.C.p, 1029(e),
THIRTEENTH NEW HATTER
CLAIMS CAUSED BY OTHERS
113. Denied as stated. Plaintiff's injuries and damages were
solely a direct and proximate result of the negligence of the
Defendants named in Plaintiff's Complaint, all of whom are jointly
and severally liable to Plaintiff for such injuries. It is denied
that any party other than named Defendants caused Plaintiff's
injuries and damages,
FOURTEENTH NEW HATTER
STATUTE OF LIMITATIONS
114. Paragraph 114 of Defendant's New Matter sets forth
conclusions of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in Paragraph 114 of Defendant's New Matter are denied
pursuant to Pa,R,C,p. 1029(e),
8
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CERTIrICATE or BERVICE
I, Lois E. stauffer, an employee of the law firm of Angina'
Rovner, P.C., hereby certify that a true and correct copy of the
foregoing PLAINTIrr'B REPLY TO NEW KATTER or DUENDAMT BCRWIn
CYCLING AHD rITNEBB, INC. was served upon the following persons by
first-class United states mail, postage prepaid on June 15, 1999,
as follows:
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James P. Golden, Esquire
Michele H. Rovinsky, Esquire
Alpa Patel, Esquire
HAMBURG & GOLDEN, P,C.
1601 Market street
Philadelphia, PA 19103-1443
Counsel for Defendant
Schwinn cycling & Fitness, Inc.
Thomas J. Williams, Esquire
HARTSON DEARDORFF WILLIAMS & OTTO
Ten East High street
carlisle, PA 17013
Counsel for Defendant
Nauti-Lis, Inc., T/D/B/A Bushey's
Cycling and Fitness Headquarters and
T/D/B/A Bushey's Schwinn Cyclery, Inc.
Charles B. Calkins, Esquire
GRIFFITH STRICKLER LERMAN SOLYMOS & CALKINS
110 South Northern Way
York, PA 17402
Counsel for Plaintiffs as to Cross Claims
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
TAYLOR EISENHAUER, a Minor, by
GEORGE W. EISENHAUER and
DEBRA A. EISENHAUER. his Parents
and Natural Guardians
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Plaintiff
Civil Action-Law
v.
No. 99-1930
SCHWINN CYCLING AND FITNESS,
INC., and NAUTI-LlS, INC., tld/b/a
BUSHEY'S CYCLING AND FITNESS
HEADQUARTERS and tldlb/a
BUSHEY'S SCHWINN CYCLERY, INC.
Defendants
CERTIFICATE OF SERVICE
AND NOW, this _ day of July, 1999, I, Charles B, Calkins, Esquire, a member of the firm
of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, Esquires, hereby certify that I
have, this date, served a copy Plaintiffs' Reply to the Crossclaim ofNauti-lis, Inc, by United Slates
Mail, addressed to the party or attorney of record as follows:
Thomas J, Williams, Esquire
Ten East High Street
Carlisle, PA 17013
(Attorney for NAUTI-LIS, INC.)
David S, Wisneski, Esquire
ANGINO & ROVNER, P.C.
4503 N, Front Street
Harrisburg, PA 17110-1708
James P. Golden, Esquire
HAMBURG & GOLDEN, P.C,
1601 Market Street, Ste, 565
Philadelphia, PA 19103
(Attorneys for Schwinn Cycling and Fitness,
Inc.)
3
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and Debra A. Eisenhaueracted carefully, cautiously ,lawfully, prudently, and with due care under the
circumstances,
123. Denied. It is specifically denied that Plaintiffs, George W. and Debra A. Eisenhauer
knew or should have known that the exercise bicycle was intended to be used for riding by adults and
that children should not be permitted to ride, or play near, at or with the exercise bicycle without
adult supervision. On the contrary, it is averred that at all times relevant hereto Answering Plaintiffs,
George W. and Debra A. Eisenhauer acted carefully, cautiously,lawfully, prudently, and with due
care under the circumstances.
124. Denied. To the contrary, it is averred that both George W. and Debra A. Eisenhauer
were present when Tyler was injured.
125. Denied. Itis specifically denied that Plaintiffs, George W. and Debra A. Eisenhauer's
conduct, described above, constitutes negligence. On the contrary, it is averred that at all times
relevant hereto Answering Plaintiffs, George W. and Debra A. Eisenhauer acted carefully, cautiously,
lawfully, prudently, and with due care under the circumstances.
126. Denied. It is specifically denied that Plaintiffs, George W. and Debra A. Eisenhauer's
conduct is the proximate cause of Taylor Eisenhauer's alleged injuries. On the contrary, it is averred
that at aU times relevant hereto Answering Plaintiffs, George W. and Debra A. Eisenhauer acted
carefully, cautiously, lawfuUy, prudently, and with due care under the circumstances.
WHEREFORE, Answering Plaintiffs, George W. and Debra A. Eisenhauerdemandjudgment
in their favor and against Schwinn Cycling and Fitness, Inc. with respect to their Counterclaim
together with interest and cost of suit.
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TAYLOR EISENHAUER, A MInor
By GEORGE W. EISENHAUER and
DEBRA A. EISENHAUER, hIs
Parents and Natural Guardians,
PLAINTIFFS
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
,
.
: NO. 99-1930 Civil
v,
SCHWINN CYCLING & FITNESS, INC. : JURY TRIAL DEMANDED
And NAUTI.L1S, Inc.,
T/D/B/A BUSHEY'S CYLCING AND
FITNESS HEADQUARTERS and
TIDIBIA BUSHEY'S SCHWINN
CYCLERY, INC.,
DEFENDANTS
v.
EDWARD EISENHAUER and
FRANCIS EISENHAUER,
ADDITIONAL DEFENDANTS:
ANSWER WITH NEW MATTER TO ADDITIONAL DEFENDANT COMPLAINT
OF SCHWINN CYCLING & FITNESS. INC.
AND NOW, comes the Additional Defendants, Edward Eisenhauer and
Francis Eisenhauer, by and through their attorneys, NEALON & GOVER, P.C., and files the
following Answer to Additional Party Complaint of Defendant Schwinn Cycling & Fitness,
Inc.:
1. - 4. Admitted.
5. Denied pursuant to Pa.R.Civ.P. 1029(e).
6. -10.
These paragraphs address pleadings that are set forth as part
of the Additional Defendant Complaint filed by Schwinn and those pleadings speak for
themselves.
COUNT I
11. Paragraph 1 through 8 of Defendant's Answer to the Additional
Defendant Complaint are incorporated herein by reference thereto.
12. It Is admitted that the exercise bicycle was in the home of Additional
Party Defendants. Edward and Francis Eisenhauer. To the extent any additional response
Is required, the remainder of the averment is denied pursuant to Pa.RClv,P. 1029(e).
13, - 22.
Denied pursuant to Pa.RClv.P. 1029(e).
WHEREFORE, Edward Eisenhauer and Francis Eisenhauer, respectfully
request that the Complaint filed by Defendant, Schwinn Cycling & Fitness. Inc.. be
dismissed with costs of this action.
NEW MATTER AND CROSSCLAIM PURSUANT TO PA,R.CIV.P. 2252
23. Paragraph 1 through 22 of Defendant's Answer to the Additional
Defendant Complaint are incorporated herein by reference thereto.
24. Additional Defendants Edward and Francis Eisenhauer incorporate
herein by reference thereto the original Complaint of the Plaintiff in this action.
25. Additional Defendants deny their liability and assert that original
Defendants are solely and exclusively liable for the cause of action as based in Plaintiffs'
Complaint.
26. This action is brought solely to protect Additional Defendant's right for
contribution and indemnity.
RespectfUlly submitted,
GOVER
B~ '7Ai?/!A-
Matthe R Gover, Esquire
Attorney I.D. #47593
301 Market Street -- 9th Floor
P,O. Box 865
Harrisburg, PA 171 08-0B65
(717) 232-9900
CERTIFICATE OF SERVICE
I....
AND NOW, this I ','} day of July, 1999, I hereby certify that I have served
the foregoing Answer with New Maller on the following by depositing a true and correct
copy of same in the United States mails, postage prepaid, addressed to:
James P. Golden, Esquire
HAMBURG & GOLDEN, P.C.
1601 Market Street. Suite 565
Philadelphia, PA 19103-1443
Attorney for Defendant Schwinn Cycling & Fitness, Inc.
David S. Wisneski, Esquire
ANGINO & ROVNER, P.C.
4503 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiffs
Thomas J. Williams, Esquire
MARTSON, DEARDORFF, WILLIAMS & OTIO
10 East High Street
Carlisle, PA 17013
Attorney for Defendant, Nauti-Lis, Inc.
CERTIFICATE OF SERVICE
I certify that on July 28, 1999, I served the foregoing
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reply to new matter and crossclaim by regular mail to the
following:
David S. Wisneski
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, FA 17110
Charles B. Calkins
Griffith, Strickler, Lerman, Solymos &
Calkins
110 South Northern Way
York, PA 17402
Attorneys for Plaintiff
Taylor Eisenhauer, by
George W. Eisenhauer and
Debra A. Eisenhauer, his parents
Thomas J. Williams, Esquire
Martson, Deardorff, Williams, & Otto
10 East High Street
Carlisle, PA 17013
Attorney for Defendant Nauti-Lis, Inc.
Matthew R. Gover
Nealon & Gover
301 Market Street, 9th Floor
P.O. Box 865
Harrisburg, PA 17108
Attorney for Additional Defendants
Edward and Francis Eisenhauer
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HAMBURG & GOLDEN, P.C.
By: JAMES P. GOLDEN
MICHELE M. ROVINSKY
ALPA PATEL
I.D. Nos. 32169. 66587. 75651
1601 Market Street. Suite 565
Philadelphia. PA 19103-1443
215-255-8590
Attorneys for Defendant
Schwinn Cycling & Fitness Inc.
TAYLOR EISENHAUER, A Minor,
By GEORGE W. EISENHAUER and
DEBRA A. EISENHAUER, his
Parents and Natural Guardians
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 99-1930 Civil
v.
SCHWINN CYCLING & FITNESS, INC.,
and NAUTI-LIS, INC.,
T/D/B/A BUSHEY'S CYCLING AND
FITNESS HEADQUARTERS and
T/D/B/A BUSHEY'S SCHWINN
CYCLERY. INC.
Defendants
v.
EDWARD EISENHAUER and
FRANCIS EISENHAUER
2297 Fairfield Circle
State College, PA 16801
Additional Party
Defendants,
PRAECIPE TO ATTACH VERIFICATION
TO THE PROTHONOTARY:
Kindly attach the attached verification of Kevin Lamar
to the additional party complaint of defendant Schwinn cycling &
Fitness Inc., which was filed on June 9, 1999.
J~OLDEN
MICHELE M. ROVINSKY
ALPA PATEL
Date: July 28, 1999
Attorneys for Defendant
Schwinn Cycling & Fitness Inc.
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92. Paragraph 92 of Defendant's New Matter states of
conclusion of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in paragraph 92 of Defendant's New Matter are denied in
accordance with Pa,R.C.p 1029(e).
93. Denied as stated. Plaintiff's injuries were solely a
direct and proximate result of the negligence of the Defendants
named in Plaintiff's Complaint, all of whom are jointly and
severally liable to Plaintiff for such injuries, The remaining
averments in paragraph 93 of Defendant's New Matter are denied in
accordance with Pa.R,C,p, 1029(e),
94. Denied, After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as to
the date on which the answering Defend?ilt came into existence,
Regardless of whether answering Defrmdant was in existence when the
property in question was sold, it is nonetheless legally liable as
the successor corporation to th'~ company that sold the exercise
bicycle,
95. Denied in accordance w1th Pa,R.C.p. 1029(e),
96. Paragraph 96 of Defendant's New Matter states of
conclusion of law to which no responsive pleading is required. To
the extent that a response is deemed necessary, the averments
contained in paragraph 96 of Defendant's New Matter are denied in
accordance with Pa,R,C,p 1029(e),
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TA YLOR EISENIIAUER. A Minor. By
GEORGE W. E1SENIIAUER and
DEBRA A. EISENIIAUER, his Parents
and Natural Guardians.
IN TI IE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
PlainlifT
ORIGINAL
v,
NO. 99-~ivil
SCHWINN CYCLING AND FITNESS,
INC., and NAUTI-LIS, INC. T1D/B/A
BUSHEY'S CYCLING AND FITNESS
HEADQUARTERS and T/D/B/A
BUSHEY'S SCHWINN CYCLERY, INC..
Defendants
CIVIL ACTION - LAW
V.
EDWARD EISENHAUER and
FRANCIS EISENHAUER,
Addilional Defendants
JURYT~LDEMANDED
CERTIFICATE OF SERVICE
I, Lois E. Stauffer, an cmployee of the law firm of Angino & Rovner, P.c., hereby certify
that a true and correct copy of the foregoing PLAINTIFFS' DEPOSITION NOTICE OF MR.
ROBERT LIS was served upon the following persons by first-class United States mail, poslage
prepaid on May 10, 2000, as follows:
Michael E. Sacks, Esquire
Michele Rovinsky. Esquire
HAMBURG & GOLDEN, P.C.
160 I Market Street
Philadelphia, PA 19103-1443
Counsel for Defendant
Schwinn Cycling & Fitness, Inc.
Thomas J. Williams, Esquire
MARTSON DEARDORFF WILLIAMS & OTTO
Ten East High Street
Carlisle, P A 17013
Counsel for Defendant
Nauti-Lis. Inc., TID/B/A Bushey's
Cycling and Fitness Headquarters and
TIDIB/A Bushey's Schwinn Cyclery, Inc.
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ANGINO& ROVNER,P,C.
4503 NORTH FRONT STREET
HARRISBURG. PA 17110
(717) 238-8791
JANZ
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TAYLOR EISENHAUER, A Minor. By
GEORGE W. EISENHAUER ami
DEBRA A. EISENHAUER, his Parcnts
and Natural Guardians,
IN TilE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff
v.
111'30
NO. 99-H&Civil
SCHWINN CYCLING AND FITNESS,
INC., and NAUTI-LIS, INC. TIDIBIA
BUSHEY'S CYCLING AND FITNESS
HEADQUARTERS and TlDIBIA
BUSHEY'S SCHWINN CYCLERY.INC.,
Defcndants
CIVIL ACTION - LAW
v.
EDWARD EISENHAUER and
FRANCIS EISENHAUER,
Additional Defcndants
JURY TRIAL DEMANDED
ORDER
ANDNOW,lhis.;l't*'dayof 9'/JUA d/l'l' ,2001, a Pretrial Case Management
Conference is scheduled for .J:{lddY, ,1';h,(/},W ..?~ dtJdl in (!,(""T7l-tlb'lA-/
1/ .:tit.> A-01 dez.Q( c,'nc A. at Cl; (/V A.M.
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BY THE COURT:
J. rl\~JJ,
t~ 1"4.01
O\'\k
J. Wrillen discovery has hcen exchanged .lI1d answered hy the parties and is nearing
completion.
4. The depositions of the panies and various witnesses have been completed.
5. PI;lintilT helieves that the only one other deposition. that of the corporate designcc
for Defendant Schwinn. needs to he ohtained hclllre expert reports can he exchanged and the mallcr
listed for trial.
6. Bccause there arc five allomeys involved in this casc. it is anticipatcd that it will
be difficullto find a trialtenn convenient to counsels' schedules.
7. The Plaintiff is represented by David S. Wisneski, Esquire, Angino & Rovner,
P.C., 4503 North front Street, Harrisburg, I' A 17110.
8. Dcfcndant. Schwinn Cycling & Fitness. Inc., is represented by Michael E. Sacks.
Esquirc, Hamburg & Goldcn, P.c., 1601 Market Street. Philadclphia, P A 19103-1443.
9. Defendant, Nauti-Lis. Inc., is represented by Thomas 1. Williams. Esquire, Marlson,
Deardorff, Williams & 0110. Ten East High Street, Carlisle. PA 17013.
10. Additional Defendants, Edward Eiscnhaller and Francis Eisenhauer, are represented
by Mallhcw R. Gover. Esquire, Nealon & Gover. 301 Market Street, 9th Floor, Harrisburg, PA
17108-0865.
11. A cross-claim was filed against the Plaintiffs guardians, George and Debra
Eisenhauer. They are represented by Charles B. Calkins, Esquire, Griffith, Strickler, Lcnnan,
Solymos & Calkins, 110 South NOlthcm Way, York, PA 17402.
12. Court intervention is requested to estahlish deadlines for discovery and a definitive
trial date, ifpossible.
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WiiEREFORE. it is respeelfully requested that the COUI1 schedule a Pretrial Case
Management Conference involving all counsel of record.
ANGINO & ROVNER. U
David S. Isneski. Esquire
J.D. No. 58796
4503 N. Front Street
Harrisburg, PA 17110
(717) 238-6791
Counsel for Plaintiff
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Respectfully submitted.
Date: January 1 S, 2001
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Discovcry, including the designation and deposition ofSchwinn's corporate designee,
shull be complcted by June )0. 2Otll.
All dispositive motions shall he filcd prior to July 31. 2001. Counsel will assume the
rcsponsibility for listing thc motions lilr argumcnt prior to August 9, 200 I, for argument on
August 29. 2001.
The mailer is tcntativcly set for trial during the wcek of civil trials commencing
Novembcr 5, 2001. Inasmuch as thc last day for sclling down causes for the November tcrm is
September 17,2001. counsel should list the case for Novernber prior to Scptcmbcr 17, 2001. In
the alternative, at the time summary judgment motions arc argued, counsel may request of the
court an order listing the mailer for November. Should counsel be unablc to try the case in
November, any request for continuance to January of 2002 will be liberally grantcd.
Plaintiffs' expert reports will be exchanged prior to the last day of August, 2001.
Defendants' expert reports shall be due no more than forty-five (45) days thereafter.
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It is understood that defendant Schwinn may file a rnotion to bifurcate the trial on the
issue of corporate successor liability. All parties will be given the opportunity to respond to any
such motion.
February 23, 2001
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David S. Wisneski, Esquire
Joseph Melillo, Esquire
For the Plaintiffs
Michael Sacks, Esquire
For Schwinn Cycling and Fitness, Inc.
TA YI.OR EISENHAUER. A Minor. By GEORGE W.
EISENHAUER and DEBRA A. EISENIIAUER. his
I'an:nls and Natural Guardians.
Plaintiffs
v.
SCHWINN CYCLING AND FITNESS. INC.. and
NAUTI-LlS. INC. TID/R/A BUSHEY'S CYCLING
AND FtTNESS HEADQUARTERS and T1DIB/A
BUSHEY'S SCHWINN CYCLERY. INC..
Dcfendants
v.
EDWARD EISENHAUER and FRANCIS
EISENHAUER.
Additional Defendants
IN TIlE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PENNSYLVANIA
\c..~
NO. 99-~ Civil
CIVIL ACTION - LA W
JURY TRIAL DEMANDED
PRAECIPE TO WITHDRAW/ENTER APPEARANCE
Please withdraw the appearance of David S. Wisneski. Esquire as counsel of record for
Plaintiff in this action.
Dated: March 8, 2001
Respectfully.ubmillcd,
Da id S. Wi neski, Esquire
J.D. No. 58796
2040 Linglestown Road, Suite 303
Harrisburg. P A 17110
(717) 541-9205
Please enter thc appearance of Joseph M. Mclillo, Esquirc, as counsel of record on behalf of
the Plaintiff in this malter.
Datc: March 8, 2001
Respectfully submilled,
ANGlNO & ROVNER, P.C.
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JOtfoP9 . Melillo, Esquire
A omey J.D. No. 26211
4503 North Front Strcet
Harrisburg, P A 17 I 10
(717) 238-6791
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1. Admitted, except that the subject XR-5 exerciser was
manufactured by Schwinn Bicycle Company in 1976.
2. Admi tted .
3. Denien. It is denied thnt George Eisenhauer purchased
the subject XR-5 in the early 1990s. On the contrary,
George Eisenhauer testified that he purchased the subject
XR-5 in approximately 1978 from an older couple in Camp
Hill, Pennsylvania.
p. 23)
4. Denied. It is denied that George Eisenhauer gave the
exerciser to his mother. On the contrary, George
(Deposition of George Eisenhauer at
Eisenhauer testified that he loaned the exerciser to his
mother, Frances Eisenhauer, in approximately June, 1995.
5. Admitted.
6. Admitted that defendant Nauti-Lis, Inc. entered into an
asset purchase agreement with Bushey's Schwinn Cyclery,
Inc., and that Nauti-Lis, Inc. continued in business at
the same location.
7. Admitted.
8. SCF lacks information to either admit or deny the
allegation in paragraph 8.
9. Admi tted.
10. Admitted.
2
11. Defendant SCF cannot determine whether the moving
party, Nauti-Lis, Inc., is entitled to summary judgment
r
r
I
,
,
,
I
L
based on the facts presented, and will respond in detail
when Nauti-Lis, Inc. files its brief with the Court.
1/J1~lc~ E.L-
JAMES P. GOLDEN
MICHAEL E. SACKS
HAMBURG & GOLDEN, P.C.
1601 Market Street, Suite 565
Philadelphia, PA 19103
(215) 255-8590
Counsel for Defendant
Schwinn Cycling & Fitness Inc.
3
CERTIFICATE OF SERVICB
i _
;/
I certify that on July 17, 2001, I served the
foregoing Answer to Nauti-Lis, Inc. 's Motion for Summary
L
Judgment, by regular mail to the following:
Joseph Melillo, Esqure
Angino & Rovner, P.C.
4503 North Front Street
Harrisburg, PA 17110
Attorneys for Plaintiffs
Charles B. Calkins
Griffith, Strickler, Lerman, Solymos &
Calkins
110 South Northern Way
York, PA 17402
Attorney for Additional Defendants
Edward and Frances Eisenhauer
~~~.u
MICHAEL E. SACK
Attorneys for Plaintiffs
Thomas J. Williams, Esquire
Martson, Deardorff, williams, & Otto
10 East High Street
Carlisle, PA 17013
Attorney for Defendant Nauti-Lis, Inc.
Matthew R. Gover
Nealon & Gover
301 Market Street, 9th Floor
P.O. Box 865
Harrisburg, PA 17108
lI'i'/1TED S1'ATES Bt\NKRlJPTCY COURT
FO'R TIlE DiSiRtCT OF COLORADO
ChiefSanlc.roptcy Jud~c Marcill S. Kricger
ID':J":JO:Joo~~-/9JC CiviL T~
PIICI: 2 '4
Filla '
'P.A:FO~O l. BOLTO:I. CLEM \
\A 18;~~1
u.s.~~.cov~T
bUmoICt Of' Clll.OAAOO
oJUL-\II-,,\
tG.ao F"ROH.Och"dnn Cya11na So I'll-nus.
(Q(~:
SCHWINN/G'! CORP.
EINt:S2.20SS603,
O~btor.
)
)
)
)
-- )
SCh"N1NN CYCl.ING AND Fl'11'-F=.SS, INC., )
EIN#g4-1238790. )
Debtor, )
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Bankruptcy ClUe No.
OI~20292.SDB
Cha;:ter 11
Ba.'\l:ruptcy Case No. ..
01.20293.5811
. C!::;:cc: 11
GT BICYCLES, INC.,
ElNII9S.35069S2.
Debtor.
llank..'Ilplcy C~se No.
OI.10294.SBEl
Ch:p!er t I
romw A Y DISTRlBU'iiON, INC.,
ElN#43.1501l88,
Debtor.
B:tnkrJptCy Ca$~ No.
01.202950$89
Chllplcr 11
Ba.nkl1lpte}' Case No.
Ol.20296.SBB
Cha.pter il "
IIEOB I1'<1lUSTRlES, INC.,
ElN//7S-2S28337,
~btoc.
OT Blv1X, L.~C.,
ElNii9S-3809QS3,
Deblor.
Ban.lquplcy C",~e No.
OI-2029i.$l:l1l
Chllpte:" 11
Me No. BMW-1S
JOINTLY ADMINISTERED CASE NO. Ol.2G:m.SllH
NonCE A.""D ORDER Of AUTOMATIC STAY
.-
II-lIS MA TIER cnme before :he ColJrt on tt;e Debtors' Motion for R~~ining Ordor
Wed July 16.2001.. Th.: Cout!, having reviewed the Motion ier ResL.-cini..,g Order and having
coac!>JCte<1 a hcaring 011 July IS, 2001 on:he Motion for Resttainbg Order,
DOES fiND as follows:
j. The Dtbtcrs ~V~ filed petitiOl"oS for r<:o~~..uzetion \Ulcer Ch::tpte: ! 1 or the United
st.....t~S Bnnknlptcy Ccd.~ (11 U.S.C. 9 iOI et ~q.) end intend to contLl""::; in t.\.:: mllr~~-:r!!er:t and
possession of their respcclivc b~i..~es5es and proper"..i:S cU d~btots in possession p\.U's'J2.Zi.t tv
sectio~.~ 1107 and 1103 of Ihe United St:lt~ Bnr.knlptcy Code.
2. Tnis Court, pUtS'JMt to 28 U.S.C. S 13:;4 =i 157, ha.s !xc!usivcjurisciction of nil
of the property o[~ie Debtors, wherev.:r locac<:d~ nnd, plJl'Stl:lll1 to sectiol'.s 10S(a) a.."la 362 oflhe
~UL-sn-os 1s,a? PROH,Doh~lnn Cycllna A r-ILnoaa rD,~aaOa0048G
.
.
Uniled SW~s D~luui'ICy'Codo,lhis CoUlt ~y ~.uc ""'1 ordcr,protcss or judgment as m~y b~
neeess3.t)' or Appropriate [0 clllT)' OUlthe provisions or thc Bank1'llplCY C~=.
.,
3. The ~btors seck II "ftmininC onler" to suPllle~ent and enfOf\:C (1)1. provbiotlS
ofsmioQ 362 oflhe Uniced Sa!cs B:uWuptcy Code. Requests fo: injec:tivc relief must be
brought by way oran edvcrs:uy proceedinll in ilccord:lllce with Fcd.R.Ban.l(r'p. 7001(1), ThtU,
the pc:ndin:: Mo~on for Res!r:Iiolng Order Is procedurally improper. Neverchelc::u, this Coun
docs believe it is apPTopnnc: lIlId finds that cause has been shown to enter III order cl:lrifying thc
n::tUN I:/'ld el(~nt cfthe automali. my imposed by the United ~tat=s Be.nl:ruptcy Codc.
\1' IS THEREFORE ORDERED, ADJUDGED AND DECREED:
t Tn~r, in aceorducc with II U.s.C. ~ 362(a) the tiling of Debtors' petitions under
Chapter 11 oftl:e lI'nilcd StateS BaokruptC). Cc.de stays ~I persons lllld cnlilies
from;
:I. the cornmeiu:<!=nt or continuarion, includi:lg the isSllallce or el1lploymenl
ofp:occss, of ajudil:ial, ad.'l\inistnllive, or othcr action or proee..-din::
ngair.sr. the DeotofS Th~ was or could have becn cOD'lmeoccd b<:fore the
COnllnence::uenc oftbc ease Ullde<' the United States BankruplCY Code, or
to recover a e~i:n as~t the ~"lor; That s.y~ b<:fo:e t.'1e
eOll'llMneel!ler.l of the = under the Uni~d Sl!l<.$ Ba."lknIptc)" Code;
b. the en{orcemenr, ngair.sr. :I,e I),,!::o:s or "!loinst prope:1y of the estate. of II
judsmcnl obtained b<:fore the commeneem<:n: of the e~ u::der the Uciled
States BankruPI"J' Code; .
c. MY 3ct to obum POSSe$S10r. ofpror--'Y of me CSlllle or ofpropeny f(om
~l. estate ort.;> ~'(efCise control overp.o?"rt)r ofthc est!!te;
d. any act to c:e3.:2, ~f~:, or tnfCl!Ce:!!lY lien ag.uilstproperty of the ':state;
e. ""'y act lQ cceate, pede:: Of =-..fc~e.against prope:1y of the De910l'S any
Hen to tile exte:tt that such lien secures 0. claim t~t :''''O$e h:fore t~e
';ommcn~:ncnt of the easo under the UlIiled Stales B"".krlip;ey Code;
f. . "'Y iCI to eoUec!, assess, 0: =0\1\.':" a claim ngainst 4ie D.blO~ thaI arose
lxfo:e th~ conu:!encemcnl ofth~ cas~ under the Un:r~:.! States Ba."tt.:ru.DtCY
Cod:;
g.
lne setoff of a.....y dabl ov.1ng :0 The Deblors that a:o~ before tlle
eommeneemenlofthe =: uncienhe UrJt:c Steles Ea."....._"Uptcy Code
a~ainst arJY claim :lga!l'oSt Ille Deolors; a.,d
h.
th~ eommencement or conti~:.:atior. of a proceeding b-c::forc: t.t,e Untied
3t::cs Ta.,,< COtU1 con~:cir.g the DC!btors.
2
PIICE
:J/4
..
..~
,<
"'UL"'I~-.OI ,'G'07 PROH.Ooh\l'nn Cyol'nn & ".Ln... ID':J03D3D040G
.'
Unltecl Suucs B"llluuplcy'Code, this COUlt m3Y I~:ue UI'J order, process or judalllellllS m~y b.:
neccss~ or appropriate to c:llT)' OUI the provisions of the BankruplCY C~e,
.,
3. The D.lbtocs seck II "fUlrIl1ninC oree:" to suPlllement and enforee tile provUlons
of seetioQ 362 orlhe Uniced 5l&!(S BlllIbuptcy Code, Rcquesu tor injuc:tiYll relief mUSI be
brought by way ohll cdvecs:uy proceedlnc in accordance with Fcd.R.Bartl(r'p. 7001(1). Thus,
the pendinC Mo~on for Restr.2lolog Order Is procedurally improper. Ncvenhclcss, this Coun
docs b<:lieve it is Bpf>roprinca and finds that cause has been shoWn to enter Illl oreer cl:uifyinS the
n::!u:c end ext.!nl orthe auto::;:'(c my imposed by the United ~lates Ba:lbuplcy Code, '
n'ls THEREFORE ORDERED, ADlUDOED AND DECREED:
1. Th~l. In aCCOr~ec wi~'t II U.s.C. ~ 362{a) the filing ofDeblOrs' petitions Wldtr
Ch~ptcr 11 of the Unitecl StA!l:S Bankruptcy Code stays all pCfSOIU lllld cnlici".
from:
a. lbe tornme~=l or continuarion, includillg the iss=e or eruploymelll
ofp:occss, of ajudic:iill, ;t(!minisTr.nivc, or other action or procc..'din::
~air.st the DeblO" tho.! ms or could have becn commenced before lhe
ea=ence:nenr oflh<; casc t:llder the United States Bankruptcy Code, or
to rcco,cr a claUn asMnsl the Delnoro thalll..-o~ before tie
eO=::ce:ner.t of the case under the UniU:d Sr!f~ Ba.'1krupIC)' Code;
b. the enforcemen,. "gall's. l.'1e n..b~o!'S or agll!nst propeny of the estate. of a
judGment oblaincd before the commencemec: ofth. cue ur.der the Uclted
States BankruptC)' Codcj
c. ~ny act 10 ohuin possession ofproper;y of the eS[3le or of property f,om
~le cstlltc or to exercise control over p.cpc:ly oftl:c estllte;
d. My ael to c,e3.~, p<o.f::et, or e:Uorce l!!1Y lien aglU.,st propercy ofthee;ltatc;
e. 3,'y act to CfCaCe, ped'cc:: or .....(0:0:. agai= proper;y of tile De\>tocs any
Hen to Ille ex ten! that suell lien secures" cla:m I!::: 3."'05e bofore L~C
';ommc.'l~:ncnt of the C3.\ll under the United SfaleS Bi:I".kr",p,cy Code;
r. . a.'l}' aCI to eoUec!, assess, or =oV\.':' a c!aim agaias. !.ic Debto~ thaI arose
lxfore rh~ commencemenl of the cas~ under me Un!r::.! States Ba."'Lt.:ruptc)'
Code;
g. th~ seloff of:uo.y dco! owing to the Deblors thaI ~ose beio:e the
commeOCer:1eOI of the =. undcrthe Unite': Sletes Bc."_~'Ilp:cy Coo.
a;:ainst any claim :!.gair.st the Debtors; c."ld
h. the eO!l'\r:l~!lcement or conti~t:atior. cf a proceeding ~fo" t.~ Untied
St::!cs To..O( Court conct:cir.g: th~ Debtors.
2
PAr-I:
31'4
~
.
.'
HAMBURG & GOLDEN, P.C.
AnomeYI
1601 Markel Slreel, Suile 565
Philadelphia, PA 19103.1443
(215) 255.8590
Facsimile: (215) 255-8583
secksme C hamburg.golden.com
James P. Golden
Nell J. Hamburg
Michele M. Rovinsky
Michael E. Sacks
Jane B. LaPorte
JuHwon LCD
Sena Singer
July 20, 2001
Wrller's Direct Dial:
215.255.8591!.
Prothonotary's Office
Cumberland County Courthouse
1 Courthouse Square
Carlisle. PA 17013
Re: Eisenhauer v. Schwinn Cycling & Fitness Inc.
C.C.P. Cumberland County, No. 99-1930 civil
Dear Sir or Madam:
James Golden and I represent defendant Schwinn Cycling &
Fitness Inc. in the above captioned matter.
I am writing to inform you that Schwinn Cycling & Fitness
Inc. has filed for bankruptcy protection, and that all
litigation pending against it, including this case, is subject
to an Automatic Stay pursuant to Section 352 of the United
States Bankruptcy Code. I am enclosing a copy of the Notice and
Order of Automatic Stay entered on July 18, 2001, by the United
States Bankruptcy Court for the District of Colorado.
Thank you for your attention to this matter.
j4:IY,
MICHAEL E. SACKS
MES:clf
Enclosure
cc: The Honorable Kevin Hess (wi encl)
Thomas J. Williams, Esquire (wi encl)
Charles B. Calkins, Esquire (wi encl)
Joseph Melillo, Esquire (wi encl)
Matthew R. Gover, Esquire (wi encl)
HAMBURG & GOLDEN, P.C.
Attorneys
1601 Markol Slroet, Sullo 565
Philadelphia, PA 19103.1443
(215) 255.8590
Facsimile: (215) 255.8583
sacksme@hamburg.golden.com
r:
r"
r
,
I
r
James P. Golden
Nell J. Hamburg
Michele M. Rovlnsky
Michael E. Sacks
Jane B. LaPorta
JuHwon Lao
Sona SIn90r
July 20, 2001
WrtlOr'1 Direct Otal:
215.255.6596.
Court Administrator
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Re: Eisenhauer v. Schwinn Cycling & Fitness Inc.
C.C.P. Cumberland County. No. 99-1930 Civil
Dear Sir or Madam:
James Golden and I represent defendant Schwinn Cycling &
Fitness Inc. in the above captioned matter.
I am writing to inform you that Schwinn Cycling & Fitness
Inc. has filed for bankruptcy protection, and that all
litigation pending against it, including this case, is subject
to an Automatic Stay pursuant to Section 362 of the United
States Bankruptcy Code. I am enclosing a copy of the Notice and
Order of Automatic Stay entered on July IS, 200l, by the United
States Bankruptcy Court for the District of Colorado.
Please note that a praecipe for oral argument was recently
filed in this matter. Thank you for your cooperation.
~e,IY'
MICHAEL E. SACKS
MES:clf
Enclosure
cc: The Honorable Kevin Hess (wi encl)
Thomas J. Williams, Esquire (wi encl)
Charles B. Calkins, Esquire (wi encl)
Joseph Melillo, Esquire (wi encl)
Matthew R. Gover, Esquire (wi encl)
+TAYLOR EISENHAUER, A Minor,
By GEORGE W. EISENHAUER and
DEBRA A. EISENHAUER, his
Parents and Natural Guardians
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 99-1930 civil
v.
SCHWINN CYCLING & FITNESS, INC.,
and NAUTI-LIS, INC.,
T/D/B/A BUSHEY'S CYCLING AND
FITNESS HEADQUARTERS and
T/D/B/A BUSHEY'S SCHWINN
CYCLERY, INC.
v.
EDWARD EISENHAUER and
FRANCIS EISENHAUER
2297 Fairfield Circle
State College, PA 16801
ORDER
AND NOW, this 'Z. l' day of
<;"'"
, 200l, the
Court issues the fOllowing Order:
The attached Notice and Order of Automatic Stay issued
by the United States Bankruptcy Court for the District of
Colorado, indicates that Schwinn Cycling & Fitness Inc. has
filed for reorganization under Chapter 11 of the United States
Bankruptcy Code and is therefore subject to the automatic stay
provisions of Section 362 of the Bankruptcy Code. Accordingly,
this case is Stayed until further Order of the Court.
The August 29, 2001, argument on motions for summary
judgment is continued until further Order of Court.
Pursuant to the joint suggestion of counsel,
dispositive motions will be filed within 30 days following
"JUL-IB-01 16.07 FROH.Sohw'nn Cygl '"0 & FILn... lDf~D~O~004DG
. .
PAce 41'4
2. This Ordor sl1l1llnol nffccl:he e~ccplicns 10 the autor:lloli~ l\iy c91114incd In
seclion 362 of ;;:~.Uniled Stnles B4llkruptcy Code or The nlllt of cny p:uty in
intckst to sede rtlie! from the 3ulomatic stay in 3ceortla:lCe with section 362(d) of
the United Slales BAAkNptt;y Code.
Dated this ~t of July, 2001.
ElVTHJ;COURT:
I ) /ltU~ .J.~'4'fJ
M~ia S. Krieger, u
Chief Judge, United Sl.I.lCI B&nlczuprcy COlin
~
"
"
3
,",'.".
"'''-0;,'.'
MDW&:6
IHU",,"TlUN' AlMa: . AllYtlf,:N.:Y
TEN EAsT HJGH STREET
CARLISLE, PENNSYLVANIA 17013
. .
JUN 2 22001 *_.
,
f'fII.15n"l"nu 11()~Hj.\', 11(l(~'", ""~ r ..,1Jt
(......N'll"...,III""....'."...,
It.uw..l JIJ1UU'
)tUO'"
TAYLOR EISENHAUER, a Minor. by
GEORGE W. EISENHAUER :md
DEBRA A. EISENHAUER, his P:trcnts
and Natural Guardi:tns,
PI:tintiffs
IN TilE COURT OF COMMON PLEAS OF
CUMBERI.AND COUNTY. PENNSYLVANIA
I
I
t
,
~
v.
CIVIL ACTION. LA W
NO. 99-1930
SCHWINN CYCLING AND FITNESS.
me., and NAUTI-LIS,INe. T/D/B/A
BUSHEY'S CYCLING AND FITNESS
HEADQUARTERS and T/D/B/A
BUSHEY'S SCHWINN CYCLERY,INe..
Defendants
v.
EDWARD EISENHAUER and
FRANCIS EISENHAUER,
Additional Defendants
JURY TRIAL DEMANDED
MOTION FOR SUMMARY JUDGMENT OF
DEFENDANT NAUTI-L1S. INC.
TO: TAYLOR EISENHAUER, a Minor, by GEORGE W. EISENHAUER and DEBRA A.
EISENHAUER, his Parents and Natural Guardians, Plaintiffs and their attorney,
JOSEPH M. MELILLO, ESQUIRE
and
SCHWINN CYCLING AND FITNESS, INC., Defendant, and its attorney, MICHAEL
E. SACKS, ESQUIRE
and
EDWARD EISENHAUER and FRANCIS EISENHAUER, Additional Defendants, and
their attorney, MATTHEW R. GOVER, ESQUIRE
YOU ARE HEREBY DIRECTED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED MOTION FOR SUMMARY JUDGMENT IN ACCORDANCE WITH Pa. R.C.P.
1035.2.
AND NOW, Defendant Nauti-Lis, Inc. respectfully alleges the following:
I. This products casc involves a Schwinn Model XR-5 exercise hicyclc, (hcrcinaftcr
XR.5l, manulllcturcd by Schwinn Bicycle Company sometime in the early I 97lJs, and apparcntly
wholcsalcd 10 Bnshcy's Schwinn Cyclcry, Inc" a rctail bicyclc storc, in LCllloync, Pcnnsylv(ll1ia
(hcrcinaftcr "Bushcy's").
2. On August 3, )976, Bushcy's sold this particuhlr XR-5 a to John Mcllcn, 321
Lamppost Lanc, COlInI' Hill, Pcnnsylvania, tclcphonc 737-lJ859, whosc whcrcabouts arc prcscntly
unknown and who is bclicvcd to bc dcccascd.
3. Somctimc in thc carly I 990s, PlaintiffGcorgc Eiscnhaucr purclmscd this particular
XR-5 uscd from a pcrson or pcrsons unknown,
4. Subscqucntly, PlaintiffGcorgc Eiscnhaucr gavc thc cxcrcisc bicyclc to his mothcr,
Francis Eiscnhaucr, who kcpt it in hcr family room and uscd it two or thrcc timcs daily.
5. On Dcccmbcr 27, 1995, Plaintiff Taylor Eisenhaucr suffercd pennancnt physical
injury as a result of playing with thc XR-5 at the homc of Additional Dcfcndants Francis and Edward
Eisenhauer, Plaintiff Taylor's grandparents.
6. On Septcmbcr ] 8, 1991, Defcndant Nauti-Lis, Inc, (hcrcinaftcr "Nauti-Lis")
purchased thc assets of Bushey's and continucd thc busincss of Bushcy's (It its cxisting location
under the namc Bushey's Cycling and Fitness Hcadquartcrs,
7. Nauti-Lis and Bushcy's were unrclated corporations dcaling at arm's length.
8. On July] I, 1994, Bushey's went out of existence.
9. Plaintiffs' Complaint alleges that Defendant Nauti-Lis, Inc. is strictly liable to
Plaintiffs under the Restatemcnt (Second) of Torts, * 402(a), for the actions of its predecessor
corporation, Bushey's Schwinn Cyclcry, Inc., which initially sold thc XR-5, as a "successor"
corporation. (Complainl at 72).
10. Depositions of all pm1ics and their principal witncsscs have becn completed. All
discovery has been concluded.
11. For thc following reasons, and as more fully discussed in the forthcoming Brief, the
undisputcd facts establish that Movants arc cntitled to Summary Judgment as a matter of law
becausc:
,>. - ~
(0: c.,: ,-
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- .
Tf.N F.MT 1-IIGII STRf.ET
CARI.ISU:. Pf.NNSYLVANIA 17013
Joseph M. Melillo, Esquire
ANGINO & ROVNER, P.C.
4503 North Front Street
Harrisburg, PA 17110-1708
'",',1."1",11.",111.."."1""111,,.1..,,.,,,11
MARTSON DF.ARDORFF WILI.IAMS & Orro
MJ2W&lO
"' .
-' : .
TEN EMr HIGII STRn.T
CARLlSI.F.. PENNSYlVANI^ 17013
Charles B. Calkins, Esquire
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
110 South Northern Way
York,PA 17402
1",111,,,1,1,,1111111,1.',11,,1
MARTSON DEARDORff WilLIAMS & OTTO
MQW&:O
II
TEN EAST I-IIGII STJU:I;T
CARI.ISl.F., Pf.NSSYLVANI,^ 17013
Michael E. Sacks, Esquire
HAMBURG & GOLDEN, P,C.
1601 Market Streel, Suite 565
Philadelphia, PA 19103
1",11I,1","111I","11,,11,,1
. ,{
Mi2W&o
..
- .
'f'F.N EAST BIGII STRrn
CARWiU:, Pt:N:"lS\'I.VANIA 1701.i
Malthcw R, Gover, Esquirc
NEALON & GOVER
301 Markct Strcct - 9th Floor
P.O. Box 865
Harrisburg, P A 17 J 08
1",11/",1",11/1",1"1",1/,,
'j -
MAR'rSON /)""'K(}ORff WIII.IAM.' N 0 no
~tQW&:O
II
'n:N F.A!H' 1-11(;11 STRIJ:1'
CARI,ISl.F. f)f.NNS'r'L\'ANIA 17013
Thomas J. Williams. Esquire
MARTSON DEARDORFF WILLIAMS & ono
Ten East High Street
Carlisle, PA 17013
1."111.,.111,.,,,,11.,11,1,,1.1
...."....-......".:,
b. The Liquidating Trust, successor to Schwinn Cycling ,
Fitness Inc. pursuant to the Confirmation Order of the Bankruptcy
Court dated March 13, 2003:
c. CNA/Columbia Casualty Company, the insurer for Schwinn
Cycling' Fitness Inc. under Policy No. PCL 001476:
d. Evanston Insurance Company and Investor's Insurance,
insurer for Schwinn Cycling & Fitness Inc. under Policy No. GLP
1002923:
e. Any person or entity that purchased assets of Schwinn
Cycling & Fitness Inc. in the Bankruptcy Case, including Pacific
Cycling, Inc., purchaser of Schwinn Cycling & Fitness Inc. 's
Cycling Division, and Direct Focus, Inc., purchaser of Schwinn
Cycling & Fitness Inc.'s Fitness Division:
f. Nauti-Lis, Inc.:
g. Donegal Companies, the insurer for Nauti-Lis, Inc. under
Policy No. BOP OOl5789 022:
h. George W. Eisenhauer and Debra A. Eisenhauer, as
defendants:
i. Horaoe Mann Insurance, the insurer for George W.
Eisenhauer and Debra A. Eisenhauer under policy No. 37-000722839;
j. Edward Eisenhauer and Francis Eisenhauer;
k. Allstate Insurance, the insurer for Edward and Francis
Eisenhauer under Policy No. 077115917,
as well as the agents, servants, employees, volunteers,
representatives, officers, directors, underwriters, attorneys,
insurers, subsidiaries, divisions, successors, assigns, heirs,
executors and administrators of each of them.
2
3. The parties agree as follows I
a, CNA/Columbia Casualty Company, for itself, Schwinn
Cycling & Fitness Inc., the Liquidating Trustee, Evanston
Insurance Company and Investors Insurance, and any person or
entity that purchased assets of Schwinn Cycling & Fitness Inc. in
the Bankruptcy Case, including Pacific CYCling, Inc., purchaser of
Schwinn Cycling & Fitness Inc.'s Cycling Division, and Direct
Focus, Inc, purchaser of Schwinn Cycling & Fitness Inc.'s Fitness
Division, will pay to Taylor Eisenhauer, by George W. Eisenhauer
and Debra A. Eisenhauer, his parents and natural guardians, the
sum of $100,000, consisting of a check in the amount of $30,000,
made payable to Angino & Rovner, P.C., and $70,000 invested in a
structured settlement/annuity, payable in four consecutive annual
payments to Taylor Eisenhauer, in the amount of $26,743.60 each,
the first such payment being on February 10, 2013.
b. Donegal Companies, for itself and Nauti-Lis, Inc.,
t/d/b/a Bushey's Cycling and Fitness Headquarters and t/d/b/a
Bushey's Schwinn Cyclery, Inc., will pay to Taylor Eisenhauer, by
George W. Eisenhauer and Debra A. Eisenhauer, his parents and
natural guardians, the sum of $10,000, by check made payable to
Angino & Rovner, P.C.;
c. Horace Mann insurance, for itself and for George W.
Eisenhauer and Debra A. Eisenhauer as defendants, will pay to
Taylor Eisenhauer, by George W. Eisenhauer and Debra A.
Eisenhauer, his parents and natural guardians, the sum of $7,500,
by check made payable to Angino & Rovner, P.C.;
3
-
- ... ....
d. Allstate Insurance, for itself and for Francis
Eisenhauer, will pay Taylor Eisenhauer, by George W. Eisenhauer
and Debra A. Eisenhauer, his parents and natural guardians, the
sum of $5,000, by check made payable to Angino & Rovner, P.C.
4. In consideration of the total payment of $122,500, as
set forth in paragraph 3, the Releasors do hereby remise, release
and forever discharge the Releasees from all actions and causes of
action, suits, debts, dues, accounts, bonds, covenants, contracts,
agreements, judgments, claims and demands whatsoever, in law or in
equity or admiralty, whether known or unknown, including, without
limitation, claims for attorneys' fees, and including all claims
for known or unknown injuries and damages sustained by Taylor
Eisenhauer as a result of, or in any way related to the accident
involving a Schwinn Bicycle Company XR-5 exerciser that occurred
on December 27, 1995, (the "Subject Incident"), some or all of
which is the subject of the civil action filed in the Court of
COlnmon Pleas of Cumberland County, Pennsylvania, Case No. 99-1930,
captioned "Taylor Eisenhauer, a minor, by George W. Eisenhauer and
Debra A. Eisenhauer, his Parents and Natural Guardians v. Schwinn
Cycling and Fitness, Inc., and Nauti-Lis, Inc. t/d/b/a Bushey's
Cycling and Fitness Headquarters and t/d/b/a Bushey's Schwinn
Cyclery, Inc," (the "Cumberland County Case"), and which was also
the sub:ject of a claim filed on behalf of "Taylor Eisenhauer, a
minor, by George W. Eisenhauer and Debra A. Eisenhauer, his
parents and natural guardians" in the Bankruptcy Case.
5. Upon payment of $52,500.00 to the Releasors, and proof
of investment of $70,000.00 in an annuity as set forth in
4
paragraph 3, the Releasors shall file such pleadings as are
necessary to terminate the Cumberland County Case with prejudice.
6. Re1easors represent that there are no other claims,
demands or lawsuits of which they are aware, other than the
CUmberland County Case and the claim filed in the Bankruptcy Case,
relating to or in any way arising from the Subject Incident.
Releasors further represent that they have not assigned to any
other person or entity all or any portion of any claim that they
had, may now have, or may in the future have against any of the
Releasees arising in any way out of the Subject Incident.
7. If the Releasors assert any claim or demand, or commence
any action against any person or entity arising in any way out of
the Subject Incident, and such person or entity, or anyone acting
on his or its behalf, asserts a direct or third party claim, or a
claim for contribution or indemnity, against any of the Releasees,
then Releasors shall indemnify and defend Releasees for all loss,
damage and expense, including attorney's fees, from all such
claims, demands or actions, including actions for contribution or
indemnity, brought by any such person or entity or anyone acting
on his or its behalf related to the Subject Incident.
8. The parties release all counterclaims, additional party
claims, and cross-claims against one another asserting liability
for the Subject Incident, including claims for contribution or
indemnity, claims for attorneys' fees, costs and expenses relating
in any way to or arising out of the Subject Incident.
9. Releasors have sole and complete responsibility, subject
to court approval of the minor's settlement, for the lawful
5
distribution of the payments made by and on behalf of Releasees,
including but not limited to sole and complete responsibility for
satisfying any liens, subrogation interests or other claims
arising from any payment of benefits, medical bills, loot wages or
other consideration to or on behalf of Releasors.
10. Releasors represent that Taylor Eisenhauer's date of
birth is February 10, 1991, and that his Social Security Number is
999-70-9956. If the age or sex of Taylor Eisenhauer is found to
have been misstated, then the payments specified will be adjusted
to the benefit provided by the original cost based upon correct
information.
II. Taylor Eisenhauer shall have the right, at any time
during the term of this Settlement Agreement, provided the age of
majority has been reached, to submit in writing a request to name,
to revoke, or to change, a contingent payee to receive the balance
of the payments due in the event of his death ("Contingent
Payee"). This request will be reviewed and become effective when
approved, except as to any payments made before such change was
approved. Notice of such change will be made by CNA/Columbia
Casualty Company and/or its assignee, in writing and furnished to
the requestor. No such designation, revocation or change shall be
effective unless in writing and delivered to CNA/Columbia Casualty
Company and/or its assignee. The designation must be in a form
acceptable to CNA/Columbia Casualty Company and/or its assignee
before such payments are made.
In the event of the death of Taylor Eisenhauer without having
named a Contingent Payee, any payments due pursuant to the terms
6
of this Settlement Agreement and Release shall be made to the
Estate of Taylor Eisenhauer. If a named Contingent Payee is not
living at the time of Taylor Eisenhauer's death, all such payments
will be made to the Estate of Taylor Eisenhauer.
12. The parties acknowledge and agree that CNA/Columbia
Casualty Company may make a Qualified Assignment within the
meaning of Section l30(c) of the Internal Revenue Code of 1986, as
amended, for its liability to make the periodic payments required
in this Settlement Agreement and Release. Such Assignment, when
made, shall be accepted by the Releasors and the Releasors'
counsel without right of rejection and shal1 completely release
and discharge Schwinn Cycling & Fitness Inc. and CNA/Columbia
Casualty Company from the obligations contained in this Settlement
Agreement and Release. Releasors recognize that, upon such an
assignment, the Assignee shall be the sole obligor with respect to
the obligations assigned, and that all releases that pertain to
the liability of Schwinn Cycling & Fitness Inc. and/or
CNA/Columbia Casualty Company are final, irrevocable and absolute.
A Qualified Assignment, Release and Pledge Agreement is
attached hereto as an addendum. Releasors represent that they are
executing the Qualified Assignment, Release and Pledge Agreement,
in the appropriate form, concurrent with the execution of this
Settlement Agreement and Release.
The Assignee, CNA Structured Settlements, Inc., shall fund
the periodic payments by purchasing a "qualified funding asset"
within the meaning of Section 130(d) of the Internal Revenue Code
in the form of an annuity contract issued by Continental Assurance
7
...
Company, which will be an A-rated company or better by A.M. Best
at the time of issuance. All rights of ownership and control of
such annuity conLract will remain vested with the Assignee
exclusively. The Assignee shull direct Continental Assurance
Company to send the periodic payments directly to Taylor
Eisenhauer or a named Contingent Payee. Such direction of
payments shall be solely for the Assignee's convenience and shall
not provide Taylor Eisenhauer or such named Contingent Payee with
any rights of ownership or control over the uqualified funding
assetU or against Continental Assurance Company.
The Assignee's obligation for payment of the structured
settlement payments shall be no greater than that of Schwinn
Cycling & Fitness Inc., CNA/Colurnbia Casualty Company (whether by
judgment or agreement) immediately preceding the assignment of the
obligation for the structured settlement payments.
13. The payments under this Settlement Agreement constitute
damages on account of personal injuries or sickness within the
meaning of sections 104(a) and 130(c) of the Internal Revenue Code
of 1986, as amended. The periodic payments required under
Paragraph 3(a) shall be provided for and secured by an annuity
contract with the Continental Assurance Company.
14. The obligation of Schwinn Cycling & Fitness Inc.,
CNA/Colurnbia Casualty Company, and/or Assignee to make each
periodic payment shall be discharged upon the mailing of a valid
check in the amount of such payment to the designated address of
the payee. Releasors, Taylor Eisenhauer or the Contingent Payee
shall be responsible for maintaining a current mailing address
8
with Continental Assurance Company at Post Office Box 87669,
Chicago IL 60680-9995. Unless otherwise notified in writing,
future periodic payments to Taylor Eisenhauer shall be mailed to
650 Billett Drive, Mechanicsburg, PA 17055.
15. Periodic payments under this Settlement Agreement and
Release cannot be accelerated, deferred, increased or decreased by
the Releasors, Taylor Eisenhauer or any Contingent Payee, and no
part of the payments called for herein or any assets of Schwinn
Cycling & Fitness Inc., CNA/Columbia Casualty Company or Assignee
are to be subject to execution or any legal procese for any
obligation in any manner, nor shall the Releasors, Taylor
Eisenhauer or any Contingent Payee have the power to sell,
mortgage, encumber or anticipate same, or any part thereof, by
assignment or otherwise. Therefore, any purported assignment by
the Releasors, Taylor Eisenhauer or any Contingent Payee shall be
void and invalid; the assignee shall acquire no rights; and the
nonassigning party shall not recognize any such purported
assignment.
16. Each party hereto shall bear all attorney's fees,
expenses and costs arising from the actions of its own counsel in
connection with the Cumberland County Case, this Settlement
Agreement and Release, the matters and documents referred to
herein, and all related matters.
17. This Settlement Agreement and Release contains the
entire agreement among the parties with regard to the matters set
forth herein and shall be binding upon and inure to the benefit of
the executors, administrators, personal representatives, heirs,
9
successors and assigns of each. Inconsistencies between this
Settlement Agreement and Release and any other related settlement
documents must be resolved prior to the initiation of the payments
specified above.
18. The provisions of this Settlement and Agreement and
Release shall remain confidential. The parties will not disclose
any of the terms, other than to governmental taxing authorities,
or to their lawyers, accountants or spouses.
19. Releasors acknowledge that they are represented by
counsel, have carefully read this Settlement Agreement and Release
before signing it, that the terms of this Settlement Agreement and
Release have been explained by counsel, and that the terms are
fully understood and voluntarily accepted.
20. This Settlement Agreement and Release is governed by the
laws of the Commonwealth of Pennsylvania.
21. This Settlement Agreement and Release may be signed in
counterparts.
22. All parties agree to cooperate fully and execute any
supplementary documents and to take all additional actions which
may be necessary or appropriate to give full force and effect to
the basic terms and intent of this Settlement Agreement and
Release.
IN WITNESS WHEREOF, and intending to be legally bound hereby,
I have executed this Settlement Agreement and Release this
day of , 2003.
10
Qualified AssIgnment, Release, and Pledge Agreement
Clalmant-8ecured Parly.
Assignor:
Asslgnee-Deblor;
Annuity Issuer:
Annuity (Policy No.):
Effective Dale:
Taylor EIsenhauer
Columbia Casualty Company
CNA Structured Selllemcnls, 'no.
ConlM1enlal Assurance Company
This Qualified Asslgnmen~ Release, and Pledge
Agreement Is made and entered into by and among the
parties hereto as of the ErfeclIve Date with reference 10
the foIJowfng facts: ,
II 1
A Claln\aill-Secullld Party has executed a settlement
agreement or release dated
. _ (the .SetlJement
Agreement") which requires AssIgnor to make
certain periodic payments to or for the benefit of
Clainant-Secured Party as stated In Addendum
No.1 of this Agreement (the 'Periodic Payments'),
B. The parties d9$/re to effect a 'qualified
assignment' Within the meaning and subject 10 the
conditions of section 13O(c) of the Inlernal
Revenue Code of 1986, as amended (the 'Code').
C. ~Ignee-Deblor desires 10 grant 10 Claimant-
Sec;ured Party a security Inlarest 10 $:ure the
liability being assumed by Assignee-Oebtor 10
make the Periodic Payments.
NOW THEREFORE, In consideration of the foregoing
and for other good and valuable conslderalion, the
parties agree as follows:
1. Subject to qualification under section 130(c) of the
Code, Assignor hereby assigns and AssIgne&-
Deblor hereby assumes all of AssigllOl"s liability to
make the Periodic Payments. Assignee-Debtor
assumes no liability to make any other paymenl
Claimant-Secured Party hereby accepts and
consents to the assignment by Assignor and the
assumption by Assignee-Oebtor of the liability to
make the Periodic Payments, and upon the
Effective Dale Clalmant-Sccured Party releases
Assignor from all liability to make the Periodic
Payments.
2. The Periodic Payments constilule damages on
account of P8f'SOn8llnjury or sickness In a case
Involving physical Injury or physical sickness within
the ~ of sections 104(a) and 130(c) ~ the
Code. : :
3. AssIgnee-Debtor's liability 10 make the Periodic
Payments Is no greater than that of AssIgnor as
delennlned imrnedialely prior to this Agreement
None of lhe PeriodIc Payments may be
acceleraled, deferred, lnaeased or decreased,
anticipated, sold, assigned, Pledged, or
encumbered by Clalmant-Secured Party.
4. The obligation assumed by Asslgnee-Oeblor to
make each aJlP/lCable Periodic Payment shall be
fulty discharged upon the mailing of a valld cI1eck
or wire tra.'sfer of funds on or before the due date
for SU:Ch Periodic Payment to the addreSs of reconl
spec;qed by Clalmant-Secullld Party if S/JCh c:heck
Is dUlY negotiated or such wire transferred funds
are duly received,
5. ThIs Agreement shall be lJOVCmed by and
inleipreted In accordance with the laws of the
Slate of Illinois (wtthout giving effect to the cI1oIce-
of-raw rules lhereol).
6. Asslgnee-Oeblor may fund lhe Periodic Payments
by PUrchasing the Annuity from Annuity Issuer to
5elVe as a "qualifled fundIng asser wflh/n the
meaning of section 13O(d) of the Code. All righls of
ownership and control of the Annuity shall be and
remaIn vested in Assignee-Debtor except as
provided In paragraphs 11 and 12 oflhls
Agreemenl
7. Assignec-Debtor may have Annuity Issuer send
paymenls from the Annuity directly to the payee(s)
specified in Addendum No.1. SUch direction of
paymentahall be solely ror Asslgnoo-Debtof's the Annully to ClaJmant Secured PaIly upon
convonlenoo and shall not JlIllVIde oxecu1lon or lhJs Aoreemenland receIpt by
ClaIrnant~red Party or any payee with any AssIgnee Debtor or the Annuity Irom Annuity
rfghts 01 Dwnershlp or control over the Annuity or Issuer.
against Annuity /llIUCl'.
12. Assignee-Debtor shall have all rfghts olOWl'l8nlhlp
8. Asslgnae-Oobtof's liability 10 make the Periodic and control In II)e Annuity, Including the rfght to
Poymonts shall oontlnuo wlthout diminution receive and retain aU benefits under tho Annuity,
regardlo$a or any banJuuptcy or Insolvency 01 which are not Inconsistent with the security Inlerest
AssIgnor. gronled under paragraph 11, and CIalmant-
Secured PaIly shaU have no rfght lD antlclpato,
9. In lite avent lhat lite Selllement Agrccmentls sel~ assign" pledge, encumber, or otherwise
declared lennlnaled by a court of competent llXerQse any rfght with respect 10 the Annuity, 80
Jurisdiction, the parties shall act In accordance with long as Asslgnee-llebtor has nol failed duo 10
the orcIenl 01 tha court; JlfOVided howo\lel' VIal Insolvency or bankruptcy to make any 01 lite
nolhi'lg In lhls paragraph shall preclUde a party to Pel10dic Payments. " such a failure occura and Is
this Agreement from appealing any Order Dr continuing, Clalmant.secured Party shall have all
Judgmenl 01 a court. In the event thaI section or the rfghts and remedies 01 a secured party
130(0) 01 the Code has not been satisfied, (i) the under the law then In ellect In the Slato or Inlnols.
assigMlent by Asslgnor to Assignee-Debtor 01 the The Jlnnulty will ooar the rollowlng legend:
IIabl1Ity to make lite Periodic Paymen,ls 10 13,
Clalmant~rec! PaIly desc:ribcd ill' paragraph 1 I
orlhis Agreement'shall be of no lorce and effect, NOnCE
(N) lite Asslgnee-Debtor shall be acting in the
transaction as lite agent 01 the Assignor and the 'This annuity contract has been delivered to the
Annuity shall be owned by AssIgnor which will posses.o;ion or Taylor Eisenhauer lor lite sole
continue to havllllte liability to make the Periodic purpose or P8rfeclJng a lien and security interest of
Payments to Clalmant-5ecured Party, (iii) such person in Ihis contract.
Assignee-Debtor shall have no liability to make any Taylor Fosenhauer is not the owner or, and has no
Periodic Payments to Claimanl-$eCUred Party, and ownership righls In, this conlract and may not
(Iv) the parties hereto agree to cooperate in taking anticipate, sell, assign, pledge, encumber, or
such actions as are reasonably necessary Dr ollterwlse use this conlract as any fonn or
appropriate to achieve the foregoing. collateral. Please contact lite Issuer of this contract
for further infonnation.'
10. This Agreement shall be binding upon the
respective representatives, heirs, successors and 14. Assign~blor makes no representations with
assigns of lite parties hereto and upon any person respect to ~ consequences of this Agreerpent
or entity lliat may assert any right hereund~ or 10 or the adequ of lhe security Interest created
any of the Periodic Paymenls. hereby.
11. Assignee-Debtor hereby pledges and grants to 15. Any notice to a party hereunder shall be in writing
CIalmanl.secured Party a lien on and securitl and shall be deemed to have been given when
Interest In all of Assignee-Debtor's rlgh~ title, and maRed to the par1y's address of record,
interest in the Annuity and all paymenls there from
In order to secure lite obligation of
Asslgnee-Debtor lD make the Periodic Paymcnls,
Asslgnee-Debtor and Claimant-5ecured Party
shall notify Annuity Issuer 01 the lien created under
this Agreement, and Assignee-Oebtor shall deliver
3. As a result, the instant case was initiatcd hy I'l1Iilllifls. allcging that Taylor's
injurics wcre caused by defccts in the Schwinn cxcreise hieycle. and milking claim against
Schwinn Cycles and Fitncss, Ine, and Nauti-l.is. Inc. tld/h/a Ilushcy's Cycling and Filness
Ilcadquarters and tld!h!a Bushey's Schwinn Cycling. Inc,
4. I'laintilTs' theories of Ihlbility includcd causes of action lor strict product liability
and for negligence in the fabrication and distrihution of a foreseellhly harmful product.
5. Both party Defendants asserted, in defense of this claim. that the pfOduct was not
defective, and that in any evcnt they did not manufacture, distribute or sell thc pfOduct, butlhat
predecessor corporations to which they were not successors were responsible.
6. As a result, the parties Defendant took the position that they were notliablc to thc
Plaintiffs,
7. The Defendants did join, as additional Defendants. Taylor Eisenhauer's parcnts,
George and Debra Eiser.hauer, and his grandparents, Edward Eisenhauer and Francis Eisenhaucr
on theories of negligence for allowing Taylor unsupervised access to a foreseeably dangerous
piece of cxcrcisc equipmcnt
8. Suil was initiatcd by Complaint in April of 1999, and the case's many issucs
completely litigated IhfOugh written diseovcry, depositions, and ultimately the production of
PlaintifTs' expert reports.
9. In a Case Management Order datcd Fcbmary 23,2001, thc Honorable Kcvin Hcss
ordered that discovery be complctcd by Junc 30.2001, that dispositive motions be liIed by
July 31, 2001, and that thc mattcr be tentatively set lor trial commcncing Novcmbcr 5. 200 I.
2670.J5.11J1\1~I\RT
2
IX. The mediator was presented with a report from Taylor's doctor. Randy Houck.
M.D.. dated August 13, 199X,
19. In this report, Dr. Ilouek indieutes thut the loss of the small ullll ring lingers on the
right hand, both umpututed at the I'll' joints, lmnslates to fi.lurteen (14%) percent impairment of
the upper extremity or eight (8%) percent impuirment of the whole person,
20. A copy of Dr. I-louck's rcport is attached hereto us Exhibit "A" und recent
photogmphs ofTuylor's hund ure attuched hereto as Exhibit "B."
21. Tuylor has been able to function normally in school and with outside uctivities,
although the purtial loss of the fourth und fifth fingers docs impose some limitutions upon
activity.
22. On or about Junuary 31. 1996, Plaintiffs George and Debra Eisenhuuer had
enlered into a Power of Attorney and Fee Agreement with Angino & Rovner, P.C., a copy of
which is attached hereto has Exhibit "c."
23. Pursuant to the Agreement, Angino & Rovner, P.C. would be entitled to u forty
(40%) percent fee lor a settlement "shortly before trial and after the case had been lotally
prepared. "
24. Pluintiffs' counsel had completed pre-trial activity in this case and it was ready to
be listed for trial once the stay was lifted, and the Court had evaluated Nauli-Lis' outstanding
motion.
25, Pursuant to the Fce Agreement, Angino & Rovner IS also entitled to
reimbursement of litigation relatcd costs.
26. A printout of counsel Iitigution costs is attached hcrcto as Exhibit "D," and total
$ 10,207.24.
2670.JS.IIJ:>'IMIRT 4
27. I (owcvcr. Occausc Ihc l'laintilr is a minor. Angino & Rovncr will rcducc ils fcc by
$6.707.24.lcaving $70.000. cvcn. availahlc lilr thc minor Plaintiffs bcnclil.
28, As part of thc proposcd scl1lCl11cnt. thc Dclendants Imvc agrccd to purchasc a
structurcd annuity lilr laylor's hcnclil worlh $70.000. A copy of thc proposcd annuity is
aUachcd hcrcto as Exhibit "E."
29. That annuity guarantccs lilllr cqual paymcnts. in thc U1nount of $26.743.60.
commcncing whcn Taylor rcachcs thc agc of22. and continuing for four consccutivc ycars.
30. Thc total projcctcd bcnclit is $106.974.40.
31. The annuity issucr is Conlinental Assurance Company. and the assignment
company lor thc quotation is CNA Structurcd SCl1lcments. Inc.
32. George and Debra Eisenhaucr rcquest that the Court approve seulement on this
structured annuity basis.
33. Additionally. the Defendants have requcsted that Plaintiffs sign a release of
liability, and thcn discontinue the instant action, and Plainliffs request permission to execute the
relevant documents.
WHEREFORE. the Plaintiffs requcst that the Court issue an ordcr:
(a) approving seulement in lhe amount of $122,500;
(b) approving payment of counsel fees and reimbursemcnt of litigation costs to
Angino & Rovner, P,C. in the amount 01'$52.500:
(c) approve the purchase of an annuity with the remaining $70,000 lor the benelit of
Taylor Eisenhaucr. pursuant to the annuity bcnelit quote auachcd to the Petition;
2670.'5.IVMt\.I\ln
5
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POWlA OF A"'ORN~ ANiJ FEE AGR~~M~NT
Iv lignin; thIa A;mll\lnt, I Iw.llCIcnowlldg. tNt I Iw.1 hive lIllI.g.d the IIw firm of Anglno I RoVlllr,
P.C., to repruent me lu.1 uncI.r 1hI fGlowlng t.nTlland condltlolll:
1. AnQIIlO . RoYTllr, P.C, IIIIY on my lour! behl" llcur. IIIIdICl!, work and oth.r IImIIIr racord., conduct en
~ltIon, negotlat., and "F'lCfI"'Y Itar1M Ig.11\I1 InYOM FIIpOllllbl. for my (ourllnjurll. end 101111
with rtIpICt to t:",s "oj: .l'......S f:..~ur - p~ c;..ltt . with fuD power IIId .uthorlty to ,ppllr on be"'''
of 1hI undIralgned In Iny Court of rtcord or In eny Idmlnlltretlv. or oth.r proClldlng, to do .nd perfonn an
end IYIty act and thing whlt.o.ver thet mlY be requl.lt. and 1IICI...ry to be done In COM.ctlon with thI
above oIIlm a. fully a. 1hI uncI.relgned might or could do If perlOllllly prUtnt; her.by ratifying and
confIrrnIng an that MId anoMtyt """ IIwfully do or QUlll0 be done therein by Y1nue of thII pow.r of
attollllY, .
2. I lwellQrH to PlY Anglno . RoVlllr,P.C., eny out-of.pocklt 'lCpIfIIlI they Incur to llcur. record., .xptrtl,
etc., ~UI a contlng.nt fft that II totally depend.nt upon 1hI1r obtaining monle. for me lUll II fonow.:
AnDJnD It Rovner. P.. C.
M~/U.)
.. SanIImInt prior to IW1Ing .uft
b. , lanl.m.nt fonowlng lult but
prior 10 trill or arbltretlon
c. Settlement or verdIct It trill
or Irbltr.tlon, Iher trI.I,
arbitration, or appe.l. or Ihonly
beforl trial and aher the Clle
hi, been totllly preplred
d. If no-flult recovery or non-monetlry
benefit. ReA (.500); NJR ,.450):
other. '.400) per hour but not to
exceed 40 % of the 10t.1 recovery of
V11lue of benefit
30%
70%
35%
85%
40%
60%
Settlement or VIIrdlct If for .ny
raalon'l (we) negotllle directly or
,"gege other counsel to represent
me (UI)
f. Other cue.
..
20%
80%
3. In 1ha event that any aettlement Is mlde on I I1nIctured or deferred payment ba.Is, anomeya lhall be
entitled to receive their percentlge based on the prllenl velue of the Itructured Imlement, " p.ld II I lump
aum It thllIme of aettlement.
I (wellllrH not to HttIe or di.CIIIS .ettlement of MV lourl cell without the written consent of Angtno .
Rovner, P.C. '
'By IIgnlng thIl Agreement, this J I d.y of ~"'n, ,'9'&:,1 (we).cknowledge tltIt I (w.) hlvl
IUd, understood, and receIved I copy of lime and Illr.. wltiiTltIlIlT111 Ind COndltlolll.
_llPAlj' _tL t,~,-L
.
ISEAU
C\t"D. r:; . <:: M.J,..",-",- (SEAU
Angina' aovner, '.C.
n C""IlC'C'OUJITIIfO IWQIIrnR ..
'IIIA1ZD. 10/17/2001
rILl tftIItMA......... .... "04'
,...,
I
CLI&Ift'.................1
DAD I. orrlC&.........1
TYPI or CAlI...........1
IIIDQI1IJl,
lIJlIUU
,/I
alORGI PO. UrLOI.
DKnNDUT1............., IClnftIOl CORPORATICII
A1"I'OIUfIY 111I cuaa....... JKM
f'ORIlUDD..............1 AMDRr:W IIID.LIY, 11OU11lI7
UJ'KJtRAL...............1
IPICIAL 1IO'n(.)........1 rORWARDER'. FBI _ 2U
----------------------------------------------------------------------------------------------------
... nu:: EXPINSES ...
DESCRIPTION DATIl QUANTITY UlIIT/PIUCK Al<<>1lHT ,....,.
'AX CllARGl8 (PER PMB) 4/27/U" H.OO 1.00 14.00
rAX CKARGl8 (PIR PAGB) 2/16/2000 4.00 1.00 4.00
rAX CBARG!8 (PER. PAGB) 2/U/2000 2.00 1.00 2.00
'AX CBAR.GES (PER. PAGE) 5/10/2000 c.oo 1.00 4.00
'AX CBARG!B (PER PAGE) 7/24/2000 3.00 1.00 3.00
'AX CBA.R.GlS (PER PAGE) 3/01/2001 3.00 1.00 3.00
'AX CBARGlS (PER. PAGE) 3/02/2001 3.00 1.00 3.00
'AX CIL\RGIS (PER. PAGE) 3/08/2001 1.00 1.00 1.00
'AX CBARG!S IPER. PAGE) '/20/2001 2.00 1.00 2.00
PAX CBARGBS (PER PAGB) 8130/2002 1.00 1.00 1.00
'AX CHARGES (PER. PAGB) 8/07/2003 20.00 1.00 20.00
FAX CHARGl8 (PER PAGE) 8/13/2003 12.00 1.00 12.00
PAX CHARGES (PER. PAGE) 51/18/2003 2.00 1.00 2.00
'AX CBARG!S (PER PAGZ) 9/25/2003 2.00 1.00 2.00
FAX CHARGES (PER. PAGE) 9/2"2003 2.00 1.00 2.00
PAX CBARC3S (PIR. PAGE) 10/051/2003 2.00 1.00 2.00
------------
EXPEND 'l'YPB 'l'OTAL, 'AX CHARGKS (PER PAG!) 77.00 ..
IHVES'I'IGA:t'ION TIMB EXPENSE 2105119" .50 70.00 35.00 TJlI
1NVJ!:S'l'.I~ION 'lIMB EXPENSB 3/12/1996 .25 70.00 17.50 TJ.
INVES'l'.IGA:t'ION TIKI EXPENSB 5/20/1997 .25 70.00 17.50 TJ.
IRVBS'l'IG.U'IOH TIM! BXPENSB 4/05/1"9 2.50 70.00 175.00 NAB
1NVES'I'IG.A:l'IOH 'rIMB BXPENSE 12/27/1999 .50 70.00 35.00 NAB
INVBS'l'IGAT10N T1MB EXPENSB 12/28/1999 .75 70.00 52.50 NAB
------------
BXPENSB 'l'IPE wrALl INVESTIGATION TIKI EXPENSE 332.50
D. LIDLB - EXPENSES 512011'" 18.72
A. SIMMERS - EXPENSES 12/09119915 .50
AAtlno . ~.r, '.e.
.. (UII~HMI II.lQt.fta ..
rlLa ~............. "0"
'1IIAa&D1 10/17/1001
'&aI.
.
a.r..,.................. .r'DIAUIa, (8)AQI rea 'fAYLClII
............................................................--......................................
OCWCIIII'D. llUCl . WlITLlW
COMPlII'D. 1&.Ut1 . WlITLlW
COICP~ .&Mel . WUTLlW
I. lOU.a . &IP&IIIU
WlDUD COPl.
N. .ll"lI:a' . KUDla
Oft . DPIII8U
U'lW ra'/PUaLICArlOlll/Y1U
.nuc . un.a
IDDU 'l'D1 'ZOTAL. 11IYDT1GArJOII I..au
LOIIO DlftlJIa
LONa Dl''VoIIa
IDNa Dlnuca
LONa DI'DNCI
LOIIO Dlll'Volla
LONO DlanHCl
IDDU T'DI '1'O'tl1.1 LOIIG DlftAJlQ
P8arocOPlIS
PllO'l'OCOPIZ8
P80'I'0C0PIU
IUDD 'l'D1 'l"OtAL, PBO'l'OCOPIIS
POST_
POST_
POST_
POll'rAllZ
POST_
POST_
POST_
POS'l'AG1
IIPDSI 'l'I'P1 'l"Ot.\L1 P08'lAG:1
UPI
UPS
no EXPRESS
UPS
UPS
IXPD'm 'nP1 'l'O'rAL1 PUROLA1'OR.
1/11/1"1
1/0'/UtI
Jllt/l"l
Sln/un
1/01111"
U!2l/ltn
2/0'/2000
2/1S/2000
J/U/UOI
c/lO/n"
II/2s/nn
12!2s/nn
2/25/2000
3/13/2001
1010'/2001
10/0'/2001
10/0'/2001
10/0'/2001
3/03/1U8
5/21/19U
1/2'/2000
6/05/2000
1/2212001
4/18/2001
8/1312001
10/0ll/2003
12/21/19U
2/2'/2000
9/06/2000
7/17/2001
8/21/2002
41'.00
172.00
3,771.00
UI.II
1I.n
IS.IO
I.IS
J.20
14.J2
'0.00
25.00
11.10
....-----
nc.u .
5.14
'.tI
1.00
3."
I.CS
5.00
--..-..--
23.33 .
.2' 12'.75
.2' 43.00
.2' 'U.75
-.----.-..
1,112.50
3.U
.33
.33
.33
.34
.34
.34
US.t5
-----..----
154.80
'.75
5.87
U.86
62.lt
14.11
---------
136.78 .
............
SUB-'I'O'I'AL 2,311.34 ..
----------------------------------------------------------------------------------------------------
DESCRIPTION
... CHECK EXPENSES ...
DATE
CBECX'
AMOUNT
btLao , Ion.r, P.C'.
.. CIoIalACCDUIITI. ItMIIfta ..
''',AAID. 10/1711001
'Ita 1fUHBD............. 'IOC'
.....
J
a.tllf'l'.................1 II'DDUD, ~ ro.. nn.cc
-----.--...----....-....-..--------....-------..--....------...-----..-..-----------
o7ODI, DALY , COtDltD' UIO('. 2121111" aon 10.00
IllALft INJ'ORMTIC* IDYlCl. 2121111.. 11014 n.lI
UMJVD.JITY PIY.ICIM. 2121/U" unl 7.50
IICC 2/2I/U" Un? 2~.t1
DCIUGI PWI 3/11/11" una 225.00
PIOJ'I 01 CUMDRLAMD comrrr 3/J0/lft. nu. s..,o
lIllIUn' fir C'11VW.W"1m OOUIITY 3/30/un nu, 100.00
CAPl'lOL con ID.VICI 1/02/1'" UU, 12.72
Kl1l'I PAINrDIG, laIC. '/lS/ln, 400.. 11.12
I"tAItZY .. HOIUtOM' 12/20/1n, uus soo.oo
RDHJALDZ, lIAVIDSOfI' , USOC rile' Ul22/1tU UU3 1,000.00
CAPITOL con IDVIO 1/05/2000 .1511 12.72
UCOJmD SERVICES, lit'. 1/U/2000 4111. U.2'
"""= 2/02/2000 41'tl n.oo
RZLlAIIU copy 8ZJtVICI 2/17/2000 4224' n..n
ROYAL COUJt% UPOR1'1IfQ 4/12/2000 4300' 525.10
con CIHDJl, IRe. 7/18/2000 UU) ,,,.U
CZH'l'RAL P!1OISTLVAltIA COUR:l' '/13/2000 4'205 130.20
KLP RBI'O~DlG, INC. 1/10/2001 UUl 115.21
CENTRAL PA COUJl:t' REPOR:rlNa 5/JO/2001 48U3 71."
BUGlIII,ALBRIGB'l',J'OtIl'I " HADLB 7118/2001 U20t 4U.15
ROHlJALDI, DAVIDSOtf " ASSOC INC 8/15/2001 usn 707.50
CORN!:RS'1'Otf'B GRAPHICS , copy '/U/2001 UU4 3.11
ROHUALDI, DAVIDSOII " ASSOC INC '/U/2001 UU5 1,302.'0
ROKUALDI, DAVIDSON" ASSOC lHe 10/03/2001 50181 10.00
ANDERSON ASSOCIM'ZS PSYCBOLOCY 1/0'/2002 51230 '00.00
RUBIK ORmOPEDIC BORGERt, =. 10/0B/2003 58361 21.17
DODCLAB IAW OP'l'ICB 10/08/2003 5B3U 350.00
DOUGLAS IAW onIO 10/15/2003 suo 875.00
DOUGLAS LAW onICB 10/15/2003 59312 350.00..
ROMt1ALDI, CAVItlSOH " ASSOC lHe 10/17/2003 58524 32.68
---.----
SUB_TOl'AL 1,955.60 ..
------
'I'O'tAL EXPENSES 10,266.94 ...
------...-........-.....---...--------....------......------..-------...........---------------.....-------------------..----
..... RECEIP'l'S ...........
SOtlRCB
PRO'l'JI OP ClDlB. co.
SBD. OP CUHB. co.
....ON
REl'. .. CASH
RTN.
IlA1'B
4/15/1999
4/15/1999
AMOONr
9.00
50.70
RECEIPTS'rO'rAL
59.70 ....
-...----.....--.......-----..--------..--------------------...--------..-..-..---------..-----......--------------.....-.......
. O~ING INVOICES.
CUSTOMER NAJom
INV'
INV IlA1'B
$BILLED
$PAID
IDI1ll
...........-.
OU'I'STANDING INVOICE 'l'O'I'AL
.O!) .....
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'LI"Z
c: 7 )
'2/J
-..
TA YLOR EISENHAUER, a minor.
by GEORGE W. EISENHAUER
and DEBRA A. EISENHAUER.
his parcnts and natural guardians,
Plaintiffs
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYI.V ANI A
vs.
99-1930 CIVIL
CIVIL ACTION -LAW
SCHWINN CYCLING AND
FITNESS, INC. and NAUTI-LlS,
INC., TID/B/A BUSHEY'S
CYCLING AND FITNESS
HEADQUARTERS and tld/b/a
BUSHEY'S SCHWINN CYCf.ERY :
INC.,
Defendants
vs.
EDWARD EISENHAUER and
FRANCIS EISENHAUER,
Additional Defendants
JURY TRIAL DEMANDED
IN RE: APPROVAL OF SEITLEMENT AND PROPOSED DISTRIBUTION OF PROCEEDS
ORDER
S.
AND NOW, this day of November, 2003, hearing hereon is set for Friday,
December 5, 2003, at 9:30 a.m. in Courtroom Number 4, Cumberland County Courthouse,
Carlisle, P A, for the primary purpose of inquiring concerning expenses and counscl fees. See
Gilmore v. Dondero, 582 A.2d 1106 (Pa,Super. 1990).
BY THE COURT,
r\~
LX ,,-~*-o.:>
.~
\"\ \P
~;I'~J.
TAYLOR EISENHAUER. ^ Minor. By
GEORGE W. EISENHAUER and DEBRA A.
EISENHAUER, his Parents and Natural
Guardians,
Plaintiffs
v.
SCHWINN CYCLING AND ITINESS, INC..
and NAUTI-LlS. INC. TID/B/A BUSHEY'S
CYCLING AND FITNESS HEADQUARTERS
and TID/B/A BUSHEY'S SCHWINN CYCLERY.
INC..
Defendants
v.
EDWARD EISENHAUER and FRANCIS
EISENHAUER,
Additional Defendants
IN TIlE COURT OF COMMON I'LEAS
CUMBERLAND COUNTY. PENNSYLVANIA
~!,,~
(
i
I
i_
/930
NO. 99-HfJ Civil
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Please mark the above-captioned case satisfied, settled and discontinued with prejudice as
to all claims.
Date: May 4. 2004
Respectfully submitted.
ANGINO & ROVNER, P.C.
1',
..,' -;A on :P7d..Il
JOS~~J\~ Melillo. Esquire
Attorney I.D. No. 26211
4503 North Front Street
Harrisburg. PA 17110
(717) 238-6791
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
AND NOW, this 4'h day of May, 2004, I, Robbie Tejehman Dunlap, an employee of the
law linn of Angino & Rovner, P.C., hereby certify that a tnle and correct copy of the foregoing
Praecipe to Discontinue was sent to the following counsel of record by placing same in the first
class, United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows:
Michael E. Sacks, Esquire
Michele Rovinsky, Esquire
Hamburg & Golden, P.C.
1601 Market Street
Philadelphia,PA 19103-1443
Charles B. Calkins, Esquire
Griffith, Strickler, Lennan, Solymos & Calkins
110 South Northern Way
York,PA 17402
Thomas J. Williams, Esquire
Martson Deardorff Williams & Otto
Ten East High Streel
Carlisle, P A 17013
Andrew C. Lehman, Esquire
Nealon & Gover
2411 North Front Street
P.O. Box 865
Harrisburg,PA 17108-0865
~~ ,(:
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