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HomeMy WebLinkAbout99-02438 : .Gi :~ ,~ ~ -"t), .,'. ., ~iTI'~" y~' ~)::;'( ~::~.,. ,,, " ,. ' ,i~~~:' ,,",y. .. ',", " "", ,);,:.-,.-,':: ,.i~!:;..;:.:\,-.'-' . :'~ I 0- cr -r ~ , ClAN 0 I. 2000 tb POST & SCHELL, P.C. BY: CHESTER F. DARLINGTON I.D. # 79070 1800 JFK BOULEVARD, 19TH FLOOR PHILADELPHIA, PA 19103 (215) 587-1000 A ITORNEYS FOR PLAINTIFFS KAREN ADAMS and MELISSA OLESKI COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiffs, v. NO. 99-2438 CATALINA LIGHTING, INC. Defendant. CIVIL ACTION - LAW PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S PRELiMINARY OBJECTIONS TO THE AMENDED COMPI,AINT I. FACTUAL BACKGROUND On April 24, 1997, a serious fire damaged Plaintiffs Karen Adams and Melissa Oleski's apartment in Camp Hill. A subsequent investigation detennined that the fire was caused by a light manufactured by the Defendant. Specifically, the investigation detennined that a malfunction occurred in the light's power cord which ignited the fire and destroyed Plaintiffs' propelty. On or about June 22, 1999, Plaintiffs filed a Complaint against the Defendant. On June 30, 1999, Defendant filed Preliminary Objections. On July 16, 1999, Plaintiffs voluntarily filed an Amended Complaint. In the Amended Complaint, Plaintiffs averred claims of Negligence (Count I), Strict Liability (Count II), and Breach of Warranty (express and implied) (Count III) against the Defendant. On or about August 16, 1999, Defendant filed Preliminary Objections to 1 f submit a claim to a jury in strict products liability relying on a product malfunction. The Pennsylvania Supreme Court held: A plaintiff presents a prima facie case of strict liability by establishing that thc product was defcctive and that the product caused the injury, (Citations omitted.) In most instances, the plaintiff will produce direct evidence of the product's defective condition. . In some instances, however, the plaintiff may not be able to prove the precise nature of the defect in which case reliance may be had on the "malfunction" theory of product liability. This theory encompasses nothing more than circumstantial evidence of product malfunction. (Citation omitted.) It pennits a plaintiff to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnonnal use or reasonable, secondary causes for the malfunction. (Citations omitted.) This thereby relieves the plaintiff from demonstrating preciselv the defect yet it permits the trier off act to infer one existed from evidence of the malfunction. of the absence of abnormal use and of tile absence of reasonable. secondarY causes, (Citation omitted.) We now accept this evidentiary approach as appropriate in ascertaining the existence of a defect in the manufacturing process. ROllers, 523 Pa. at 182,565 A.2d at 754 (Emphasis Added.). Thus, under Pennsylvania law, a plaintiff may establish strict products liability by showing evidence of an occurrence of a malfunction and that the malfunction caused the harm. A malfunction does not have to be established by direct evidence that it occurred, but rather by showing that there was no abnonnal or reasonable secondary causes for the malfunction.~d subsequent injury. Rogers, 523 Pa. at 182, 565 A.2d at 754. Here, Plaintiffs have sufficiently averred that the Defendant's light and power cord malfunctioned and ignited a fire in their apartment causing damage. Plaintiffs have specifically averred that the fire started in tile light's power cord from a malfunction in the power cord. Under the holding of ROllers v, Johnson and Johnson, supra, Plaintiffs have pled the required 5 Plaintiffs submit that if a plaintiff is only required to present to the trier of fact evidcnce of a malfunction through circumstantial evidence that a malfunction occurred, then a plaintiff may properly plead a cause of action alleging product malfunction by pleading circumstantial .- facts that a malfunction occurred. To hold a plaintiff at a higher level at the pleading stage then what he is required to prowe at trial is not reasonable and contradicts Pennsylvania law.2 In the case at bar, Plaintiffs have actually pled more facts in support of the malfunction then what is required to prove a malfunction under ROl!ers, Plaintiffs have specifically and directly averred that the malfunction occurred in the light's power cord. Plaintiffs have identified a specific malfunction and thus pled more than circumstantial facts showing a malfunction. Accordingly, Plaintiffs have pled sufficient causes of action in Negligence and Strict Liability against the Defendant and the demurrer must be denied. C. Defendant's Demurrer Against Plaintiffs' Breach of War ran tv Claim Defendant has filed a Demurrer against Plaintiffs' Breach of Warranty claim (Count II). In the Amended Complaint, the Plaintiffs have averred that the Defendant breached two warranties, an express warranty and the implied warranty of merchantability. Upon review of the Amended Complaint, it is clear that the Plaintiffs have sufficiently pled a cause of action in breach of warranty in accordance with Pennsylvania law. 2 See Diller vs, Chrysler Motors COl:p" 20 D&CAth 550 (Warren Co. 1992) for a further explanation of the malfunction theory of products liability and what facts must be averred in order to set forth a sufficient cause of action. Further, in its brief, Defendant tries to create a distinction that the holding in Ro~ers is an "evidentiary matter" and somehow does not apply to the case at bar. Defendant's Brief at p.5. To the contrary, ~ identifies the facts that a plaintiff must produce to assert and sustain a malfunction strict products liability cause of action. 7 Under Pennsylvania law to prove a claim of breach of warranty a plaintiff only must plead that the product was defective and that the defect caused the harm. Lenkiewicz v, Lanl1e, 242 Pa,Super. 87, 363 A.2d 1172 (1976). In Lenkiewicz, the Superior Court held: It is well settled that in order to establish a cause of action for breach of warranty or for strict liability under ~402A, the plaintiff must prove that the product was defective at the time that the seller delivered it to the buyer, and that the defect caused the plaintiffs hann. (Citations omitted.) The plaintiff may prove the existence of a defect circumstantially, by showing that the product malfunctioned. (Citations omitted.) l&nkiewicz v. Lange, 242 Pa.Super. at 91, 363 A.2d at I 175. Here, the Plaintiffs have sufficiently averred that the light's power cord was defective, malfunctioned, and ignited a fire which caused damages to Plaintiffs' apartment. To submit a cause of action in breach of warranty to a jury under Pennsylvania law, a plaintiff need only show tllat the product was defective and that the defect caused the harm. Lenkiewicz, supra; see also, Berkible v, Brantly Helicopter Col1'., 462 Pa. 83,337 A.2d 893 (1975). Accordingly, the Plaintiffs are not required to plead who purchased the light, when it was purchased and who owned the light. These additional facts are matters for discovery. As stated above, Plaintiffs' Breach of Warranty count avers that Defendant breached both express and implied warranties, In both instances, the Amended Complaint complies With Pennsylvania law. Plaintiffs' have specifically averred that express warranties existed, but after a reasonable investigation cannot locate them. Plaintiffs will produce the express warranties after sufficient discovery is concluded. Plaintiffs also claim that Defendant breached an implied warranty of merchantability. In both the express and implied claims, Plaintiffs have specifically identified the warranties that existed and averred that these warranties were breached by the 8 . , Defendant by manufacturing and distributing a defective light that caused a fire in Plaintiffs' apartment. Plaintiffs have also averred that the light's power cord malfunctioned. As stated in Lenkiewicz, supra; Plaintiffs may prove the malfunction by circumstantial evidence. Thus, the Amended Complaint sufficiently sets forth a cause of action in breach of warranty. It should be noted,that the Defendant has not cited l!mt law in opposition to Plaintiffs' position. Pennsylvania law is clear that a plaintiff in submitting a breach of warranty claim to a trier offact must only prove that a warranty existed, the product was defective, and that the defect caused the hann. To hold a plaintiff at a higher standard of proof during the pleading phase of a litigation then what is required to prove breach of warranty at trial is unreasonable and contradicts Pennsylvania law. Accordingly, the demurrer must be denied, D. Defendant's Motion to Strike Defendant has also filed a preliminary objection in the nature of a motion to strike. The Motion to Strike must be denied for the reasons discussed above. E. Defendant's Motion for a More Specifie Pleading In its original preliminary objections, in addition to its other preliminary objections discussed above, Defendant also filed a Motion for a More Specific Pleading. Howevef;in its brief, Defendant has not addressed this issur.. Accordingly, this motion is abandoned and waived. In the event that this motion is not waived, it must be denied for the reasons discussed above. 9 IV. CONCLUSION For the foregoing reasons and those stated in Plaintiffs' Response, Plaintiffs respectfully request that this Honorable Court overrule Defendant's Preliminary'Objections to the Amended Complaint and enter the order attached to Plaintiffs' Response. Respectfully submitted, POST & SCHELL, P.C. CHESTER F. DARLING ON, ESQ. Attorneys for Plaintiffs DATED: qI2l(~4 10 @JAN 0 3 200~ SEP 2 0 19~ qc'Q 761~ BENNETT, BRICKLIN & SALTZBURG LLP BY: Paul F. Lantieri, Esquire LD. No. 22241 BY: Marla B. Bigelelsen, Esquire LD. No. 79717 100 SOUTH QUEEN STREET, 3RD FLOOR LANCASTER, PA 17603 (717) 393-4400 ATTORNEYS FOR DEFENDANTS C ,<('') ~t:!J ~../I , "-' :.I \'1 KAREN ADAMS and MELISSA OLESKI : COURT OF COMMON PLEAS : CUMBERLAND COUNTY Ys. : CIVIL ACTION - LAW CATALINA LIGHTING. INC. : DOCKET No. 99-2438 ORDER AND NOW, this day of , 1999, upon consideration of defendant's Preliminary Objections and Brief in Support and any response thereto, it is hereby ORDERED and DECREED that plaintiffs' Amended Complaint be stricken and dismissed with prejudice for failure to state causes of action for negligence, strict liability or breach of warranty against defendant. BY THE COURT: J, '( Plaintiffs, in their Amended Complaint, seek to recover damages allegedly resulting from a fire which occurred on April 24, 1997. They have averred that at the time of the fire they were roommates who leased premises loeated at 1918 C Logan Street in Camp Hill, that the fire was started by a light fixture manufactured or supplied by the defendant and that the fire caused damage to their personal property and also required them to incur additional living expenses, More specifieally, paragraph 7 of the Amended Complaint alleges, "the fire was started by a light designed, manufactured, assembled, installed, marketed, distributed and/or sold by defendant. Specifically, the fire was caused by a malfunction in the light and the light's power cord." A copy of the Amended Complaint is attached to defendant's Preliminary Objections as Exhibit "C." The Amended Complaint contains three counts: Count I asserts a cause of action based on negligence; Count" asserts a cause of action based on strict liability; and Count III asserts a cause of action based on breach of warranty. It is defendant's position in these Preliminary Objections that the Amended Complaint is deficient in several respects, including, most significantly, the following: (I) it fails to state how the lighling fixture and alleged defects caused the fire; (2) it fails to state the manner in which the lighting fixture was carelessly designed or manufactured or why it was defective; and (3) it fails to provide very basic infonnation about the alleged warranty including the identity ofthe purchaser of the product, when it was purchased, who owned it and how the warranty allegedly was breached. For example, in Count I of the Amended Complaint, which asserts a claim for negligence, paragraph 11 alleges that the fire resulted from the negligence and/or other liability producing conduct of defendanC;n-failing to exercise reasonable care in designing, manufacturing and testing the light fixture. In Count II, which asserts a claim under strict liability, paragraph 17 alleges that the "defects" in the light fixture consisted of "(a ) design defects; (b) manufacturing defects; 2 (cl a failure by to warn (sic) of the aforesaid design and manufacturing defects; and/or (d) a failure to properly instruct as to the appropriate installation and operating procedures for the safe use ofthe subject bus and its components," (sic.) (It is assumed that in paragraph 17 plaintiffs intended to refer to the lighting fixture and not a bus,) Similarly, the only information concerning the existence ofa warranty or the breach thereof, in Count Ill, is an allegation, in paragraph 2 I, that defendant "implicitly warranted that the subject light and its components were of merchantable quality, fit for ordinary use. . ," and, ". . . upon information and belief, defendant may have expressly warranted that the subject light and its components were of merchantable quality. , ,," In addition, paragraph 23 alleges, "defendant breached these warranties because the subject light was not of merchantable quality, fit for ordinary use, and/or was unfit for the particular use for which it was purchased," For the reasons set forth in the argument below, plaintiffs' Amended Complaint is fatally deficient in that it makes no averments at all as to what the defects in the light fixture were, the manner in which it was negligently designed, manufactured or sold, how the alleged but undescribed shortcomings in the light fixture caused the fire, or who purchased it and when it was purchased. II. Statement of Ouestions Involved: A, Should plaintiffs' Amended Complaint be dismissed for failure to state a cause of action where, contrary to the fact pleading requirements of the Pennsylvania Rules of Civil Procedure. plaintiffs have failed to allege any facts whatsoever concerning alleged shortcomings or deficiencies in a light fixture manufactured by defendant, how the fixture caused the fire, how any alleged defioiencies 6r shortcomings caused the fire, and the purchase of the product? Proposed answer in the affinnative, 3 In addition, with regard to the breach of warranty claim, plaintiffs also have failed to allege facts basic to the existence ofa warranty claim, including the identity of the purchaser of the light fixture and when it was purchased. In their Answer to defendant's Preliminary Objections, and in particular, in answers to paragraphs 7 and 8 oflhe Preliminary Objections, plaintiffs really have not disputed this absence of factual infonnation in their Amended Complaint. Plaintiffs seem to assert that it is sufficient for them simply to allege that the light fixture was deficient in some undescribed respect, and that this deficiency caused the fire. It respectfully is submitted that plaintiffs are incorrect in this regard. In their answer to paragraph 7 of the Preliminary Objections, plaintiffs cite Rogers v. Johnson & Johnson, 523 Pa. 176,565 A.2d 751 (1989) for the proposition that all they need to allege in their Complaint is that the light malfunctioned, and that they do not have to state how or why the light malfunctioned or how the malfunction caused the lire, Plaintiffs' reliance on Rogers, however, is misplaced, In Rogers, the plaintiffhad a plaster splint applied to his broken leg, The splint was created by wrapping the product in question around the leg after it was dipped in lukewann water; this in turn caused the product to release heat and harden, fonning the cast. In this instance, however, the release of heat caused the plaintiff second and third degree bums for which he brought suit. It appears from the Supreme Court's opinion that at trial, plaintiff only presented evidence of a malfunction as well as evidence tending to eliminate medical malpractice as a cause of the bums. The court held that as an evidentiary matter, under certain circumstances a plaintiff may prove a defect in a prouuct with evidence of the occurrence ofa malfunction and with evidence eliminating abnonnal use or reasdtJable secondary causes for the malfunction, 523 Pa, at 182, 565 A.2d at 754. In essence. the court held that a jury can infer the existence of a defect from evidence of a malfunction and evidence eliminating other possible causes. 523 Pa, at 184,565 A,2d at 755. 5 Rogers is inappositc to thc case at bar for at least two reasons. First, it does not relieve the plaintiff from alleging facts which, if proven, would establish that the product in question caused damage. In Rogers, the causal connection between the application of the cast and the burns was evident beyond doubt; the only question was whether plaintiff had to prove how or why the plaster wrapping overheated. In the case at bar, plaintiffs have not pled any facts which, ifproven, would establish the causal connection between the light fixture and the fire, Second, in Rogers, the plaintiffpleaded and proved a malfunction - the wrapping overheated. In contrast, in this case, plaintiffs have not stated the nature of the malfunction. An electrical fire can be caused by any number of reasons whether or not a particular appliance, such as a light fixture, is involved, For example, an electrical fire can be caused by a faulty outlet, faulty home wiring, an electrical surge, etc. An appliance can cause a fire in a variety of ways; it can overheat, spark, fall over, etc, Plaintiffs' Amended Complaint offers no clues, let alone facts, indicating how or why the fire started, As discussed in our Superior Court's opinion in Woodin v. J.c. Penney Company,fne" 427 Pa, Super. 488, 629 A.2d 974 (1993) the malfunction theory cannot be used to pennit the court or jury to speculate as to a product defect or causation, In Woodill, plaintiffs contended that a fire was caused by a freezer's defective electrical cord, Plaintiffs contended that the fire was caused by a short circuit in the cord, a contention disputed by the defendants. The court cited Rogers, supra, for the proposition that in some cases, a plaintiff may rely on the "malfunction theory" where he cannot prove the precise nature ofa product's defect. However, the court went on to state that \Jnder this evidentiary standard,-....., ,the plaintiff cannot depend upon conjecture or guesswork," 427 Pa. Super, 492, 629 A.2d 976, The court noted that the freezer had functioned flawlessly for more than eight years before the fire and the plaintiffs did not olTer any evidence thaI the cord had deteriorated. 6 Id. In aflinning the entry of a judgment n.o.v, in favor of the defendants, the court noted that there was no evidence to identify any defect in the freezer cord at the time the freezer was sold, and that the mere occurrence of the fire did not give rise to the inference of a defect at the time of manufacture, 427 Pa. Super. at 493, 629 A.2d at 976. In the case at bar, plaintiffs are not attempting to use circumstantial evidence to establish the nature of a defect; instead, they are urging the court to conclude that both the existence of a defect and causation can be inferred from the occurrence ofa fire. Under Woodin and Rogers, supra, this is impennissigle. See also, Roselli v. General Electric Company, 410 Pa. Super, 223, 229, 599 A.2d 685,688 (1991). In addition, the Amended Complaint is deficient with regard to the avennent of a breach of warranty claim, Plaintiffs have cited Lenkiewicz v. Lange, 242 Pa. Super, 87, 363 A.2d 1172 (1976) for the proposition that to prove a breach of warranty, a plaintiffneed only plead that the product was defective and that the defect caused the hann, Lenkiewicz also is inapposite to the case at bar. In that case, the plaintiff was a waitress in a restaurant and was injured when a room divider fell on her. She brought suit against the seller of the room divider alleging breach of warranty, negligence and strict liability, In aflinning a verdict in favor ofthedefendant, the Superior Court stated, as a general proposition, "it is well settled that in order to establish a cause of action for breach of warranty or for strict liability under ~402A, the plaintiff must prove that the product was defective at the time that the seller delivered it to the buyer, and that the defect caused the plaintiffs' harm." 242 Pa. Super. at 91, 363 A.2d at 1175, In its opinion, the Superior Court did not address at all issues relating to whiit a plaintiff must plead and prove in order to establish a breach of warranty claim or whether the plaintiffs had standing to assert a warranty claim. In this case, not only have the plaintiffs failed to allege how the light fixture was defective when delivered or how the defect 7 'f. ,~ , BENNETT, BRICKLIN & SALTZBURG LLP BY: Paul F. Lantieri, Esquire 1.0. No. 22241 BY: Marla B. Bigeleisen, Esquire LD. No. 79717 100 SOUTH QUEEN STREET, 3RD FLOOR LANCASTER, PA 17603 (717) 393-4400 ATTORNEYS FOR DEFENDANTS KAREN ADAMS and MELISSA OLESKI : COURT OF COMMON PLEAS : CUMBERLAND COUNTY vs, : CIVIL ACTION - LAW CATALINA LIGHTING. INC, : DOCKET No, 99-2438 CERTIFICATE OF SERVICE Paul F, Lantieri, Esquire hereby certifies that a true and correct copy of the foregoing Brief in Support of Preliminary Objections to Plaintiffs' Amended Complaint of Defendant Catalina Lighting was served upon Chester F. Darlington, Jr" Esquire, Post & SeheH, P.C., 1800 JFK Boulevard, 19th Floor, Philadelphia, PA 19103, by way of United States regular mail postage pre- paid, " Dated: September 15, 1999 ,- -, "'.--. .)(; ;'{ 1 "i j Commonwealth of Pennsylvania County of Cumberland KAREN ADAMS AND MELISSA OLESKI VI. Court of Conunoll Pleas 99-2438 Civil Term 19____ No, ------------------------------------- CATALINA LIGHTING, INC. 18191 N. W. 68th Avenue Miam,i FL 33015 In _____ ____c:~~ ~_~_ ~c.:.::.~?_~ __-__!:<:~_m______ Catalina Lighting, Inc.: To _____________________________________________ You are hereby notified that Karen Adams and Melissa 01eski .------------------------------------------------------------------------------------------------ , , .' Summons - Civil Action - Law the Plamnrrs have commenced an acllon 10 ____u____nn__n___n_u___n______________u_________ against you which you are required to defend or a derault judgment may be entered against you, (SEAL) April 23, 99 Date ______________________________ 19____ .___CY_~T_tS__~_~_~_<;1lig_________________________ pro~r~J ' " __:Jib '-d.-It,-'t:iM./(r . i . j I j. , , , , , . , I u , ... I I ~ I z , i~a , H I , , ~: I ~l . .S '0 ~5 , Cl o<t' I 0-:11 I ...' z , C H ~ I CJ o-l If ..;1 ZH E-< Ii . ">. o<t~ - :I: , '" . ai ~ vi en Cl J z' i~~' ~ I~ enw H 01 '< I :Eo-l 0-:1 H' CC' o<to E-<I j~ ~ ..,: c o<t u' "", o<to<t Z o<tl ~I rn H , zen 0-:1 0-:11 1lI....~ ~ WH o<t H' l>:o-:I E-< >, mio-l' ~ ~ .o;w o<t HI ~:E u U' , '/ \. " ~b ,. .1 BENNE~&SALTlBURG BY: ~. PAUL F. LANT RI, ESQUIRE Attorney for Defendant Catalina Lighting, Inc. BENNETT, BRICKLlN & SALTZBURG LLP BY: Paul F. Lantieri, Esquire I.D. No. 22241 ATTORNEYS FOR DEFENDANTS BY: Marla B. Bigeleisen, Esquire I.D. No. 79717 100 SOUTH QUEEN STREET, 3RD FLOOR LANCASTER, PA 17603 (717) 393-4400 , KAREN ADAMS and : COURT OF COMMON PLEAS MELISSA OLESKl : CUMBERLAND COUNTY ys. : CIVIL ACTION - LAW CATALINA LIGHTING. INC, : DOCKET No. 99-2438 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of defendant, Catalina Lighting, Inc., on whose behalf a trial by jury is demanded. BENNETT, BRICKLIN & SALTZBURG By:~ij~ MARLA B. BIGE olSEN, ES RE Attorney for Defendant Catalina Lighting, lnc, I ;' ~ (1, ~f ..'3 ~ N ~Q ~.~ ::c (., ,.....i!: 0.... >. 9-<" 91,-:' N ~~ is: ~tJ.i I :P.: G::I.; => 1-. ...., -s: lL. 0'> a 0 0> BENNETI, BRICKLIN & SALTZBURG LLP BY: Paul F. Laotlerl, Esquire I.D. No. 22241 ATIORNEYS FOR DEFENDANTS BY: Marla B. Blgelelseo, Esquire 1.0. No. 79717 100 SOUTH QUEEN STREET, 3RD FLOOR LANCASTER, P A 17603 (717) 393-4400 KAREN ADAMS and : COURT OF COMMON PLEAS MELISSA OLESKI : CUMBERLAND COUNTY ys. : CIVIL ACTION - LAW CATALINA LIGHTING.INC, : DOCKET No. 99-2438 PRAECIPE TO FILE COMPLAINT TO THE PROTHONOTARY: Please enter a Rule upon plaintiff to file a Complaint within twenty (20) days hereof or suffer the entry ofa Judgement of Non Pros. BENNETI~ & SALTZBURG. LLP BY: ~ P~,:rt::.~ PAULF.L~ERI~ Attorney for Defendant RULE TO FILE COMPLAINT AND NOW, thisl<1ay Of] U~1999 a Rule is hereby granted upon plaintiff to file a Complaint herein within twenty (20) days after service hereof or suffer the entry of a Judgment of Non Pros. ~-~-r7 fa~l1t -~7J ~o-~. ~ 0\ ~ "" ~ N :::> S~ x: 8~ Q". ~~ ~~ N ~U_ I ':C:m u:LI.. :;: tu :1: ::) aJa. 1-- ..., B LL CTl 0 C1> ~ COMPLAINT Plaintiffs, by and through their undersigned counsel, by way of Complaint against the Defendant, hereby aver: I. PlnintiffKaren Adams is an adult individunl who currently resides at the address in the above caption. 2. PlnintiffMelissa Oleski is an adult individual who currently resides at the address in the above caption. 3. Defendant Catalina Lighting, Inc. is a corporation organized and existing under the laws of the State of Florida with a principal place of business located at the address in the above caption. 4. At all times relevant hereto. Defendant was engaged in the business of designing, manufacturing, assembling, installing, marketing, distributing and/or selling lights. 5. At all times relevant hereto, Plaintiffs were roommates who leased premises located at 1918C Logan Street, Camp Hill, P A 170 II (hereinafter "the property"). 6. On or about April 24, 1997, a fire occurred at the property. The fire was started by a light designed, manufactured, assembled, installed, marketed, distributed and/or sold by Defendant. 7. As a result of the fire, Plaintiffs incurred significant damages to their personal property and the inr-ursion of additional expenses totalling in excess of Twenty-Five Thousand Dollars ($25,000.00). 8. The personal property damage and additional expenses were directly and proximately caused by the Defendant, as further and more fully described below. COUNT "=NEGLIGENCE 9. Plaintiffs incorporate herein by reference paragraphs 1 through 8 as though the same were fully set forth at length. 10. The fire and consequent damages were the direct and proximate result of the negligence, carelessness, recklessness. and/or other liability-producing conduct of Defendant, as more specifically described as follows: (a) failing to exercise reasonable care in designing, manufacturing, assembling, inspecting. and/or testing the subject light and its components; -2- (b) failing to adequately instruct its employees. servants, and/or agents as to the proper design. manufacturing. assembly. construction, inspection, testing, operation, and/or maintenance procedures with regard to the subject light and its components; , ;,,':1 r:; Ii. " " '.'( , :: ,. " (c) failing to provide. establish, implement. and/or follow proper and adequate controls so as to ensure the safety and integrity of the subject light and its components; (d) failing to provide. establish. implement. and/or follow proper and adequate controls so as to provide a light that was safe and adequate for the reasons for which it was being purchased; (f) failing to supervise its employees, servants, and/or agents in their design, manufacture, assembly, construction, fabrication, installation, inspecting. testing, and/or maintenance of the subject light and its components; (e) failing to design. manufacture. assemble, construct, fabricate, install, inspect, test, and/or maintain the subject light and its components in confonnity with the prevailing industry and governmental specifications and standards; (g) improperly selling the subject light, when Defendant knew or should have known that the product, and/or the components thereof, were inadequate for the reasons for which purchased; (h) failing to ascertain by appropriate pre-sale and/or post-sale testings, the fire hazards, risks, and dangers created by the subject light an its components; (i) failing to recall or withdraw from the market place the subject light despite actual or constructive knowledge of its defective and/or reasonably dangerous conditions; (j) failing to adequately warn (both before and/or after the sale of the product) of defects in the subject light and its components; and/or (k) failing to properly incorporate. utilize. or otherwise include in, to, and/or for the subject light, appropriate devices. components. and/or assemblies for il~ safe use. -3- WHEREFORE, Plaintiffs demand judgment against Defendant, in an amount in excess of Twenty-Five Thousand ($25.000.00) Dollars, together with interest, costs of suit, reasonable attorney's fees. delay damages and such other rclief as the court deems appropriate under the circumstances. ,. ,:~ COlJNT III -BREACH OF WARRANTY 19. Plaintiffs incorporates herein by reference paragraphs I through 18, as though the same were fully set forth at length. 20. In conjunction with the sale of the subject light. Defendant expressly and/or implicitly warranted that the subject light and its' components were of merchantable quality, fit for ordinary use, and fit for the particular use for which it was purchased. 22. Defendant breached these warranties because the subject light was not of merchantable quality, fit for ordinary use, and/or was unfit for the particular use for which it was purchased. 23. As a direct and proximate result oftllese aforesaid breaches by Defendant, Plaintiffs sustained damages to their property, loss of business income, and the imposition of additional expenses in an amount in excess of Twenty-Five Thousand ($25,000.00) Dollars. 24. Plaintiffs have perfonned all conditions precedent to recovery based upon such breach or breaches. WHEREFORE, Plaintiffs demand judgment against Defendant, in an amount in excess of Twenty-Five Thousand ($25,000.00) Dollars, together with interest, costs of suit, reasonable attorney's fees. delay damages and other such relief as the court deems appropriate under the circumstances, POST & SCHELL, P.C. BY: CHESTER F. DARLINGTON ESQUIRE Attorneys for Plaintiffs DATED: ((;(dJ!qq -5- ! , .~. , CERTIFICATE OF SERVICE ~ I CHESTER F. DARLINGTON, ESQUIRE, hereby certifies that a true and correct f copy of the attached COMPLAINT has been served upon counsel of record below on this date by certified mail, return receipt requested, Paul R. Lantieri. Esquire Bennett. Brickfin and Saltzburg 100 South Queen Street, 3rd Floor Lancaster, PA 17603 BY: CHESTER F. DARLINGTON, SQ. Attorneys for Plaintiffs DATED: G(dJ/91 -7- ~ .,... '-, >- t:;:~ c , r-_~ ( -- I..'. (.' r::: c_ " C> , , , ;") I (,~ u .' i., I 'ij .. ';J_ U. c'-, :~) u ,. , () Count III purports to set forth a cause of action based on breach of warranty. 5, As discussed more fully in Part II of these Preliminary Objections, the avennents of Counts I, [J and III of the Complaint are merely vague, conclusory avennents which fail 10 set forth the material facls upon which the claims for negligence, strict liability and breach of warranty are based, 6. In particular, with respect to Counts I and II, the Complaint fails to state, illler alia, the manner in which the lighting fixture was carelessly designed or manufactured. the manner ill which the lighting fixture was defective. or the manner in which the lighting fixture caused the fire. 7, Moreover, with regard to Count III ofthe Complaint, the Complaint fails to set forth any facts at all with regard to the existence of a warranty or the breach thereof, including whether the warranty was written, when the product was purchased, who purchased and owned the product, the tenns of the warranty alleged, and the manner in which the warranty allegedly was breached. In addition, the Complaint fails to attach a copy of the warranty, if any. 8, Accordingly. as a result of the Complaint failing to set forth any material facts supporting plaintiffs' contentions that defendant is liable because of negligence, strict liability and/or breach of warranty, the avennents of Counts I through 1II of the Complaint are legally insufficient to state causes of action against defendant. WHEREFORE, defendant Catalina Lighting, Inc, respectfully requests that plaintiffs' Complaint be dismissed because of its failure to state causes of action. COMPLAINT Plaintiffs, by and through their undersigned counsel, by way of Complaint against the Defendant, hereby aver: I. Plaintiff Karen Adams is an adult individual who currently resides at the address in the above caption. 2. Plaintiff Melissa Oleski is an adult individual who currently resides at the address in the above caption. 3. Defendant Catalina Lighting, Inc. is a corporation organized and existing under the laws of the State of Florida with a principal place of business located at the address in the above caption. 4. At all times relevant hereto, Defendant was engaged in the business of designing, manufacturing, assembling, installing, marketing, distributing and/or selling lights. 5. At all times relevant hereto, Plaintiffs were roommates who leased premises located at 1918C Logan Street, Camp Hill, P A 17011 (hereinafter "the property"), 6. On or about April 24, 1997, a fire occurred at the property. The fire was started by a light designed, manufactured, assembled, installed, marketed, distributed and/or sold by Defendant. 7. As a result of the fire, Plaintiffs incurred significant damages to their personal property and the incursion of additional expenses totalling in excess of Twenty-Five Thousand Dollars ($25,000.00). 8. The personal property damage and additional expenses were directly and proximately caused by the Defendant, as further and more fully described below. COUNT I-NEGLIGENCE 9. Plaintiffs incorporate herein by reference paragraphs 1 through 8 as though the same were fully set forth at length. 10. The fire and consequent damages were the direct and proximate result of the negligence, carelessness, recklessness, and/or other liability-producing conduct of Defendallt, as more specifically described as follows: (a) failing to exercise reasonable care in designing, manufacturing, assembling, inspecting, and/or lesting the subject light and its components; -2- WHEREFORE. Plaintiffs demand judgment against Defendant, in an amount in excess of Twenty-Five Thousand ($25,000.00) Dollars, together with interest, costs of suit, reasonable attorney's fees, delay damages and such other relief as the court decms appropriate under the circumstances. " COUNT III -BREACH OF WARRANTY 19. Plaintiffs incorporates herein by reference paragraphs 1 through 18, as though the same were fully set forth at length. 20. In conjunction with the sale of the subject light, Defendant expressly and/or implicitly warranted that the subject light and its' components were of merchantable quality, fit for ordinary use, and fit for the particular use for which it was purchased. 22. Defendant breached these warranties because the subject light was not of merchantable quality, fit for ordinary use, and/or was unfit for the particular use for which it was purchased, 23. As a direct and proximate result of these aforesaid breaches by Defendant, Plaintiffs sustained damages to their property, loss of business income, and the imposition of additional expenses in an amount in excess of Twenty-Five Thousand ($25,000.00) Dollars. 24. Plaintiffs have perfonned all conditions precedent to recovery based upon such breach or breaches. WHEREFORE, Plaintiffs demand judgment against Defendant, in an amount in excess of Twenty-Five Thousand ($25,000,00) Dollars, together with interest, costs of suit, reasonable attorney's fees, delay damages and other such relief as the court deems appl'Opriate under the circumstances. POST & SCHELL, P.C. BY: CHESTER F, DARLINGTON ESQthRE Attorneys for Plaintiffs DATED: Cof J;) !qq -5- VERIFICATION CHESTER F. DARLINGTON, ESQUIRE, hereby states that he is the attorney for Plaintiffs in the within aetion and verifies that the statements made in the foregoing COMPLAINT, are true and correet to the best of his infonnation, knowledge and belief. The undersigned understands that the statements made therein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. -6- ~. .'- Cl~ ! / lU 0- '.' f~.': , c.~ (~) r r r::: (:, L.u , ti..! ~.: - i- ~ : :.L. 11~ C, ~::i c.> (; . (.J ,,~l; )::1 "1 5j '!.~ " ,:./ t- I.:; ;;', , i~ I.; t. :/ 1,\ ..~. c' - .. 1-":- , !.I' ('-: C.1 ; j ~,: i ,." (.~ c~, , ,::') C') tV , (.-) , ..,1 : ,n G: I " --.' 'L -..' '. I.'. C'i"'\ :-j C\ C\ U ,'- POST & SCHELL, P.C. BY: CHESTER F. DARLINGTON I.D. # 79070 1800 JFK BOULEVARD, 19TH FLOOR PHILADELPHIA, PA 19103 (215) 587-1000 ATTORNEYS FOR PLAINTIFFS KAREN ADAMS and MELISSA OLESKI COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiffs, NO. 99-2438 v. CATALINA LIGHTING, INC. CIVIL ACTION - LAW Defendant. AFFIDAVIT OF SERVICE I, CHESTER F. DARLINGTON, ESQUIRE, affirm that on June 23, 1999, I served Plaintiffs Complaint on Defendant, Catalina Lighting, Inc. by and through their attorney by depositing a true copy thereof enclosed in a post-paid wrapper, in an official depositor under the exclusive care and custody of the U.S. Postal Service employing Certified Mail on June 24, 1999. A copy ofthe Fonn 3811, executed on behalf of the defendants is attached hereto and marked Exhibit "A". POST & SCHELL, P.C. cJJ--Q2 Dated: July I, 1999 BY: CHESTER F. DARLINGTON, ESQIDRE Attorney for Plaintiffs ..... * c: , , "' , ~ i-..- / -'i l .'J ~'--~~ c,~ ) , , ..'1 , C_. (1 ,.-. , J , c '.~-' I ~"-l C~~ , .) , ,- , u , ,- 0.. ; =~:, .. l Cf. , () c;-. (..J . I POST & SCHELL, P.C. BY: CHESTER F. DARLINGTON 1.0. # 79070 1800 JFK BOULEVARD, 19TH FLOOR PHILADELPHIA, PA 19103 (215) 587-1000 AITORNEYS FOR PLAINTIFFS KAREN ADAMS 1721 South Market Street Mechanicsburg, PA 17055 and MELISSA OLESKI 1721 South Market Street Mechanicsburg, PAl 7055 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiffs, v. NO. 99-2438 CATALINA LIGHTING, INC. 18191 N. W. 68th Avenue Miami, FL 33015 Defendant. CIViL ACTION - LAW NOTICE TO DEFEND NOTICE You hJve been lUed in eoun. If you widllO defend .,dml1he daim.1et fanh in llIe folklwing Pliel, you mwl take action within twenl)' (20) dJ.)'lIlfter !hi. complaint and noclcc are 1eMd. by enwina I \Witten 1lppeaI1Ilec penonIIly Dr by atsome)' and mini in writin, wilh the COUrl yourdefCllteJ orobjectionl U) the c1aimllet ronh qainst you. You are WIllICId th.t if)'llU fail 10 do 10 lIIe caUl may pmcccd without you and _judgment mlY be mlmllll&llnsl)'Oll by lhc CXlW1 without (urlhel' notiu for UlY mont)' daimed in lilt l;OIlIplainl or for any odIel' claim III' rdidrequcstod by lilt plalntilT. You mlY klIe money or properly orother rialJlI Impol'WlllO you YOU SHOULD TAKE lHIS PAPER TO YOUR LAWYEk AT ONCE. IF YOU DO NOT HAVE 1\ LAWYER OR. CANNOT AFFORD ONE, GO TO OR TELEPHONE TIlE OFFICE SET FORm BELOW TO FIND OUT WHERE YOU CAN GET LEGAL liEU' LlI.",.RrftITalndlaf.,..,doaStrvlte COllrt Adlal.blnt..... om", C..btrl....d C...ly Co.nhOllIlt ai, COllnlll._ Sq..~ CARUSLE, PA 17l1U Ttl.f:PUON[("II'114N100 AVISO Lt hDll danan4ldo a lilted ml, corte. Si IIIlocl quim: dcfendcnc de uw dernMdu ClIpuellII en lu pIIinu ~iJllienlC$, lilted tiene wince (10) diu de ptuo at panir de la fl:ldLl de I. drmanda)- IllIOliflClcion l{ace fllu. u:ntlr UIII COlIIpart:nci1 CllCriIl' 0 en pcnoIII 0 ~ UIIlllop6o Y enlrtJllf II, CQrk en f!;'mll ~1I1U1 dc:fenJU 0 lid obJco:ioncs alu demandu en amlra d.1lI pcnona. Sa .vilado que .i Ulted 110 II defiende, I. corte lomllnl rnedillu y pIMlIle Olll\linuar I, demlllda en CDIItrJ au,., ,in pmio ,vito 0 notiflc:acion. Adem... I, CDrte JIll. decidir , f.... del dentand,ale y require que....ted QIITlpla OlIn I(Idu lu JIIOvillllllQO de alli clemanda UIIed piled. pcrdcr dillero 0 IUI propiCldada II OUOI dcndIoIlmpllrUllUII pan. Ulted U.EVEESTATDEMANDA A UN ABOOAOOlh'MED1ATAMENTF. 51 NOnENE ADOGADOO SINOTmNE ELOtNEROSUFICIENTEDEPAOAR TAl. SnRVJCO. VAYA EN I"ERSON.' 0 LLAME POR TEUl'ONO A LA OFICINA CUV A Olkf.CClON 51: mNCUENTRA ESCRlTA ABAJO PARA AVERlGUAR DONDE SI:! Pl'EDE CONSEQtTIR A51SmNClA LOOM. I..",," Rrl'rrnlaad laf_adlll. Stnite C..I1Adalalalrallll"'omor C...bn1.adC"'lJc..I1"''' OM C..rt.... 5q..~ CARUSu:. P4 (701) T11,tpnON[ (71')1'0061OG AMENDED COMPLAINT Plaintiffs, by and through their undersigned counsel, by way of Complaint against the Defendant, hereby aver: I. Plaintiff Karen Adams is an adult individual who currently resides at the address in the above caption, 2, Plaintiff Melissa Oleski is an adult individual who currently resides at the address in the above caption. 3. Defendant Catalina Lighting, Inc. is a corporation organized and existing under the laws of the State of Florida with a principal place of business located at the address in the above caption. 4. At all times relevant hereto, Defendant was engaged in the business of designing, manufacturing, assembling, installing, marketing, distributing and/or selling lights. 5. At all times relevant hereto, Plaintiffs were roommates who leased premises located at 1918C Logan Street, Camp Hill, PA 17011 (hereinafter "the property"). 6. On or about April 24, 1997, a fire occurred at the property. 7. The fire was started by a light designed, manufactured, assembled, installed, marketed, distributed and/or sold by Defendant. Specifically, the fire was caused by a malfunction in the light and the light's power cord. 8. As II result of the fire, Plaintiffs incurred significant damages to their personal property and the incursion of additional expenses totalling in excess of Twenty-Five Thousand Dollars ($25,000.00). 9. The personal property damage and additional expenses were directly and proximately caused by the Defendant, as further and more fully described below. COUNT I-NEGLIGENCE 10. Plaintiffs incorporate herein by reference paragraphs I through 9 as though the same were fully set forth at length. II. The fire and consequent damages were the direct and proximate result of the negligence, carelessness, recklessness. and/or other liability-producing conduct of Defendant, as more specifically described as follows: (a) failing to exercise reasonable care in the following manner: :',ilim' '0 '1S"',c,,<nrd-k ,:,r,' '" ",..,.-,~rl'.' :ncnm"r~te lltilize. M .,i",",Vi,SC inelll',," in. ", ,'\1(\.'"r ':' ,r '1',., :,\-0;.", I;,'h'. "nnr"nri~te (Ievices, iH'I:v~nl.'n\' :~~di'.'r.\n:~"~'nh1;.";' I'~' f'.~ . ,,-,' 12. ,'o, a elir,ct :l11d ;;rnxim~IC r,.'<,1I11 ,,1' '\,e .,rN,~<;,i(\ I1c<;ligence ,'nd/nr other ii::hi\ity prndllcing conducl "f f)~fcndHnt. i'l,inliff;..IISI~;'1<'cI :1"m~',e' 'olheir nel'5onal property C1nd the impo"ition nr addili,,,'ol ". r.,''''"-; ;" "' emn",,! :n "'('.'''<' "fTwentv-Five 11.;("l)(::\lid (':~~i_~n()f:.Clri" l'),..;11c~r' WHF,Rl':'FORF" Plaintiff, rklmmd jnclgmenl :',gainsl f)et;,nclnnt. ;n :\11 nmnl1nr in .'"n,," nf Tw~nty-riV(;1 hn'J,snd IS2'; .000 no)) Un]\nrs \C.ge1hcr ,...;Ih i,,!erest. c,,,ts of "IiI. i'::':Isonnh1c ,Horney fces. de!",:, hrn::""":.;;cI"",'h ,:I,,-r ",1;,'1"1< ,\'" ,:nllrl cicems 'l1pronriate ~m(kr il"j(~ (~;r.-,l.lnl<':';:n(>':; r Ol(,'oH II _STRlCT LIABILITY i ~. I'hintifr"I11c"rpf>f"t',' 1,,'" ,;" '." c"C""'i1r.' -'''""',r~T1h< 1 'hrn1l<lh \:. '.\, thOll~11 ';"lnV,' " 'fe' \":.~'h':,.;t ~>)rq.\ 'It ~,~n(.!l'~ 1.1, I"k.fen(bnt IS '.;n~,(tged iY\:lnllhr,t,\ITin~1 Y', ~en:1J\in~'. "Ir',fl'j;:',{!. Jr:d ""':lc;:ng;:l;~(':n :n ',hi~ ',;qc;inco;..::; 'J'l\;f','.:~. ~f'd \i'~lrihqlin~ lil}hts nf .je5igning~ I r,. 1}.,r,'nd:I1't <,.I,llh:: ''''lc''- , kt'"":;,,,,,,'c:,ji,,r,r, '1nre"-,o,,,I1I)' d"nl!ernll~ to i1'''' p\:Iil'j1ir-r.. ~'l."d ;1.t'~r ;W~\~Y"'~', 1 (o. \ ip..r: :nfor",a,;r.n "nrli'd ie'. I)"",ndanl 'YPC,:',',J '.11e ,;"I-Ijeel light 10 re:lch 'he phintiffs wilh""t s\lhslanlial clran"e In Ihe ((."dil;"n in ":hi,h:1 '.','0< -.n1d. "nd the suhject I;,.,h' ili,\ ,,'wh Ih" 1'I:1i:1'dr:.i,'hr.'l("'~"':1nli',1 .;,,'n,'" in Ihe .::c,nclilinn in ','hieh it ..\I1l~ sold. il Ih,' .\1"",:,,1 ,H""( ,(',1",:"""".." li'.,'" .,n'\ il': cnmiflT1enls .:,)nsi~ted "f: (,II 'k"i\~n d('f,~{ ~'< (hI :ntPllf:!l'l'lflr,,' (\0. i'I--'r.-h. (, I I lIlli,,,.. ",,' '." ,,"" "J ,1," .r""..,,,i,1 rk',i\.!n ,,,",(1 n,~n\lf~e"llril1g ,J. 'k~ 1:;~ ioll/Prot ,." ,I,"\:W I" I",,[,crh' ",':11".;1 ;j, 'n Ib,' :>pf'r('r,r:~'~ ,nst~l1"ti(lfo "rid "\",,,111111' t" "I,'" 1,,( ,'''''.'[,' 'I"" (,f Ihe' '"ihied bll~ MKI it~ . ,nlll",I,111. \ ~ ,'." ,Ii".' 1 :\1'" \.,,,..i..,.,,,., ...."Ii ,.,\,\," :>f''''''':>;'\ ,kktlr,. l'lnillli!l's ~\I~lnil1ed ;, 1',,,,,,,:1\ ,,,,,\Ik i"'I""'\"'" ", :"\,lil,<<:,,,1 ,'!"'"'''''' ,";1il :.\11"","1 il1cXCCSS 1!, ,0\ >1"\ r I' I 'till fIlII 1,,,n'H (~:lI":HI'" t., 11" , I 1 " t ~; _. -' ,,-,,",,';:'~I"!~.: : , ,.. " .....'"... ..", ~"I"'. '. !!l!-' , " . ," ,', ," ',' ,.(.~',:::y 'h~ ......;,.;.11' . ",'I."~: (i~~" .g~; ,e.~',\ '. I;: ~.' F'~ '~"!::~f~: 1',\"; "'(.;.:? ',i::'1 (e) failing to use reasonable care to propcrly incorporate, utilize. or otherwise include in, to, and/or for the subject light, appropriate devices, components, and/or assemblies for its safe use. 1 rl' J ., ,'l;- " ,~ j: 12, As a direct and proximate result of the aforesaid negligence and/or other liability producing conduct of Defendant, Plaintiffs sustained damages to their personal property and the imposition of additional expenses in an amount in excess of Twenty-Five Thousand ($25,000.00) Dollars. ~;! ] <" '," ,~ WHEREFORE, Plaintiffs demand judgment against Defendant, in an amollnt in excess of Twenty-Five Thousand ($25,000.00) Dollars together with interest, costs of suit, reasonable attorney fees, delay damages, and such other relief as the court deems appropriate under the circumstances. t. t " " 'i ,\ COUNT II-STRICT LIABILITY 13. Plaintiffs incorporate herein by reference paragraphs I through 12 as though same were fully set forth at length. 14. Defendant is engaged and was engaged in the business of designing, manufacturing, assembling, marketing, selling, and distributing lights. 15. Defendant sold the light in a defective condition, unreasonably dangerous to the Plaintiffs and their property. 16. Upon infonnation and belief, Defendant expected the subject light to reach the Plaintiffs without substantial change in the condition in which it was sold, and the subject light did reach the Plaintiffs without substantial change in the condition in which it was sold. 17. The aforesaid defects of the subject light and its components consisted of: (a) design defects; (b) manufacturing defects; (c) a failure by to wam of the aforesaid design and manufacturing defects; and/or (d) a failure to properly instruct as to the appropriate installation and operating procedures for the safe use of the subject bus and its components. 18. As a direct and proximate result of the aforesaid defects, Plaintiffs sustained damages to their property and the imposition of additional expenses, in an amount in excess of Twenty-Five Thousand ($25.000.00) Dollars. .. ,- - ., .~........ '. .'.- 19. For these reasons. Defendant is strictly liable to Plaintiffs for their damages under ~402A of Restatement (2d) of Torts, the Restatcment (3d) of Torts, and the applicable caselaw of the Commonwealth of Pennsylvania. WHEREFORE, Plaintiffs demand judgment against Defendant. in an amount in excess of Twenty-Five Thousand ($25,000.00) Dollars, together with interest, costs of suit, reasonable attorney's fees, delay damages and such other relief as the court deems appropriate under the circumstances. COUNT iii -BREACH OF WARRANTY 20. Plaintiffs incorporates herein by reference paragraphs I through 19, as though the same were fully set forth at length. 21. In conjunction with the sale of the subject light, Defendant implicitly warranted that the subject light and its components were of merchantable quality, fit for ordinary use, and fit for the particular use for which it was purchased. Further, upon information and belief, Defendant may have expressly warranted that the subject light and its components were of merchantable quality, fit for ordinary use, and fit for the particular use for which it was purchased. 22. At this time, Plaintiffs are not able to attach a copy of the aforesaid express warranties because they have not, after a reasonable investigation, been able to locate them. 23. Defendant breached these warranties because the subject light was not of merchantable quality, fit for ordinary use, and/or was unfit for the particular use for which it was purchased. 24. As a direct and proximate result of these aforesaid breaches by Defendant, Plaintiffs sustained damages to their property, loss of business income, and the imposition of additional expenses in an amount in excess of Twenty-Five Thousand ($25,000.00) Dollars. 25. Plaintiffs have performed all conditions precedent to recovery based upon such breach or breaches. WHEREFORE, Plaintiffs demand judgment against Defendant, in an amount in excess of Twenty-Five lbousand ($25,000.00) Dollars. together with interest, costs of suit. reasonable attorney's fees, delay damages and other such relief as the court deems appropriate under the circumstances. " \: "!," :".~', ;::'. ~", .d. 'f: ,.> (:: J( ;~ :~; ." ',',I. ';0 1: r f Respectfully submitted, POST & SCHELL, P.C. ~ BY' ( . CHESTER F, DARLINGTON, ESQUIRE Attorneys for Plaintiffs - ., ;... :1/ .iJ ~~, .i DATED: 7/1~(9q "'.; ..i ~. :t- fl. u ~ ~ "/: 1,1 I .1: '~f , ~! '. ~, ., " ;~: " '.". , VEIUFICATIO.l'1 CHESTER F. DARLINGTON, ESQlJllm, hereby sIllIes lhlll he is the IIUomey for Plaintiffs in the within aelion und veri lies lhlll lhll sllltel11l'nls Illude in thll foregoing AMENDED COMPLAINT,ure Ime und correcllo lhll best of his inliJrlllution, knowledge and belief. The undersigned underslunds thulthe slulelllenls Illude lherein are subject to lhe penalties of 18 Pa, C.S. Section 4904 reluling 10 unsworn fulsilieulion to authorities, l(I"I( qq ~cJ{ CIIESTER F. DARLINGTON, ESQ. ! . ~. i .~. ';.' BENNETT, BRICKLlN & SAL TZBURG LLP BY: Paul F. Lantleri, Esquire I.D. No. 22241 ATTORNEYS FOR DEFENDANTS BY: Marla B. Blgelelsen, Esquire I.D. No. 79717 100 SOUTH QUEEN STREET, 3RD FLOOR LANCASTER, PA 17603 (717) 393-4400 " KAREN ADAMS and : COURT OF COMMON PLEAS MELISSA OLESKl : CUMBERLAND COUNTY I' I r I: '[:. .. {' vs. : CIVIL ACTION - LAW : DOCKET No, 99-2438 CATALINA LIGHTING. INC. CERTIFICATE OF SERVICE Paul F. Lantieri, Esquire hereby certifies that a true and correct copy of the attached Preliminary Objections of Defendant Catalina Lighting, Inc. to Plaintiffs' Amended Complaint was served upon Chester F. Darlington, Jr., Esquire, Post & Schell, P .C" 1800 JFK Boulevard, 19th Floor, Philadelphia, PA 19103, by way of United States regular mail postage pre-paid ~t~~( Dated: August 16,1999 ~ 0 ~ ..:z ., 8i 0 N ~~ :r:: Q.. ~i :gf?: r- ~o_ tq Co!) F: => c a !!s m fiLED-OFFiCE OF THE PPOTHCWOTAAY 99 AUG '6 PH 3: 24 CUM13ERLPM COUNTY PENNSYLVANIA \..;" (, I. Preliminary Objections in the Nature of a Demurrer Pursuant to Pennsvlvania Rule of Civil Procedure 1028(a)(4) 4. The foregoing paragraphs of these Preliminary Objections are incorporated by reference and made part hereof as though set forth at length. 5. Count I ofthe Amended Complaint purports to set forth a cause of action against the defendant based on negligence; Count II purports to set forth a cause of action based on strict liability; and, Count III purports to set forth a cause of action based on breach of warranty. 6. As discussed more fully in Part II of these Preliminary Objections, the avennents of Counts I, II and III of the Amended Complaint are merely vague, conclusory avennents which fail to set forth the material facts upon which the claims for negligence, strict liability and breach of warranty are based. 7, In particular, with respect to Counts I and II, the Amended Complaint fails to state, illler alia, the manner in which the lighting fixture was carelessly designed or manufactured, the manner in which the lighting fixture was defective, or the manner in which the lighting fixture caused the tire. 8, Moreover, with regard to Count III of the Amended Complaint, the Amended Complaint fails to set forth any facts at all with regard to the existence of a warranty or the breach thereof, including when the product was purchased, who purchased and owned the product, the tenns of the warranty alleged, and the manner in which the warranty allegedly was breached. In addition, the Amended Complaint fails to attach a copy ofthe warranty, if any. 9. Accordingly, as a result of the Amended Complaint failing to set forth any material facts supporting plaintiffs' contentions that defendant is liable because of negligence, striclliability and/or breach of warranty, the avemlenls of Counts I through III of the Amended Complaint are legally insufficient to state causes of action against defendant. " WHEREFORE, defendant Catalina Lighting, Inc. respectfully requests that plaintiffs' Amended Complaint be dismissed because of its failure to state causes of action. II. Preliminary Objections in the Nature of a Mlltion to Strike Pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(2) (Failure to Conform to Rule of Court) and 1028(a)(3) (Insufficient Snecificitv) or. in the Alternative. a Motion for a More SnecIfic Pleadin!! I- , 10. The foregoing averments of these Preliminary Objections are incorporated by reference and made part hereof as though set forth at length. I I. Pennsylvania Rule of Civil Procedure 1019(a) requires that the material facts on which a cause of action is based shall be stated in a concise and summary form, In addition, Rule 1019(t) requires, illter alia, that avemlents of items of special damage shall be specifically stated. In addition. Rule 1019(h) requires that a pleader attach a copy of any writing upon which a claim is based. 12, As set forth above, plaintiffs' Amended Complaint is devoid of virtually all material facts relevant to the existence of a claim against defendant and the damages alleged. In particular, Counts I and II, sounding in negligence and strict liability. fail to state in what manner the lighting fixture was negligently or defectively designed, manufactured or sold, how the negligence or defect caused the fire, etc. Instead, the Amended Complaint vaguely and in a conclusory fashion simply alleges that defendant breached various duties, For example, paragraph 1 I (a)(i), merely alleges that defendant failed ". . . to exercise reasonable care in designing, manufacturing. assembling, inspecting, andlor testing the subject light and its components. , , ," Nowhere in the Amended Complaint do plaintiffs set forth any facts supporting their contentions that there was negligence in these respects. Similarly, the Amended Complaint is devoid of any facts supporting plaintiffs' other contentions regarding negligence and product defect. 13. In addition, Count Ill, which purports to set forth a claim for breach of warranty, fails to set forth any facts supporting thc contention that a warranty existed, that the plaintiffs were beneficiaries of that warranty, when the warranty was created, or the manner in which that warranty ( ~ l r was breached. For example, the Amended Complaint fails to set forth, illlel' alia, when and by whom the product was purchased, whether the warranty was written or implied, when notice ofthe breach was given to the defendant, or the manner in which the breach occurred. 14. It is submitted that the omission of these material facts in the Amended Complaint I I r I , I l is more than a mere technicality which can be cured through the conduct of discovery. As a result of plaintiffs' failure to set forth any f.1ctS supporting their contentions, defendant has been prejudiced because it is not in a position to detennine the nature of the claims it must defend against and furthennore, is not in a position to detennine whether there are others who properly should be joined as additional defendants, 15, Accordingly. because of plaintiffs' failure to comply with the pleading requirements of Rule 1019, it respectfully is requested that plaintiffs' Amended Complaint be stricken; in the alternative, it is requested that plaintiffs be directed to file an Amended Complaint in compliance with Pennsylvania Rule of Civil Procedure 1019. WHEREFORE, defendant Catalina Lighting, Inc. respectfully requests that plaintiffs' Amended Complaint be dismissed for failure to comply with rule of court, or, in the alternative, that plaintiffs be directed to file a more specific Amended Complaint in compliance with the requirements of Pennsylvania Rule of Civil Procedure 1019, BENNETT. BRlCKLlN & SALTZBURG LLP ~. / '( BY: (/ ail f ~~C!iuL-. AUL F. LA~I, ESQUIRE Attorney for Defendant . . POST & SCHELL, P.C. BY: CHESTER F. DARLINGTON !.D. # 79070 1800 JFK BOULEVARD, 19TH FLOOR PHILADELPHIA, PA 19103 (215) 587-1000 KAREN ADAMS " 1721 South Market Street Mechanicsburg, P A 17055 and MELISSA OLESKl 1721 South Market Street Mechanicsburg, P A 17055 Plaintiffs, v. CATALINA LIGHTING. INC. 18191 N. W. 68th Avenue Miami, FL 33015 Defendant. , < A TIORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 99.2438 CIVIL ACTION - LAW NOTICE TO DEFEND NOTICE yCIII...........au\. lip ....iAd_ ...-lhcdaillllMl. rri..the foUowUt'..... ,.. __....... widik.....-,(2O) "J'lIIIW.. -..-.................,...... ...........,.....,..,....,.....r......... .....1hc-'JIM'4d'_.~ ...... ..........,... v....___ "'11',... filii tD40 N ~~.., f'OO"'I........ ""... ...........,....... ......,..IIr"-:-.n ~c.n- ...b., -r daiIHd iIIk.......for..,......nIid,........,fw,...utf. V....,..-ror......,. .......~tDJ"OU 'tOU RtlXJU) T AJCE nos rAI'I!J. TO YOUI. tAwYU AT ONCE. IF YOU DO t<<JT HAVE A LAWYROI.CAHNOT AffIOI,DOte.OOTOoa. TBD'ItoNEnCEOFFICESETfOP.nlBELOW to nHDOUT WHEU YOU CANCEl' I.EOAL HElJ'. 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FA 1711.1 ttLUIIONr.{fI7)l-.at1 , COMPLAINT Plaintiffs, by and through their undersigned counsel, by way of Complaint against the Defendant, hereby aver: I. Plaintiff Karen Adams is an adult individual who currently resides at the address in the above caption. 2. Plaintiff Melissa Oleski is an adult individual who currently resides at the address in the above caption. . 3. Defendant Catalina Lighting, Inc. is a corporation organized and existing under the laws of the State of Florida with a principal place of business located at the address in the above caption. 4. At ail times relevant hereto, Defendant was engaged in the business of designing, manufacturing, assembling, installing, marketing, distributing and/or selling lights. 5. At all times relevant hereto, Plaintiffs were roommates who leased premises located at 1918C Logan Street, Camp Hill, P A 17011 (hereinafter "the property"). 6. On or about April 24, 1997, a fire occurred at the property. The fire was started by a light designed, manufactured, assembled, installed, marketed, distributed and/or sold by Defendant. 7. As a result of the fire, Plaintiffs incurred significant damages to their personal property and tlte incursion of additional expenses totalling in excess of Twenty-Five Thousand Dollars ($25,000.00). 8. TIle personal property damage and additional expenses were directly and proximately caused by the Defendant, as further and more fully described below. COUNT I-NEGLIGENCE 9. Plaintiffs incorporate herein by reference paragraphs I through 8 as though the same were fully set forth at length. 10. The fire and consequent damages were the direct and proximate result of the negligence, carelessness, recklessness, and/or other liability-producing conduct of Defend'aitt, as more specifically described as follows: (a) failing to exercise reasonable care in designing, manufacturing, assembling, inspecting, and/or testing the subject light and its components; -2- (b) failing to adequately instruct its employees, servants, and/or agents as to the proper design, manufacturing, assembly, construction, inspection, testing, operation, and/or maintenance procedures with regard to the subject light and its components; (c) failing to provide, establish, implement, and/or follow proper and adequate controls so as to ensure the safety and integrity of the subject light and its components; I I (d) failing to provide, establish, imp,1ement, and/or follow proper and adequate controls so as to provide a light that was safe and adequate for the reasons for which it was being purchased; (k) failing to properly incorporate, utilize, or otherwise include in, to, and/or for the subject light, appropriate devices, components, and/or assemblies for its safe use. (e) failing to design, manufacture, assemble, construct, fabricate, install, inspect, test, and/or maintain the subject light and its components in conformity with the prevailing industry and governmental specifications and standards; (f) failing to supervise its employees, servants, and/or agents in their design, manufacture, assembly, construction, fabrication, installation, inspecting, testing, and/or maintenance of the subject light and its components; (g) improperly selling the subject light, when Defendant knew or should have known that the product, and/or the components thereof, were inadequate for the reasons for which purchased; (h) failing to ascertain by appropriate pre-sale and/or post-sale testings, the fire hazards, risks, and diuigers created by the subject light an its components; (i) failing to recall or withdraw from the market place the subject light despite actual or constructive knowledge of its defective and/or reasonably dangerous conditions; G> failing to adequately warn (both before and/or after the sale of the product) of defects in the subject light and its components; and/or . . . -3- . II. As a direct and proximate result of the aforesaid negligence and/or other liability producing conduct of Defendant, Plaintiffs sustained damages to tlleir personal property and the imposition of additional expenses in an amount in excess of Twenty-Five Thousand ($25,000.00) Dollars. WHEREFORE, Plaintiffs demand judgment against Defendant, in an amount in excess of Twenty-Five Thousand ($25,000.00) Dollars together with interest, costs of suit, reasonable attorney fees, delay damages, and such other relief as the court deems appropriate under the circumstances. COUNT (( -STRICT LIABILITY 12. Plaintiffs incorporate herein by reference paragraphs I through II as though same were fully set forth at length. 13. Defendant is engaged and was engaged in. the business of designing, manufacturing, assembling, marketing, selling, and distributing lights. 14. Defendant sold the light in a defective condition, unreasonably dangerous to the Plaintiffs and their property. 15. Upon information and belief, Defendant expected the subject halogen light to reach the Plaintiffs without substantial change in the condition in which it was sold, and the subject light did reach the Plaintiffs without substantial change in the condition in which it was sold. 16. The aforesaid defects consisted of: (a) design defects; (b) manufacturing defects; (c) a failure by to warn of the aforesaid design and manufacturing defects; and/or (d) a failure to properly instruct as to the appropriate installation and operating procedures for the safe use of the subject bus and its components. 17. As a direct and proximate result of the aforesaid defects, Plaintiffs sustained damages to their property and the imposition of additional expenses, in an amount 111 excess of Twenty-Five Thousand ($25,000.00) Dollars. 18. For these reasons, Dcfendant is strictly liable to Plaintiffs f:>r their damages under ~402A of Restaternent (2d) ofTorts, thc Restatement (3d) OfTOI1s, and the applicable caselaw of the Commonwealth of Pennsylvania. -4. CERTIFICATE OF SERVICE CHESTER F. DARLINGTON, ESQUIRE, hereby certifies that a true and correct copy of the attached COMPLAINT has been served upon counsel of record below on this date by certified mail, return receipt requested. Paul R. Lantieri, Esquire Bennett, Bricklin and SallZburg 100 South Queen Street, 3rd Floor Lancaster, PA 17603 POST & SCHELL, P.C. ~\U BY: CHESTER F. DARLINGTON, Q. Attorneys for Plail.tiffs DATED: G(dJ/91 '. -7- Count III purports to set forth a cause of action based on brcach of warranty. 5. As discusscd more fully in Part II ofthesc Preliminary Objections, the averments of Counts I, II and III of the Complaint are mercly vaguc, conclusory averments which fail to set forth the material facts upon which the claims for negligence, strict liability and breach of warranty are based. 6. In particular, with respect to Counts I and II, the Complaint fails to state, inter alia, the manner in which the lighting fixture was carelessly designed or rnanufactured, the manner in which the lighting fixture was defective, or the manncr in which the lighting fixture caused the fire. 7. Moreover, with regard to Count III of the Complaint, the Complaint fails to set forth any facts at all with regard to the existence of a warranty or the breach thereof, including whether the warranty was written, when the produet was purchased, who purchased and owned the product, the terms of the warranty alleged, and the manner in which the warranty allegedly was breached. In addition, the Complaint fails to attach a copy of the warranty, if any. 8. Aceordingly, as a result of the Complaint failing to set forth any material facts supporting plaintiffs' contentions that defendant is liable because of negligence, strict liability and/or breach of warranty, the averments of Counts I through JII of the Complaint are legally insufficient to state causes of action against defendant. WHEREFORE, defendant Catalina Lighting, Inc. respectfully requests that plaintiffs' Complaint be dismissed because of its failure to state causes of action. / J . ,- ""'-"....--..-,...'- EXHIBIT C "~''''''''''_W'''''.''''_~'''''' .'n."''''"""" . ......""....~...."t.,.."(:"g.~'t'i'I';..,'rt:"r+<,.,.:"t':~l'nl"""~~~~ """..:".....'....~''''..,.-.... '. " . AMENDED COMPLAINT Plaintiffs, by and tl1fOugh their undersigned counsel, by way of Complaint against the Defendant, hereby aver: I. Plaintiff Karen Adams is an adult individual who currently resides at the address in the above caption. 2. Plaintiff Melissa Oleski is an adult individual who currently resides at the address in the above caption. 3. Defendant Catalina Lighting, Inc. is a corporation organized and existing under the laws of the State of Florida with a principal place of business located at the address in the above caption. - 4. At all times relevant hereto, Defendant was engaged in the business of designing, manufacturing, assembling, installing, marketing, distributing and/or selling lights. 5. At all tim~s relevant hereto, Plaintiffs were roommates who leased premises located at 1918C Logan Street, Camp Hill, PA 17011 (hereinafter "the property"). 6. On or about April 24, 1997, a fire occurred at the property. 7. The fire was started by a light designed, manufactured, assembled, installed, marketed, distributed and/or sold by Defendant. Specifically, the fire was caused by a malfunction in the light and the light's power cord. 8. As a result of the fire, Plaintiffs incurred significant damages to their personal property and the incursion of additional expenses totalling in excess of Twenty-Five Thousand Dollars ($25,000.00). . 9. The personal property damage and additional expenscs were directly and proximately caused by the Defendant, as furtller and rnore fully described below. (:OUNT I-NEGLIGENCE 10. Plaintiffs incorporate herein by reference paragmphs I through 9 as though the same were fully set forth at length. 11. The fire and consequent damages were the direct and proximate result of the negligence, carelessness, recklessness, and/or other liability-producing conduct of Defendant, as more specifically described as follows: (a) failing to exercise reasonable care in the following manner: i) failing to exercise reasonable care in designing, manufacturing, assembling, inspecting, and/or testing the subject light and its components; ii) failing to adequately instruct its employees, servants, and/or agents as to the proper design, manufacturing, assembly, construction, inspection, testing, operation, and/or maintenance procedures with regard to the subject light and its components; iii) failing to provide, establish, implement, and/or follow proper and adequate controls so as to ensure the safety and integrity of the subject light and its components; - iv) failing to provide, establish, implement, and/or follow proper and adequate controls so as to provide a light that was safe and adequate for the reasons for which it was being purchased; v) failing to design, manufacture, assemble, construct, fabricate, install, inspect, test, and/or maintain the subject light and its components in conformity witll the prevailing industry and governmental specifications and standards; vi) failing to supervise its employees, servants, and/or agents in their design, manufacture, assembly, construetion, fabrication, installation, inspccting, testing, and/or maintenance of the subject light and its Components; vii) impropcrly selling the subject light, when Defendant knew or should have known that tl1e product, and/or the components thereof, were inadequate for the reasons for whieh purchased; (b) failing to use reasonable care to ascertain by appropriate pre-sale and/or post-sale testings, the fire hazards, risks, and dangers ereated by the subject light an its components; (c) failing to use reasonable care to recall or withdraw from the market placc the subject light despite actual or constructive knowledge of its defective and/or reasonably dangerous conditions; (d) failing to use reasonable care to adequately warn (both before and/or after the sale of the product) of defects in the subject light and its components; and/or 19. For these reasons, Defendant is strictly liable to Plaintiffs for their damages under ~402A of Restatement (2d) ofTot1s, tile Restatement (3d) of Torts, and the applicable caselaw of the Cornmonwealth of Pennsylvania. WHEREFORE, Plaintiffs demand judgment against Defendant, in an amount in excess of Twenty-Five Thousand ($25,000.00) Dollars, together with interest, costs of suit, reasonable attorney's fees, delay damages and such other relief as the court deems appropriate under the circumstances. COUNT III -BREACH OF WARRANTY 20. Plaintiffs incorporates herein by reference paragraphs I through 19, as though the same we~fully set forth at length. 21. In conjunction with the sale of the subject light, Defendant implicitly warranted that the subject light and its components were of merchantable quality, fit for ordinary use, and fit for the panicular use for which it was purehased. Furilier, upon information and belief, Defendant may have expressly warranted that the subject light and its components were of merchantable quality, fit for ordinary use, and fit for the particular use for whieh it was purchased. 22. At this time, Plaintiffs are not able to attach a copy of the aforesaid express warranties because they have not, after a reasonable investigation, been able to locate them. 23. Defendant breached these warranties because tile subject light was not of merchantable quality, fit for ordinary use, and/or was unfit for the particular use for which it was purchased. . 24. As a direct and proximate result of these aforesaid breaches by Defendant, Plaintiffs sustained damages to their property, loss of business income, and the imposition of additional expenSes in an amount in excess of Twenty-Five Thousand ($25,000.00) Dollars. - 25. Plaintiffs have perfomled all conditions precedent to recovery based upon such breach or breaches. WHEREFORE, Plaintiffs demand judgment against Defendant, in an amount in excess of Twenty-Five Thousand ($25,000.00) Dollars, together with interest, costs of suit, reasonable attorney's fees, delay damages and other such relief as the court dccms appropriate under the circumstances. . . . I, I Respectfully submitted, POST & SCHELL, P.C. BY: CHESTER F. DARLINGTO Attorneys for Plaintiffs DATED: 7/1~(1q . . ~ > VERIFIC A TI ON CHESTER F. DARLINGTON, ESQUIRE, hereby states that he is the attorney for Plaintiffs in the within action and verifies that the statements made in the foregoing AMENDED COMPLAINT, are true and correct to the best of his information, knowledge and belief. The undersigned understands that the statements made therein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. - l(I~I(q~ '.... .. . CERTIFICATE OF SERVICE CHESTER F. DARlJINGTON, ESQUIRE, hereby certifies that a true and correct copy of the attached AMENDED COMPLAINT has been served upon counsel of record below on this date by certified mail, return receipt requested. - Paul R. Lantieri, Esquire Bennet!, Bricklin and Sallzburg 100 South Queen Street, 3rd Floor Lancaster, PA 17603 POST & SCHELL, P.C. BY: ~.i CHESTER F. DARLINGTON ESQ. Attorneys for Plaintiffs DATED: 7/1 ~ / 99 d "~ I': " \" ,i, \ ';~' I.', >- c:. ~ ~ ..:1 1- '" 3s wq ~o :>::: ~I I~ ;1: 0.... <;, :) "". ~S: r- :'5 ,''- - ~ llJ c.., ,. :c :::l ~J .... c: 13 0"1 a a> . . , . Liability. Count I of the Amended Complaint sets forth all of the necessary facts to support a claim of negligent design, manufacturing, assembly, inspection, and testing on the light and its power cord '.~~ " 'i t \~ .., \; ,~ ~r that malfunctioned and started a fire that led to the damages set forth in Plaintiffs' Amended , ~i' Complaint. Count II of Amended Complaint sets forth all of the necessary facts to support a claim of strict products liability and that the subject light and its power cord malfunctioned causing the fire that led to the damages set forth in Plaintiffs' Amended Complaint. This is especially true in light of the fact that Pennsylvania law permits demonstration at the time of trial of negligent maltimction and design through the use of circumstantial evidenee and for strict product liability based upon the similar principle of malfunction theory. Ro~ers v. Johnson and Johnson, Inc., 523 Pa. 176, 565 A.2d 751 (1989). Plaintiffs have specifically averred in their Amended Complaint that the fire was started by the light and "was caused by a malfunction in the light and the light's power cord" Amended Complaint at paragraph 7. 8. Admitted in part, denied in part. It is admitted that the Plaintiffs have not pled when the product was purchased, who purchased the product and the terms of the express warranty breached. It is denied that Count 1II of the amended Complaint fails to sufficiently set forth a cause of action in Breach of Warranty. Count III sufficiently alleges that an express warranty existed, was breached by the Defendant, and that the breach caused their damages. Under Pennsylvania law to prove a claim of breach of warranty a plaintiff only need to plead that the product was defective and that the defect caused the harm. Leniewicz v. Lanl1e, 242 Pa.Super. 87, 363 A.2d 1172 (1976). Plaintiffs have averred that express warranties existed, but after a reasonable investigation cannot locate them. Plaintiffs will produce the express warranties after sufficient discovery is concluded. Pursuant to Pennsylvania law, Plaintiffs are not required to plead the date of purchase and the purchaser. These subjects are matters for discovery. Thus, Plaintiffs have sufficiently pled a cause of action in breach of express warranty. Count II also sufficiently alleges that Defendant implicitly warranted the quality of the light and that this implied warranty was breached by the Defendant and caused Plaintiffs' damages. Plaintiffs has specifically identified that the Defendant breached an implied warranty of merchantability. Pursuant to Pennsylvania law, Plaintiffs have sufficiently pled faets that an implied warranty of merchantability existed and that this warranty was breached by the Defendant when the light malfunctioned. 9. Denied. See response at paragraphs 7-8 above. 10. Denied. 11. Denied. This paragraph is a conclusion of law to which no response is required. 12. Denied. See response to paragraph 7 above. 13. Denied. See response to paragraph 8 above. 14. Denied. The Amended Complaint sufficiently pleads facts which support cause of action in Negligence, Strict Liability and Breach of Warranty under Pennsylvania law. Defendant's Preliminary Objections are merely "boilerplate" objections without any legal or factual basis. Defendant has not identified any caselaw in its preliminary objections which support it~ boilerplate objections. Additionally, Defendant has not filed a brief in support of its preliminary objections at this time and Plaintiffs are not able to properly ascertain the legal basis for Defendant's objections. 15. Denied. WHEREFORE, Plaintiffs respectfully request that the Defendant's Preliminary Objections to the Amended Complaint be overruled and that the Defendant be directed to file an answer to the Amended Complaint. >- C. >. 0: ..oJ ~. ~"': .:..::: r, N I,U~.< ') ~',' (J._." --I ii: : '. !~::J . 'OJ :.:..! ~[:~ '"J . ~~ 1.....1..., I , n:\ c_ ~,j ,1 lr.: ;~.'E ,'- p: (.I: t5 c,., :::; C~ () :>- C\J ~ ~ In ~o ~ .::is; -,.. o- f::; if Q~ """ 'i2~ fjjg - <')!:I) C\J <2: crc'LJ fu .:r::z; if ,"tilt! en ,'~ t!5 0'1 .;:) 0'1 U ~- .' 4. Argument Court Date: January 5, 2000 BY: C E ER F. DARLINGTON Attorney for Plaintiffs DATED: t \\S:J )~i -2- CERTIFICATE OF SERVICE Chesler F. Darlington, Esquire hereby certifies that a true and correct copy of the foregoing Praecipe for Listing Case for Argument was servcd upon Paul F. Lantieri, Esquire, Bennett, Bl'icklin States regular mail postage pre-paid. ot~~ CHESTER F. DARLINGTON and Saltzburg, LLP, 100 South Queen Street, 3rd Floor, Lancaster, PA 17603, by way of United DATED: t \ \2D\ C[9 BENNETT, BRICKLIN & SALTZBURG LLP BY: Paul F. Lantieri, Esquire I.D. No. 22241 100 SOUTH QUEEN STREET, 3RD FLOOR LANCASTER, PA 17603 (717) 393-4400 ATTORNEY FOR DEFENDANT Catalina Lighting, Inc. KAREN ADAMS and MELISSA OLESKl : COURT OF COMMON PLEAS : CUMBERLAND COUNTY vs. : CIVIL ACTION - LAW CATALINA LIGHTING. INC. : DOCKET No. 99-2438 CERTIFICATE OF SERVICE Paul F. Lantieri, Esquire hereby certifies that a true and correct copy of the foregoing Notice of Intent to Serve a Subpoena to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 was served upon Chester F. Darlington, Jr., Esquire, Post & Schell, P.C., 1800 JFK Boulevard, 19110 Floor, Philadelphia, PA 19103, by way of United States regular mail postage pre- paid. PAUr;;~. Dated: FebrUluy 22, 2000 ., ," or infomlation sufficicnt to fonn a bcliefas to thc truth of the avcnllcnls of this paragraph and if relcvant, proof thercof is dcmandcd. 6,7. Dcnicd. Thc avcnncnts ofthcse paragraphs are dcemcd to hc dcnicd pursuant to the Pennsylvania Rulcs of Civil Proccdurc and ifrclcvant, proofthcrcofis dcmandcd. To the cxtent an answcr may he rcquircd, it spccifically is dcnied that the firc was startcd by a light dcsigncd, manufacturcd, asscmbled, installcd, marketcd, distributcd and/or sold by dcfcndant. 8,9. Dcnicd. The avcnnents ofthcse paragraphs are dcemcd to be dcnicd pursuant to the Pennsylvania Rulcs of Civil Procedurc and ifrelcvant, proofthcrcofis dcmandcd. COllNTI 10. Thc corrcsponding answcrs to the complaint arc incorporatcd by this reference and madc part hercof as though thc samc werc sct forth at Icngth. II, 12. Dcnied. The avcnnents of thcse paragraphs arc deemcd to be denied and at issue pursuant to the Pennsylvania Rules of Civil Procedure and ifrelcvant, proofthereofis demanded. WHEREFORE, dcfendant Catalina Lighting, Inc. requcsts that judgment be entered in its favor. COllNT II 13. The corresponding answers to the complaint are incorporated by this reference and made part hercof as though the same wcre set forth at length. 14. Thc answcr to paragraph 4 hcrcin is incorporatcd by refcrcnec and made part hereof as though set forth at Icngth. 15-19, inelusive. Denicd. The aVCl111cnts of thcsc paragraphs are deemcd to be denied pursuant 10 the Pennsylvania Rulcs of Civil Procedure and ifrelevant. proofthcreofis dcmanded. 2 .. WHEREFORE, dcfendant Catalina Lighting, Inc. rcquests that judgment be entered in its favor. COUNT III 20. The corresponding answers to thc complaint arc incorporated by this reference and made part hercof as though the same wcre sct forth at length. 21-25, inclusive. Denied. The avemlents of these paragraphs are dccmed to be denied and at issue pursuant to the Pennsylvania Rules of Civil Procedure and if relevant, proof thereof is demanded. WHEREFORE, defendant Catalina Lighting, Inc. respcctfully rcquests that judgment be entered in its favor. NEW MATTER 26. At all times material htrcto the prcmises located at 1918C Logan Street, Camp Hill, Pennsylvania, were in the exclusive possession and control ofthcplaintiffs, jointly. 27. Plainti ffs' claims are barrcd or reduced by virtue oftheir carelessness and ncgligence under the Pennsylvania Comparative Negligcnce Statute. 28. On infomlation and belief, it is averred that following the fire described in the cClmplaint, various electrical appliances and othcrelectrical itcms were discardcd from the plaintiffs' premises. 29. Plaintiffs' claims are barred under the "spoliation of evidence" doctrine. 30. If it is established that a lighting fixture supplied by Catalina Lighting, Inc. was purchased by either of the plaintiffs. or both of them, it is avcrred that thc fixture was in a safe and proper condition at the time it Icft the possession of Catalina Lighting, Inc. 3 ;. .. 31. If it is established that the plaintiffs, or either of thcm, purchased a lighting fixture supplied by Catalina Lighting, Inc., it is averred that the plaintiffs, or either of them, had exclusive ownership, posscssion and control of said fixture from the timc of purchase through thc date orthe fire described in the complaint. 32. If it is cstablished that the plaintiffs, or either of them, purchased a light fixture supplied by Catalina Lighting, Inc., it is averred that any warranties made by Catalina Lighting were supplied lVith the product. 33. Plaintiffs' claims are barred, inlVhole or in part, by virtue of the running of the applicable statute of limitations. WHEREFORE, Catalina Lighting, Inc. respectfully requests that judgment be entered in its favor. NEW MATTER UNDER PA. R.C.P. 225Ud) 33. Plaintiffs' complaint alleges that at times material hereto, the plaintiffs were roommates at 1918C Logan Street in Camp Hill. 34. Plaintiffs have not attached to their complaint a copy of the lease and have failed to allege specifically whether either or both were lessees for said premises. 35. Plaintiffs' complaint further fails to specifically allege whether the property which plaintiffs contend was damaged by the fire was owned in its entirety jointly by both plaintiffs or whether the claims made in thc complaint include property olVncd individually by one or both plaintiffs. 36. In addition, plaintiffs' complaint fails to allege whether either or both plaintiffs purchased the light fixture which plaintiffs contend causcd the fire described in the complaint. 4 BENNETT, BRICKLlN & SAL TZBURG 1.1.1' BY: PAUL F. LANTlERI, ESQUIRE ATTORNEY J.D. NO. 22241 BY: MARLA B. BIGELEISEN, ESQUIRE ATTORNEY J.D. NO. 79717 100 SOUTH QUEEN STREET, 3/l11 FLOOR LANCASTER, PA 17603 (717) 393-4400 ATTORNEY FOR DEFENDANT, CATALINA LIGHTING, INC. KAREN ADAMS and MELISSA OLESKI COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. CIVIL ACTION - LAW CATALINA LIGHTING, INC. NO. 99-2438 CERTIFICATE OF SERVICE I, PAUL F. LANTIERI, ESQUIRE, hcreby certify that a true and correct copy of the foregoing ANSWER TO PLAINTIFFS' COMPLAINT WITH NEW MATTER AND NEW MATTER UNDER P A.R.C.P. 2252(d) has been served this date upon all interested counsel by way of United States Regular First Class Mail, postage prepaid, addressed as follows: Chcster F. Darlington, Esquire Post & Schell, P.c. 1800 JFK Boulevard, 19th Floor Philadelphia, PA 19103 BENNETT, BRICKLlN & SALTZBURG LLP BY:~ DATE J.r~~ ( (J() BENNETT, BRICKLlN & SALTZBURG UP BY: Paul F. Lantieri, Esquire I.D. No. 22241 100 SOUTH QUEEN STREET, 3RD FLOOR LANCASTER, PA 17603 (717) 393-4400 ATTORNEY FOR DEFENDANT Catalina Lighting, Inc. KAREN ADAMS and MELISSA OLESKI : COURT OF COMMON PLEAS : CUMBERLAND COUNTY vs. : CIVIL ACTION - LAW CATALINA LIGHTING. INC. : DOCKET No. 99-2438 CERTIFICATE OF SERVICE Paul F. Lantieri, Esquire hereby certifies that a true and correct copy of the foregoing Certificate Prerequisite to Service of a Subpoena Pursuant to Rule 4009.22 was served upon Chesler F. Darlington, Jr., Esquire, Post & Schell, P.C., 1800 JFK Boulevard, 19th Floor, Philadelphia, PA 19103, by way of United States regular mail postage pre-paid. at 11:/ PAUL F. LANTlERI'~ Dated: March 20, 2000 ~ ., l E~ b'; c. I " , " , , " ..; , , , ) ., l..~~ " -, ( , l"" C' " C" " fi) , " , L':;' r ::1 f!J ":'] I , C:l (j c.' C.) , VERIFICATION CHESTER F. DARLINGTON, ESQUIRE, hereby states that he is the attorney for Plaintiffs in the within action and verifies that the statements made in the foregoing REPLY TO NEW MATTER are true and correct to the best of his information, knowledge and belief. The undersigned understands that the slatement~ made therein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. BY: DATE; ! 1JO ,- CERTIFICATE OF SERVICE CHESTER F. DARLINGTON, ESQUIRE, hereby certifies that a true and correct copy of the attached REPLY TO NEW MA TIER has been served upon counsel of record below on this date by regular mail. Paul R. Lantieri, Esquire Bennett, Bricklin and Saltzburg 100 South Queen Street, 3rd Floor Lancaster, PA 17603 BY: DATED: 1100 - ., BENNETT, BRlCKLIN & SALTZBURG LLP BY: Paul F. Lantieri, Esquire 1.0. No. 22241 ATTORNEYS FOR DEFENDANTS BY: Marla B. Bigelelsen, Esquire I.D. No. 79717 100 SOUTH QUEEN STREET, 3RD Fl.OOR LANCASTER, PA 17603 (717) 393-4400 KAREN ADAMS and : COURT OF COMMON PLEAS MELISSA OLESKI : CUMBERLAND COUNTY vs. : CIVIL ACTION - LAW CATALINA LIGHTING. INC. : DOCKET No. 99-2438 CERTIFICATE OF SERVICE Paul F. Lantieri, Esquire hereby certifies that a true and correct copy ofthe attached Notice of Intent to Serve Subpoena was served upon Chester Darlaington, Esquire, Post & Schell, P.C., 1800 JFK Boulevard, 19th Floor, Philadelphia, PA 19103, by way of United States regular mail postage pre-paid r!21 f~L PAUL F. LANTlERI, ESQ IRE Dated: May 5, 2000 ... .' I. Commonwealth of Pennsylvania County of Cumberland SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Karen Adam. and Melissa Oleskl Plalntlff/, Docket No. 99.2438 vs Catalina Lighting, Inc. Defendantls To Records Cultodlan (Name of person or eRIlly) eamn Hili Pollee Denarlmenl eamn Hili. PA 17011 Within twenty (20) days after sen'lce oflhls subpoena, you are ordered by,the court to produce the following documents or things: Anv and all records. includiDe: investi2Btion r(morts and Dhotol!r80hs relaUul! to a fire which occurred at 1918 C Lo.an Streel. Camp Hill. PA 17011 op Ar, rll 24. 1997. (The Ore was Inve,ll.aled hv Officer Dave PeDDerman.) at 100 South Oueen Street. 3" Floor. Lanca.ter. PA 17f03,_ You may deliver or mall legible copies urthe documents or produce things requested by this subpoena, together with the certificate of compliance. to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sougbt. If you ran to procure the documents or things requIred by this subpoena wIthin twenty (20) day. after It' senlce, the party senrlng this subpoena may seek a court ordel' compelling you to comply with !t. This subpoena was Issued at the request of the following person: Paul F. Lanrlerl. Esoulre Attorney'. Name 22.2.41 IdeallRcldonNumbtr 100 S. Outra SI..1nl Fl" Addrttl I.lncallrr.PA 17603 717.393-4400 Telephone Number Atlomty (or Or(rndlnt BY TilE COURT: DATE: BV tProthonOIII')') Sr.1 or Ihl.' Court '. BENNETI" BRICKLIN & SALTZBURG LLP BY: Paul F. Lanllerl, Esquire I.D. No. 22241 ATTORNEYS FOR DEFENDANTS BY: Marla B. Blgeleisen, Esquire 1.0. No. 79717 100 SOUTH QUEEN STREET, 3RD I"LOOR LANCASTER, PA 17603 (717) 393-4400 CO!?,,, KAREN ADAMS and : COURT OF COMMON PLEAS MELISSA OLESKI : CUMBERLAND COUNTY vs. : CIVIL ACTION _ LAW CATALINA LIGHTING. INC. : DOCKET No. 99-2438 NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant, intends to scrve subpoenas upon the records custodians to the Camp Hill Police Department, identical to the oncs that are attached to this notice. You have twenty (20) days from the date listed below in which to filc of record and serve upon the undersigned an objection to the subpoenas. Ifno objection is made, the subpoenas may be served. BENNETT, BRICKLIN &SAL TZBURG LLP II BY: PAUL F. LANTIERI, ESQUIRE Attorney for Defendant Dated: May 5, 2000 n r.., .:) ,. 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