Loading...
HomeMy WebLinkAbout07-2269NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE 135 SOUTHSIDE DRIVE NEWVILLE, PA 17241 Plaintiff(s) V. GENERAL MOTORS CORPORATION C/O CT CORPORATION 30600 TELEGRAPH ROAD BINGHAM FARMS, MI 48025 AND GRAHAM MOTORS COMPANY 1402 HOLLY PIKE CARLISLE, PA 17013 IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA NON-ARBITRATION MATTER CIVIL ACTION NO: 07 - aa(F C'I U ?C NOTICE TO DEFEND 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 (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 or any other claim or relief requested by the plaintiff. You may lose money or property 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE 135 SOUTHSIDE DRIVE NEWVILLE, PA 17241 Plaintiff(s) V. GENERAL MOTORS CORPORATION C/O CT CORPORATION 30600 TELEGRAPH ROAD BINGHAM FARMS, MI 48025 AND GRAHAM MOTORS COMPANY 1402 HOLLY PIKE CARLISLE, PA 17013 IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA NON-ARBITRATION MATTER CIVIL ACTION NO: p^j , 1 °Z (o q QS COMPLAINT Plaintiff, by and through undersigned counsel, and by way of Complaint against Defendants, hereby avers: 1. Plaintiff is an adult individual who, at all times relevant hereto, owned and resided at the address set forth above. 2. Defendant General Motors Corporation ("GM") is, upon information and belief, a business entity organized and existing under the laws of Michigan, with a principal place of business at 30600 Telegraph Road, Bingham Farms, Michigan. Defendant GM regularly conducts business in the Commonwealth of Pennsylvania, including the County of Cumberland. 3. GM is, upon information and belief, a corporate entity that markets, designs, manufactures, assembles, distributes, inspects and/or offers for sale, inter alia, motor vehicles, including a certain 2000 Chevrolet K1500 (VIN 2GCEK19T5Y1254807) ("the vehicle") 4. Defendant Graham Motors Company ("Graham") is, upon information and belief, a business entity organized and existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at the address in the above caption. 5. Graham is, upon information and belief, specially trained and authorized by GM to perform automobile diagnostic, inspection, analysis and repair services to consumers such as plaintiff. 6. The vehicle appeared to operate properly, with little or no indication that there was anything wrong; however, an issue appeared in the summer of 2006 relating to the intermittent sounding of the horn of said vehicle. As a result of this issue, plaintiff brought the vehicle to Graham for inspection, diagnosis, service and/or repair. 7. Plaintiff brought the vehicle to Graham and informed Graham of any/all information requested of him relative to the vehicle's operation. Plaintiff was informed that there was a problem with the circuit board of the vehicle and that the problem was fixed and the vehicle was in proper working order. Thus, relying on Graham's implicit and explicit assertions as to the vehicle's soundness and fitness, plaintiff continued to operate the vehicle. 8. On or about August 8, 2006, while the vehicle was parked on plaintiff's property, it suddenly and without warning erupted into flames, which apparently originated in the engine compartment and manifested itself into the passenger compartment thru the windshield, firewall and other windows in the vehicle. 9. The fire in the engine compartment quickly spread to the remainder of the vehicle and to the plaintiff's shed, which was next to where said vehicle was parked. As a result of the shed catching fire, excessive heat from the fire caused damages to the plaintiff's house itself. 10. Thus, as a result of the defective nature of the vehicle, and/or as a result of the negligent servicing (etc.) of the vehicle (as is more fully described herein), the vehicle was destroyed in the fire, as was plaintiff's real and personal property, many of his personal possessions; moreover, this incident caused plaintiff to incur additional expenses and hardships besides. COUNTI NEGLIGENCE OF GM 11. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 12. The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of GM, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i. failing to properly build, manufacture, assemble, inspect, diagnose, service, repair and/or test the vehicle; ii. failing to determine that the vehicle was not in compliance with applicable standards and/or specifications; iii. failing to properly recommend to and/or warn plaintiff that the vehicle was defective and could fail in the manner described herein; iv. failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of. b. failing to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; C. failing to adequately warn plaintiff and others of the dangers and hazardous conditions of the vehicle, which GM knew or should have known would result from the careless and negligent conduct set forth in subparagraph (a)(i.-iv.) above; d. failing to provide, establish, and/or follow proper and adequate control of its employees so as to avoid the problems enumerated in subparagraph (a)(i.-iv.) above; and e. failing to perform the services set forth in subparagraph (a)(i.-iv.) above in conformity with the prevailing industry specifications and standards. f. . otherwise acting negligently under the circumstances. 13. As a result of the damages directly and proximately caused by the negligence and/or other unlawful conduct of GM, plaintiff sustained and incurred damages to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against GM - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT II STRICT LIABILITY OF GM 14. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 15. GM is engaged, and at all times relevant hereto was engaged, in the business of inter alia, marketing, selling and distributing motor vehicles, including the vehicle, to consumers such as plaintiff. 16. GM distributed and/or sold the vehicle in a defective condition, unreasonably dangerous to plaintiff and his property. 17. GM knew or should have known that the vehicle would, and did, reach the plaintiff without substantial change from the condition in which originally sold. 18. The aforementioned defects consisted of: (a) design defects; (b) manufacturing defects; (c) component defects; (d) a failure to warn of the design, manufacturing, and/or component defects; and/or (e) a failure to properly instruct as to the appropriate operating and maintenance procedures for safe use of the vehicle and/or its components. 19. For these reasons, GM is strictly liable to plaintiff for his damages under Section 402A of the Restatement (2d) of Torts, the Restatement (3d) of Torts, and the applicable caselaw of the Commonwealth of Pennsylvania. 20. As a direct and proximate result of the aforementioned defects, Plaintiff sustained and incurred damage to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against GM - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT III NEGLIGENCE OF GRAHAM 21. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 22. The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of Graham, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i. failing to properly inspect, diagnose, service, repair and/or test the vehicle; ii. failing to determine that the vehicle was not in compliance with applicable standards and/or specifications; iii. failing to properly recommend to and/or warn plaintiff that the vehicle was defective and could fail in the manner described herein; iv. failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of. b. failing to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; C. failing to adequately warn plaintiff and others of the dangers and hazardous conditions of the vehicle, which Graham knew or should have known would result from the careless and negligent conduct set forth in subparagraph (a)(i.-iv.) above; d. failing to provide, establish, and/or follow proper and adequate control of its employees so as to avoid the problems enumerated in subparagraph (a)(i.-iv.) above; and e. failing to perform the services set forth in subparagraph (a)(i.-iv.) above in conformity with the prevailing industry specifications and standards. f. otherwise acting negligently under the circumstances. 23. As a result of the damages directly and proximately caused by the negligence and/or other unlawful conduct of Graham, plaintiff sustained and incurred damages to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against Graham - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT IV STRICT LIABILITY OF GRAHAM 24. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 25. Graham is engaged and at all times relevant hereto was engaged, in the business of inter alia, marketing, selling and distributing motor vehicles, including the parts and related components for motor vehicles, including the parts and related components and services sold to consumers such as plaintiff. 26. Graham distributed and/or sold the parts and related components for the vehicle in a defective condition, unreasonably dangerous to plaintiff and his property. 27. Graham knew or should have known that the parts and related components for the vehicle would, and did, reach the plaintiff without substantial change from the condition in which originally sold. 28. The aforementioned defects consisted of: (a) design defects; (b) manufacturing defects; (c) component defects; (d) a failure to warn of the design, manufacturing, and/or component defects; and/or (e) a failure to properly instruct as to the appropriate operating and maintenance procedures for safe use of the vehicle and/or its components. 29. For these reasons, Graham is strictly liable to plaintiff for his damages under Section 402A of the Restatement (2d) of Torts, the Restatement (3d) of Torts, and the applicable caselaw of the Commonwealth of Pennsylvania. 30. As a direct and proximate result of the aforementioned defects, plaintiff sustained and incurred damage to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against Graham - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT V BREACH OF WARRANTIES BY GRAHAM 31. Plaintiff incorporates herein by reference all the foregoing paragraphs as though same were fully set forth at length. 32. At the time of contracting for the sale and/or distribution of the parts and related components to the vehicle, Graham had reason to know of the particular purpose for which the vehicle would be used, and knew that its skill and judgment were being relied upon to furnish a suitable product. Thus, Graham breached the implied warranty of fitness for a particular purpose as set out in the Uniform Commercial Code (hereinafter "UCC") and in 13 Pa. C.S.A. § 2-315 in that the vehicle was not fit for the particular use for which such products are intended. 33. In addition, Graham breached its implied warranty of merchantability as set out in the UCC and 13 Pa. C.S.A. § 2-314 (c) in that the vehicle was not fit for the uses for which it was intended. 34. In addition, Graham breached any and all express warranties made or relating to the vehicle that became part of the basis of the bargain for sale of the product in violation of the UCC and 13 Pa. C.S.A. § 2-313. 35. Furthermore, Graham breached the express and implied warranties set out in the warranties plaintiff purchased at the time of the repairs for the vehicle. 36. Plaintiff s damages, as set forth above, occurred as a direct and proximate result of Graham breach of its implied warranties of fitness for a particular purpose and merchantability as set out in 13 Pa. C.S.A. § 2-315 and § 2-314 (c), and as a result of Graham breach of their expressed warrantees in derogation of 13 Pa. C.S.A. § 2-313, as well as the express and implied warranties set out in the warranties plaintiff purchased at the time of buying the vehicle, and/or any time subsequent thereto. WHEREFORE, Plaintiff demands judgment in his favor and against Graham - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT V BREACH OF CONTRACT BY GRAHAM 37. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 38. On this occasion plaintiff brought the vehicle to Graham for proper maintenance, diagnosis, inspection, service, testing and repair, he paid valuable consideration for these technical services pursuant to an express and/or implied agreement with Graham. 39. In violation of its express and implied agreement with Plaintiff, Graham failed to properly maintain, diagnose, inspect, service, test and/or repair the vehicle as promised (as is evidenced by the malfunction that caused the incident), and nonetheless asserted to plaintiff that such services had been provided, and that the vehicle was in proper working order. 40. As a result of Graham's breach of its express and implied agreement with plaintiff, plaintiff - who has and had performed all his obligations under the contract - suffered damages to his real and personal property, as well as the imposition of additional expenses and hardship besides. WHEREFORE, Plaintiff demands judgment in his favor and against Graham - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, delay damages and such other relief as the Court deems appropriate under the circumstances. NELSON LEVINE de LUCA & HORST, LLC BY. Dated: April 12, 2007 VERIFICATION I, Jeffrey M. Zielinski, being duly sworn according to law, hereby depose and say that I am counsel for plaintiff State Farm Fire & Casualty Company (the real party at interest) as subrogee of the plaintiff named in this action's caption, and that I am authorized by same to make this verification on its behalf, and that for all facts averred in the attached Complaint are not of my own personal knowledge, I have received the necessary information from State Farm, and that all such facts are true and correct to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. BY Dated: April 12, 2007 ? N d N Mob t0 .q 8- . Marc T. Levin, Esquire Attorney I.D. No. 70294 Vincent L. Champion, Esquire Attorney I.D. No. 88411 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company ELWOOD YORE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY Defendants CIVIL ACTION - LAW NO. 07-2269 CIVIL PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Marc T. Levin, Vincent L. Champion, and Rhoads & Sinon LLP on behalf of Defendant Graham Motor Company in the above-captioned matter. RHOADS & SINON LLP By: Marc T. Levin Vincent L. Champion One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company 649433.1 i.._, CERTIFICATE OF SERVICE I hereby certify that on May 2, 2007, a true and correct copy of the Praecipe for Entry of Appearance was served by means of United States mail, first class, postage prepaid, upon the following: Jeffrey M. Zielinski, Esquire Nelson Levine de Luca & Horst Four Sentry Parkway Blue Bell, PA 19422 tea, pi: -3r s co PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) Edward Yohe VS. (Plaintiff) General Motors Corporation and Graham Motors Company (Defendant) AAto9 No. 07- 26 Civil Term 1. State matter to be argued (ie., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections to Plaintiff's Complaint 2. Identify counsel who will argue cases: (a) for plaintiff: Jeffrey Zielinski, Nelson Levine deLuca & Horst Four Sentry Parkway, Blue Bell, PA 19422 (Name and Address) (b) for defendant: Vincent L. MiMpioh Rhoads & Sinon LLP 1 S..Market sq., PA Box 1146, Harrisburg, PA 17108-1146 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. Jeffrey Zielinski, Esquire and General Motors Corporation 4. Argument Court Date: July 11, 2007 Defendant Graham>iMotors Co Date: May 15 , 2007 Attorney for f Vincent L. Champion Print your name ?? ? ?ti c "s -,n ?G -t-S e, `???! +; %'" '_.? r? _, ? ;c. ? Marc T. Levin, Esquire Attorney I.D. No. 70294 Vincent L. Champion, Esquire Attorney I.D. No. 88411 RHOADS & SINON LLP (717) 233-5731 One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company ELWOOD YORE, Plaintiff V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2269 CIVIL NOTICE TO PLEAD To: Jeffrey M. Zielinski, Esquire Nelson Levine de Luca & Horst Four Sentry Parkway Blue Bell, PA 19422 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. RHOADS & S NOON LLP 0-0 Marc T. Levin Vincent L. Champion One South Market Square, 12`h Floor P. O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Defendant Graham Motor Company, Inc. 650426.1 Marc T. Levin, Esquire Attorney I.D. No. 70294 Vincent L. Champion, Esquire Attorney I.D. No. 88411 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company ELWOOD YOHE, V. Plaintiff GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2269 CIVIL DEFENDANT GRAHAM MOTOR COMPANY, INC.'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT NOW COMES Defendant Graham Motor Company, Inc. ("Graham") by and through its counsel, Rhoads & Sinon LLP, and files the within Preliminary Objections to Plaintiff's Complaint and avers as follows: On or about April 19, 2007, the Plaintiff, Elwood Yohe, filed a Complaint against Graham in the Court of Common Pleas of Cumberland County. A true and correct copy of the Complaint is attached hereto as Exhibit "A." 2. The Complaint was served upon Graham on April 25, 2007. 650426.1 3. In his Complaint the Plaintiff raises causes of action in negligence, strict liability, breach of warranty, and breach of contract in connection with a vehicle fire which occurred on the Plaintiff s property. 4. Graham has in turn filed these Preliminary Objections because the Plaintiff's Complaint has failed to conform with relevant rules of Court, the Complaint is not pled with sufficient specificity and the Complaint as pled is legally insufficient. 1. Preliminary Obiection for Failure of a Pleading to Conform to Rule of Court pursuant to Pa. R. Civ. P. No. 1028(a)(2) 5. Pursuant to Pa.R.Civ.P. No. 1028(a)(2), "Preliminary Objections may be filed by any party to any pleading and are limited to the following grounds ... failure of a pleading to conform to law or Rule of Court ...." 6. Pursuant to Pa. R. Civ. P. No. 1019(h), "When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written." 7. Indeed, "When any claim or defense is based upon a writing, the pleading shall attach a copy of the writing...." Pa. R. Civ. P. No. 1019(h)(i). Count VI of Plaintiff's Complaint alleges a cause of action for breach of contract, however the Plaintiff's Complaint fails to indicate whether the contract was written or oral. 9. Moreover, and to the extent that the purported contract is an express written contract, Plaintiffs Complaint also does not attach a copy of the document to the Complaint. 10. Consequently, Plaintiff s Complaint fails to conform to relevant rules of Court. WHEREFORE, Defendant Graham Motor Company, Inc. respectfully requests that this Honorable Court sustain its preliminary objection and dismiss Plaintiff's Complaint for its failure -2- to conform to rule of Court. In the alternative, Graham Motor Company, Inc. requests that this Honorable Court require Plaintiff to amend his Complaint to indicate whether his breach of contract action is based upon an oral or written agreement, and to the extent that it is based upon a written agreement, instruct the Plaintiff to attach a copy of the writing to his Complaint. II. Motion for a More Specific Pleading Pursuant to Pa. R. Civ. P. No. 1028(a)(3) 11. Pursuant to Pa.R.Civ.P. No. 1028(a)(3), "Preliminary Objections may be filed by any party to any pleadings and are limited to the following grounds ... insufficient specificity in a pleading." 12. Relatedly, Pa. R. Civ. P. No. 1019(a) requires that, "The material facts on which a cause of action ... is based shall be stated in concise and summary form." 13. Plaintiff's Complaint has failed to satisfy the foregoing requirements. 14. Specifically, Paragraph 22 of Plaintiff's Complaint and subparts (a)(ii); (e); and (f) of that same paragraph fail to satisfy the strict specificity requirements of the Pennsylvania Rules of Civil Procedure. 15. The relevant portions of paragraph 22 of Plaintiff's complaint allege as follows: "The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of Graham, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. Failing to exercise reasonable care in the following manner: (ii) Failing to determine that the vehicle was not in compliance with applicable standards and/or specifications; e. Failing to perform the services set forth in subparagraphs (a), (i) through (iv) above in conformity with the prevailing industry specifications and standards. f. Otherwise acting negligently under the circumstances. -3- 16. Paragraph 22 and the above listed subparts is devoid of meaningful support for the allegations contained therein. 17. In order to prepare an appropriate defense, Graham must be advised of the specific factual allegations, standards, and specifications, that relate to the allegations contained in subparts (a)(ii), (e), and (f). 18. The lack of specificity contained in Paragraph 22 and relevant subparts make it nearly impossible for Graham to answer the Plaintiff's Complaint and/or prepare a defense to those allegations. 19. Therefore, pursuant to Pa. R. Civ. P. No. 1028(a)(3), this Court should require the Plaintiff to more specifically state any and all applicable standards, specifications, any purported violations of the aforementioned applicable standards, specifications, facts, and how Graham was otherwise negligent. See, Connor v. Allegheny Hospital, 501 Pa. 306; 461 A.2d. 600 (Pa. 1983). WHEREFORE, Defendant Graham Motor Company, Inc. respectfully requests that this Honorable Court grant its motion for a more specific pleading and require the Plaintiff to specifically state each applicable standard, specification, any and all violations of relevant standards and specifications, facts and how Graham was otherwise negligent. III. Preliminary Obiection in the Nature of Demurrer Pursuant to Pa.R.Civ.P. No. 1028(a)(4) 20. Lastly, by way of his Complaint, the Plaintiff raises four (4) separate causes of action against Graham. -4- 21. These causes of action include negligence (Count III), strict liability (Count IV), breach of warranty (Count V), and breach of contract (Count VI)1. 22. Under Pa. R. Civ. P. No. 1028(a)(4), "Preliminary objections may be filed by any party to any pleading and are limited to the following grounds ... legal insufficiency of a pleading (demurrer)." 23. Counts IV, V, and VI of Plaintiff's Complaint are legally insufficient and must be dismissed. 24. With regard to Plaintiff's strict liability claim (Count IV), Plaintiff fails to identify the product that is purportedly defective. 25. Plaintiff's failure to identify the offending product is fatal to his claim. 26. To be sure, without identifying the product, the Plaintiff cannot aver the requisite connection between Graham and the product in issue. 27. Plaintiff's breach of warranty cause of action (Count V), also is legally insufficient because he has not alleged that Graham engaged in the sale of goods thereby implicating Pennsylvania's Uniform Commercial Code. 28. Moreover, the gist of the action doctrine compels the dismissal of Count V in that Plaintiff's Complaint viewed in its entirety sounds in tort law as opposed to contract law. 29. Similarly, the gist of the action doctrine compels the dismissal of Plaintiff's cause of action for breach of contract (Count VI) because Plaintiff's Complaint, viewed in its entirety, also sounds in tort law as opposed to contract law. ' Plaintiff's Complaint contains two Count V's. The undersigned will accordingly refer to the breach of contract cause of action as Count VI. -5- 30. Based upon the foregoing, Counts IV, V, and VI of Plaintiffs Complaint should be dismissed. WHEREFORE, Defendant Graham Motor Company, Inc. respectfully requests that this Honorable Court grant its preliminary objection in the nature of a demurrer and dismiss Counts IV, V, and VI from the Complaint. RHOADS & SINON LLP By %? ,?• Marc T. Levin Vincent L. Champion One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company, Inc. -6- CERTIFICATE OF SERVICE I hereby certify that on May 15, 2007, a true and correct copy of Defendant Graham Motor Company, Inc.'s Preliminary Objections to Plaintiff's Complaint was served by means of United States mail, first class, postage prepaid, upon the following: Jeffrey M. Zielinski, Esquire Nelson Levine de Luca & Horst Four Sentry Parkway Blue Bell, PA 19422 Gf-acral %,Iotors Cc:pcredon c/o CT Corporation 30600 Telegraph Road Bingham Farms, MI 48025 cr: _ F 1 ?? r CIO -2-3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELWOOD YOHE, Plaintiff, V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY, Defendants. CIVIL ACTION NO.: 07-2269 NON-ARBITRATION MATTER DEFENDANT GENERAL MOTORS CORPORATION'S ANSWER AND NEW MATTER TO COMPLAINT Filed on Behalf of Defendant, GENERAL MOTORS CORPORATION NOTICE TO PLEAD TO PLAINTIFF: You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. C nsel or Defendant, GENERAL MOTORS CORPORATION Counsel of Record for this Party: JEFFREY COHEN, ESQUIRE PA I.D. #76512 MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 (412) 261-6600 (412) 471-2754 {P0812684.1} ELWOOD YOHE IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY Plaintiff PENNSYLVANIA V. GENERAL MOTORS CORPORATION CIVIL ACTION NO: 07-2269 AND GRAHAM MOTORS COMPANY, Defendant(s) DEFENDANT GENERAL MOTORS CORPORATION'S ANSWER AND NEW MATTER TO COMPLAINT 1. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 2. General Motors admits that it is a Delaware Corporation with its principal place of business in the State of Michigan. General Motors further admits that it conducts business in the Commonwealth of Pennsylvania, including Cumberland County. General Motors denies each and every remaining allegation in this paragraph. 3. General Motors admits that it markets, designs, in part, manufactures, in part, assembles, in part, and distributes motor vehicles. General Motors admits that it designed, in part, manufactured, in part, and distributed a 2000 Chevrolet 1500, VIN # 2GCEK19T5Y1254807. General Motors denies each and every remaining allegation in this paragraph. IP0812684.I) 4. This paragraph is not directed towards General Motors and, as such, no response is required. To the extent a response is required, General Motors denies each and every allegation in this paragraph. 5. General Motors admits that Graham Motors Company ("Graham") is an authorized dealer of General Motors vehicles. General Motors further admits that Graham is authorized by General Motors to comply with warranty agreements on General Motors vehicles. 6. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 6 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 7. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 7 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 8. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 8 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 9. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 9 (P0812684.1} 2 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 10. The averments set forth at paragraph 10 of the plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required to paragraph 10, the averments set forth therein are denied. COUNTI NEGLIGENCE OF GM 11. General Motors incorporates herein by reference all the foregoing paragraphs as though same were fully set forth at length. 12. The averments set forth at paragraph 12 of the plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required to paragraph 12, the averments set forth therein are denied. 13. The averments set forth at paragraph 13 of the plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required to paragraph 13, the averments set forth therein are denied. WHEREFORE, General Motors demands judgment be entered in its favor and against the plaintiff on all claims expressly set forth in Count I of plaintiff's Complaint. COUNT II STRICT LIABILITY OF GM 14. General Motors incorporates herein by reference all the foregoing paragraphs as though same were fully set forth at length. (P0812684.1} 3 15. General Motors admits that it markets aid distributes motor vehicles. General Motors admits that it distributed a 2000 Chevrolet 1500, VIN # 2GCEK19T5Y1254807. 16. The averments set forth at paragraph 16 of the plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required to paragraph 16, the averments set forth therein are denied. 17. The averments set forth at paragraph 17 of the plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required to paragraph 17, the averments set forth therein are denied. 18. The averments set forth at paragraph 18 of the plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required to paragraph 18, the averments set forth therein are denied. 19. The averments set forth at paragraph 19 of the plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required to paragraph 19, the averments set forth therein are denied. 20. The averments set forth at paragraph 20 of the plaintiffs Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required to paragraph 20, the averments set forth therein are denied. WHEREFORE, General Motors demands judgment be entered in its favor and against the plaintiff on all claims expressly set forth in Count II of plaintiff's Complaint. I P0812684. I) 4 COUNT III NEGLIGENCE OF GRAHAM 21.-23. The allegations contained in paragraphs 21 through 23 of plaintiff's Complaint are directed to a co-defendant and as such no responsive pleading is required by General Motors. WHEREFORE, General Motors demands judgment be entered in its favor and against the plaintiff on all claims expressly set forth in Count III of plaintiff's Complaint. COUNT IV STRICT LIABILITY OF GRAHAM 24.-30. The allegations contained in paragraphs 24 through 30 of plaintiff's Complaint are directed to a co-defendant and as such no responsive pleading is required by General Motors. WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against the plaintiff on all claims expressly set forth in Count IV of plaintiff's Complaint. COUNT V BREACH OF WARRANTIES BY GRAHAM 31.-36. The allegations contained in paragraphs 31 through 36 of plaintiff's Complaint are directed to a co-defendant and as such no responsive pleading is required by General Motors. WHEREFORE, General Motors demands judgment be entered in its favor and against the plaintiff on all claims expressly set forth in Count V of plaintiff's Complaint. {P0812684.1 } 5 COUNT VI BREACH OF CONTRACT BY GRAHAM 37.40. The allegations contained in paragraphs 37 through 40 of plaintiff's Complaint are directed to a co-defendant and as such no responsive pleading is required by General Motors. WHEREFORE, General Motors demands judgment be entered in is favor and against the plaintiff on all claims expressly set forth in Count VI of plaintiff's Complaint. NEW MATTER By way of further answer to the allegations contained within the Complaint, General Motors set forth the following New Matter: 41. General Motors raises as a complete defense to some or all of plaintiff's claims for damages the applicable statute of limitations. 42. Count I of plaintiff's Complaint, read in its entirety, fails to state a claim or cause of action against General Motors upon which relief may be granted. 43. Count II of plaintiff's Complaint, read in its entirety, fails to state a claim or cause of action against General Motors upon which relief may be granted. 44. General Motors raises, as a complete defense to some or all of plaintiff's claims for damages, plaintiff's assumption of a known risk. 45. There exists no proximate cause between any of the plaintiff's alleged injuries and any alleged act or omission on the part of General Motors. Therefore, plaintiff is not entitled to recover from General Motors. { P0812684.1 } 6 46. The acts and/or omissions of other individuals or entities, over which General Motors exercised no control, constitute intervening or superseding causes for the damages allegedly sustained by plaintiff. 47. Plaintiff's alleged damages were solely the result of acts, omissions and/or tortious conduct of other persons or entities over which General Motors exercised no control, including, but not limited to, plaintiff's own negligent maintenance and/or operation of the vehicle prior to and at the time of the alleged incident. 48. General Motors believes, and therefore avers, that any of the damages alleged by plaintiff were directly or proximately caused by plaintiff's own contributory negligence. As such, all of the plaintiff's claims are barred, in whole or in part, by the applicable provisions of the Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. 22 §7102. 49. The injuries and/or damages complained of may have been the direct and proximate result of plaintiff's failure to take all reasonable steps to reduce and/or mitigate the potential for damage. Therefore, plaintiff is not entitled to recover against General Motors. 50. General Motors believes, and therefore avers, that the injuries and/or damages alleged by the plaintiff in the Complaint are the direct and proximate result of misuse and/or abuse of the vehicle by the plaintiff and/or others prior to and/or at the time of the incident. 51. General Motors believes, and therefore avers, that the subject vehicle may have undergone an unforeseeable substantial change, alteration or modification after it left the possession, custody and control of General Motors. This is raised as a complete defense to some or all of plaintiff's claims for damages. (P0812684. I) 7 52. General Motors is entitled to a set-off from any recovery against it to the extent of any and all benefits paid or payable to or on behalf of plaintiff from any and all collateral sources to the extent such a set-off is permissible under the law applicable to this case. 53. The express warranties contained in the New Vehicle Warranty Booklet that would have been provided with the vehicle at the time of original sale are exclusive and were given in lieu of all other warranties, express or implied. Further, General Motors complied with the terms and conditions of any and all warranties applicable to this claim. This is raised as a complete defense to some or all of plaintiff's claims for damages. 54. To the extent that the subject vehicle was, in fact, designed in part, manufactured in part, and distributed by General Motors, the vehicle complied with all applicable Federal Motor Vehicle Safety Standards which existed at the time the vehicle was originally designed in part, manufactured in part, and distributed by General Motors. Therefore, plaintiff is not entitled to recover against General Motors in this action. 55. To the extent that the subject vehicle was, in fact, designed in part, manufactured in part, and distributed by General Motors, the vehicle complied with the state of the art at the time it was designed in part, manufactured in part, and distributed by General Motors. The methods, standards and techniques utilized by General Motors were in conformity with the generally recognized state of knowledge in the automotive field at the time of the manufacture of the subject vehicle. (P0812684. I) 8 WHEREFORE, General Motors demands judgment in its favor dismissing, with prejudice, plaintiff's Complaint and awarding all its costs and expenses of suit, including attorneys' fees, together with such other and further relief as the Court deems appropriate. Respectfully submitted, MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. HEN, ESQUIRE U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 (412) 261-6600 (412) 471-2754 - FAX Counsel for Defendant, GENERAL MOTORS COROPORATION (P0812684.1} 9 VERIFICATION STATE OF MICHIGAN COUNTY OF WAYNE SS. Terry A. Radatz being first duly sworn, deposes and says that she is authorized pursuant to applicable law and rules to verify, on behalf of General Motors Corporation, the foregoing DEFENDANT GENERAL MOTORS CORPORATION'S ANSWER AND NEW MATTER TO COMPLAINT and that the same are hereby verified on behalf of General Motors Corporation. QZAX4-4 a . Terry adatz Authori Agent F Re: Elwood Yohe Sworn to and subscribed before me this 17th day of May, 2007. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading has been forwarded to all counsel of record by: Z U.S. First Class Mail, Postage Paid Hand Delivery Certified Mail, Return Receipt Requested Facsimile Transmittal UPS Delivery at the following address: Jeffrey M. Zielinski, Esquire Nelson Levine deLuca &Horst, LLC Four Sentry Parkway, Sutie 300 Blue Bell, PA 19422 (Counsel for Plaintiffi Graham Motors Company 1402 Holly Pike Carlisle, PA 17013 MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. Dated: S ?n3 2oq By JEFFRE CO HEN, ESQUIRE IP0812684.1) _ 3 1,7 _...:s ???) ? `Tl ._..J ---? ;_ r,? f NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA GENERAL MOTORS CORPORATION CIO CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) NON-ARBITRATION MATTER 07-ou ?q CIVIL ACTION NO: Ww2265 AMENDED COMPLAINT Plaintiff, by and through undersigned counsel, and by way of Complaint against Defendants, hereby avers: 1. Plaintiff is an adult individual who, at all times relevant hereto, owned and resided at the address set forth above. 2. Defendant General Motors Corporation ("GM") is, upon information and belief, a business entity organized and existing under the laws of Michigan, with a principal place of business at 30600 Telegraph Road, Bingham Farms, Michigan. Defendant GM regularly conducts business in the Commonwealth of Pennsylvania, including the County of Cumberland. 3. GM is, upon information and belief, a corporate entity that markets, designs, manufactures, assembles, distributes, inspects and/or offers for sale, inter alia, motor vehicles, including a certain 2000 Chevrolet K1500 (VIN 2GCEK19T5Y1254807) ("the vehicle") 4. Defendant Graham Motors Company ("Graham") is, upon information and belief, a business entity organized and existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at the address in the above caption. 5. Graham is, upon information and belief, specially trained and authorized by GM to perform automobile diagnostic, inspection, analysis and repair services to consumers such as plaintiff. 6. The vehicle appeared to operate properly, with little or no indication that there was anything wrong; however, an issue appeared in the summer of 2006 relating to the intermittent sounding of the horn of said vehicle. As a result of this issue, plaintiff brought the vehicle to Graham for inspection, diagnosis, service and/or repair. 7. On or about July 6, 2006, plaintiff brought the vehicle to Graham and informed Graham of any/all information requested of him relative to the vehicle's operation. Plaintiff was informed that there was a problem with the circuit board of the vehicle located in the engine compartment of the vehicle, and that the problem was fixed and the vehicle was in proper working order. Thus, relying on Graham's implicit and explicit assertions as to the vehicle's soundness and fitness, plaintiff continued to operate the vehicle. 8. On or about August 8, 2006, while the vehicle was parked on plaintiff's property, it suddenly and without warning erupted into flames, which apparently originated in the engine compartment and manifested itself into the passenger compartment thru the windshield, firewall and other windows in the vehicle. 9. The fire in the engine compartment quickly spread to the remainder of the vehicle and to the plaintiff's shed, which was next to where said vehicle was parked. As a result of the shed catching fire, excessive heat from the fire caused damages to the plaintiff's house itself. 10. Thus, as a result of the defective nature of the vehicle, and/or as a result of the negligent servicing (etc.) of the vehicle (as is more fully described herein), the vehicle was destroyed in the fire, as was plaintiff's real and personal property, many of his personal possessions; moreover, this incident caused plaintiff to incur additional expenses and hardships besides. COUNTI NEGLIGENCE OF GM 11. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 12. The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of GM, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i. failing to properly build, manufacture, assemble, inspect, diagnose, service, repair and/or test the vehicle; ii. failing to determine that the vehicle was not in compliance with applicable standards and/or specifications; iii. failing to properly recommend to and/or warn plaintiff that the vehicle was defective and could fail in the manner described herein; iv. failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of b. failing to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; C. failing to adequately warn plaintiff and others of the dangers and hazardous conditions of the vehicle, which GM knew or should have known would result from the careless and negligent conduct set forth in subparagraph (a)(i.-iv.) above; d. failing to provide, establish, and/or follow proper and adequate control of its employees so as to avoid the problems enumerated in subparagraph (a)(i.-iv.) above; and e. failing to perform the services set forth in subparagraph (a)(i.-iv.) above in conformity with the prevailing industry specifications and standards. f. otherwise acting negligently under the circumstances. 13. As a result of the damages directly and proximately caused by the negligence and/or other unlawful conduct of GM, plaintiff sustained and incurred damages to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against GM - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT II STRICT LIABILITY OF GM 14. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 15. GM is engaged, and at all times relevant hereto was engaged, in the business of inter alia, marketing, selling and distributing motor vehicles, including the vehicle, to consumers such as plaintiff. 16. GM distributed and/or sold the vehicle in a defective condition, unreasonably dangerous to plaintiff and his property. 17. GM knew or should have known that the vehicle would, and did, reach the plaintiff without substantial change from the condition in which originally sold. 18. The aforementioned defects consisted of: (a) design defects; (b) manufacturing defects; (c) component defects; (d) a failure to warn of the design, manufacturing, and/or component defects; and/or (e) a failure to properly instruct as to the appropriate operating and maintenance procedures for safe use of the vehicle and/or its components. 19. For these reasons, GM is strictly liable to plaintiff for his damages under Section 402A of the Restatement (2d) of Torts, the Restatement (3d) of Torts, and the applicable caselaw of the Commonwealth of Pennsylvania. 20. As a direct and proximate result of the aforementioned defects, Plaintiff sustained and incurred damage to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against GM - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT III NEGLIGENCE OF GRAHAM 21. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 22. The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of Graham, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i. failing to properly inspect, diagnose, service, repair and/or test the vehicle; ii. failing to determine that the vehicle was not in compliance with applicable standards and/or specifications; iii. failing to properly recommend to and/or warn plaintiff that the vehicle was defective and could fail in the manner described herein; iv. failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of. b. failing to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; C. failing to adequately warn plaintiff and others of the dangers and hazardous conditions of the vehicle, which Graham knew or should have known would result from the careless and negligent conduct set forth in subparagraph (a)(i.-iv.) above; d. failing to provide, establish, and/or follow proper and adequate control of its employees so as to avoid the problems enumerated in subparagraph (a)(i.-iv.) above; and e. failing to perform the services set forth in subparagraph (a)(i.-iv.) above in conformity with the prevailing industry specifications and standards. f. otherwise acting negligently under the circumstances. 23. As a result of the damages directly and proximately caused by the negligence and/or other unlawful conduct of Graham, plaintiff sustained and incurred damages to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against Graham - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT IV BREACH OF CONTRACT BY GRAHAM 24. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 25. On this occasion plaintiff brought the vehicle to Graham for proper maintenance, diagnosis, inspection, service, testing and repair, he paid valuable consideration for these technical services pursuant to an express and/or implied agreement with Graham (a true and correct copy of which plaintiff does not readily have, though plaintiff believes Graham has ready at hand a true and correct copy thereof). 26. In violation of its express and implied agreement with Plaintiff, Graham failed to properly maintain, diagnose, inspect, service, test and/or repair the vehicle as promised (as is evidenced by the malfunction that caused the incident), and nonetheless asserted to plaintiff that such services had been provided, and that the vehicle was in proper working order. 27. As a result of Graham's breach of its express and implied agreement with plaintiff, plaintiff - who has and had performed all his obligations under the contract - suffered damages to his real and personal property, as well as the imposition of additional expenses and hardship besides. WHEREFORE, Plaintiff demands judgment in his favor and against Graham - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, delay damages and such other relief as the Court deems appropriate under the circumstances. NELSON LEVINE de LUCA & HORST, LLC BY: JF.Ff R M. ZIE INSKI, ATTORNEYS FOR PLAINTIFFS Dated: June 4, 2007 VERIFICATION I, Jeffrey M. Zielinski, being duly sworn according to law, hereby depose and say that I am counsel for plaintiff State Farm Fire & Casualty Company (the real party at interest) as subrogee of the plaintiff named in this action's caption, and that I am authorized by same to make this verification on its behalf, and that for all facts averred in the attached Complaint are not of my own personal knowledge, I have received the necessary information from State Farm, and that all such facts are true and correct to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. BY: J REY ZIELINS , ATTORNEY FOR PLAINTIFF Dated: June 4, 2007 l Flo { NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) NON-ARBITRATION MATTER o"N=p9 CIVIL ACTION NO: 07-1165 _ CERTIFICATE OF SERVICE I, Jeffrey M. Zielinski, Esquire, hereby certify that a true and correct copy of the Amended Complaint was served on June 4, 2007, upon counsel listed below by United States Mail, postage prepaid. Vincent L. Champion Rhoads & Sinon LLP One South Market Square, Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Shannon P. Bartlett, Esquire Jenner & Block, LLP One IBM Plaza Chicago, IL 60611 NELSON LEVINE de LUCA & HORST, LLC B EFFR Y M. ZIELINSKI, ESQUIRE ATTORNEYS FOR PLAINTIFF Date: June 4, 2007 C-n 4 } j E-s -:7 Y s Marc T. Levin, Esquire Attorney I.D. No. 70294 Vincent L. Champion, Esquire Attorney I.D. No. 88411 RHOADS & SINON LLP (717) 233-5731 One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company ELWOOD YOHE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY CIVIL ACTION - LAW NO. 07-2269 CIVIL Defendants NOTICE TO PLEAD To: Jeffrey M. Zielinski, Esquire Nelson Levine de Luca & Horst Four Sentry Parkway Blue Bell, PA 19422 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. RHOADS & SINON LLP Marc T. Levin Vincent L. Champion One South Market Square, 120' Floor P. O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Defendant Graham Motor Company, Inc. Marc T. Levin, Esquire Attorney I.D. No. 70294 Vincent L. Champion, Esquire Attorney I.D. No. 88411 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company ELWOOD YOHE, Plaintiff V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2269 CIVIL Defendants DEFENDANT GRAHAM MOTOR COMPANY, INC.'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT NOW COMES Defendant Graham Motor Company, Inc. ("Graham") by and through its counsel, Rhoads & Sinon LLP, and files the within Preliminary Objections to Plaintiff's Amended Complaint and avers as follows: On or about April 19, 2007, the Plaintiff, Elwood Yohe, filed a Complaint against Graham and General Motors Corporation in the Court of Common Pleas of Cumberland County. A true and correct copy of the Complaint is attached hereto as Exhibit "A." 2. The Complaint was filed in connection with a vehicle fire which occurred on Plaintiff's property. 3. The Complaint was served upon Graham on April 25, 2007. 654444.1 4. On or about May 15, 2007 Graham filed Preliminary Objections to the Complaint alleging that the Complaint failed to conform to Rule of Court; the Complaint did not contain sufficient specificity and that the Complaint was legally insufficient. 5. Accordingly, on June 6, 2007 the Plaintiff filed an Amended Complaint wherein he abandoned his Strict Liability claim, and his Breach of Warranties claim as to Graham. A true and correct copy of the Amended Complaint is attached hereto as Exhibit "B." 6. Pursuant to Counts III (Negligence) and IV (Breach of Contract) of Plaintiff's Amended Complaint, Plaintiff now intends to pursue a negligence and breach of contract claim against Graham. 7. Graham has in turn filed these Preliminary Objections to Plaintiff s Amended Complaint because notwithstanding Plaintiff's most recent amendments, the Amended Complaint is not pled with sufficient specificity and the Amended Complaint as pled is legally insufficient. 1. Motion for a More Specific Pleading Pursuant to Pa. R. Civ. P. No. 1028(a)(3) 8. Pursuant to Pa.R.Civ.P. No. 1028(a)(3), "Preliminary Objections maybe filed by any party to any pleadings and are limited to the following grounds ... insufficient specificity in a pleading." 9. Relatedly, Pa. R. Civ. P. No. 1019(a) requires that, "The material facts on which a cause of action ... is based shall be stated in concise and summary form." 10. Plaintiff's Amended Complaint has failed to satisfy the foregoing requirements. -2- w 11. Specifically, Paragraph 22 of Plaintiff's Amended Complaint and subparts (a)(ii); (e); and (f) of that same paragraph fail to satisfy the strict specificity requirements of the Pennsylvania Rules of Civil Procedure. 12. The relevant portions of paragraph 22 of Plaintiff's Amended Complaint allege as follows: "The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of Graham, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. Failing to exercise reasonable care in the following manner: (ii) Failing to determine that the vehicle was not in compliance with applicable standards and/or specifications; e. Failing to perform the services set forth in subparagraphs (a), (i) through (iv) above in conformity with the prevailing industry specifications and standards. f. Otherwise acting negligently under the circumstances. 13. Paragraph 22 and the above listed subparts is devoid of meaningful support for the allegations contained therein. 14. Namely, the above subparts fail to identify the applicable standards and specifications, the prevailing industry standards and how Graham was otherwise negligent. 15. In order to prepare an appropriate defense, Graham must be advised of the specific factual allegations, standards, specifications, and negligent conduct referenced in subparts (a)(ii), (e), and (f). 16. The lack of specificity contained in Paragraph 22 and relevant subparts make it nearly impossible for Graham to answer the Plaintiff's Amended Complaint and/or prepare a defense to those allegations. -3- 17. Therefore, pursuant to Pa. R. Civ. P. No. 1028(a)(3), this Court should require the Plaintiff to more specifically state any and all applicable standards, specifications, any and all purported violations of the aforementioned applicable standards, specifications, facts, as well as how Graham was purportedly otherwise negligent. See, Connor v. Allegheny Hospital, 501 Pa. 306; 461 A.2d. 600 (Pa. 1983). WHEREFORE, Defendant Graham Motor Company, Inc. respectfully requests that this Honorable Court grant its motion for a more specific pleading and require the Plaintiff to specifically state each applicable standard, specification, any and all violations of relevant standards and specifications, facts and how Graham was otherwise negligent. III. Preliminary Obiection in the Nature of Demurrer Pursuant to Pa.R.Civ.P. No. 1028(a)(4) 18. Lastly, by way of his Amended Complaint, the Plaintiff raises two (2) separate causes of action against Graham. 19. These causes of action include negligence (Count III), and breach of contract (Count IV). 20. Under Pa. R. Civ. P. No. 1028(a)(4), "Preliminary objections may be filed by any party to any pleading and are limited to the following grounds ... legal insufficiency of a pleading (demurrer)." 21. Count IV of the Amended Complaint, is legally insufficient and must be dismissed. 22. First, with regard to Plaintiff's breach of contract claim (Count IV) the gist of the action doctrine compels the dismissal of this claim because Plaintiff's Amended Complaint, viewed in its entirety, sounds in tort law as opposed to contract law. -4- 23. Moreover, Plaintiff now alleges that Graham breached an oral contract. 24. However, the Plaintiff has failed to specify the time, place, parties and/or terms upon which the oral contract was formed. 25. Thus under Pennsylvania law, Plaintiff has not sufficiently pled the existence of on oral contract. 26. Based upon the foregoing, Count IV of Plaintiff's Amended Complaint should be dismissed. WHEREFORE, Defendant Graham Motor Company, Inc. respectfully requests that this Honorable Court grant its preliminary objection in the nature of a demurrer and dismiss Count IV from the Amended Complaint. RHOADS & SINON LLP By: Marc T. Levin Vincent L. Champion One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company, Inc. -5- EXHIBIT "A" 04/26/07 11:14:32 -, RightFax-> 717 231 6608 `rc Server Page 009 APR. 2F. 2007 11; 12AM HOASTER GEBHARD &CO 717-273-4559 NO. 3826 P. 3 i r NELSON I . VINE de UCA&HORST, LLC B'?; JEFFRliX M. Z] LINSIr.I, ZSQVIRE IDENTIFI IACTION N .:'.!91390 FOUR SEN'I RY PA AY, SUITE 300 BLVE BELL, PA 1942 . e &'-W50'-1D 'Y 0HE 135 SOUT)441XDx DIU NEWVILI,E. PA 1724 Plaintl>Ff ATTORNEY'S FOR PLAINTIFFS IN THE COMMON PLEAS COURT OF CUM ICALAND COUNTY, PENNSYLVANIA, D10N-Al(tI3 MRATION MATTER GENERAL, 1110TORS ORPORATION C/A CT CoFTORATI N CIVIL ACTION NO: 30600 TEL KGRAPH R AD BINGHA1V,i FARMS, 148075 AND GRAHAM KOTORS JOMPANY 1402 HOLI, Y PAIGE: ` CARLNLRC TA 17013 Uefenda a) NOTWV LO_?S?EN You have belgi sued in COL. If you wish to defend against the claims set forth in tho following pagoa, you n u 3t take aclon within (20) days altrs• Lhis Comphilut and Notice are servers, by entering a writi m appear ce personally or by an attorney and filing in writing wide the Court your defense, t or objBatia to the claims set forth against you. You vre warned that if you fail to do so, the ca.sc may pro od without you and a judgntcat may be entered against you by the Court without: f40her:not4c for any money claimed or any other claim or reliaf requested by the plaintiff[ Yo'.L tray lose m ney or property rights important to you, YOU 1114OULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU D1.)'VOT HA A LAWYER OR CANNOT AFFORD ONE, 00 TO OR TE1..13PHONB E ONCE SET rORTH BELOW TO rIND OUT WHERE YOU CLAN GET EGAL HELP, THIS OFFICE CAN PROVIDE YOU WITxl IN ORMATION ABOUT HIRING A LAWYER, IF YINI CANNON' AFFORD To HIPM A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES T1.1.t4.'r MAY O&ER LEGAL SMVICES TO rwor LL PERSONS AT A REDUCED FBI3 OR NO PEE. Cumberland Cdunty Bar Association 32 S. Bedford Stmat : *. •u^~•n Carlisle PA 17013 V'' , J the to h+t M'.?' b P? ZD 'd 886L6bZLl1 00 x01ON NVHd8J WV 10:01 aim LODE--SZ-Ndd 04/26/07 11:14:50 APR. 25, 20 7 11:13AM RightFax-> 717 231 6688 Server HOASTER GEBHARD &CO 717-273-4559 NELSON 1,;4VIN)C i BY- SEPPIREY M, 1DENTiI= ICATION FOUR SE114TRY PA SLUE DELI,, PA 15 BLWOOTI YOKE 135 SOU711:I3113t D MWVIL1:,N PA 11 GENERAL iWIOTORS CYO CT COIXPORAT, 30600 TELIE GRAPH 1 HINGHAN17ARIVMS, I . AND GRAHAM', ?W TORS 1402 ROLLY PIKE CARLISLI<f, PA 1701 Defends Plaintiif, by Defendants, hereby i CA & HORST, LLC N610t ESQUIRE 91390 AY, SUITE 300 CORPORATION 48025 MPANY Page 818 NO. 3826 P. 4 ATTORNEYS FOR PLATNV. TFFS IN THE COMMON PLEAS COURT OF CUMEWL.AND COUNTY, PENNSYLVANIA NON-AR-AU ,r N MA'X`TEXt I CIVIL ACTION NO: CO1VII?.AII?iT through undersigned counsel, and by way of Complaint against 1. r1laint't'rf is an adult individual who, at all times relevant hereto, owned and resided at this address set forth above. 2. Defendan General Motors Corporation (" 0M") is, Upon information and belief, a business entity organize and existing under the laws of Michigan, with a principal place of business at 3000 Tele aph Road, Bingham Farms. Michigan. Defendant GM reLmInrly oonducts bual::mj"s in tho 4mmonwwdth of Pennsylvania, lnoiuding the Couuty of Cumberland. 3. 13M is, manufaettuev, iuzserabler, including a caitsin 2000 t 3n information, and belief, a corporate entity that markets, designs, distributes, impacts and/or off-era for tsulu, inter altq, motor vehicles, hevrolet X1500 (VIN 20CEK19T5Y1254807) ("the vehicle"), S £0 'd 866L6bZL1L 00 ?O,LOW WdHVHO WV 10:01 03M LOOZ-9Z-NdV 84/26/87 11:15:14 RightFax-> 717 231 6600 ` x Seruer Page 811 APR.25.20D7 11:13AM HOASTER GEBHARD &CO 717-213-4559 N0,3826 P. 5 4, Defendan Graham'Motors Company ("Graham") is, upon in£onnation and belief, -a biivitiezs entf organized and abating under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at the address in the above caption, S. Graham i , upon information and belief, specially trained and authorized by GM to perform sMomobile d agnostic, inspection, analysis and repnfr services to ennsumers -such as plaintiff. 6, . The vehi a appearM to operate properly, with little or no indication that there was nnythiri j wrong; h )waver, an issue appeared in tba summer of 2006 rclatiiag to the inlermittetlt ,rounding of he horn of said vehicle. As a result of this issue, plaintiff brought the vehicle to arttiiam for ire pection, diagnosis, service and/nr repair. 7. Plaintiff' Brought the vehicle to Graham and inifortned Graham of any/all information t`equested o him relative to the vehicle's operation. Plaintiff was infonned that there was a ;;iroblaim? wR4 the citx-uit buurd of the vehiulo and that the prublem was fixed and tbo vehicle was in proper w rking order. Thus, relying on Graham's implicit and explioit assertions as to the vehic:e's sound ess and fitness, plaintiff continued to operate the vehicle, 81 On or ah ut ,August 8, 2006, while the vehicle was parked on plaintiff's property, it suddenly ignd without warning erupted into flames, which apparently originated in the engine compartment and manifested itself into the passenger eompmtment thru the windshield, firewall and other wi u,;lows in the vehicle. i 9. The fire i the engine compartment quickly spread to the remainder of the vehicle and to the plidatiff3 she , which was next to where said, vehicle was parked, As a result of the shed catching tire, excessive heat from the fire caused damiages to the plafntiff's houso itself; b0 'i' 666LOWL 00 MO,IOW WdHV[0 Ud IU:01 03M LOOZ-9Z-iidd 04/26/07 11:15:30 RigWdX-> 717 231 6600 __x Server Page 012 i APR.25.20D7 11.13AM HOASTER GEBHARD &CO 717-273-4559 NO.3826 P. 6 10, 'Thus, as result of the defective nature of the vehicle, and/or as a result of the negligent siin'icing (ate) of the vehicle (as is morn fully described heroln), the vehicle was destroyed itt the fare, tlis was plaintitPs real and personal property, many of his personal po$sessioos. ntorsover, incident caused plaintiff to incur additional expenses and hardships , , besides. COUNT' I NEGLIGENCIC OF C•'M , 11. Plaindff i?eorporetes herein by reference 411 the preceding paragraphs, as though the same werre fully an Orlh at lengtb. s . 12. The afb4nentioned damages were' the direct and proximate result of the negligenoe, rarelesmess,? and/or other unlawfitl conduct of GM, by and through its, employees, agents, technicians, and/ r servants, more specifically described as follows: a. fai ing to exerciae ramohitble care in the following manner, failing to properly build, manufacture, assemble, inspect, diagnose, service, repair and/mr test the veMole; I ii. failing to determine that the vehicle was not in compliance with applicable standards and/or specifications; iii.! failing to properly rerotnmeltd to and/or warn plaintiff that the vehicle was defective and could fail in the mwmer described ` herein; iv, i failing to provide plaintiff with Instmetions and/or warninge regarding the proper cam, maintenance, and/or servicing of the vehicle so as to prtwunt the incident complained of, 3. iaillttg to adequately instruct and/or supervise its elnploym, agents, tee , ieians, and/or servants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; 50 18 _W_.. 666LOUIL 00 WIN UdHWD Wd Z0:01 03M LOOZ-se-sdd 04/26/87 11:15:46 APR.25.20D7 11:14AM c, d. e. E. 1,3, As a re and/or other unlawful RightFax-> 717 231 6600 c Serer Page 613 HOASTER GEBHARD NCO 717-273-4559 NO.3826 P. 7 Faring to adequately warn plaintiff and others of the dangers and a mdous conditions of the vehicle, which 'GM knew or should have ccn n would result from the carolcsa and nogligent conduct sot forth in Iu paragraph (a)(L-iv.) above; fai ng to provide, establish, and/or follow proper and adequate control of its nployces so as to avoid the problems enumerated in subparagraph (a) risAv) above; and to perform the services set forth in subparagraph (a)(i,-iv,) above in pity with the prevailing industry specifications and standards, acting negligently under the eireum®tinces. 0 of the damages directly and proximately caused by the negligence of GM, plaintiff sustained and incurred damages to has real and personal pvopolty, along the imposition of additional expenses and hardsbip besidea, in an amount ill OX0033 of Fifty Doaars ($5U,000.00). VMBIREFORE, haintiff demands judSment in his favor and against GM - jointly and/or sevemll;i along widh the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollirs (S50,000,00) plus interest, costs of suit, delay damages, and such other relief as the Court do=e appropriate udder the circumstances. couNT II STRICT LL421LITY OF GM 14. Plaintiff inborporates herein by reference all the preceding paragraphs, as though the same were i'vlly act fb4h at length. . 15. 13M is engr?god, and at all times relevant hereto was cagaged, in the business of inter alfa, rneActing, selling and distributing motor vehicles, including,thte vehicle, to consumera auch as plsinflE, ii I. 90 'd - 9660VEL iL 00 NO.I.OW NUHUHO 99 ZO ; 01 O3hl LOOZ-9Z-8dU 04/26/67 11:16:02 RightFax-> 717 231 6600 __x Server t APR.211.204)7 11:14AM HOASTER GEBHARD NCO 717-273-4559 NO. 3826 Page 014 P. 8 16. GIvI distri uted and/or Bold the vehicle in a defective condition, iuaressonably danberous Vi plaintiff an his property. i 17. GM kne or should have known that the vehicle would, and did, reach the plMntiff wit] Urit substan 'al change from tho condition W which otiginally sold. 16. The aforlntioned defects consisted of a 4 design defects; (b nuumfacturing defects; (c) component defects; (d a failure to warn of the design, manufacturing, and/or component defects; and/or (e)( a failure to properly instruct as to the appropriate operating and maintenance procedures for safe use of the vehicle and/or its comlx,?teztts. 19. For these canons, GM is strictly liable to plaintiff for his damagtes under Section 402'A of the Aaetatewent 2d) of Torts, the Restatamcrnt (3d) of Torts, and tht; applicable caselaw of the Comm onwealth In' As a direel ttnd proximate result of the aforementioned defects, Plaintiff suatained and incurred diumage to his real at?d personal property, along with the imposition of additional expenses and hardship betides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). t WH ELI MIFORE, IPlaintifg demands judgment in his favor and against am - jointly and/or severalty along with the other defendant(s) In. this action - in an amount in excess of Fifty 71bousand Dc Ilitrs ($50,060,00), plus interest, costs of Auit, delay damages, and such other relief as the Court do,;--me approtriate under dw c-irowmstances. LO 'd 866L6bZLIL 00 H0,10W WdHU219 Wd Z0,01 QHM LOOZ=92-M 04/26/87 11:16:17 RightFax-> 717 231 6600 Serer Page 015 APR.25.2OD7 11:14AM HOASTER GEBHARD &CO 717-273-4559 N0,3826 P. 9 COUNT III NEGLIGENCE OF GRAHAM 21. Plaintiff Idcorporates herein by reforeace all the preceding paragraphs, as though the Same wero fully sot forth at length, 22. The aiore?ornentioned damages were the direct. and proximate result of the negligence, carelessness and/or other unlawful conduct of Graham, by and through its employees, a gents, tcchnOtis, and/or servants, more specifically described as follows: a. faiing to exercise reasonabla care in the following manner: i. Mailing to properly inspect, diagnose. service, repair and/or test the vehicle; ii. c failing to determine that the vehicle was not in compliance with applicable standards and/or specifications; W. failing to properly recommend to and/or warm plaintiff that the vehicle was defective and could fail In the manner described hcrcin; iv. } falling to provide plaintiff * with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident eomplaitled of. 1). failing to adequately instruct and/or superviec its cmploycc9, agents, teelaniolans, and/or sm vants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; I i:l faillng to adequately warn plaintiff and others of the daggers and hazardous conditions of the vehicle, which Graham knew or should have sub wn would result from the carclem and nogligont conduct sot forth in taragraph(a){i.?iv.) above; 11. failing to prnvido, ostabliah, and/or follow proper and adequate oontrol of its employees so as to avoid the problems enumoratcd in subparagraph (a)(i.-iv.) above; and C, failing to perform the sorviccs set forth in subparagraph (a)(I.Av.) above in Conformity with the prevailing industry specifications and standards, 80 'd - 966LOVZLIL 00 80104 RVHVMO WV EO:01 GBM L006-96-add 04/26/07 11:16:.34 RightFax-> 717 231 6600 ',c Server t APR,25.20'07 11:15AM HOASTER GEBHARD &CO 717-273-4559 NO-3826 Page 016 P. 1 () F o erwise acting negligently under the circumstances. 23. As a resul of the+ damages dirootly and proximately caused by the negligence and%or otliar unt(&wfdl co not of O7raham, plaintiff sustained and incurred damages to his real and-personal lijoperty, al g with tho imposition, of additional expenses and hardship besides, in. an amount in Ptcess of 1"i? y Thousand Dollarg ($50000.00). 1 W>EIJ )REPOIEZE, ?laintiif dcmanda judgment in his favor and against Graham jointly and/or severvh:i along with the other defendant(s) in this notion - in an amount hi oxcces of Fifty Thousand Dollars (i50'0 0.00) plus interest, costs of suit, delay damages, and such other relief as the Court t;l?;? ms appro riatc under the circumstances. COUNT rV STRICT L1AHMrrY OF GRAHAM 24. Plaintiff indorporates herein by reference all the preceding paragraphs, as though the dame were iitlly set fo*h at length. i 25, i3raham is ingagod and at all times relevant herato was engaged, in the business of infer alto, inarketing, sling and distributing motor vehicles, including the parts and related components ibr motor vehicles, including the parts and related components and services Bold to consumers such as plaint14 26, Oraham distributed and/or sold the parts and related components for the vehicle it r . a defective cr. -ition, unreasonably dangerous to plaintiff and hie property. 27. f iraham kndw or should have known that the parts and related components for the vehicle wou1il, and did, roach the plaintiff without subdoatial obange from tho condition in which orisingilly sold. 60 d 86SL6bZL?1. °00 Nolow WdHVNO A 60:01 Q3M LOOZ-se-ddd 84/26/07 11:16:49 RightFax-> 717 231 6600 X Server i APR.25.20,17 11:15AM HOASTER GEBHARD &CO 717-273-4559 1 28. 'T'he aforeaitentioned defects con9isted of; Page 817 NO, 3826 P. 11 (a) t drsign defects; (b) manufacturing defects; (e)' oomponent defects; (d) a failure to warn of the dcAgn, manufacturing, and/or componnnt defects; and/or (e), a failure to properly instruct as to the appropriate operating and maintenance procedures for safe use othehicand/r its components. 29. For these 6sons, Graham is strictly liable to plaintiff for his damages under f Section 402A, of the Rekk.tsme:nt (2d) of Torts, the Restatement (3d) of Torts, and the applicable daselaw oft1i commonwlealth of Pennsylvania. 30, As a direct!and proximate result of the aforetnenticnted elefents, plaintiff sustained and incurred damage to liffts real and personal property, along with the imposition of additional 7 expenses and hardship be idea, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHy PREp'p1M, laintiff demands judgment in his favor and against Graham - jointly and/or severi(ll;r along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Doll srs 050,000.00), plus interest, costs of suit, delay damages, and such other relief as the Court •:I* stns approlriate under the ciroumstance$. i COUNT V BIMACH OF WARRAN'T'IES BY GRAHAM 31. Plaintiff incorporates herein by reference all die foregoing paragraphs as though same werrful13-set forth At length. 01 'd 866L66ZLlL 00 NOJAW WVHWO WV £0:01 03M LOOZ-SZ-add 04/26/07 11:17:04 -,RightFax-> 717 231 6600 r Serer Page 010 i APR.25.2001 11:15AM HOASTER GEBHARD &CO 717-273-4559 N0.3826 P, 12 32. At the tium of contracting for the sale and/or distribution of the parts and rnlntPd cotnpnnenti ro the vehiA;, Grahara-had reason to latow of the particular purpose for which the vehicle would lie used, aid knew that its skill and judgment were being relied upon to fbmish a suitable prod-=% 't'hus, a- 6ham breached the implied warranty of fitness -ror a particular purpose as set out in lHe Uniform ? otnmercisl Code (hereinafter'VCC'? and in 13 Pa. C.S.A. § 2-315 in that the vehicle was not fib for the particular use for which such products are intended. I 33. In addition, Ornhitin breached ita implied warranty of worchantability as act out inn the UCC'and 13 Pa. C.S. , § 2-314 (c) in that the vehicle was not flit for the uses for which it was intended ' r 34. In additions Grahun breached any and all express warranties made or relating to the vehicle that became pitrt of the basis of the bargain for sale of the product in violation of the t UCC and 13 Ta. C.S.A. §"-313. 35. Vurthetm4o, Graham breached the express and implied wwt'tllxties set out in the warranties plifir tiff purchoed at the time of the repairs for the vehicle. 36, 1'laintifrs ?amages, as set forth above, occurred as a direct and proximate result of Graham Intia:h of its implied warranties of fitacss for it particular purpose and merchantability as set out in 33 Pa. C.SAL § 2-315 and § 2314 (e), and 03 a result of Graham breach of their expressed warrantees In abrogation of 13 Pa. C.S.A. § 2-313, as well as the express and implied warranties se': nut in the wmTantles pinintiff purchased at the time. of buying the vcitl.cle, nuil/ur anytime subsequent thereto. lL 'd 866L6?ZLLL 00 MO.LOW WdHVHD WV MOT 03M L00ZToaZ-add 04/26/07 11:17:20 - RightFax-> 717 231 6600 Server i APR.25.2007 11:16AM HOASTER GEBHARD NCO 717-273-4559 Page 019 N0. 3826 P. 13 VV1HXIiOMFOM Olaintiff demands judgment in his favor and against Graham -jointly and/or severidly along wiih the other dcfcndent(e) in this action.. in an atnount in excess of Filly Thousand Dyllars ($50,000.00), plus Interest, costs of suit, delay damages, and such other relief as tho Court deems approtriate under the circumstances. COUNT V BREACH OF CONTRAC'T' BY GR.AHAM i 31. Plaintiff 4orporates herein by reference all the preceding paragraphs, as though the same wei-e fully set fbhh at length. 38. Dn dais oc4asion plaintiff brought the vehicle to Graham for proper maintenance, diagnosis, it ilm.ction, serlice, testing and repair, he paid valuable consideration for these tocknical ser14tias pursua4t to an express and/or implied agreement with Graham. 39. Gn violatiot of its express and implied agreement with Plaintiff, Graham failed to i properly maiiilidn, diagnose, inspect, service, test and/or repair the vehicle as promised (as is evidenced by 010 malydne.hon that caused the incident), and nonedialosa asserted to plaintiff that such setvicet h id been provided, and that the vehicle was in proper working order. 40. As a resultW Graham's breach of its express, and implied agreement with plaintiff, pleitiiti ff-..who Una and had performed all hia obligations under the contract w suffered damages to hint real and personal property, as well as iho imposition of additional expenses and hardship besides. Z1, 'd ... 866ZOWL 00 HO,LOW WHHti210 WV 00:01 49M t00z-9z-ddb 04/26/07 11:17:35 RightFax-> 717 231 6600 Server Page 020 i APR, 2I. 2007 11:16AM HOASTER GEBHARD NCO 717-213-4559 NO. 3826 P. 14 F ' WHIC]RWORL, 0lai.ntiff demands judemomt in hio favor and apinst araheun -- jointly and/or save i1l;r along wa the other defendant(s) in this action - in an amoant in excess of Filly Thousand Doll trs 050,0 0,00), plug interest, costs of suit, delay datnaps and such other relies' as the Court do,-ma appropriate under the ciretunstances_ E NELSON LLVINE de DUCA & HORST, LLC 't Datod; Agtil 12 2• X07 E6 'd 866L60ZLiL BYO rr Y , ZX L KI, S F TIFFS 00 801014 WdM0 WV 00:06 G3M LOGE-se-HO 04/26/07 11:17:44 RightFax-> 717 Z31 6600 `.Server Page 021 APR.211.2007 11:16AM HOASTER GEBHARD &CO 717-273-4559 NO.3826 P. 15 Y&AMCATION I, Jef rgy N. Zie4ski, being duly sworn according to law, hereby depose and say that I nm counsel fiir plaintiff hate Farm Fire & Casualty Company (the real party at interest) as subrogee of 1:he plaintiff Awned in this action's caption, and that I am authorized by samd to inake this verl.lication on its behalf, and that for all facts averred In tho attaohod Complaint axc not of my awn ;personal knowledge, r have received the necessary hyformation from Statc Farm, and that all st.c1:. facts are (bus and correct to the best of my knowledge, infortnation and belief. I undermd that Os verification is made subject to the penalties of 18 Pa. C.S. Scotion 4904 rela.tlaig tr) urteworn &Nifacation to authorities, f Dated: vr11 A2,001 i i ... bl . 'd? ._ .. 66BL6bdLlt 00 NOJOW WdHVND NU b0;01 GEM LOOZ-9Z-6dd EXHIBIT "B" NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA NON-ARBITRATION MATTER CIVIL ACTION NO: 07-2265 0 I o .,_ HIM AMENDED COMPLAINT Plaintiff, by and through undersigned counsel, and by way of Complaint aiainst;g N -C Defendants, hereby avers: 1. Plaintiff is an adult individual who, at all times relevant hereto, owned and resided at the address set forth above. 2. Defendant General Motors Corporation ("GM") is, upon information and belief, a business entity organized and existing under the laws of Michigan, with a principal place of business at 30600 Telegraph Road, Bingham Farms, Michigan. Defendant GM regularly conducts business in the Commonwealth of Pennsylvania, including the County of Cumberland. 3. GM is, upon information and belief, a corporate entity that markets, designs, manufactures, assembles, distributes, inspects and/or offers for sale, inter alia, motor vehicles, including a certain 2000 Chevrolet K1500 (VIN 2GCEK19T5Y1254807) ("the vehicle") belief, a business entity organized and existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at the address in the above caption. 5. Graham is, upon information and belief, specially trained and authorized by GM to perform automobile diagnostic, inspection, analysis and repair services to consumers such as plaintiff. 6. The vehicle appeared to operate properly, with little or no indication that there was anything wrong; however, an issue appeared in the summer of 2006 relating to the intennittent sounding of the horn of said vehicle. As a result of this issue, plaintiff brought the vehicle to Graham for inspection, diagnosis, service and/or repair. 7. On or about July 6, 2006, plaintiff brought the vehicle to Graham and informed Graham of any/all information requested of him relative to the vehicle's operation. Plaintiff was informed that there was a problem with the circuit board of the vehicle located in the engine compartment of the vehicle, and that the problem was fixed and the vehicle was in proper working order. Thus, relying on Graham's implicit and explicit assertions as to the vehicle's soundness and fitness, plaintiff continued to operate the vehicle. 8. On or about August 8, 2006, while the vehicle was parked on plaintiff s property, it suddenly and without warning erupted into flames, which apparently originated in the engine compartment and manifested itself into the passenger compartment thru the windshield, firewall and other windows in the vehicle. 9. The fire in the engine compartment quickly spread to the remainder of the vehicle and to the plaintiffs shed, which was next to where said vehicle was parked. As a result of the shed catching fire, excessive heat from the fire caused damages to the plaintiff s house itself. 16. GM distributed and/or sold the vehicle in a defective condition, unreasonably dangerous to plaintiff and his property. 17. GM knew or should have known that the vehicle would, and did, reach the plaintiff without substantial change from the condition in which originally sold. 18. The aforementioned defects consisted of: (a) design defects; (b) manufacturing defects; (c) component defects; (d) a failure to warn of the design, manufacturing, and/or component defects; and/or (e) a failure to properly instruct as to the appropriate operating and maintenance procedures for safe use of the vehicle and/or its components. 19. For these reasons, GM is strictly liable to plaintiff for his damages under Section 402A of the Restatement (2d) of Torts, the Restatement (3d) of Torts, and the applicable caselaw of the Commonwealth of Pennsylvania. 20. As a direct and proximate result of the aforementioned defects, Plaintiff sustained and incurred damage to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against GM - jointly and/or severally along with the other defendant(s) in this action - in an *amount in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT III NEGLIGENCE OF GRAHAM 21. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 22. The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other, unlawful conduct of Graham, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i. failing to properly inspect, diagnose, service, repair and/or test the vehicle; ii. failing to determine that the vehicle was not in compliance with applicable standards and/or specifications; iii. failing to properly recommend to and/or warn plaintiff that the vehicle was defective and could fail in the manner described herein; iv. failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of. b. failing to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; C. failing to adequately warn plaintiff and others of the dangers and hazardous conditions of the vehicle, which Graham knew or should have known would result from the careless and negligent conduct set forth in subparagraph (a)(i.-iv.) above; d. failing to provide, establish, and/or follow proper and adequate control of its employees so as to avoid the problems enumerated in subparagraph (a)(i.-iv.) above; and e. failing to perform the services set forth in subparagraph (a)(i.-iv.) above in conformity with the prevailing industry specifications and standards. f. otherwise acting negligently under the circumstances. 23. As a result of the damages directly and proximately caused by the negligence and/or other unlawful conduct of Graham, plaintiff sustained and incurred damages to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against Graham - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT IV BREACH OF CONTRACT BY GRAHAM 24. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 25. On this occasion plaintiff brought the vehicle to Graham for proper maintenance, diagnosis, inspection, service, testing and repair, he paid valuable consideration for these technical services pursuant to an express and/or implied agreement with Graham (a true and correct copy of which plaintiff does not readily have, though plaintiff believes Graham has ready at hand a true and correct copy thereof). 26. In violation of its express and implied agreement with Plaintiff, Graham failed to properly maintain, diagnose, inspect, service, test and/or repair the vehicle as promised (as is evidenced by the malfunction that caused the incident), and nonetheless asserted to plaintiff that such services had been provided, and that the vehicle was in proper working order. 27. As a result of Graham's breach of its express and implied agreement with plaintiff, plaintiff - who has and had performed all his obligations under the contract - suffered damages to his real and personal property, as well as the imposition of additional expenses and hardship besides. WHEREFORE, Plaintiff demands judgment in his favor and against Graham - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, delay damages and such other relief as the Court deems appropriate under the circumstances. NELSON LEVINE de LUCA & HORST, LLC BY: J R M. ZIE INSKI, ATTORNEYS FOR PLAINTIFFS Dated: June 4. 2007 VERIFICATION I, Jeffrey M. Zielinski, being duly sworn according to law, hereby depose and say that I am counsel for plaintiff State Farm Fire & Casualty Company (the real party at interest) as subrogee of the plaintiff named in this action's caption, and that I am authorized by same to make this verification on its behalf, and that for all facts averred in the attached Complaint are not of my own personal knowledge, I have received the necessary information from State Farm, and that all such facts are true and correct to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. BY; J REY A. ZIE INS , ATTORNEY FOR PLAINTIFF Dated: June 4, 2007 NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) NON-ARBITRATION MATTER CIVIL- ACTION NO: 07-2265 CERTIFICATE OF SERVICE I, Jeffrey M. Zielinski, Esquire, hereby certify that a true and correct copy of the Amended Complaint was served on June 4, 2007, upon counsel listed below by United States Mail, postage prepaid. Vincent L. Champion Rhoads & Sinon LLP One South Market Square, Twelfth Floor P.O. Box 1146 L -p Harrisburg, ?A 17108-1146 c Shannon P. Bartlett; Esquire c --Q CE; Jenner & Block, LLP CJ7 One IBM Plaza Chicago, IL 60611 r.) - m A x ? NELSON LEVINE de LUCA & HORST, LLCM B EFFREY M. ZIELINSKI, ESQUIRE ATTORNEYS FOR PLAINTIFF Date: June 4, 2007 CERTIFICATE OF SERVICE I hereby certify that on June 22, 2007, a true and correct copy of Defendant Graham Motor Company, Inc.'s Preliminary Objections to Plaintiff's Amended Complaint was served by means of United States mail, first class, postage prepaid, upon the following: Jeffrey M. Zielinski, Esquire Nelson Levine de Luca & Horst Four Sentry Parkway Blue Bell, PA 19422 Jeffrey Cohen, Esquire Meyer Darragh Buckler Bebenek & Eck, P.L.L.C. U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 -11? C'3 w ?'T t PRAECIPE FOR LISMG CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) Elwood Yohe, VS. Graham Motor Company, et al. No. 2269 2007 Term 1. State matter to be argued (i.e., plainti ff s motion for new trial, defendant's demurrer to comrplaint, etc.): Defendant's Preliminary Objections to Plaintiff's Amended Complaint 2. Identify counsel who will argue cases: (a) for plaintiff. Jeffrey M. Zielinski; Nelson, Levine, de Luca & Horst (Name and Addres Four Sentry Parkway; Blue Bell, PA 1942 (b) for defendant: Vincent L. Champion; Rhoads & Sinon LLP (Name and Address) 1 S. Market Sq.; P.O. Box 1146; Harrisburg, PA 17108-1146 3. I will notify all parties in writing within two days that this case has been listed for argument. Vincent L. Champion 4. Argument Court Date: August 15, 2007 Date: f (Plaintiff) (Defendant) Signature Vincent L. Champion Print your name Graham Motor Company Attorney for De f en d an t 1 ? ALL:. tai zip CD tv to w ? SHERIFF'S RETURN - REGULAR CASE NO: 2007-02269 P COMMONWEALTH OF ENNSYLVANIA: COUNTY OF CUMBER AND YOHE ELWOOD VS GENERAL MOTORS CORP ET AL JASON VIORAL Cumberland Coun says, the withi GRAHAM MOTORS C Sheriff or Deputy Sheriff of ,Pennsylvania, who being duly sworn according to law, COMPLAINT & NOTICE was served upon ANY the DEFENDANT ? at 1010:00 HOURS, on the 25th day of April , 2007 at 1405 HOLLY PIKE CARLISLE, PA 17013 by handing to BRENT HAIR, GEN RAL MANAGER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the sam4 time directing His attention to the contents thereof. Sheriff's Cost Docketing Service Postage Surcharge .hl2k/0?I So Answers: 18.00 ,1" 4.80 a .39 10.00 R. Thomas Kline .00 Q ti/ 33.19 04/26/2007 NELSON LEVINE DELUCA HORST Sworn and Sub cibed to before me thi of By: day A. D. (!p ty Sheriff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA B7_ ELWOOD YOHE CIVIL ACTION NO: A6-7-2269 Plaintiff DEFENDANT, GENERAL MOTORS CORPORATION'S ANSWER AND NEW V. MATTER TO AMENDED COMPLAINT GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY, Filed on Behalf of Defendant, GENERAL MOTORS CORPORATION Defendant(s) NOTICE TO PLEAD TO PLAINTIFF: You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment pay be entered against you. Coafis#IRor Defendant, GENERAL MOTORS CORPORATION Counsel of Record for this Party: JEFFREY COHEN, ESQUIRE PA I.D. #76512 MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 (412) 261-6600 (412) 471-2754 - FAX TRIAL BY JURY DEMANDED (P081 »89 I I IN THE, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELWOOD YOHE Plaintiff CIVIL ACTION NO: 067-2269 TRIAL BY JURY DEMANDED V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY, Defendant(s) DEFENDANT GENERAL MOTORS CORPORATION'S ANSWER AND NEW MATTER TO AMENDED COMPLAINT 1. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 2. General Motors admits that it is a Delaware Corporation with its principal place of business in the State of Michigan. General Motors further admits that it conducts business in the Commonwealth of Pennsylvania, including Cumberland County. General Motors denies each and every remaining allegation in this paragraph. 3. General Motors admits that it markets, designs, in part, manufactures, in part, assembles, in part, and distributes motor vehicles. General Motors admits that it designed, in part, manufactured, in part, and distributed a 2000 Chevrolet 1500, VIN # 2GCEK19T5Y1254807. General Motors denies each and every remaining allegation in this paragraph. ;P0815589.1? 4. This paragraph is not directed towards General Motors and, as such, no response is required. To the extent a response is required, General Motors denies each and every allegation in this paragraph. 5. General Motors admits that Graham Motors Company ("Graham") is an authorized dealer of General Motors vehicles. General Motors further admits that Graham is authorized by General Motors to comply with warranty agreements on General Motors vehicles. 6. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 7. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 7 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 8. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 8 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 9. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 9 2 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 10. General Motors denies each and every allegation in this paragraph. COUNTI NEGLIGENCE OF GM 11. General Motors incorporates herein by reference all the foregoing paragraphs as though same were fully set forth at length. 12. General Motors denies each and every allegation in this paragraph, including all of its sub-parts. 13. General Motors denies each and every allegation in this paragraph. WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against the plaintiff on all claims expressly set forth in Count I of plaintiffs Amended Complaint. COUNT II STRICT LIABILITY OF GM 14. General Motors incorporates herein by reference all the foregoing paragraphs as though same were fully set forth at length. 15. General Motors admits that it markets and distributes motor vehicles. General Motors admits that it distributed a 2000 Chevrolet 1500, VIN # 2GCEK19T5Y1254807. 16. General Motors denies each and every allegation in this paragraph. 17. General Motors denies each and every allegation in this paragraph. 3 1P0815589.1} 18. General Motors denies each and every allegation in this paragraph, including all of its sub-parts. 19. General Motors denies each and every allegation in this paragraph. 20. General Motors denies each and every allegation in this paragraph. WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against the plaintiff on all claims expressly set forth in Count 11 of plaintiff's Amended Complaint. COUNT III NEGLIGENCE OF GRAHAM 21.-23. The allegations contained in paragraphs 21 through 23 of plaintiff's Amended Complaint are directed to a co-defendant and as such no responsive pleading is required by General Motors. WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against the plaintiff on all claims expressly set forth in Count III of plaintiff's Amended Complaint. COUNT IV BREACH OF CONTRACT BY GRAHAM 24.-27. The allegations contained in paragraphs 24 through 27 of plaintiff's Amended Complaint are directed to a co-defendant and as such no responsive pleading is required by General Motors. 4 P0815589.1} WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against the plaintiff on all claims expressly set forth in Count IV of plaintiff's Amended Complaint. NEW MATTER By way of further answer to the allegations contained within the Complaint, General Motors set forth the following New Matter: 28. General Motors raises as a complete defense to some or all of plaintiff's claims for damages the applicable statute of limitations. 29. Count I of'plaintiff s Complaint, read in its entirety, fails to state a claim or cause of action against General Motors upon which relief may be granted. 30. Count II of plaintiff's Complaint, read in its entirety, fails to state a claim or cause of action against General Motors upon which relief may be granted. 31. General Motors raises, as a complete defense to some or all of plaintiff's claims for damages, plaintiffs assumption of a known risk. 32. "There exists no proximate cause between any of the plaintiffs alleged injuries and any alleged act or omission on the part of General Motors. Therefore, plaintiff is not entitled to recover from General Motors. 33. The acts and/or omissions of other individuals or entities, over which General Motors exercised no control, constitute intervening or superseding causes for the damages allegedly sustained by plaintiff. 34. Plaintiffs alleged damages were solely the result of acts, omissions and/or tortuous conduct of other persons or entities over which General Motors exercised no control, 5 ;1'0815589.1; including, but not limited to, plaintiff's own negligent maintenance and/or operation of the vehicle prior to and at the time of the alleged incident. 35. General Motors believes, and therefore avers, that any of the damages alleged by plaintiff were directly or proximately caused by plaintiff's own contributory negligence. As such, all of the plaintiff's claims are barred, in whole or in part, by the applicable provisions of the Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. 22 §7102. 36. The injuries and/or damages complained of may have been the direct and proximate result of plaintiff's failure to take all reasonable steps to reduce and/or mitigate the potential for damage. Therefore, plaintiff is not entitled to recover against General Motors. 37. General Motors believes, and therefore avers, that the injuries and/or damages alleged by the plaintiff in the Complaint are the direct and proximate result of misuse and/or abuse of the vehicle by the plaintiff and/or others prior to and/or at the time of the incident. 38. General Motors believes, and therefore avers, that the subject vehicle may have undergone an unforeseeable substantial change, alteration or modification after it left the possession, custody and control of General Motors. This is raised as a complete defense to some or all of plaintiffs claims for damages. 39. General Motors is entitled to a set-off from any recovery against it to the extent of any and all benefits paid or payable to or on behalf of plaintiff from any and all collateral sources to the extent such a set-off is permissible under the law applicable to this case. 40. The express warranties contained in the New Vehicle Warranty Booklet that would have been provided with the vehicle at the time of original sale are exclusive and were given in lieu of all other warranties, express or implied. Further, General Motors complied with 6 {P0815589.1J the terms and conditions of any and all warranties applicable to this claim. This is raised as a complete defense to some or all of plaintiff's claims for damages. 41. To the extent that the subject vehicle was, in fact, designed in part, manufactured in part, and distributed by General Motors, the vehicle complied with all applicable Federal Motor Vehicle Safety Standards which existed at the time the vehicle was originally designed in part, manufactured in part, and distributed by General Motors. Therefore, plaintiff is not entitled to recover against General Motors in this action. 42. To the extent that the subject vehicle was, in fact, designed in part, manufactured in part, and distributed by General Motors, the vehicle complied with the state of the art at the time it was designed in part, manufactured in part, and distributed by General Motors. The methods, standards and techniques utilized by General Motors were in conformity with the generally recognized state of knowledge in the automotive field at the time of the manufacture of the subject vehicle. WHEREFORE, General Motors demands judgment in its favor dismissing, with prejudice, plaintiff's Amended Complaint and awarding all its costs and expenses of suit, including attorneys' fees, together with such other and further relief as the Court deems appropriate. Respectfully submitted, MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. JEFF :Y COHEN, ESQUIRE Counsel for Defendant, GENERAL MOTORS CORPORATION 7 ?P0815589.1) VERIFICATION STATE OF MICHIGAN COUNTY OF WAYNE SS. Diane L. Rorai being first duly sworn, deposes and says that she is authorized pursuant to applicable law and rules to verify, on behalf of General Motors Corporation, the foregoing DEFENDANT GENERAL MOTORS CORPORATION'S ANSWER AND NEW MATTER TO AMENDED COMPLAINT and that the same are hereby verified on behalf of General Motors Corporation. Diane L. Rorai Authorized Agent Sworn to and subscribed before me this 26th day of June, 2007. LL-;'D 4"OL Notary Pu Iic APRIL M. HICKS Notary Public, State of Michigan County of Wayne My COmmission Expires May 11, 2012 Re: Elwood Yohe Acting in the County of KA- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading has been forwarded to all counsel of record by: +"'U.S. First Class Mail, Postage Paid Hand Delivery Certified Mail, Return Receipt Requested Facsimile Transmittal UPS Delivery at the following address: Jeffrey M. Zielinski, Esquire Nelson Levine deLuca &Horst, LLC Four Sentry Parkway, Sutie 300 Blue Bell, PA 19422 (Counsel for Plaintifjq Vincent Champion, Esquire Rhodes & Sinon, LLP One South Market Street, 12`h Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (Counsel.for Graham Motors Company) MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. Dated:_ (,Z-l ?W n _ Bye Y COHEN, ESQUIRE P0815 589.1 C^7 rT, :- ; ril Jr NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA GENERAL MOTORS CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) a.2-4- y CIVIL ACTION NO: 07--22W PLAINTIFF'S RESPONSE TO THE NEW MATTER OF DEFENDANT. GENERAL MOTORS CORPORATION Plaintiff by and through undersigned counsel, herein replies to the New Matter filed by defendant and in so doing avers as follows: 28-42. Denied. These allegations all contain conclusions of law to which no response is required. By way of further answer, to the extent that these allegations also contain factual averments, after reasonable investigation, plaintiff is without information sufficient to form a belief as to the truthfulness thereof and, therefore, same are denied. Defendants waive any and all affirmative defenses not set forth in their New Matter pursuant to Pa. R.C.P. 1030. WHEREFORE, Plaintiff respectfully request that Judgment be entered in its favor and against Defendant in accordance with plaintiff's Complaint. NELSON LEVINE de LUCA & HORST, LLC BY: 6 --? JE . Z E INSKI, ESQUIRE TTORNEYS FOR PLAINTIFF Dated: July 9, 2007 /' VERIFICATION I, Jeffrey M. Zielinski, being duly sworn according to law, hereby depose and say that I am counsel for plaintiff State Farm Fire & Casualty Company (the real party at interest) as subrogee of the plaintiff named in this action's caption, and that I am authorized by same to make this verification on its behalf, and that for all facts averred in the attached Pleadings are not of my own personal knowledge, I have received the necessary information from State Farm, and that all such facts are true and correct to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. BY: ' FR M. IEL SKI, ATTORNEY FOR PLAINTIFF Dated: July 9, 2007 NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. GENERAL MOTORS CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA 7,261 CIVIL ACTION NO: 074* CERTIFICATE OF SERVICE I, Jeffrey M. Zielinski, Esquire, hereby certify that a true and correct copy of the Plaintiff s response to the New Matter of defendant, General Motors Corporation, was served on July 9, 2007, upon counsel listed below by United States Mail, postage prepaid. Vincent L. Champion Rhoads & Sinon LLP One South Market Square, Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Jeffrey Cohen, Esquire Meyer Darragh Buckler Bebenek & Eck, LLC U.S. Steel Tower Suite 4850 600 Grant Street Pittsburgh, PA 15219 NELSON LEVINE de LUCA & HORST, LLC BY: J FREY . ZIELINSKI, ESQUIRE ATTORNEYS FOR PLAINTIFF Dated: July 9, 2007 nr, N r C.? a-rs f ' O 7 Edward Yohe vs. General Motors Corporation and Graham Motors Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-2269 CIVIL TERM ORDER OF COURT AND NOW, July 12, 2007, by agreement of counsel, the above-captioned matter is continued from the July 11, 2007 Argument Court list. Counsel is directed to relist the case when ready. Jeffrey Zielinski, Esquire For the Plaintiff Vincent L. Champion, Esquire For the Defendant Court Administrator By Edgar B. Bayley, kam 1i A ?- MID 0 *014 V 0 I 7F LOOZ 1??'`I.C.U???ir .i,.?;•?_ x-11. NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) NON-ARBITRATION MATTER CIVIL ACTION NO: 07-2263' SECOND AMENDED COMPLAINT Plaintiff, by and through undersigned counsel, and by way of Complaint against Defendants, hereby avers: 1. Plaintiff is an adult individual who, at all times relevant hereto, owned and resided at the address set forth above. 2. Defendant General Motors Corporation ("GM") is, upon information and belief, a business entity organized and existing under the laws of Michigan, with a principal place of business at 30600 Telegraph Road, Bingham Farms, Michigan. Defendant GM regularly conducts business in the Commonwealth of Pennsylvania, including the County of Cumberland. 3. GM is, upon information and belief, a corporate entity that markets, designs, manufactures, assembles, distributes, inspects and/or offers for sale, inter alia, motor vehicles, including a certain 2000 Chevrolet K1500 (VIN 2GCEK19T5Y1254807) ("the vehicle") 4. Defendant Graham Motors Company ("Graham") is, upon information and belief, a business entity organized and existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at the address in the above caption. 5. Graham is, upon information and belief, specially trained and authorized by GM to perform automobile diagnostic, inspection, analysis and repair services to consumers such as plaintiff. 6. The vehicle appeared to operate properly, with little or no indication that there was anything wrong; however, an issue appeared in the summer of 2006 relating to the intermittent sounding of the horn of said vehicle. As a result of this issue, plaintiff brought the vehicle to Graham for inspection, diagnosis, service and/or repair. 7. On or about July 6, 2006, plaintiff brought the vehicle to Graham and informed Graham of any/all information requested of him relative to the vehicle's operation. Plaintiff was informed that there was a problem with the circuit board of the vehicle located in the engine compartment of the vehicle, and that the problem was fixed and the vehicle was in proper working order. Thus, relying on Graham's implicit and explicit assertions as to the vehicle's soundness and fitness, plaintiff continued to operate the vehicle. 8. On or about August 8, 2006, while the vehicle was parked on plaintiff s property, it suddenly and without warning erupted into flames, which apparently originated in the engine compartment and manifested itself into the passenger compartment thru the windshield, firewall and other windows in the vehicle. 9. The fire in the engine compartment quickly spread to the remainder of the vehicle and to the plaintiff's shed, which was next to where said vehicle was parked. As a result of the shed catching fire, excessive heat from the fire caused damages to the plaintiff's house itself. 10. Thus, as a result of the defective nature of the vehicle, and/or as a result of the negligent servicing (etc.) of the vehicle (as is more fully described herein), the vehicle was destroyed in the fire, as was plaintiff's real and personal property, many of his personal possessions; moreover, this incident caused plaintiff to incur additional expenses and hardships besides. COUNTI NEGLIGENCE OF GM 11. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 12. The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of GM, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i. failing to properly build, manufacture, assemble, inspect, diagnose, service, repair and/or test the vehicle; ii. failing to determine that the vehicle was not in compliance with applicable standards and/or specifications, not limited to, but including applicable safety standards set forth under Pennsylvania law. iii. failing to properly recommend to and/or warn plaintiff that the vehicle was defective and could fail in the manner described herein; iv. failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of. b. failing to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; C. failing to adequately warn plaintiff and others of the dangers and hazardous conditions of the vehicle, which GM knew or should have known would result from the careless and negligent conduct set forth in subparagraph (a)(i.-iv.) above; d. failing to provide, establish, and/or follow proper and adequate control of its employees so as to avoid the problems enumerated in subparagraph (a)(i.-iv.) above; and e. failing to perform the services set forth in subparagraph (a)(i.-iv.) above in conformity with the prevailing industry specifications and standards, not limited to, but including applicable safety standards set forth under Pennsylvania law. f. otherwise acting negligently under the circumstances. 13. As a result of the damages directly and proximately caused by the negligence and/or other unlawful conduct of GM, plaintiff sustained and incurred damages to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against GM - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT II STRICT LIABILITY OF GM 14. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 15. GM is engaged, and at all times relevant hereto was engaged, in the business of inter alia, marketing, selling and distributing motor vehicles, including the vehicle, to consumers such as plaintiff. 16. GM distributed and/or sold the vehicle in a defective condition, unreasonably dangerous to plaintiff and his property. 17. GM knew or should have known that the vehicle would, and did, reach the plaintiff without substantial change from the condition in which originally sold. 18. The aforementioned defects consisted of (a) design defects; (b) manufacturing defects; (c) component defects; (d) a failure to warn of the design, manufacturing, and/or component defects; and/or (e) a failure to properly instruct as to the appropriate operating and maintenance procedures for safe use of the vehicle and/or its components. 19. For these reasons, GM is strictly liable to plaintiff for his damages under Section 402A of the Restatement (2d) of Torts, the Restatement (3d) of Torts, and the applicable caselaw of the Commonwealth of Pennsylvania. 20. As a direct and proximate result of the aforementioned defects, Plaintiff sustained and incurred damage to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against GM - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT III NEGLIGENCE OF GRAHAM 21. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 22. The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of Graham, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i. failing to properly inspect, diagnose, service, repair and/or test the vehicle; ii. failing to determine that the vehicle was not in compliance with applicable standards and/or specifications; iii. failing to properly recommend to and/or warn plaintiff that the vehicle was defective and could fail in the manner described herein; iv. failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of. b. failing to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; C. failing to adequately warn plaintiff and others of the dangers and hazardous conditions of the vehicle, which Graham knew or should have known would result from the careless and negligent conduct set forth in subparagraph (a)(i.-iv.) above; d. failing to provide, establish, and/or follow proper and adequate control of its employees so as to avoid the problems enumerated in subparagraph (a)(i.-iv.) above; and e. failing to perform the services set forth in subparagraph (a)(i.-iv.) above in conformity with the prevailing industry specifications and standards. f. otherwise acting negligently under the circumstances. 23. As a result of the damages directly and proximately caused by the negligence and/or other unlawful conduct of Graham, plaintiff sustained and incurred damages to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against Graham - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT IV BREACH OF CONTRACT BY GRAHAM 24. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 25. On this occasion plaintiff brought the vehicle to Graham for proper maintenance, diagnosis, inspection, service, testing and repair, he paid valuable consideration for these technical services pursuant to an express and/or implied agreement with Graham (a true and correct copy of which plaintiff does not readily have, though plaintiff believes Graham has ready at hand a true and correct copy thereof). 26. In violation of its express and implied agreement with Plaintiff, Graham failed to properly maintain, diagnose, inspect, service, test and/or repair the vehicle as promised (as is evidenced by the malfunction that caused the incident), and nonetheless asserted to plaintiff that such services had been provided, and that the vehicle was in proper working order. 27. As a result of Graham's breach of its express and implied agreement with plaintiff, plaintiff- who has and had performed all his obligations under the contract - suffered damages to his real and personal property, as well as the imposition of additional expenses and hardship besides. WHEREFORE, Plaintiff demands judgment in his favor and against Graham - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, delay damages and such other relief as the Court deems appropriate under the circumstances. NELSON LEVINE de LUCA & HORST, LLC BY: ./L_ J EY M. ZIELINSKI, ATTORNEYS FOR PLAINTIFFS Dated: July 12, 2007 VERIFICATION I, Jeffrey M. Zielinski, being duly sworn according to law, hereby depose and say that I am counsel for plaintiff State Farm Fire & Casualty Company (the real party at interest) as subrogee of the plaintiff named in this action's caption, and that I am authorized by same to make this verification on its behalf, and that for all facts averred in the attached Complaint are not of my own personal knowledge, I have received the necessary information from State Farm, and that all such facts are true and correct to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. B JE E M. ZIELINSKI, --"ATTORNEY FOR PLAINTIFF Dated: July 12, 2007 NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) NON-ARBITRATION MATTER CIVIL ACTION NO: 07-2265 CERTIFICATE OF SERVICE I, Jeffrey M. Zielinski, Esquire, hereby certify that a true and correct copy of the Amended Complaint was served on July 12, 2007, upon counsel listed below by United States Mail, postage prepaid. Vincent L. Champion Rhoads & Sinon LLP One South Market Square, Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Jeffrey Cohen, Esquire Meyer Darragh Buckler Bebenek & Eck, LLC U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 NELSON LEVINE de LUCA & HORST, LLC BY: J REY M. ZIELINSKI, ATTORNEYS FOR PLAINTIFF Date: July 12, 2007 C? c d <_ ' r?? r - ? `? ?. - . ? .:.c? ;-1-1 ?1?" _ jr..?l GJ* ? t Marc T. Levin, Esquire Attorney I.D. No. 70294 Vincent L. Champion, Esquire Attorney I.D. No. 88411 RHOADS & SINON LLP (717) 233-5731 One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company ELWOOD YOHE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY Defendants CIVIL ACTION - LAW NO. 07-2269 CIVIL NOTICE TO PLEAD To: Jeffrey M. Zielinski, Esquire Nelson Levine de Luca & Horst Four Sentry Parkway Blue Bell, PA 19422 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. RHOADS & S1NON LL??LLP Marc T. Levin Vincent L. Champion One South Market Square, 12th Floor P. O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Defendant Graham Motor Company, Inc. Marc T. Levin, Esquire Attorney I.D. No. 70294 Vincent L. Champion, Esquire Attorney I.D. No. 88411 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company ELWOOD YOHE, Plaintiff V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2269 CIVIL Defendants DEFENDANT GRAHAM MOTOR COMPANY, INC.'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT NOW COMES Defendant Graham Motor Company, Inc. ("Graham") by and through its counsel, Rhoads & Sinon LLP, and files the within Preliminary Objections to Plaintiff's Second Amended Complaint and avers as follows: 1. On or about April 19, 2007, the Plaintiff, Elwood Yohe, filed a Complaint against Graham and General Motors Corporation in the Court of Common Pleas of Cumberland County. A true and correct copy of the Complaint is attached hereto as Exhibit "A." 2. The Complaint was filed in connection with a vehicle fire which occurred on Plaintiff's property. 3. The Complaint was served upon Graham on April 25, 2007. 654444.1 4. On or about May 15, 2007 Graham filed Preliminary Objections to the Complaint alleging that the Complaint failed to conform to Rule of Court; the Complaint did not contain sufficient specificity and that the Complaint was legally insufficient. Accordingly, on June 6, 2007 the Plaintiff filed an Amended Complaint wherein he abandoned his Strict Liability claim, and his Breach of Warranties claim as to Graham. 6. Pursuant to Counts III (Negligence) and IV (Breach of Contract) of Plaintiff's Amended Complaint, Plaintiff now brought negligence and breach of contract causes of action against Graham. 7. On or about June 22, 2007, Graham in turn filed Preliminary Objections to Plaintiff's Amended Complaint because notwithstanding Plaintiff's amendments, the Amended Complaint still was not pled with sufficient specificity and was legally insufficient. 8. Accordingly, on or about July 12, 2007 the Plaintiff filed a Second Amended Complaint wherein he made minor changes to his Amended Complaint. A true and correct copy of the Second Amended Complaint is attached hereto as Exhibit "B." 9. Notably none of Plaintiff's minor amendments addressed the issues raised by Graham's Preliminary Objections by Graham's Preliminary Objections to Plaintiff's Amended Complaint. 10. Accordingly, Graham now files these Preliminary Objections to Plaintiff's Second Amended Complaint because notwithstanding Plaintiff's most recent amendments, the Second Amended Complaint still is not pled with sufficient specificity and the Second Amended Complaint as pled is legally insufficient. -2- I. Motion for a More Specific Pleading Pursuant to Pa. R. Civ. P. No. 1028(a)(3) 11. Pursuant to Pa.R.Civ.P. No. 1028(a)(3), "Preliminary Objections may be filed by any party to any pleadings and are limited to the following grounds ... insufficient specificity in a pleading." 12. Relatedly, Pa. R. Civ. P. No. 1019(a) requires that, "The material facts on which a cause of action ... is based shall be stated in concise and summary form." 13. Plaintiffs Second Amended Complaint has failed to satisfy the foregoing requirements. 14. Specifically, Paragraph 22 of Plaintiff's Second Amended Complaint and subparts (a)(ii); (e); and (f) of that same paragraph fail to satisfy the strict specificity requirements of the Pennsylvania Rules of Civil Procedure. 15. The relevant portions of paragraph 22 of Plaintiff's Second Amended Complaint allege as follows: "The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of Graham, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. Failing to exercise reasonable care in the following manner: (ii) Failing to determine that the vehicle was not in compliance with applicable standards and/or specifications; e. Failing to perform the services set forth in subparagraphs (a), (i) through (iv) above in conformity with the prevailing industry specifications and standards. f. Otherwise acting negligently under the circumstances. 16. Paragraph 22 and the above listed subparts are devoid of meaningful support for the allegations contained therein. -3- 17. Namely, they fail to identify the employees, agents, technicians, and/or servants, the applicable standards and specifications, the prevailing industry standards and how Graham was otherwise negligent. 18. In order to prepare an appropriate defense, Graham must be advised of the specific employees, agents, technicians, and/or servants whose purported conduct is in issue as well as the factual allegations, standards, specifications, and negligent conduct referenced in subparts (a)(ii), (e), and (f). 19. The lack of specificity contained in Paragraph 22 and relevant subparts make it nearly impossible for Graham to answer the Plaintiff's Second Amended Complaint and/or prepare a defense to those allegations. 20. Therefore, pursuant to Pa. R. Civ. P. No. 1028(a)(3), this Court should require the Plaintiff to more specifically state and/or identify any and all applicable employees, agents, technicians and/or servants whose conduct is in issue. 21. This Court should also require the Plaintiff to more specifically state and/or identify the, standards, specifications, violations of the aforementioned applicable standards, violations of the aforementioned specifications, and how Graham was otherwise negligent. See, Connor v. Allegheny Hospital, 501 Pa. 306; 461 A.2d. 600 (Pa. 1983). WHEREFORE, Defendant Graham Motor Company, Inc. respectfully requests that this Honorable Court grant its motion for a more specific pleading and require the Plaintiff to specifically identify each employee, agent, technician and/or servant whose purported conduct is in issue. Graham further requests that this Court require Plaintiff to specifically state and/or -4- identify each applicable, standard, specification, violation of relevant standards, violation of relevant specifications, and how Graham was otherwise negligent. II. Preliminary Objection in the Nature of Demurrer Pursuant to Pa.R.Civ.P. No. 1028(a)(4) 22. Lastly, by way of his Second Amended Complaint, the Plaintiff raises two (2) separate causes of action against Graham. 23. These causes of action include negligence (Count III), and breach of contract (Count IV). 24. Under Pa. R. Civ. P. No. 1028(a)(4), "Preliminary objections may be filed by any party to any pleading and are limited to the following grounds ... legal insufficiency of a pleading (demurrer)." 25. Count IV of the Second Amended Complaint, is legally insufficient and must be dismissed. 26. First, with regard to Plaintiff's breach of contract claim (Count IV) the gist of the action doctrine compels the dismissal of this claim because Plaintiff's Second Amended Complaint, viewed in its entirety, sounds in tort law as opposed to contract law. 27. Moreover, Plaintiff now alleges that Graham breached an express or implied contract. 28. However, the Plaintiff has failed to specify the time, place, parties and/or terms upon which the express and/or implied contract was formed. 29. Thus under Pennsylvania law, Plaintiff has failed to sufficiently plead the existence of an express and/or implied contract. -5- 30. Based upon the foregoing, Count IV of Plaintiff's Second Amended Complaint should be dismissed. WHEREFORE, Defendant Graham Motor Company, Inc. respectfully requests that this Honorable Court grant its preliminary objection in the nature of a demurrer and dismiss Count IV from the Second Amended Complaint. RHOADS & SINON LLP B Y• Marc T. Levin Vincent L. Champion One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company, Inc. -6- CERTIFICATE OF SERVICE I hereby certify that on August 1, 2007, a true and correct copy of Defendant Graham Motor Company, Inc.'s Preliminary Objections to Plaintiff's Second Amended Complaint was served by means of United States mail, first class, postage prepaid, upon the following: Jeffrey M. Zielinski, Esquire Nelson Levine de Luca & Horst Four Sentry Parkway Blue Bell, PA 19422 Jeffrey Cohen, Esquire Meyer Darragh Buckler Bebenek & Eck, P.L.L.C. U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 84/26/87 11:14:32 -? RightFax-> 717 231 6600 Seruer Page 809 R. 25. 2007 11:12AM HOASTER GEBHARD &CO 717-273-4559 r r NELSON ]A VINIM de UCA & HORST, LLC DV; JEFFRILY M. ZI LIMKtI, ESQUIRE IDENTI'Ax Ll1TION N .: 91390 FOUR SENTRY PA AY, S'U'ITE 3DO BL:VE DELL: PA 1942 . EI?WOOD 'Y I71iE 139 SOUTIMIXAE DW NOW VILLE. PA 1724 V. NO. 3826 P. 3 ATTORNE'Y'S FOR PLAINTIFFS IN THE COMMON PLEAS COURT OF CU'MMIIPMAND COUNTY, PZNNSYLVANI',A, NON-AR1RPli`R TION MATTER GENERAL MOTORS ORPORATION C/O CT cor- 1'ORATI N CIVIL ACTION NO: 30600 TELEGRAPH R AD BINGHANI VARMS, 148025 D'`j - o?,.Z(m I CV AND 4OMPANY GRAHAM Ib?l'OTORS 1402 HOL]•,k' PIKE CARLISLI&r:PA 17013 ...:_ Uefendan t(m) . -------- ? 1!LOT1<CE'1'O ? FE FEND You have bei ii stied in Cahm. If you wish to defend against the claims set forth in the following pages, you uni3i take action within (20) says aftra• this Compluint and Notice are served, by entering a wril:lon appea1pad ce personally or by an attorney and filing in writing wide the Court your defense or objeotio to the claims set forth against you. You are warned that if you fail to do so, the oa.sc may pro without you and a judguicut may be centered against you by the Court withow further noti c for any money claimed or any other claim or relief requested by the plaintiff! Yo'.: tasy lose m ney or property nights important to you. YOU 914OULD TAM T141S PAPER TO YOUR LAWY 3R AT ONCE. IT YOU DO NOT IIA • A LAWYER OR CANNOT AFFORD ONE, 00 TO OR TEL)3PHON , lr OFFICE SET PORTH BELOW TO FIND OUT WHERE Y01.7 I'ANGET IrGAL HELP. THIS OFFICE CAN PROVIDE YOU WI'11.1 Wr ORMATION ABOUT HIRING A LAWYER, IF You CANNot AFFORD TO HIRZ A LAWYER, THIS OFFICE MAY BE ABLE TO PRaVIDI: YOU WITH INFORMATION ABOUT AGENCIES i lm.&'r MA'X OFFER LEGAL, SIMVICES TO ELIGIBLE PERSONS AT A REDUCED FEI; OR NO PEE. Cumberland Cdunty Bar Association 32 S. Bedford street Carlisle, PA 17013 Ts eom-oIIIt wiv, the rat Mlslm pa 20 'd 886L6bZL tl 00 2HO.LOW RVHVHJ Wv 10:01 asfi 02--92-Ndd 04/26/07 11:14:SB APR.25. W 11:13AM RightFax-> 717 231 6680 x Server HOASTER GEBHARD &CO 717-273-4559 NELSON I;:.?V11V)C BY: dEIrPIREY W IDENTIF'117,ATION FOUR SEITrRY PA SLUE BELL, PA 15 r ELWOObTOHE 135 SOUTTIVIDE D MWVILIJ; PA 17 Plain, v. GENERAL MOTOM 00 CT C OMFORAT 30600 TLLIN GRAPHBINGHAM :FARMS, . AND GRAHAM MOTORS 1402 HOLU.( PIKE CARLISI. Po PA 1701 Defends Plairitli'f, by Defendants, hereby i Page 018 NO. 3826 P. 4 UCA & HORST, LLC ATTORNEYS FOR PLAINTTFrt S LINS1430 ESQUIRE ,:91390 WAX, SUITE 300 CORPORATION IN THE COMMON PLEAS COURT OF CUMBERMAND COUNTY, PENNSYLVANIA, NON??TION MATTER CIM ACTION NO. L?D . 4802.5 MPANY CQ p ItYyT through undersigned counsel, and by way of Complaint against i. Plaintiff 'is an adult individual who, at all times relevant hereto, owned and resided at this address set forth above. z. Defendant General Motors Corporation (,,um,,) is, upoxx information and belief, a business entity organize and existing under the laws of Miohigan, with a principal place of hain Farms, Michigan. Defendnnt GM reLmIntly business at .I{ 500 Tele "l* Road, Bing conducts busl;?vrss in t?c ommonwealth of Pennsylvania, Including the Couuiy of Cumberland. 3. 13M in, 7ni nufactturev, assemble including a 00r1tsin 2000 on iiifornmation' and belief, a corporate entity that markets, designs, distributes, inspocts and/or off-era for salt, inter altq, x'nator vehicles, hevrolet K1500 (VIN 20CEK19TSY1254807) ("the vehicle"). EO 'd 986LBPEL1L 00 801OW W V90 WV 10:01 UM LOOZ-H-iidb 04/26/@7 11:15:14 RightFax-> 717 231 6600 Server Page 011 APR-25.2007 11:13AM HOASTER GEBHARD &CO 717-273-4559 N0.3826 P. 5 4, Defendan Graham'Motors Company ("Graham") is, upon infonnation and belief, -a biixirtess enti organized and existing under the laws of the Commonwealth of Fennsylvani k with a pr1 ipal place of business located at the address it the above caption. S. Grahattl i , upon information and belief, specially trained and authorized by GM to perform ,mlonmbile d agnostic, inspection, analysis and repair services to enmarnens such as plaintiff. 6. . The vehicle appeared to operate properly, with little or no indication that there wag anything wrong; h? wever, an issue appeared in the summer of 2006 rolatihi; to thu intermittent rounding of ?he horn of said vehicle. As a result of this issue, plaintiff brought the vehicle to Orteham for inspection, diagmosis, Service anti/or repair. 7. Plaintiff' nought the vehicle to Graham and informed Graham of any/all information requested o? him relative to the vehicle's operation. Plaintiff was informed that there was a ::iroblem with the chin ilt Ward of the vehlulo and that the problem was fixed and the vehicle was in proper w rking order. Thus, relying on Graham's implicit and explioit Assertions as to tho vehicle's sound ess and fitness, plaintiff continued to operate the vehicle, 81 On or ab ut August 8, 2006, while the vehicle was ;parked on plaintiffs property, it suddenly iol without arning erupted into flanies, which apparently originated in the engine oompartmeni, snd martif ated itself into the passeuger compartment thru the windshield, $rewall and other witulows in the Vehicle. 1 9. The fire it t the engine compartment quickly spread to the remainder of the vehicle and to the plitisttiffs she, w)hioh was next to where said. vehicle was parked, As a result of the shed catchinj fire, excel ive heat from the first caused damiagm to the plaintiff's hound itself, b0 'd 866t6bZLil 00 MO,IOW WdHVMD WV 10;01 QBM LOOZ-9Z--ddd 04/26/07 11:15:30 -,.,RigbtFdx-> 717 231 6600 -_x Seruer Page 012 APR. 25. 2007 11;13AM ROASTER GEBHARD &CO 717-213-4559 N0, 3826 P. 6 j lU, Thus, as result of the defective nature of the vehicle, and/or as a result of the. negligent som icing (ate.,) of the vehicle (as in more fully described lwroin), the vehicle was destroyed f n the fire, t1is was plaintitPs real and personal property, many o£ his personal possessions. wareover, incident caused plaintiff to incur addtdonal expenses and hardships besides. COUNr 1 NEGLIGENCE OF GM 11, Plaindff i?corporates herein by referenCa 411 the preoodiatg paragraphs, as though the same wewe fully set f6rth at length. . i . 12. The efor4mentioned damages were' tlae direct and proximate result of the negligeiioe, rarelessness,? and/or other unlawhi conduct of GM, by and through its, employees, agents, tec)w is iazts, and/ r servants, more specifically described as follows: a. failing to exerciae reesoiaable care in the following manner: i. failing to propcxly btttld, manufacture, assemble, inspect, diagnose, service, repair and/nr test the vehicle; failing to determine that the vehicle was not in compliance with applicable standards and/or specifications; failing to p2vporly recommetad to and/or warn plaintiff that the vehicle was defective and could fail In the manner described herein; iv, j failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehic to so as to pruvcnt the incident complained of, ?. iailing to adequately instruct and/or supervise its employees, agents, Esc}. cians, and/or servants so u3 to avoid the problems sett forth in sub?amg raph (ti)(ielv,) above; 90 Id ..-y 96616bZZ1L 00 WIN 11VHdH0 Wd Z0:01 GEM GOU-SZ-Ndd 84/26/87 11:15:46 RightFax-> 717 231 6688 Server Page 813 APR. 25. 2007 11:14AM ROASTER GEBHARO &CO 717-273-4559 NO, 3826 P. 7 C. fsihng to adequately warn plaintiff and others of the dangers and h Wdous conditions of the vehicle, which 'GM knew or should have known would result from the carolcas and nogligent conduct act forth in su paragraph (a)(i.-iv.) above; d. fai "to provide, establish, and/or follow proper and adequate control of its xpployees so as to avoid the problems enutnerated in subparagraph (a) i.-iv.) above; and e. fail rig to perfonn the services aet forth in subparagraph (a)(i.-iv.) above in eo fortuity with the prevailing industry speciflcntio;ns and standards. F. A -nvise acting negligently under the eireumati ncoo. 13. As a result of the drunages directly and proximately caused by the negligence and/or other wilawfbl corouet of GM, pl aintiff sustained and Incurred damages to his real and pemanal perl'it's1ty, along *ith the imposition of additional expensos and hardship besides, in an amount in exoaem ofFifty [ housand Vatlars (W,UUU.00). WHEIREFORE, Plaintiff demands Judd rent in his favor and against GM - jointly t and/or sevemll;t along wAh the other defendant(s) in this action, - in Em amount in excess of Fifty Thousand Doll us ($50,000.00) plus interest, costs of suit, delay damages, and such other relief as the Court -10= appropriate under the circumstances. COUNT II STRICT LL421LITY OF GM 14. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were sully set fb#h at length. 15. QM is engigcd, and at all times relevant hereto was oagaged, in the business of inter alta, znexketing, selling and distributing motor vehicles, including,the vehicle, to consumers such as plainNE. 1 90 'd essLS?zL tL 00 N010V udHVMD NV 20:01 03M L00Z-9d-HdV 04/26/07 11:16:02 RightFax-> 717 231 6600 -_x Server Page 014 ? 5APR.21-2007 11:14AM HOASTER GEBHARD &CO 717-273-4559 N0,3826 P. 8 16. G1VI distri uted and/or gold the vehicle in a defective condition, unreasonably dangerous to p luintiff an his property. t •17. GM kne or should have known that the vehicle would, and did, reach the an aplantifWit]U;rit subst l change from tho condition in which 0118111ally bold. 18. 'rho 19. For these 402A of the Aastatement of the Coma ormealth of 7.0. AS a defects consisted of design defects; nuuwfaoturing defects; component defects; a failure to wam of the design, manufacturing, and/or component defects; and/or a failure to properly instruct as to the appropriate operating and maintenance procedures for safe use of the vehicle and/or its coinpoul tits. GM is strictly liable to plaintiff for his damages under Section d) of Torts, tho Restatomrnt (3d) of Torts, and the applicable caselaw and proximate Mult of the aforamantionod dcfccts, Plaintiff ffuatained t and incurred damage to his real at?d personal property, along with the imposition of additional expenses and hardship bAides, in an amount in excess of Fifty Thousand Dollars ($5D,000.00). t W)HJFRLrI?'OIR E, (Plaintiff demands judgment in his favor and against GM - jointly and/or soverelty along with the other de'feadent(s) in this action - in an amount.in excess of Fifty Thousand Dc thas ($50,060.00), plus interest, costs of suit, rielny donages, and such other relief as the Court cli-A-ms approbriate under dir, t -- LO ,d 86OLMLIL 00 HO.LOW WdHM We 20:01 43M Lo0z'se-add 04/26/Q7 11:16:17 RightFax-> 717 231 6600 "l-,c Server page 015 APR.25.20D7 11;14AM HOASTER GEBHARD &CO 717-273-4559 NO.3826 P. 9 $ COUNT III NEGLIGENCE OF GRAS HA?M 21. Plaintiff fn1corporates herein by reference all the preceding paragraphs, as though the 8ntnc wens fully set fth at length, 22. The a{ore entioned damages were the direct. and proximate result of the negligeaee, carelessness and/or other unlawful conduct of Graham, by and through its employees, agents, tcohn+ians, and/or servants, more specifically described as ;follows: 3. faring to exercise reasonable care in the following manner: ' L failing to properly inspect, diagnose, service, repair and/or test the vehicle; ii. failing to determine that the vehicle was not in complialice with applicable standards and/or specifications; iii. failing to properly recommend to and/or warn plaintiff that the vehicle was defective and could fail W the manner described herein; S iv, failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident eomplait?ed of. I,. failing to adequately instruct and/or supwr ,irc its ompioyocd, agents, tec'hmaians, and/or sea-vants so as to avoid the problems set forth in subparctgraph (a)(i.-iv.) above; I ,, failing to adequately wam plaintiff and others of the dangers and h& rdouss conditions of the vehiole, which Graham knew or should have kndwn would result fl+om the careless and nogliput conduct sot forth in subparagraph (a)(L-iv.) above; {I, failing to provide, matablish, and/or follow proper and adequate control of its irnployees so as to avoid the problems enumerated in subparagraph (a)?i.-iv.) above; and t. failing to perform the services set forth in subparagraph (a)(t.?tv.) above in eot4ormity with the prevailing industry Specifications and standards, 90 'a - 868?.6?zLlL 00 90109 MURNO WV Eo:01 03M L006-5d-36 04/26/07 11:16:34 RightFax-> 717 231 6600 x Server Page 016 APR, 25. 20,')7 11; 15AM HOASTER GEBHARD &CO 717-273-4559 N0. 3826 P. ltd E otherwise acting negligently -under the circumstances. 23. As a result of the damages directly and proximatcly caused by the negligence and/or other unlawful co not of Oraham, plain6ffaustained and incurred damages to his real and-personal ptoperty, al ng with tho imposition of additional expenses and hardship besides, in. an amount in irtcem of pi? y thousand Dollars ($50,000,00). l WMIREFORi, ?laintiff demands judgment in his favor and against Graham - jointly and/or severch:/ along with the other defendanXe) is No nvdoa - in an amount laa oxcues of Fifty Thousand Dollars (SSo,0?0.00) plus Interest, costs of suit, delay damages, and such other relief as the Court appro riato under the circumstances, CO'[TNI' TV' STRICT L1At ILM OF GRAli3.A,M 24, Plaintiff in?orporates herein by reference a)1 the prooeding paragraphs, as though the aamo were,, iblly set fo*h at length. i 25, i3raham is i gagod uad at all times relevant hereto was engaged, in the business of inter affa., marketing, 941ing and distributing motor vehicles, including the parts and related cOmponents 1hr motor vehicles, including the parts and related campo'sionts and a vices cold to i consurners auah as plaintlit 26, t mham dish lbuted and/or sold the parts and related pomponents for the vehicle ib t , a defective or-nc9tion, unrelsonably dangerous to plaintiff and his property. 27, Clrahatn kndw or should have known that the parts and related muponents for the vehicle would, and did, rbaeh the plaintiff without substantial ohange from the condition in which orlsinalay sold, 60 'd 966L66ZLIL '00 8010V PURNO A 60,01 QOM L003-SE-M 04/26/07 11:16:49 RightFax-> 717 231 6600 'x Server Page 017 y 5 APR.25.2007 11.15AM HOASTER GEBHARD &CO 717-273-4559 NO-3826 P. 11 I . 28. The aforar entloned defects wnsisted of: (a) design defects; (b) rr inufacturing defects; (6)f: oomponent defects; (d) a failure to warn of the design, manufheturing, and/or component defects; and/or (e), a ;Failure to properly instruct as to the appropriate operating and maintenance procedures for safe use othehic and/r its ' components. 29. Pot the8e ioasons, Graham is strictly liable to plaintiff for his damages tinder i Section 402A. of the Reatkmient (2d) of Torts, the Restatement (3d) of Torts, and the applicable daselaw ofM commonwiealth ofPemsylvania. 30. As a direci and proximate rearult of the nforamentioned defects, plaintiff sustained and incurred dimage to 1$ts real and personal property, along with the imposition of additional expenses and h ardship be 'des, in an amount in excess of Fifty Thousand Dollars ($50,000.00). VVMMREV0JM' laintiff demands judgment in his favor and against drahmrn - jointly and/or sevomll;r along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars (550,000.00), plus interest, costs of suit, delay damages, and such ether relief ns the Court -lo nns approlkiate under the eircumstancas, COUNT V BkXACH OF WARRANTIES 13Y GRAHAM 31, l'laintiff incorporates herein by reference all tfie foregoing paragraphs as though same were full) set forth At length. 0 1 'd 866L66ZL l L 00 M01AU RVHEi210 WV EO : 01 03M LOOZ-SZ-dMV 04/2G/07,11:17:04 -^,RightFax-> 717 Z31 6688 r ',Server Page 818 APR.21,.2007 11:15AM ROASTER GEBHARD &CO 717-273-4559 N0.3826 P. 12 32. fit the tim of contracting for the sale and/or distribution of the parts and ratatPd coinprinenti rri the vehial?, Graham-had reneon to bow o£tho particular purpose for which the vehicle would lie used, aid know that its skill and judgment were being relied upon to ft ish a suitable prod-iiv. Thus, Graham breacb7ad the implied warranty of fitness 'for a particular purpose as set out in the Unii'onm ?ommeroial Code (hereinat;or 1VCC'? and in 13 Pa. C.S.A. § 2.315 in that the vehielis, was not fi, for the particular use for which such products are intended. 1 33. In addition, Grahstin breached its implied wanvnty of morehantability as sot out ih the UCC 'and 13 Pa. C.S.A. § 2-314 (c) in that the vehicle was not fit for the uses for which it was intended ' 34. In additioI Graham breached any and all express warranties made or relating to the vehicle tbi.t became part of the basis of the bargain for sale of the product in violation of the t U'CC and 13 T a. C.S.A. § ?-313. 35. lfutthetm4e, Graham breached the express and implied wa=ties set out in the warranties plain tiff purchased at the time of the repairs for the vehicle. 1 36. Plaintiff's ?arnages, as set forth above, occurred as a direct and proximate result of Grahun br iMsh of its iii pliod warmotics of fitness for it paticular purpose and merchantability as set out in 13 Pei. C,S1 § 2-315 and § 2314 (e), and as a result of Orahan breach of their expressed warr ntees in derogation of 13 Pa. C.S.A. § 2-313, as well as the express and implied warranties av: nut in the warranties plaintiff purchased at the time, of buying tho vehicle, and/or any time subsequent thereto. 1 i i d .,. 866LVEL1L 00 WIN WdHdND We 50:01 03M LOOZ-92-Mdb 04/26/07 11:17:20 ,,Ri9htFax-> 717 231 6600 Serer Page 019 i APR.21,.2007 11.16AM HOASTER GEBHARD &CO 717-273-4559 NO.3826 P. 13 WMI11'r:EFORR,, Olaintiff demands judsment in his favor and against Graham - jointly and/or severAly along wiih the other defendant(s) in this aotion -• in an atnount in excess of Fifty Thousnnd Dill ars ($50,000.00), plus interest, costs of suit, delay damages, and such other relief i as tho Court da ems nppro? riate under the circumstances. COUNT V bRE A,CH OF CONTRAC'T' BY GR.AHAM i 1, 37, Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same weve fully set tbfth at length. 38. Dn this occasion plaintiff brought the vehicle to Graham for proper maintenance, diagnosis, ini.01;ction, serlico, testing and repair, he paid valuable consideration for these technical seri41ios pursua4t to an express and/or implied agreement with Graharn. 39. fn violatiot of its express and implied agreement with Plaintiff', Graham failed to t properly main,tidn, diagnose, inspect, service, test and/or repair the vabicle as promised (as is evidenced by die rnalfUt rAon that caused the incident), and nonotboloss asserted to plaintiff that such servicef. hid been provided, and that the vehicle was in proper working order, 40. As a result}of Graham's breach of its express and implied agreement with plaintiff, plaiiroti ff --.who Ana and had performed all h+s obligations under the contract -- suffered damages to his real and personal property, as well as tho imposition of additional expanses and hardship beshics. 31 'd .... ....., 966LOBLIL 00 H010H WdHdHO WV V0:01 UM L02-93-Mdd 84/26/07 11:17:35 RightFax-> 717 231 6600 ° Server Page 828 , i APR.25.2007 11:16AM HOASTER GEBHARD &CO 717-273-4559 NO.3826 P. 14 WHICIRUIORE, [Plaintiff demands judgmeint in his favor axed against Ond, m - jointly and/or cevarjjl,l,r alo"S wi the other defendant(s) in this action - in an amount in exoes8 of Fifty 'T'housand Doors (550,0 0,00), plus interest, costs of suit, delay danmps and such other relief as the Court de;ms appropriate under the circumstances. t NELSON LLVM de LUCA & MRST, LLC Dateid: Agil 12 2, 007 BX j zI L KI, . 'c i r £Z 'd 866L66ZLiL f0 S F TFFS 00 ROIOW WdHdRO WV b0:01 SM L002-H-Rdd , q4/Z6/(37 11:17:44 RightFax-> 717 231 66BB Seruer Page 9Z1 r APR.25.2007 11:16AM HOASTER GEBHARD &CO 717-273-4559 N0,3826 P. 15 V1)IECATION I, Jefi'>;•sy b t. Zieliski, being duly sworn according to law, hereby depose and any that l am counsel finr plaintiff hate Farm Fire & Casualty Company (this real party at interest) as subrogee of IN plaintiff tamed to this action's caption, and that I am authorized by samd to 7 inake this verilcation on its belialf, and that for all facts averred in the attachod Complaint arc not of my owii ;personal k.Powledge, I have received the naeemary information from State Farm, and that all st.cl. facts are t ua and correct to the best of my knowledge, information and belief. 1 under;wand that t9is verification is made subject to the penalties of 18 Pa, C.S. Section 4904 relm.thig i1r) unsworn Aleif*cation to authorities. f Dated: aril : ?? 2007 Y i i bl 'd 666L6bZLYZ 00 MOIOW WdHd2]0 Wd ti0;01 QOM L003-9Z-MV NELSON LEVINE de LUCA & HORST, LLC BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) ATTORNEYS FOR PLAINTIFFS IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA NON-ARBITRATION MATTER CIVIL ACTION NO: 07-2265 SECOND AMENDED COMPLAINT Plaintiff, by and through undersigned counsel, and by way of Complaint against Defendants, hereby avers: 1. Plaintiff is an adult individual who, at all times relevant hereto, owned and resided at the address set forth above. 2. Defendant General Motors Corporation ("GM") is, upon information and belief, a business entity organized and existing under the laws of Michigan, with a principal place of business at 30600 Telegraph Road, Bingham Farms, Michigan. Defendant GM regularly conducts business in the Commonwealth of Pennsylvania, including the County of Cumberland. 3. GM is, upon information and belief, a corporate entity that markets, designs, manufactures, assembles, distributes, inspects and/or offers for sale, inter alia, motor vehicles, including a certain 2000 Chevrolet K1500 (VIN 2GCEK19T5Y1254807) ("the vehicle"). 1 'G 4. Defendant Graham Motors Company ("Graham") is, upon information and belief, a business entity organized and existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at the address in the above caption. 5. Graham is, upon information and belief, specially trained and authorized by GM to perform automobile diagnostic, inspection, analysis and repair services to consumers such as plaintiff. 6. The vehicle appeared to operate properly, with little or no indication that there was anything wrong; however, an issue appeared in the summer of 2006 relating to the intermittent sounding of the horn of said vehicle. As a result of this issue, plaintiff brought the vehicle to Graham for inspection, diagnosis, service and/or repair. 7. On or about July 6, 2006, plaintiff brought the vehicle to Graham and informed Graham of any/all information requested of him relative to the vehicle's operation. Plaintiff was informed that there was a problem with the circuit board of the vehicle located in the engine compartment of the vehicle, and that the problem was fixed and the vehicle was in proper working order. Thus, relying on Graham's implicit and explicit assertions as to the vehicle's soundness and fitness, plaintiff continued to operate the vehicle. 8. On or about August 8, 2006, while the vehicle was parked on plaintiffs property, it suddenly and without warning erupted into flames, which apparently originated in the engine compartment and manifested itself into the passenger compartment thru the windshield, firewall and other windows in the vehicle. 9. The fire in the engine compartment quickly spread to the remainder of the vehicle and to the plaintiffs shed, which was next to where said vehicle was parked. As a result of the shed catching fire, excessive heat from the fire caused damages to the plaintiffs house itself. 10. Thus, as a result of the defective nature of the vehicle, and/or as a result of the negligent servicing (etc.) of the vehicle (as is more fully described herein), the vehicle was destroyed in the fire, as was plaintiffs real and personal property, many of his personal possessions; moreover, this incident caused plaintiff to incur additional expenses and hardships besides. COUNT I NEGLIGENCE OF GM 11. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 1 12. The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of GM, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i. failing to properly build, manufacture, assemble, inspect, diagnose, service, repair and/or test the vehicle; ii. failing to determine that the vehicle was not in compliance with applicable standards and/or specifications, not limited to, but including applicable safety standards set forth under Pennsylvania law. iii. failing to properly recommend to and/or warn plaintiff that the vehicle was defective and could fail in the manner described herein; iv. failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of. b. failing to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; C. failing to adequately warn plaintiff and others of the dangers and hazardous conditions of the vehicle, which GM knew or should have known would result from the careless and negligent conduct set forth in subparagraph (a)(i.-iv.) above; d. failing to provide, establish, and/or follow proper and adequate control of its employees so as to avoid the problems enumerated in subparagraph (a)(i.-iv.) above; and e. failing to perform the services set forth in subparagraph (a)(i.-iv.) above in conformity with the prevailing industry specifications and standards, not limited to, but including applicable safety standards set forth under Pennsylvania law. f. otherwise acting negligently under the circumstances. 13. As a result of the damages directly and proximately caused by the negligence and/or other unlawful conduct of GM, plaintiff sustained and incurred damages to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against GM - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT II STRICT LIABILITY OF GM 14. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. f 15. GM is engaged, and at all times relevant hereto was engaged, in the business of inter alia, marketing, selling and distributing motor vehicles, including the vehicle, to consumers such as plaintiff. 16. GM distributed and/or sold the vehicle in a defective condition, unreasonably dangerous to plaintiff and his property. 17. GM knew or should have known that the vehicle would, and did, reach the plaintiff without substantial change from the condition in which originally sold. 18. The aforementioned defects consisted of: (a? design defects; (b) manufacturing defects; . (c) component defects; (d) a failure to warn of the design, manufacturing, and/or component defects; and/or (e) a failure to properly instruct as to the appropriate operating and maintenance procedures for safe use of the vehicle and/or its components. 19. For these reasons, GM is strictly liable to plaintiff for his damages under Section 402A of the Restatement (2d) of Torts, the Restatement (3d) of Torts, and the applicable caselaw of the Commonwealth of Pennsylvania. 20. As a direct and proximate result of the aforementioned defects, Plaintiff sustained and incurred damage to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand. Dollars ($50,000.00). WHEREFORE; Plaintiff demands judgment in his favor and against GM - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty t A Thousand Dollars ($50,000.00), plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT III NEGLIGENCE OF GRAHAM 21. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 22. The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of Graham, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i. failing to properly inspect, diagnose, service, repair and/or test the vehicle; ii. failing to determine that the vehicle was not in compliance with applicable standards and/or specifications; iii. failing to properly recommend to and/or warn plaintiff that the vehicle was defective and could fail in the manner described herein; iv. failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of. b. failing to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; C. failing to adequately warn plaintiff and others of the dangers and hazardous conditions of the vehicle, which Graham knew or should have known would result from the careless and negligent conduct set forth in subparagraph (a)(i.-iv.) above; [ . .$ d. failing to provide, establish, and/or follow proper and adequate control of its employees.so as to avoid the problems enumerated in subparagraph (a)(i.-iv.) above; and e. failing to perform the services set forth in subparagraph (a)(i.-iv.) above in conformity with the prevailing industry specifications and standards. f. otherwise acting negligently under the circumstances. 23. As a result of the damages directly and proximately caused by the negligence and/or other unlawful conduct of Graham, plaintiff sustained and incurred damages to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against Graham - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT IV BREACH OF CONTRACT BY GRAHAM . 24. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 25. On this occasion plaintiff brought the vehicle to Graham for proper maintenance, diagnosis, inspection, service, testing and repair, he paid valuable consideration for these technical services pursuant to an express and/or implied agreement with Graham (a true and correct copy of which plaintiff does not readily have, though plaintiff believes Graham has ready at hand a true and correct copy thereof). I i A .1 26. In violation of its express and implied agreement with Plaintiff, Graham failed to properly maintain, diagnose, inspect, service, test and/or repair the vehicle as promised (as is evidenced by the malfunction that caused the incident), and nonetheless asserted to plaintiff that such services had been provided, and that the vehicle was in proper working order. 27. As a result of Graham's breach of its express and implied agreement with plaintiff, plaintiff- who has and had performed all his obligations under the contract - suffered damages to his real and personal property, as well as the imposition of additional expenses and hardship besides. WHEREFORE, Plaintiff demands judgment in his favor and against Graham - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, delay damages and such other relief as the Court deems appropriate under the circumstances. NELSON LEVINE de LUCA & HORST, LLC BY: .?L_. J EY M. ZIELINSKI, ATTORNEYS FOR PLAINTIFFS Dated: July 12, 2007 y ? y VERIFICATION I, Jeffrey M. Zielinski, being duly sworn according to law, hereby depose and say that I am counsel for plaintiff State Farm Fire & Casualty Company (the real party at interest) as subrogee of the plaintiff named in this action's caption, and that I am authorized by same to make this verification on its behalf, and that for all facts averred in the attached Complaint are not of my own personal knowledge, I have received the necessary information from State Farm, and that all such facts are true and correct to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. B . JE M. ZIELINSKI, -'ATTORNEY FOR PLAINTIFF Dated: July 12, 2007 ,4 t? NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) NON-ARBITRATION MATTER CIVIL ACTION NO: 07-2265 CERTIFICATE OF SERVICE I, Jeffrey M. Zielinski, Esquire, hereby certify that a true and correct copy of the Amended Complaint was served on July 12, 2007, upon counsel listed below by United States Mail, postage prepaid. Vincent L. Champion Rhoads & Sinon LLP One South Market Square, Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Jeffrey Cohen, Esquire Meyer Darragh Buckler Bebenek & Eck, LLC U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 NELSON LEVINE de LUCA & HORST, LLC BY: ? ''/mot J REY M. ZIELINSKI, ATTORNEYS FOR PLAINTIFF Date: July 12, 2007 N ?1 ti ti PRAECIPE FOR LISTING CASE FOR ARGiJMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) Elwood Yohe, (Plaintiff) VS. Graham Motor-Company, et al. No. 2269 , 2007 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's de=rrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint 2. Identify counsel who will argue cases: (a) for plaintiff: Jeffrey M. Zielinski; Nelson, Levine, de Luca & Horst Four Sentry Parkway' B1uB ell, PAd 14+22 (b) for defendant Vincent L. Champion; Rhoads & Sinon LLP (Name and Address) 1 S. Market Sq.; P.O. Box 1146; Harrisburg, PA 17108-1146 3. I will notify all parties in writing within two days that this case has been listed for argument. Vincent L. Champion 4. Argument Court Date: October 3, 2007 sipatum Vincent L. Champion hint your name Graham Motor Company Date: August 1, 2007 Attoraeyfor Defendant (Defendant) p zff r., o p i'fi r ni o Fn Cf.) ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA o7- ELWOOD YOHE CIVIL ACTION NO: A6?-2269 Plaintiff DEFENDANT, GENERAL MOTORS CORPORATION'S ANSWER AND NEW V. MATTER TO SECOND AMENDED COMPLAINT GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY, Defendants Filed on Behalf of Defendant, GENERAL MOTORS CORPORATION Counsel of Record for this Party: NOTICE TO PLEAD TO PLAINTIFF: You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. goiMseFfor 6efendantf GENERAL MOTORS CORPORATION JEFFREY COHEN, ESQUIRE PA I.D. #76512 MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 (412) 261-6600 (412) 471-2754 - FAX TRIAL BY JURY DEMANDED (P0819505.I ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELWOOD YOHE, CIVIL ACTION NO: 067-2269 Plaintiff, V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY, TRIAL BY JURY DEMANDED Defendants. DEFENDANT GENERAL MOTORS CORPORATION'S ANSWER AND NEW MATTER TO SECOND AMENDED COMPLAINT AND NOW, comes the defendant General Motors Corporation, by and through its undersigned counsel, Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C., and files the within Answer and New Matter to the Second Amended Complaint as follows: 1. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 2. General Motors admits that it is a Delaware Corporation with its principal place of business in the State of Michigan. General Motors further admits that it conducts business in the Commonwealth of Pennsylvania, including Cumberland County. General Motors denies each and every remaining allegation in this paragraph. 3. General Motors admits that it markets, designs, in part, manufactures, in part, assembles, in part, and distributes motor vehicles. General Motors admits that it designed, in part, manufactured, in part, and distributed a 2000 Chevrolet 1500, {P0819505.1 } VIN#2GCEK19T5Y1254807. General Motors denies each and every remaining allegation in this paragraph. 4. This paragraph is not directed towards General Motors and, as such, no response is required. To the extent a response is required, General Motors denies each and every allegation in this paragraph. 5. General Motors admits that Graham Motors Company ("Graham") is an authorized dealer of General Motors vehicles. General Motors further admits that Graham is authorized by General Motors to comply with warranty agreements on General Motors vehicles. 6. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 7. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 7 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 8. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 8 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 2 (P0819505.1) 9. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 9 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 10. General Motors denies each and every allegation in this paragraph. COUNTI NEGLIGENCE OF GM 11. General Motors incorporates herein by reference all the foregoing paragraphs as though same were fully set forth at length. 12. General Motors denies each and every allegation in this paragraph, including all of its sub-parts. 13. General Motors denies each and every allegation in this paragraph. WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against Plaintiff on all claims expressly set forth in Count I of Plaintiff's Second Amended Complaint. COUNT II STRICT LIABILITY OF GM 14. General Motors incorporates herein by reference all the foregoing paragraphs as though same were fully set forth at length. 15. General Motors admits that it markets and distributes motor vehicles. General Motors admits that it distributed a 2000 Chevrolet 1500, VIN # 2GCEKI9T5Y1254807. 3 (P0819505. I) 16. General Motors denies each and every allegation in this paragraph. 17. General Motors denies each and every allegation in this paragraph. 18. General Motors denies each and every allegation in this paragraph, including all of its sub-parts. 19. General Motors denies each and every allegation in this paragraph. 20. General Motors denies each and every allegation in this paragraph. WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against Plaintiff on all claims expressly set forth in Count II of Plaintiff's Second Amended Complaint. COUNT III NEGLIGENCE OF GRAHAM 21.-23. The allegations contained in paragraphs 21 through 23 of Plaintiff's Amended Complaint are directed to a co-defendant and, as such, no responsive pleading is required by General Motors. WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against Plaintiff on all claims expressly set forth in Count III of Plaintiff's Second Amended Complaint. 4 (P0819505. 1} COUNT IV BREACH OF CONTRACT BY GRAHAM 24.-27. The allegations contained in paragraphs 24 through 27 of Plaintiff's Second Amended Complaint are directed to a co-defendant and, as such, no responsive pleading is required by General Motors. WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against Plaintiff on all claims expressly set forth in Count IV of Plaintiffs Second Amended Complaint. NEW MATTER By way of further answer to the allegations contained within the Second Amended Complaint, General Motors sets forth the following New Matter: 28. General Motors raises as a complete defense to some or all of Plaintiffs claims for damages the applicable statute of limitations. 29. Count I of Plaintiffs Second Amended Complaint, read in its entirety, fails to state a claim or cause of action against General Motors upon which relief may be granted. 30. Count II of Plaintiffs Second Amended Complaint, read in its entirety, fails to state a claim or cause of action against General Motors upon which relief may be granted. 31. General Motors raises, as a complete defense to some or all of Plaintiffs claims for damages, Plaintiff s assumption of a known risk. 32. There exists no proximate cause between any of Plaintiffs alleged injuries and any alleged act or omission on the part of General Motors. Therefore, Plaintiff is not entitled to recover from General Motors. 5 {P0819505.1 } 33. The acts and/or omissions of other individuals or entities, over which General Motors exercised no control, constitute intervening or superseding causes for the damages allegedly sustained by Plaintiff. 34. Plaintiff's alleged damages were solely the result of acts, omissions and/or tortious conduct of other persons or entities over which General Motors exercised no control, including, but not limited to, Plaintiff's own negligent maintenance and/or operation of the vehicle prior to and at the time of the alleged incident. 35. General Motors believes, and therefore avers, that any of the damages alleged by Plaintiff were directly or proximately caused by Plaintiff's own contributory negligence. As such, all of Plaintiff's claims are barred, in whole or in part, by the applicable provisions of the Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. 22 §7102. 36. The injuries and/or damages complained of may have been the direct and proximate result of Plaintiff's failure to take all reasonable steps to reduce and/or mitigate the potential for damage. Therefore, Plaintiff is not entitled to recover against General Motors. 37. General Motors believes, and therefore avers, that the injuries and/or damages alleged by Plaintiff in the Second Amended Complaint are the direct and proximate result of misuse and/or abuse of the vehicle by Plaintiff and/or others prior to and/or at the time of the incident. 38. General Motors believes, and therefore avers, that the subject vehicle may have undergone an unforeseeable substantial change, alteration or modification after it left the possession, custody and control of General Motors. This is raised as a complete defense to some or all of Plaintiff's claims for damages. 6 {P0819505.1) 39. General Motors is entitled to a set-off from any recovery against it to the extent of any and all benefits paid or payable to or on behalf of Plaintiff from any and all collateral sources to the extent such a set-off is permissible under the law applicable to this case. 40. The express warranties contained in the New Vehicle Warranty Booklet that would have been provided with the vehicle at the time of original sale are exclusive and were given in lieu of all other warranties, express or implied. Further, General Motors complied with the terms and conditions of any and all warranties applicable to this claim. This is raised as a complete defense to some or all of Plaintiff s claims for damages. 41. To the extent that the subject vehicle was, in fact, designed in part, manufactured in part, and distributed by General Motors, the vehicle complied with all applicable Federal Motor Vehicle Safety Standards which existed at the time the vehicle was originally designed in part, manufactured in part, and distributed by General Motors. Therefore, Plaintiff is not entitled to recover against General Motors in this action. 42. To the extent that the subject vehicle was, in fact, designed in part, manufactured in part, and distributed by General Motors, the vehicle complied with the state of the art at the time it was designed in part, manufactured in part, and distributed by General Motors. The methods, standards and techniques utilized by General Motors were in conformity with the generally recognized state of knowledge in the automotive field at the time of the manufacture of the subject vehicle. WHEREFORE, General Motors demands judgment in its favor dismissing, with prejudice, Plaintiff's Second Amended Complaint and awarding all its costs and expenses of suit, 7 (P0819505. 1} including attorneys' fees, together with such other and further relief as the Court deems appropriate. Respectfully submitted, MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. By: I ;' /,r" JE COHEN, ES IRE U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 (412) 261-6600 (412) 471-2754 - FAX Counsel for Defendant, GENERAL MOTORS CORPORATION 8 {P0819505.1 } VERIFICATION STATE OF MICHIGAN COUNTY OF WAYNE SS. DIANE L. RORAI being first duly sworn, deposes and says that she is authorized pursuant to applicable law and rules to verify, on behalf of General Motors Corporation, the foregoing DEFENDANT GENERAL MOTORS CORPORATION'S ANSWER AND NEW MATTER TO SECOND AMENDED COMPLAINT and that the same are hereby verified on behalf of General Motors Corporation. V4-t? ?e. I DIANE L. RORAI Authorized Agent Sworn to and subscribed before me this 8th day of August 2007. /k,N,ktart' Publi MARWJWM J. LMOnA" County Macomb MCortWtnNaiExpina J . 27, 2011 Re: Edward Yohe CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading has been forwarded to all counsel of record by: U.S. First Class Mail, Postage Paid Hand Delivery Certified Mail, Return Receipt Requested Facsimile Transmittal UPS Delivery - I +- at the following address: Jeffrey M. Zielinski, Esquire Nelson Levine deLuca &Horst, LLC Four Sentry Parkway, Sutie 300 Blue Bell, PA 19422 (Counsel for Plaintiff Vincent Champion, Esquire Rhodes & Sinon, LLP One South Market Street, 12'' Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (Counsel for Graham Motors Company) Dated: <1 ? I -;s ? 0-1 MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. By: C J COHEN, SQUIRE IP0819505.1) t ' T"`? ?-' ?? You `:1? '!_? ..? ;C j ?3?;r^ ,.... "_ rte" ?? --w^l: i - . ', _ , '.1 ?% ti ? at NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 07-2265 PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT, GRAHAM MOTORS COMPANY'S, PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT Pursuant to Rule 1028(a) of the Pennsylvania Rules of Civil Procedure, Plaintiff, by and through undersigned counsel, respectfully submits the following Opposition to Preliminary Objections filed by defendant Graham Motor Company to Plaintiffs Amended Complaint: Admitted. 2. Denied as stated. Plaintiffs Complaint speaks for itself. 3. Admitted. 4. Denied as stated. Defendant's preliminary objections filed on May 15, 2007, speaks for itself. 5. Denied as stated. Plaintiff s Amended Complaint speaks for itself. 6. Denied as stated. Plaintiff's Amended Complaint speaks for itself. 7. Denied as stated. Plaintiff's Amended Complaint speaks for itself. 8. Denied as stated. Plaintiff's Second Amended Complaint speaks for itself. 9. Denied as stated. Plaintiff's Second Amended Complaint speaks for itself. 10. Denied as stated. Plaintiff's Second Amended Complaint speaks for itself. 1. Motion for More Specific Pleading 11. Denied as stated. The rule speaks for itself. 12. Denied as stated. The rule speaks for itself. 13. Denied. Plaintiff's Second Amended Complaint speaks for itself. 14. Denied as stated. The Second Amended Complaint adequately informs and provides notice to Defendant of the issues that must be defended. The Complaint clearly sets forth the facts surrounding the fire that originated in Plaintiff s car. Additionally, the complaint sets forth the relationship between Defendant and the reason the Plaintiff s car was serviced by Defendant. The Amended Complaint even states the specific date in which Defendant serviced Plaintiffs car, as well as the Plaintiffs reason for the seeking Defendant's services. The information set forth in the pleadings is more than sufficient notice to allow Defendant to respond to the claim. Furthermore, Defendant is not entitled to more specification when Defendant is also in a position of knowledge when it comes to the facts and circumstances. In this matter, Defendant is especially well positioned to know the circumstance related to the service provided to Plaintiffs w automobile. As previously stated, Defendant has been provided with the exact date and nature of Plaintiff's visit to their facility, thus allowing Defendant the ability to review documents surrounding the services provided. Defendant is in an even better position than Plaintiff in identifying the names of their employees who worked on the car and the specific work they performed. Essentially, Defendant is using preliminary objections to gain information best obtained through diligent discovery. It is well established that the purpose of Pa.R.C.P. 1028(a)(3) is to have a pleading inform an adverse party of what it will be required to meet at trial; beyond this, said party has the full range of discovery available to seek any additional information desired in the preparation of its case. Galloway v. Cameron Auto, Inc. 73 D.&C.2d 104,109 (1974). Accordingly, given that Plaintiffs have pled the material facts, if defendant wishes to learn more detail, far-reaching discovery procedures are available, and defendant's Preliminary Objections regarding specificity must be overruled. Parkins v. Ferraro, 38 D.& C.2d 412, 415-16 (1965). 15. Denied as stated. For purposes of reviewing Preliminary Objections, Plaintiff's Amended Complaint must be reviewed in its entirety and not just in random, isolated sections as Defendant argues. Rachlin v Edminson 813 A2.d 862 (Pa. Super 2002). By way of further answer, see answer to 114. 16. Denied. Paragraph 22 and the supporting sub-paragraphs are clear, definite, specific and speak for themselves. By way of further answer, see answer to ¶ 14. 17. Denied. Plaintiffs allegations in the Second Amended Complaint are sufficiently pled and they provide the requisite specificity under the rules and laws applicable to this matter. See Laursen v. General Hospital of Monroe County, 393 A.2d 761 (Pa. Super 1978)(reversed on other grounds.) By way of further answer, see answer to ¶ 14. 18. Denied. Plaintiffs Second Amended Complaint is sufficiently specific and it complies with the laws and rules applicable to proper pleadings. Further, when the Second Amended Complaint is viewed in context with all other allegations in the complaint, as it must be, it provides Graham with notice of the nature and extent of Plaintiff s claims as well as defining the issues Plaintiffs intend to prove at trial. Pursuant to Laursen, this is all that is required. Defendant has taken it upon itself to broaden the requirements of the rules and laws of this Commonwealth for proper pleadings, and its mischaracterizations of the law do not provide a sufficient ground for sustaining its Preliminary Objections. By way of further answer, see answer to ¶ 14. 19. Denied. By way of further answer, see answer to 118. 20. Denied as stated. The rule speaks for itself. 21. Denied. Plaintiffs Amended Complaint is sufficiently specific and it complies with the rules and laws applicable to proper pleadings. Defendant's Preliminary Objections are unsupported by any applicable law, and are simply without merit. WHEREFORE, Defendant, Graham Motor Company's Preliminary Objections should be stricken and Defendant should be ordered to file an answer to Plaintiff s Amended Complaint. II. Legal Insufficiency of a Pleading (Demurrer) 22. Denied as stated. Plaintiff's Amended Complaint speaks for itself. 23. Denied as stated. Plaintiffs Amended Complaint speaks for itself. 24. Denied. The complete standard of review for a demurrer is more fully and more accurately set forth in the accompanying Memorandum of Law. 25. Denied. By way of further answer, see answer to ¶ 24. 26. Denied. The "gist of the action" doctrine applies in certain circumstances in the Commonwealth of Pennsylvania. It is specifically denied that the "gist of the action" doctrine is applicable in this case. 27. Denied as stated. Plaintiff s Second Amended Complaint speaks for itself. 28. Denied as stated. Pa. R.C.P. 1019(i) states: When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing. Accordingly, because Plaintiffs were unable to attach a copy of the contract to the Amended Complaint, Plaintiffs stated that it was not accessible, and gave the reason therefore, and gave the substance of the writing in order. Plaintiffs thereby directly complied with the rule. Harbor Hospital Services, Inc. v. GEM Laundry Services L.L.C. et al 2001 WL 1808556 (2001). Plaintiff believes that a written contract does exist; however Plaintiff is unable to locate this contract and does not presently have a copy of the contract in his possession. Plaintiff does believe that this contract did contain an agreement between the parties that Defendant would service Plaintiff's car in a workmanlike manner in order to remedy the issues cited in the Amended Complaint, in exchange for a fee. The inability to locate the contract makes it currently impossible for Plaintiff to append a copy of the contract to the Amended Complaint. Furthermore, Plaintiff contends that Defendant is in a superior position to be in possession of this contract as such contracts would be kept in the course of doing business. 29. Denied. Plaintiffs Second Amended Complaint is sufficiently specific and it complies with the rules and laws applicable to proper pleadings. 30. Denied. WHEREFORE, Defendant, Graham Motor Company's Preliminary Objections should be stricken and Defendant should be ordered to file an answer to Plaintiff's Amended Complaint. NELSON LEVINE de LUCA & HORST, LLC BY: J REY M. ZIELINSKI, ESQUIRE ATTORNEYS FOR PLAINTIFF NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. GENERAL MOTORS CORPORATION CIO CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 07-2265 CERTIFICATE OF SERVICE I, Jeffrey M. Zielinski, Esquire, hereby certify that a true and correct copy of the Plaintiff's response to the Preliminary Objections to the Second Amended Complaint was served on August 23, 2007, upon counsel listed below by United States Mail, postage prepaid. Vincent L. Champion Rhoads & Sinon LLP One South Market Square, Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Jeffrey Cohen, Esquire Meyer Darragh Buckler Bebenek & Eck, LLC U.S. Steel Tower Suite 4850, 600 Grant Street Pittsburgh, PA 15219 NELSON LEYINE de LUCA & HORST, LLC BY: 4.=, JL REY ZIEL 75iIIIRE ATTORNEYS FOR PLAINTIFF Dated: August 23, 2007 ri f : ,s - 4 Elwood Yohe IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. Graham Motor Company & General Motors Corporation NO. 2007-2269 CIVIL TERM ORDER OF COURT AND NOW, October 4, 2007, by agreement of counsel, the above-captioned matter is continued from the October 3, 2007 Argument Court list. Counsel is directed to relist the case when ready. Jeffrey M. Zielinski, Esquire For the Plaintiff Vincent L. Champion, Esquire For the Defendant Court Administrator By the Court, kam Edgar B. Bayley, J. ??. ?` ,.; c;;' ?? --? `?_ ,,,? { -ice , ,..? ?` - ? ; _.. _ `? { ?_.: ?? ?-v PRAECIPE FOR LISMG CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) Elwood Yohe, (Plaintiff) Vs. Graham Motor Company, et al. (Defendant) No. 2269 ) 2007 Terns 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complamt,etc.). Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint 2. Identify counsel who will argue cases: (a) for plaintiff: Jeffrey M. Zielinski; Nelson, Levine, de Luca & Horst (Name and Address)' Four Sentry Parkway, Blue Bell, PA 19422 (b) for defendant: Vincent L. Champion; Rhoads & S?ino?n LLP 1 S. Market Sq. P.O. Bo?6; *36%9g, PA 17108-1146 3. I will notify all parties in writing within two days that this case has been listed for argument. Vincent L. Champion 4. Argument Court Date: November 21, 2007 Vincent L. Champion Date: October 18, 2007 Print your name Graham Motor Company Attorney for Detendant t r Q ? ` d< ., co NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIF BY: JEFFREY M. ZIELINSK19 ESQUIRE FS IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 EL W OOD YOHE Plaintiff(s) V. GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA NON-ARBITRATION MATTER CIVIL ACTION NO: 07-2265 THIRD AMENDED COMPLAINT Plaintiff, by and through undersigned counsel, and by way of Amended Complaint against Defendants, hereby avers: 1 • Plaintiff is an adult individual who, at all times relevant hereto, owned and resided at the address set forth above. 2. Defendant General Motors Corporation ("GM") is, upon information and belief, a business entity organized and existing under the laws of Michigan, with a principal place of business at 30600 Telegraph Road, Bingham Farms, Michigan. Defendant GM regularly conducts business in the Commonwealth of Pennsylvania, including the County of Cumberland. 3. GM is, upon information and belief, a corporate entity that markets, designs, manufactures, assembles, distributes, inspects and/or offers for sale, inter alia, motor vehicles including a certain 2000 Chevrolet K1500 (VIN 2GCEK19T5Y1254807) ("the vehicle"). 4. Defendant Graham Motors Company ("Graham") is, upon information and belief, a business entity organized and existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at the address in the above caption. 5. Graham is, upon information and belief, specially trained and authorized by GM to perform automobile diagnostic, inspection, analysis and repair services to consumers such as plaintiff. 6. The vehicle appeared to operate properly, with little or no indication that there was anything wrong; however, an issue appeared in the summer of 2006 relating to the intermittent sounding of the horn of said vehicle. As a result of this issue, plaintiff brought the vehicle to Graham for inspection, diagnosis, service and/or repair. 7. On or about July 6, 2006, plaintiff brought the vehicle to Graham and informed Graham of any/all information requested of him relative to the vehicle's operation. Plaintiff was informed that there was a problem with the circuit board of the vehicle located in the engine compartment of the vehicle, and that the problem was fixed and the vehicle was in proper working order. Thus, relying on Graham's implicit and explicit assertions as to the vehicle's soundness and fitness, plaintiff continued to operate the vehicle. 8. On or about August 8, 2006, while the vehicle was parked on plaintiffs property, it suddenly and without warning erupted into flames, which apparently originated in the engine compartment and manifested itself into the passenger compartment thru the windshield, firewall and other windows in the vehicle. 9. The fire in the engine compartment quickly spread to the remainder of the vehicle and to the plaintiffs shed, which was next to where said vehicle was parked. As a result of the shed catching fire, excessive heat from the fire caused damages to the plaintiff s house itself. 14. Thus, as a result of the defective nature of the vehicle, and/or as a result of the negligent servicing (etc.) of the vehicle (as is more fully described herein), the vehicle was destroyed in the fire, as was plaintiffs real and personal property, many of his personal possessions; moreover, this incident caused plaintiff to incur additional expenses and hardships besides. COUNTI NEGLIGENCE OF GM the same were fully set forth at length. 12. The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of GM, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i failing to properly build, manufacture, assemble, inspect, diagnose, service, repair and/or test the vehicle; ii. failing to determine that the vehicle was not in compliance with applicable standards and/or specifications, not limited to, but including applicable safety standards set forth under Pennsylvania law. iii. failing to properly recommend to and/or warn plaintiff that the vehicle was defective and could fail in the manner described herein; iv. failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of. b. failing to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; Plaintiff incorporates herein by reference all the preceding paragraphs, as though C. failing to adequately warn plaintiff and others of the dangers and hazardous conditions of the vehicle, which GM knew or should have known would result from the careless and negligent conduct set forth in subparagraph (a)(i.-iv.) above; d. failing to provide, establish, and/or follow proper and adequate control of its employees so as to avoid the problems enumerated in subparagraph (a)(i.-iv.) above; and e. failing to perform the services set forth in subparagraph (a)(i.-iv.) above in conformity with the prevailing industry specifications and standards, not limited to, but including applicable safety standards set forth under Pennsylvania law. f, otherwise acting negligently under the circumstances. 13. As a result of the damages directly and proximately caused by the negligence and/or other unlawful conduct of GM, plaintiff sustained and incurred damages to his real and personal property, along with the imposition of additional expenses and hardship besides in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against GM - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT II STRICT LIABILITY OF GM 14. Plaintiff incorporates herein by reference all the preceding paragraph,, as though the same were fully set forth at length. 15. GM is engaged, and at all times relevant hereto was engaged, in the business of inter alia, marketing, selling and distributing motor vehicles, including the vehicle to consumers such as plaintiff. 16. GM distributed and/or sold the vehicle in a defective condition, unreasonably dangerous to plaintiff and his property. 17. GM knew or should have known that the vehicle would, and did, reach the plaintiff without substantial change from the condition in which originally sold. 18. The aforementioned defects consisted of (a) design defects; (b) manufacturing defects; (c) component defects; (d) a failure to warn of the design, manufacturing, and/or component defects; and/or (e) a failure to properly instruct as to the appropriate operating and maintenance procedures for safe use of the vehicle and/or its components. 19. For these reasons, GM is strictly liable to plaintiff for his damages under Section 402A of the Restatement (2d) of Torts, the Restatement (3d) of Torts, and the applicable caselaw of the Commonwealth of Pennsylvania. 20. As a direct and proximate result of the aforementioned defects, Plaintiff sustained and incurred damage to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against GM - jointly and/or severally along with the other defendant(s) in this action in an amount in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT III NEGLIGENCE OF GRAHAM 21. Plaintiff incorporates herein by reference all the preceding paragraphs, as thou the same were fully set forth at length. 22. The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of Graham, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i failing to properly inspect, diagnose, service, repair and/or test the vehicle; ii. failing to determine that the vehicle was not in compliance with applicable standards and/or specifications; iii, failing to properly recommend to and/or warn plaintiff that the vehicle was defective and could fail in the manner described herein; iv. failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of. b. failing to adequately instruct and/or supervise its employees agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; C. failing to adequately warn plaintiff and others of the dangers and hazardous conditions of the vehicle, which Graham knew or should have known would result from the careless and negligent conduct set forth in subparagraph (a)(i.-iv.) above; d. failing to provide, establish, and/or follow proper and adequate control of its employees so as to avoid the problems enumerated in subparagraph (a)(i.-iv.) above; and e. failing to perform the services set forth in subparagraph (a)(i.-iv.) above in conformity with the prevailing industry specifications and standards. 23. As a result of the damages directly and proximately caused by the negligence and/or other unlawful conduct of Graham, plaintiff sustained and incurred damages to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against Graham - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. NELSON LEVINE de LUCA & HORST, LLC BY. EY M. ZIELINSKI, Dated: November 28 2007 ATTORNEYS FOR PLAINTIFFS VERIFICATION I, Jeffrey M. Zielinski, being duly sworn according to law, hereby depose and say that I am counsel for plaintiff State Farm Fire & Casualty Company (the real party at interest) as subrogee of the plaintiff named in this action's caption, and that I am authorized by same to make this verification on its behalf, and that for all facts averred in the attached Amended Complaint are not of my own personal knowledge, I have received the necessary information from State Farm, and that all such facts are true and correct to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. BY.- 1 REY ZIELIN21, ATTORNEY FOR PLAINTIFF Dated: November 28, 2007 NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) NON-ARBITRATION MATTER CIVIL ACTION NO: 07-2265 CERTIFICATE OF SERVICE I, Jeffrey M. Zielinski, Esquire, hereby certify that a true and correct copy of the Third Amended Complaint was served on November 28, 2007, upon counsel listed below by United States Mail, postage prepaid. Vincent L. Champion Rhoads & Sinon LLP One South Market Square, Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Jeffrey Cohen, Esquire Meyer Darragh Buckler Bebenek & Eck, LLC U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 NELSON LEVINE de LUCA & HORST, LLC BY FREY M. ZIELINSKI, ATTORNEYS FOR PLAINTIFF Date: November 28, 2007 "r? t ? t? ?-i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 011- ELWOOD YOHE CIVIL ACTION NO: 44;-2269 Plaintiff DEFENDANT, GENERAL MOTORS CORPORATION'S ANSWER AND NEW V. MATTER TO THIRD AMENDED COMPLAINT GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY, Filed on Behalf of Defendant, GENERAL MOTORS CORPORA'T'ION Defendants NOTICE TO PLEAD TO PLAINTIFF: You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment ma bee d against you. C un f efendant, ENERAL MOTORS CORPORATION Counsel of Record for this Party: JEFFREY COHEN, ESQUIRE PA I.D. #76512 MEYER, DARRAGH, BUCKLER, BEBENF,K & ECK, P.L.L.C. U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 (412) 261-6600 (412) 471-2754 - FAX TRIAL BY JURY DEMANDED I P0829766.1) T IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA O-7 ELWOOD YORE, CIVIL ACTION NO: -86-2269 Plaintiff, V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY, TRIAL BY JURY DEMANDED Defendants. DEFENDANT GENERAL MOTORS CORPORATION'S ANSWER AND NEW MATTER TO THIRD AMENDED COMPLAINT 1. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 2. General Motors admits that it is a Delaware Corporation with its principal place of business in the State of Michigan. General Motors further admits that it conducts business in the Commonwealth of Pennsylvania, including Cumberland County. General Motors denies each and every remaining allegation in this paragraph. 3. General Motors admits that it markets, designs, in part, manufactures, in part, assembles, in part, and distributes motor vehicles. General Motors admits that it designed, in part, manufactured, in part, and distributed a 2000 Chevrolet 1500, VIN # 2GCEK19T5Y1254807. General Motors denies each and every remaining allegation in this paragraph. {P0829766.1} 4. This paragraph is not directed towards General Motors and, as such, no response is required. To the extent a response is required, General Motors denies each and every allegation in this paragraph. 5. General Motors admits that Graham Motors Company ("Graham") is an authorized dealer of General Motors vehicles. General Motors further admits that Graham is authorized by General Motors to comply with warranty agreements on General Motors vehicles. 6. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 7. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 7 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 8. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 8 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 9. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 9 2 (P0829766.11 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 10. General Motors denies each and every allegation in this paragraph. COUNTI NEGLIGENCE OF GM 11. General Motors incorporates herein by reference all the foregoing paragraphs as though same were fully set forth at length. 12. General Motors denies each and every allegation in this paragraph, including all of its sub-parts. 13. General Motors denies each and every allegation in this paragraph. WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against Plaintiff on all claims expressly set forth in Count I of Plaintiffs Third Amended Complaint. COUNT II STRICT LIABILITY OF GM 14. General Motors incorporates herein by reference all the foregoing paragraphs as though same were fully set forth at length. 15. General Motors admits that it markets and distributes motor vehicles. General Motors admits that it distributed a 2000 Chevrolet 1500, VIN # 2GCEK19T5Y1254807. 16. General Motors denies each and every allegation in this paragraph. 17. General Motors denies each and every allegation in this paragraph. 3 (P0829766.1) 18. General Motors denies each and every allegation in this paragraph, including all of its sub-parts. 19. General Motors denies each and every allegation in this paragraph. 20. General Motors denies each and every allegation in this paragraph. WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against Plaintiff on all claims expressly set forth in Count II of Plaintiff's Third Amended Complaint. COUNT III NEGLIGENCE OF GRAHAM 21.-23. The allegations contained in paragraphs 21 through 23 of Plaintiff's Amended Complaint are directed to a co-defendant and, as such, no responsive pleading is required by General Motors. WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against Plaintiff on all claims expressly set forth in Count III of Plaintiff's Third Amended Complaint. NEW MATTER By way of further answer to the allegations contained within the Third Amended Complaint, General Motors sets forth the following New Matter: 28. General Motors raises as a complete defense to some or all of Plaintiffs claims for damages the applicable statute of limitations. 4 { 1`0829766.1) 29. Count I of Plaintiff's Third Amended Complaint, read in its entirety, fails to state a claim or cause of action against General Motors upon which relief may be granted. 30. Count II of Plaintiffs Third Amended Complaint, read in its entirety, fails to state a claim or cause of action against General Motors upon which relief may be granted. 31. General Motors raises, as a complete defense to some or all of Plaintiff's claims for damages, Plaintiff s assumption of a known risk. 32. There exists no proximate cause between any of Plaintiff's alleged injuries and any alleged act or omission on the part of General Motors. Therefore, Plaintiff is not entitled to recover from General Motors. 33. The acts and/or omissions of other individuals or entities, over which General Motors exercised no control, constitute intervening or superseding causes for the damages allegedly sustained by Plaintiff. 34. Plaintiffs alleged damages were solely the result of acts, omissions and/or tortious conduct of other persons or entities over which General Motors exercised no control, including, but not limited to, Plaintiffs own negligent maintenance and/or operation of the vehicle,prior to and at the time of the alleged incident. 35. General Motors believes, and therefore avers, that any of the damages alleged by Plaintiff were directly or proximately caused by Plaintiffs own contributory negligence. As such, all of Plaintiffs claims are barred, in whole or in part, by the applicable provisions of the Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. 22 §7102. 36. The injuries and/or damages complained of may have been the direct and proximate result of Plaintiffs failure to take all reasonable steps to reduce and/or mitigate the potential for damage. Therefore, Plaintiff is not entitled to recover against General Motors. 5 ; { P0829766.1 37. General Motors believes, and therefore avers, that the injuries and/or damages alleged by Plaintiff in the Third Amended Complaint are the direct and proximate result of misuse and/or abuse of the vehicle by Plaintiff and/or others prior to and/or at the time of the incident. A General Motors believes, and therefore avers, that the subject vehicle may have undergone an unforeseeable substantial change, alteration or modification after it left the possession, custody and control of General Motors. This is raised as a complete defense to some or all of Plaintiff's claims for damages. 39. General Motors is entitled to a set-off from any recovery against it to the extent of any and all benefits paid or payable to or on behalf of Plaintiff from any and all collateral sources to the extent such a set-off is permissible under the law applicable to this case. 40. The express warranties contained in the New Vehicle Warranty Booklet that would have been provided with the vehicle at the time of original sale are exclusive and were given in lieu of all other warranties, express or implied. Further, General Motors complied with the terms and conditions of any and all warranties applicable to this claim. This is raised as a complete defense to some or all of Plaintiff's claims for damages. 41. To the extent that the subject vehicle was, in fact, designed in part, manufactured in part, and distributed by General Motors, the vehicle complied with all applicable Federal Motor Vehicle Safety Standards which existed at the time the vehicle was originally designed in part, manufactured in part, and distributed by General Motors. Therefore, Plaintiff is not entitled to recover against General Motors in this action. 42. To the extent that the subject vehicle was, in fact, designed in part, manufactured in part, and distributed by General Motors, the vehicle complied with the state of the art at the 6 (P0829766. I) time it was designed in part, manufactured in part, and distributed by General Motors, The methods, standards and techniques utilized by General Motors were in conformity with the generally recognized state of knowledge in the automotive field at the time of the manufacture of the subject vehicle. WHEREFORE, General Motors demands judgment in its favor dismissing, with prejudice, Plaintiff's Third Amended Complaint and awarding all its costs and expenses of suit, including attorneys' fees, together with such other and further relief as the Court deems appropriate. Respectfully submitted, MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. By. JE /FXY COHEN, ESQUIRE U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 (412) 261-6600 (412) 471-2754 - FAX Counsel for Defendant, GENERAL MOTORS CORPORATION 7 (P0829766.1} VERIFICATION STATE OF MICHIGAN COUNTY OF WAYNE SS. Betsy L. Mullally being first duly sworn, deposes and says that she is authorized pursuant to applicable law and rules to verify, on behalf of General Motors Corporation, the foregoing DEFENDANT GENERAL MOTORS CORPORATION'S ANSWER AND NEW MATTER TO THIRD AMENDED COMPLAINT and that the same are hereby verified on behalf of General Motors Corporation. Betsy . ul ally Authorized Agent Sworn to and subscribed before me this 14th day of December, 2007. -Lary Public APRIL M. HICKS Notary Public, State of Mlohlgan County of Wayne My Commission Exmires ay 11, 201A Acting in the County rgf Re: Elwood Yohe. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading has been forwarded to all counsel of record by: t/ U.S. First Class Mail, Postage Paid Hand Delivery Certified Mail, Return Receipt Requested Facsimile Transmittal UPS Delivery at the following address: Jeffrey M. Zielinski, Esquire Nelson Levine deLuca &Horst, LLC Four Sentry Parkway, Sutie 300 Blue Bell, PA 19422 (Counsel for Plaintif Vincent Champion, Esquire Rhodes & Sinon, LLP One South Market Street, 12'h Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (Counsel for Graham Motors Company) MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. Dated:_ tZAAUXn By: COHEN, ESQUIRE { POR29766.1 -n < C7 F r -. ?iylfl r NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 LLWVVV YUHE Plaintiff(s) V. GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA NON-ARBITRATION MATTER CIVIL ACTION NO: 07426.1' FOURTH AMENDED COMPLAINT Plaintiff, by and through undersigned counsel, and by way of Amended Complaint against Defendants, hereby avers: 1. Plaintiff is an adult individual who, at all times relevant hereto, owned and resided at the address set forth above. 2. Defendant General Motors Corporation ("GM") is, upon information and belief, a business entity organized and existing under the laws of Michigan, with a principal place of business at 30600 Telegraph Road, Bingham Farms, Michigan. Defendant GM regularly conducts business in the Commonwealth of Pennsylvania, including the County of Cumberland. 3. GM is, upon information and belief, a corporate entity that markets, designs, manufactures, assembles, distributes, inspects and/or offers for sale, inter alia, motor vehicles, including a certain 2000 Chevrolet K1500 (VIN 2GCEK19T5Y1254807) ("the vehicle"). 4. Defendant Graham Motors Company ("Graham") is, upon information and belief, a business entity organized and existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at the address in the above caption. 5. Graham is, upon information and belief, specially trained and authorized by GM to perform automobile diagnostic, inspection, analysis and repair services to consumers such as plaintiff. 6. The vehicle appeared to operate properly, with little or no indication that there was anything wrong; however, an issue appeared in the summer of 2006 relating to the intermittent sounding of the horn of said vehicle. As a result of this issue, plaintiff brought the vehicle to Graham for inspection, diagnosis, service and/or repair. 7. On or about July 6, 2006, plaintiff brought the vehicle to Graham and informed Graham of any/all information requested of him relative to the vehicle's operation. Plaintiff was informed that there was a problem with the circuit board of the vehicle located in the engine compartment of the vehicle, and that the problem was fixed and the vehicle was in proper working order. Thus, relying on Graham's implicit and explicit assertions as to the vehicle's soundness and fitness, plaintiff continued to operate the vehicle. 8. On or about August 8, 2006, while the vehicle was parked on plaintiff's property, it suddenly and without warning erupted into flames, which apparently originated in the engine compartment and manifested itself into the passenger compartment thru the windshield, firewall and other windows in the vehicle. 9. The fire in the engine compartment quickly spread to the remainder of the vehicle and to the plaintiff's shed, which was next to where said vehicle was parked. As a result of the shed catching fire, excessive heat from the fire caused damages to the plaintiff's house itself. 10. Thus, as a result of the defective nature of the vehicle, and/or as a result of the negligent servicing (etc.) of the vehicle (as is more fully described herein), the vehicle was destroyed in the fire, as was plaintiff's real and personal property, many of his personal possessions; moreover, this incident caused plaintiff to incur additional expenses and hardships besides. COUNTI NEGLIGENCE OF GM 11. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 12. The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of GM, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i. failing to properly build, manufacture, assemble, inspect, diagnose, service, repair and/or test the vehicle; ii. failing to determine that the vehicle was not in compliance with applicable standards and/or specifications, not limited to, but including applicable safety standards set forth under Pennsylvania law. failing to properly recommend to and/or warn plaintiff that the vehicle was defective and could fail in the manner described herein; iv. failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of b. failing to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; C. failing to adequately warn plaintiff and others of the dangers and hazardous conditions of the vehicle, which GM knew or should have known would result from the careless and negligent conduct set forth in subparagraph (a)(i.-iv.) above; d. failing to provide, establish, and/or follow proper and adequate control of its employees so as to avoid the problems enumerated in subparagraph (a)(i.-iv.) above; and e. failing to perform the services set forth in subparagraph (a)(i.-iv.) above in conformity with the prevailing industry specifications and standards, not limited to, but including applicable safety standards set forth under Pennsylvania law. £ otherwise acting negligently under the circumstances. 13. As a result of the damages directly and proximately caused by the negligence and/or other unlawful conduct of GM, plaintiff sustained and incurred damages to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against GM - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT II STRICT LIABILITY OF GM 14. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 15. GM is engaged, and at all times relevant hereto was engaged, in the business of inter alia, marketing, selling and distributing motor vehicles, including the vehicle, to consumers such as plaintiff. 16. GM distributed and/or sold the vehicle in a defective condition, unreasonably dangerous to plaintiff and his property. 17. GM knew or should have known that the vehicle would, and did, reach the plaintiff without substantial change from the condition in which originally sold. 18. The aforementioned defects consisted of: (a) design defects; (b) manufacturing defects; (c) component defects; (d) a failure to warn of the design, manufacturing, and/or component defects; and/or (e) a failure to properly instruct as to the appropriate operating and maintenance procedures for safe use of the vehicle and/or its components. 19. For these reasons, GM is strictly liable to plaintiff for his damages under Section 402A of the Restatement (2d) of Torts, the Restatement (3d) of Torts, and the applicable caselaw of the Commonwealth of Pennsylvania. 20. As a direct and proximate result of the aforementioned defects, Plaintiff sustained and incurred damage to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against GM - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00), plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT III NEGLIGENCE OF GRAHAM 21. Plaintiff incorporates herein by reference all the preceding paragraphs, as though the same were fully set forth at length. 22. The aforementioned damages were the direct and proximate result of the negligence, carelessness, and/or other unlawful conduct of Graham, by and through its employees, agents, technicians, and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i. failing to properly inspect, diagnose, service, repair and/or test the vehicle; ii. failing to properly recommend to and/or warn plaintiff that the vehicle was defective and could fail in the manner described herein; iii. failing to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of. b. failing to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph (a)(i.-iv.) above; C. failing to adequately warn plaintiff and others of the dangers and hazardous conditions of the vehicle, which Graham knew or should have known would result from the careless and negligent conduct set forth in subparagraph (a)(i.-iv.) above; d. failing to provide, establish, and/or follow proper and adequate control of its employees so as to avoid the problems enumerated in subparagraph (a)(i.-iv.) above; and 23. As a result of the damages directly and proximately caused by the negligence and/or other unlawful conduct of Graham, plaintiff sustained and incurred damages to his real and personal property, along with the imposition of additional expenses and hardship besides, in an amount in excess of Fifty Thousand Dollars ($50,000.00). WHEREFORE, Plaintiff demands judgment in his favor and against Graham - jointly and/or severally along with the other defendant(s) in this action - in an amount in excess of Fifty Thousand Dollars ($50,000.00) plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. NELSON LEVINE de LUCA & HORST, LLC BY: JEFFREY M. ZIE INSK- I, ?- ATTORNEYS FOR PLAINTIFFS Dated: December 21, 2007 VERIFICATION I, Jeffrey M. Zielinski, being duly sworn according to law, hereby depose and say that I am counsel for plaintiff State Farm Fire & Casualty Company (the real party at interest) as subrogee of the plaintiff named in this action's caption, and that I am authorized by same to make this verification on its behalf, and that for all facts averred in the attached Amended Complaint are not of my own personal knowledge, I have received the necessary information from State Farm, and that all such facts are true and correct to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. BY: FFREY M. ZIELINSKI, ATTORNEY FOR PLAINTIFF Dated: December 21, 2007 0 NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) NON-ARBITRATION MATTER CIVIL ACTION NO: 07-2265 CERTIFICATE OF SERVICE I, Jeffrey M. Zielinski, Esquire, hereby certify that a true and correct copy of the Third Amended Complaint was served on November 28, 2007, upon counsel listed below by United States Mail, postage prepaid. Vincent L. Champion Rhoads & Sinon LLP One South Market Square, Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Jeffrey Cohen, Esquire Meyer Darragh Buckler Bebenek & Eck, LLC U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 NELSON LEVINE de LUCA & HORST, LLC BY: FFREY M. ZIELINSKI, --- ATTORNEYS FOR PLAINTIFF Date: November 28, 2007 CES --.i -n 21 23 al Cif rn .CL 3 tt7 ^C IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA o-7 ELWOOD YOHE CIVIL ACTION NO: 464-2269 Plaintiff DEFENDANT, GENERAL MOTORS CORPORATION'S ANSWER AND NEW V. MATTER TO FOURTH AMENDED COMPLAINT GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY, Filed on Behalf of Defendant, GENERAL MOTORS CORPORATION Defendants NOTICE TO PLEAD TO PLAINTIFF: You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may ntered against you. ounsel r Defendant, GENERAL MOTORS CORPORATION Counsel of Record for this Party: JEFFREY COHEN, ESQUIRE PA I.D. #76512 MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 (412) 261-6600 (412) 471-2754 - FAX TRIAL BY JURY DEMANDED (P0831767.1) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELWOOD YOHE, I CIVIL ACTION NO: X2269 Plaintiff, V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY, TRIAL BY JURY DEMANDED Defendants. DEFENDANT GENERAL MOTORS CORPORATION'S ANSWER AND NEW MATTER TO FOURTH AMENDED COMPLAINT 1. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 2. General Motors admits that it is a Delaware Corporation with its principal place of business in the State of Michigan. General Motors further admits that it conducts business in the Commonwealth of Pennsylvania, including Cumberland County. General Motors denies each and every remaining allegation in this paragraph. 3. General Motors admits that it markets, designs, in part, manufactures, in part, assembles, in part, and distributes motor vehicles. General Motors admits that it designed, in part, manufactured, in part, and distributed a 2000 Chevrolet 1500, VIN # 2GCEK19T5Y1254807. General Motors denies each and every remaining allegation in this paragraph. (P0831767.1) 4. This paragraph is not directed towards General Motors and, as such, no response is required. To the extent a response is required, General Motors denies each and every allegation in this paragraph. 5. General Motors admits that Graham Motors Company ("Graham") is an authorized dealer of General Motors vehicles. General Motors further admits that Graham is authorized by General Motors to comply with warranty agreements on General Motors vehicles. 6. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 7. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 7 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 8. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 8 and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 9. After reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 9 2 (P0831767.1) and therefore specifically denies the allegations. Strict proof of the same is demanded at the time of trial. 10. General Motors denies each and every allegation in this paragraph. COUNTI NEGLIGENCE OF GM 11. General Motors incorporates herein by reference all the foregoing paragraphs as though same were fully set forth at length. 12. General Motors denies each and every allegation in this paragraph, including all of its sub-parts. 13. General Motors denies each and every allegation in this paragraph. WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against Plaintiff on all claims expressly set forth in Count I of Plaintiffs Fourth Amended Complaint. COUNT II STRICT LIABILITY OF GM 14. General Motors incorporates herein by reference all the foregoing paragraphs as though same were fully set forth at length. 15. General Motors admits that it markets and distributes motor vehicles. General Motors admits that it distributed a 2000 Chevrolet 1500, VIN # 2GCEK19T5Y1254807. 16. General Motors denies each and every allegation in this paragraph. 17. General Motors denies each and every allegation in this paragraph. 3 tP0831767.1} 18. General Motors denies each and every allegation in this paragraph, including all of its sub-parts. 19. General Motors denies each and every allegation in this paragraph. 20. General Motors denies each and every allegation in this paragraph. WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against Plaintiff on all claims expressly set forth in Count II of Plaintiffs Fourth Amended Complaint. COUNT III NEGLIGENCE OF GRAHAM 21.-23. The allegations contained in paragraphs 21 through 23 of Plaintiff's Amended Complaint are directed to a co-defendant and, as such, no responsive pleading is required by General Motors. WHEREFORE, General Motors demands judgment be entered in favor of General Motors and against Plaintiff on all claims expressly set forth in Count III of Plaintiffs Fourth Amended Complaint. NEW MATTER By way of further answer to the allegations contained within the Fourth Amended Complaint, General Motors sets forth the following New Matter: 28. General Motors raises as a complete defense to some or all of Plaintiff's claims for damages the applicable statute of limitations. 4 tP0831767.1) 29. Count I of Plaintiff s Fourth Amended Complaint, read in its entirety, fails to state a claim or cause of action against General Motors upon which relief may be granted. 30. Count II of Plaintiffs Fourth Amended Complaint, read in its entirety, fails to state a claim or cause of action against General Motors upon which relief may be granted. 31. General Motors raises, as a complete defense to some or all of Plaintiffs claims for damages, Plaintiffs assumption of a known risk. 32. There exists no proximate cause between any of Plaintiff's alleged injuries and any alleged act or omission on the part of General Motors. Therefore, Plaintiff is not entitled to recover from General Motors. 33. The acts and/or omissions of other individuals or entities, over which General Motors exercised no control, constitute intervening or superseding causes for the damages allegedly sustained by Plaintiff. 34. Plaintiff's alleged damages were solely the result of acts, omissions and/or tortious conduct of other persons or entities over which General Motors exercised no control, including, but not limited to, Plaintiffs own negligent maintenance and/or operation of the vehicle prior to and at the time of the alleged incident. 35. General Motors believes, and therefore avers, that any of the damages alleged by Plaintiff were directly or proximately caused by Plaintiff's own contributory negligence. As such, all of Plaintiff's claims are barred, in whole or in part, by the applicable provisions of the Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. 22 §7102. 36. The injuries and/or damages complained of may have been the direct and proximate result of Plaintiff's failure to take all reasonable steps to reduce and/or mitigate the potential for damage. Therefore, Plaintiff is not entitled to recover against General Motors. 5 tP0831767.1) 37. General Motors believes, and therefore avers, that the injuries and/or damages alleged by Plaintiff in the Fourth Amended Complaint are the direct and proximate result of misuse and/or abuse of the vehicle by Plaintiff and/or others prior to and/or at the time of the incident. 38. General Motors believes, and therefore avers, that the subject vehicle may have undergone an unforeseeable substantial change, alteration or modification after it left the possession, custody and control of General Motors. This is raised as a complete defense to some or all of Plaintiff's claims for damages. 39. General Motors is entitled to a set-off from any recovery against it to the extent of any and all benefits paid or payable to or on behalf of Plaintiff from any and all collateral sources to the extent such a set-off is permissible under the law applicable to this case. 40. The express warranties contained in the New Vehicle Warranty Booklet that would have been provided with the vehicle at the time of original sale are exclusive and were given in lieu of all other warranties, express or implied. Further, General Motors complied with the terms and conditions of any and all warranties applicable to this claim. This is raised as a complete defense to some or all of Plaintiff's claims for damages. 41. To the extent that the subject vehicle was, in fact, designed in part, manufactured in part, and distributed by General Motors, the vehicle complied with all applicable Federal Motor Vehicle Safety Standards which existed at the time the vehicle was originally designed in part, manufactured in part, and distributed by General Motors. Therefore, Plaintiff is not entitled to recover against General Motors in this action. 42. To the extent that the subject vehicle was, in fact, designed in part, manufactured in part, and distributed by General Motors, the vehicle complied with the state of the art at the 6 {P0831767.11 time it was designed in part, manufactured in part, and distributed by General Motors. The methods, standards and techniques utilized by General Motors were in conformity with the generally recognized state of knowledge in the automotive field at the time of the manufacture of MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. the subject vehicle. WHEREFORE, General Motors demands judgment in its favor dismissing, with prejudice, Plaintiffs Fourth Amended Complaint and awarding all its costs and expenses of suit, including attorneys' fees, together with such other and further relief as the Court deems appropriate. Respectfully submitted, COHEN, ESQUIRE Counsel for Defendant, GENERAL MOTORS CORPORATION 7 {P0831767.1} U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 (412) 261-6600 (412) 471-2754 - FAX VERIFICATION STATE OF MICHIGAN COUNTY OF WAYNE SS. Diane L. Rorai being first duly sworn, deposes and says that she is authorized pursuant to applicable law and rules to verify, on behalf of General Motors Corporation, the foregoing DEFENDANT GENERAL MOTORS CORPORATION'S ANSWER AND NEW MATTER TO FOURTH AMENDED COMPLAINT and that the same are hereby verified on behalf of General Motors Corporation. Diane L. Rorai Authorized Agent Sworn to and subscribed before me this 11 th day of January, 2008. Notary Public S D. WHITE Rho" Re: Elwood Yohe WSW W k i wba W *4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading has been forwarded to all counsel of record by: '/ U.S. First Class Mail, Postage Paid Hand Delivery Certified Mail, Return Receipt Requested Facsimile Transmittal UPS Delivery at the following address: Jeffrey M. Zielinski, Esquire Nelson Levine deLuca &Horst, LLC Four Sentry Parkway, Sutie 300 Blue Bell, PA 19422 (Counsel for Plaintiffi Vincent Champion, Esquire Rhodes & Sinon, LLP One South Market Street, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (Counsel for Graham Motors Company) Dated: l 1s 200 6 T MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. By• J F Y COHEN, ESQUIRE {PO831767.11 ? ? C -' .? -....? ?__'if ?:. - 1 "?? s" i _ r't 1 ?- ? ? ? ( ?, , ti , K;J ":L ..... ?j? Marc T. Levin, Esquire Attorney I.D. No. 70294 Vincent L. Champion, Esquire Attorney I.D. No. 88411 RHOADS & SINON LLP (717) 233-5731 One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company ELWOOD YOHE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY NO. 07-2269 CIVIL Defendants NOTICE TO PLEAD To: Jeffrey M. Zielinski, Esquire Nelson Levine de Luca & Horst Four Sentry Parkway Blue Bell, PA 19422 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER TO PLAINTIFF'S FOURTH AMENDED COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. RHOADS & SINON LLP Marc T. Levin Vincent L. Champion One South Market Square, 12th Floor P. O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Defendant Graham Motor Company, Inc. Marc T. Levin, Esquire Attorney I.D. No. 70294 Vincent L. Champion, Esquire Attorney I.D. No. 88411 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company ELWOOD YOHE, Plaintiff V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2269 CIVIL DEFENDANT GRAHAM MOTOR COMPANY, INC.'S ANSWER TO PLAINTIFF'S FOURTH AMENDED COMPLAINT NOW COMES Defendant Graham Motor Company, Inc.' ("Graham") by and through its counsel, Rhoads & Sinon LLP, and files the within Answer to Plaintiff's Fourth Amended Complaint and avers as follows: Denied. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. Proof thereof, if relevant, is demanded. 2. Denied. After reasonable investigation the Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. Proof thereof, if relevant, is demanded. 1 Graham is incorrectly identified in the caption. The proper identification is Graham Motor Company, Inc. 679047.1 3. Denied. After reasonable investigation the Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. Proof thereof, if relevant, is demanded. 4. Denied in part. It is admitted only that Graham is a business organized under the laws of the Commonwealth of Pennsylvania. It is denied that Graham's business address is set forth in the above caption, as no address is contained therein. Graham's business address is 1402 Holly Pike; Carlisle, PA 17015. 5. Denied in part. It is admitted only that Graham is an authorized dealer of General Motors vehicles. The remainder of this paragraph is denied. Proof thereof, if relevant, is demanded. 6. Denied. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. Proof thereof, if relevant, is demanded. 7. Denied in part. It is admitted only that in July of 2006 Plaintiff brought a vehicle to Graham for service and that Graham subsequently provided service to the vehicle and the vehicle was returned to the Plaintiff. With regard to the remainder of this paragraph, after reasonable investigation Graham is without knowledge or information sufficient to form a belief as to the truth of these averments. Proof thereof, if relevant, is demanded. 8. Denied. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. Proof thereof, if relevant, is demanded. -2- 9. Denied. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. Proof thereof, if relevant, is demanded. 10. Denied. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. Proof thereof, if relevant, is demanded. COUNT I NEGLIGENCE OF GRAHAM MOTORS 11. This paragraph incorporates allegations contained in paragraphs 1 through 10. Graham thereof realleges and incorporates by reference its responses to paragraphs 1 through 10. To the extent a responsive pleading is required, the same is denied. Proof thereof, if relevant, is demanded. 12. The averments of this paragraph and its subparts are directed to another defendant and, therefore, require no answer by Graham. To the extent an answer is required, the averments of this paragraph and its subparts constitute conclusions of law to which no response is required. To the extent a responsive pleading is required, the same is denied. Proof thereof, if relevant, is demanded. 13. The averments of this paragraph are directed to another defendant and, therefore, require no answer by Graham. To the extent an answer is required, the averments of this paragraph and its subparts constitute conclusions of law to which no response is required. To the extent a responsive pleading is required, the same is denied. Proof thereof, if relevant, is demanded. -3- COUNT II STRICT LIABILITY OF GRAHAM MOTORS 14. This paragraph incorporates the allegations contained in paragraphs 1 through 13. Graham therefore realleges and incorporates by reference its responses to paragraphs 1 through 13. To the extent a responsive pleadings is required, the same is denied. Proof thereof, if relevant, is demanded. 15. The averments of this paragraph are directed to another defendant and, therefore, require no answer by Graham. To the extent an answer is required, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. Proof thereof, if relevant, is demanded. 16. The averments of this paragraph are directed to another defendant and, therefore, require no answer by Graham. To the extent an answer is required, the averments of this paragraph constitute conclusions of law to which no response is required. To the extent a responsive pleading is required, the same is denied. Proof thereof, if relevant, is demanded. 17. The averments of this paragraph are directed to another defendant and, therefore, require no answer by Graham. To the extent an answer is required, the averments of this paragraph constitute conclusions of law to which no response is required. To the extent a responsive pleading is required, the same is denied. Proof thereof, if relevant, is demanded. 18. The averments of this paragraph are directed to another defendant and, therefore, require no answer by Graham. To the extent an answer is required, the averments of this paragraph and its subparts constitute conclusions of law to which no response is required. To the extent a responsive pleading is required, the same is denied. Proof thereof, if relevant, is demanded. -4- 19. The averments of this paragraph are directed to another defendant and, therefore, require no answer by Graham. To the extent an answer is required, the averments of this paragraph constitute conclusions of law to which no response is required. To the extent a responsive pleading is required, the same is denied. Proof thereof, if relevant, is demanded. 20. The averments of this paragraph are directed to another defendant and, therefore, require no answer by Graham. To the extent an answer is required, the averments of this paragraph constitute conclusions of law to which no response is required. To the extent a responsive pleading is required, the same is denied. Proof thereof, if relevant, is demanded. COUNT III NEGLIGENCE OF GRAHAM 21. This paragraph incorporates the allegations contained in paragraphs 1 through 20. Graham therefore realleges and incorporates by reference its responses to paragraphs 1 through 20. To the extent a responsive pleading is required, the same is denied. Proof thereof, if relevant, is demanded. 22. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent a responsive pleading is required, the same is denied. Proof thereof, if relevant, is demanded. Moreover and by way of further response, Graham was not negligent, careless and did not conduct itself unlawfully. To the contrary: a. Graham did not fail to exercise reasonable care in the following manner: i. Graham did not fail to properly inspect, diagnose, service, repair and/or test the vehicle; ii. Graham did not fail to properly recommend to and/or warn Plaintiff that the vehicle was defective and could fail in the manner described within Plaintiff's Fourth Amended Complaint; -5- iii. Graham did not fail to provide Plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of. b. Graham did not fail to adequately instruct and/or supervise its employees, agents, technicians and/or servants so as to avoid the problems set forth in Plaintiff's Fourth Amended Complaint; Graham did not fail to adequately warn Plaintiff and others of the dangers and hazardous conditions of the vehicle, nor did it know of any hazardous conditions concerning the vehicle; d. Graham did not fail to provide, establish and/or follow proper and adequate control of its employees. 23. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent a responsive pleading is required, the same is denied. Proof thereof, if relevant, is demanded. Moreover and by way of further response, Graham was not negligent, careless and did not conduct itself unlawfully. NEW MATTER 24. Plaintiff's Complaint fails to state a claim upon which relief can be granted. 25. Plaintiff's claims are barred by estoppel. 26. Plaintiff's claims are barred by waiver. 27. Plaintiff's claims are barred by lathes. 28. Plaintiff's claims are barred by the statute of limitations. 29. Plaintiff's claims are barred by the doctrine of unclean hands. 30. Plaintiff has failed to name an essential party to this action. 31. The alleged negligence of Defendant Graham, same being specifically and unequivocally denied, was not the proximate cause of the alleged accident and injuries to the Plaintiff, if any. -6- 32. The alleged accident and injuries to the Plaintiff, if any, were proximately caused by persons other than Graham, over which Graham had no control or right to control. 33. Plaintiff, at times material hereto, was guilty of contributory negligence, such negligence being the proximate cause of the accident and injuries to the Plaintiff, and therefore Plaintiff's claims are barred or, in the alternative, diminished in accordance with the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. §7102. 34. At all times material hereto, Answering Defendant acted reasonably, properly and prudently and was at no time negligent. 35. At no time material hereto did Graham have either actual or constructive notice of the alleged condition that Plaintiff claims to have caused his harm. 36. Plaintiff's injuries, the same being specifically unequivocally denied, were the sole and proximate result of a preexisting condition, not related in any manner whatsoever to any act or omission of Graham. 37. No conduct on the part of Answering Defendant, its agents, servants or employees was a substantial factor in causing or contributing to any harm which the Plaintiff may have suffered. 38. Graham complied with any and all duties owed to the Plaintiff at all times material hereto. 39. Any damages allegedly sustained by Plaintiff were the result of intervening and superseding causes. 40. Graham acted reasonably at all times material hereto. 41. Plaintiff has failed to mitigate his damages, if any. 7- WHEREFORE, Defendant Graham Motor Company, Inc., respectfully requests that this Honorable Court enter judgment in its favor and against the plaintiff and that it be awarded appropriate costs and fees. RHOADS & SINON LLP B Y• '?;? - Marc T. Levin Vincent L. Champion One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company, Inc. -8- VERIFICATION Brent Hair, being duly sworn according to law, deposes and says that he is authorized to make this affidavit on behalf of Graham Motor Company, Inc.; that he has read the foregoing "Answer to Fourth Amended Complaint" and that the facts contained herein are true and correct to the best of his knowledge, information and belief. This verification is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications to authorities. Brent Hair a r? NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) P'"y CIVIL ACTION NO: 07-;2,W PLAINTIFF'S RESPONSE TO THE NEW MATTER OF DEFENDANT, GENERAL MOTORS CORPORATION TO THE FOURTH AMENDED COMPLAINT Plaintiff by and through undersigned counsel, herein replies to the New Matter filed by defendant General Motors Corporation and in so doing avers as follows: 28-42. Denied. These allegations all contain conclusions of law to which no response is required. By way of further answer, to the extent that these allegations also contain factual averments, after reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief as to the truthfulness of the averments thereof and, therefore, same is denied. Defendant waives any and all affirmative defenses not set forth in their New Matter pursuant to Pa. R.C.P. 1030. WHEREFORE, Plaintiff respectfully request that Judgment be entered in its favor and against Defendant in accordance with Plaintiff's Complaint. NELSON LEVINE de LUCA & HORST, LLC BY: -4 JEF ZIEL S , ESQUIRE A S FOR P INTIFF ELWOOD Dated: February 7, 2008 OHE VERIFICATION I, Jeffrey M. Zielinski, being duly sworn according to law, hereby depose and say that I am counsel for plaintiff State Farm Fire & Casualty Company (the real party at interest) as subrogee of the plaintiff named in this action's caption, and that I am authorized by same to make this verification on its behalf, and that for all facts averred in the attached Response to New Matter are not of my own personal knowledge, I have received the necessary information from State Farm, and that all such facts are true and correct to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. BY*FI f N, P INTIFF Dated: February 7, 2008 NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) 1?4q CIVIL ACTION NO: 07-2-269 CERTIFICATE OF SERVICE I, Jeffrey M. Zielinski, Esquire, hereby certify that a true and correct copy of the Plaintiffs Response to the New Matter of Defendant General Motors Corporation was served on February 7, 2008, upon counsel listed below by United States Mail, postage prepaid. Vincent L. Champion Rhoads & Sinon LLP One South Market Square, Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Jeffrey Cohen, Esquire Meyer Darragh Buckler Bebenek & Eck, LLC U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 NELSON LEVINE de LUCA & HORST, LLC BY: f ZIEL KI, ESQUIRE 4JI. /?!? S FO LAINTIFF ELWOOD E Dated: February 7, 2008 77 =, ..*. NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 07-2265 .' 2167 PLAINTIFF'S REPLY TO THE NEW MATTER OF DEFENDANT GRAHAM MOTORS COMPANY, TO THE FOURTH AMENDED COMPLAINT Plaintiff by and through undersigned counsel, herein replies to the New Matter filed by defendant Graham Motors Company and in so doing avers as follows: 28-41. Denied. These allegations all contain conclusions of law to which no response is required. By way of further answer, to the extent that these allegations also contain factual averments, after reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief as to the truthfulness of the averments thereof and, therefore, same is denied. Defendant waives any and all affirmative defenses not set forth in their New Matter pursuant to Pa. R.C.P. 1030. WHEREFORE, Plaintiff respectfully request that Judgment be entered in its favor and against Defendant in accordance with Plaintiff's Complaint. NELSON LEVINE de LUCA & HORST, LLC BY: ??. J FFREY . ZIELINSKI, ESQUIRE ATTORNEYS FOR PLAINTIFF Dated: February 29, 2008 NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. GENERAL MOTORS CORPORATION CIO CT CORPORATION AND GRAHAM MOTORS COMPANY Defendant(s) IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 07-2265 CERTIFICATE OF SERVICE I, Jeffrey M. Zielinski, Esquire, hereby certify that a true and correct copy of the Plaintiff's Response to the New Matter of defendant, Graham Motors Company, to the Fourth Amended Complaint was served on February 29, 2008, upon counsel listed below by United States Mail, postage prepaid. Vincent L. Champion Rhoads & Sinon LLP One South Market Square, Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Jeffrey Cohen, Esquire Meyer Darragh Buckler Bebenek & Eck, LLC U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 NELSON LEVINE de LUCA & HORST, LLC BY:?- FFRE. ZIELINSKI, ESQUIRE ATTORNEYS FOR PLAINTIFF Dated: FebruM 29, 2008 ?,, ?? r fi ?,, U ? 2 , ? ?:. a?. ?' ? ?, -, d 1 ? ?? , r ? R:';? `C 5? 1 0?' . ?, ? , .?:? Marc T. Levin, Esquire Attorney I.D. No. 70294 Vincent L. Champion, Esquire Attorney I.D. No. 88411 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Company ELWOOD YOHE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW GENERAL MOTORS CORPORATION NO. 07-2269 CIVIL and GRAHAM MOTOR COMPANY Defendants PLAINTIFFS' MOTION TO COMPEL DISCOVERY NOW COMES Defendant, Graham Motor Company ("Graham"), by and through their attorneys, Rhoads & Sinon LLP, and file the following Motion to Compel Discovery stating as follows: 1. On December 21, 2007, Elwood Yohe (the "Plaintiff') filed his Fourth Amended Complaint against Defendants General Motors Corporation and Graham ("Defendants") seeking recovery for alleged damages sustained in connection with a vehicle fire occurring on the Plaintiff's property. 2. The Fourth Amended Complaint contained one Count of Negligence as to General Motors Corporation, one Count of Strict Liability as to General Motors Corporation and one Count of Negligence as to Graham. 684177.1 3. On January 9, 2008, Graham served the Plaintiff with discovery in the form of Requests for Production of Documents and Interrogatories (the "Discovery"). (Copies of the Interrogatories and Requests for Production of Documents served upon Defendant are attached hereto as Exhibits "A" and "B," respectively, and incorporated herein by reference). 4. Plaintiff's responses to the Discovery were due on or before February 9, 2008. 5. On March 10, 2008 Graham mailed a letter to Plaintiff's counsel advising that Plaintiff's discovery responses were past due and granting Plaintiff an additional eleven (11) days to provide proper responses to the Discovery. (A copy of the March 10, 2008 letter is attached hereto as Exhibit "C", and incorporated herein by reference). 6. To date, Plaintiff has not provided any response to the Discovery and has not contacted the undersigned to advise of the status of the Discovery. 7. Moreover, Plaintiff has not responded to the undersigned's March 10, 2008 letter referenced above. 8. Plaintiffs failure to provide responses to the Discovery served upon him is a violation of the Pennsylvania Rules of Civil Procedure. 9. Additionally, Plaintiff's utter failure to provide responses and answers to the Discovery unfairly prejudices Graham's ability to prepare a defense to this action. 10. Based on Plaintiff's failure to provide responses to the Discovery, it is requested that this Court issue an Order compelling Plaintiff to provide full and complete responses and answers to the Discovery and avoid further delay in this matter. 11. Pursuant to Rule 208.2(d) of the Cumberland County Rules of Civil Procedure, counsel for Graham sought the concurrence of counsel for the Plaintiff and General Motors Corporation with respect to this Motion and concurrence was granted as to General Motors Corporation. Plaintiff's counsel was unavailable and his concurrence was not obtained. 12. Pursuant to Rule 208.3(a) of the Cumberland County Rules of Civil Procedure, No Judge has ruled on any matters in this case. WHEREFORE Graham Motor Company respectfully requests that this Court grant its Motion to Compel and order Elwood Yohe to provide full and complete responses to the discovery served upon him. It is further requested that said responses be provided within ten days. Respectfully submitted, RHOADS & SINON LLP By: Marc T. Levin Vincent L. Champion One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Co. EXHIBIT "A" Vincent L. Champion, Esquire Attorney I.D. No. 88411 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Graham Motors Company ELWOOD YOHE V. Plaintiff GENERAL MOTORS CORPORATION c/o CT CORPORATION and GRAHAM MOTORS COMPANY Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2265 DEFENDANTS, GRAHAM MOTORS COMPANY, FIRST SET OF INTERROGATORIES DIRECTED TO PLAINTIFF To: Elwood Yohe c/o Jeffrey M. Zielinski, Esq. Nelson Levin deLuca & Horst, LLC Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 PLEASE TAKE NOTICE that you are hereby required, pursuant to the Pennsylvania Rules of Civil Procedure, to serve upon the undersigned, a copy of your answers and objections, if any, in writing and under oath, to the following interrogatories within 30 days after service of the Interrogatories. The answers shall be inserted in the spaces provided. If there is insufficient space to answer an interrogatory, the remainder of the answer shall follow on a supplemental sheet. These interrogatories shall be deemed to be continuing in nature. If between the time of filing of your answers and the time of trial of this matter, you, or anyone acting on your behalf, learn of any further information not contained in your answers, or if you learn that any information set forth in your answer is or has become inaccurate or incorrect, you shall promptly file and serve supplemental answers. 673191.1 DEFINITIONS: The following definitions are applicable to these interrogatories: 1. The term "you" or "your", as used herein, means the Plaintiff, Elwood Yohe, or anyone acting on behalf of or purporting to act on behalf of Elwood Yohe, collectively or in any combination. 2. The term "document", as used herein, means any written, recorded, printed, typed, or other graphic matter of any kind or nature, however produced or reproduced, whether sent or received or neither, including drafts or copies bearing meaning, notations or marks not found on or in the original, and includes but is not limited to: (a) all letters or other forms of correspondence of communication, including envelopes, notes, telegrams, cables, telex messages, messages (including reports, notes, notations and memoranda of or relating to telephone conversations or conferences); (b) all memoranda, reports, test results, financial statements or reports, notes, transcripts, tabulations, studies, analyses, evaluations, projections, work papers, corporate records or copies thereof, lists, comparisons, questionnaires, surveys, charts, graphs, summaries, extracts, statistical records, compilations; (c) all desk calendars, appointment books, diaries; (d) all books, articles, press releases, magazines, newspapers, booklets, circulars, bulletins, notices, instructions, manuals; (e) all minutes or transcripts of all meetings; and (f) all photographs, microfilms, phonographs, tapes or other records, punch cards, magnetic tapes, discs, data cells, drums, print-outs, and other data complications from which information can be obtained. -2- 3. The term "communication" means not only oral communications but also any "documents" (as such term is defined in paragraph 2 above), whether or not such document or the information contained therein was transmitted by its author to any other person. 4. The term "identiff' or "identification", as used herein means: (a) When used in reference to a natural person, the terms "identify," "identity" or "identification" mean to provide the following information: (i) his/her full name; (ii) his/her present or last known business address; (iii) his/her present or last known business affiliation; (iv) his/her present or last known business position (including job title and a description of job functions, duties and responsibilities). (b) When used with reference to any entity other than a natural person, state: (i) its full name; (ii) the address of its principal place of business; (iii) the jurisdiction under the laws of which it has been organized or incorporated and the date of such organization or incorporation, if known; (iv) in the case of a corporation, the names of its directors and principal officers; and, (v) in the case of an entity other than a corporation, the identities of its partners or principals or all individuals who acted or who authorized another to act on its behalf in connection with the matters referred to. (c) When used in reference to a document, the terms "identify," "identity" or "identification" mean to provide the following information: (i) the nature of the document (e.g., letter, contract, memorandum) and any other information (i.e., its title, index or file number) which would facilitate in the identification thereof; -3- (ii) its date of preparation; (iii) its present location and the identity (as defined in paragraph 4(a) hereof) of its present custodian or, if its present location and custodian are not known, a description of its last known disposition; (iv) its subject matter and substance or, in lieu thereof, annex a legible copy of the document to the answers to those interrogatories; (v) the identity (as defined in paragraph 4(a) hereof) of each person who performed any significant function or had any role in connection therewith (i.e., author, contributor of information, recipient, etc.) or who has any knowledge; and, (vi) if the document has been destroyed or is otherwise no longer in existence or cannot be found, the reason, if known, why such document no longer exists, the identity (as defined in paragraph 4(a) hereof) of the people responsible for the document no longer being in existence and of its last known custodian. (d) When used in connection with an oral communication, the terms "identify," "identity" and "identification" mean to provide the following information: (i) its general nature (i.e., conference, telephonic communication, etc.); (ii) the time and place of its occurrence; (iii) its subject matter and substance; (iv) the identity (as defined in paragraph 4(a) hereof) of each person who performed any function or had any role in connection therewith or who has any knowledge thereof; and, (v) the identity (as defined in paragraph 4(c) hereof) of each document which refers thereto or which was used, referred to or prepared in the course or as a result thereof. 5. The term "describe" or "description", as used herein, means: (a) When used with respect to any act, action, accounting, activity, audit, practice, process, occurrence, occasion, course of conduct, happening, negotiation, relationship, scheme, communication, conference, discussion, development, service, -4- transaction, instance, incidence or event, the terms "describe" or "description" mean to provide the following information: (i) its general nature; (ii) the time and place thereof; (iii) a chronological account setting forth each element thereof, what such element consisted of and what transpired as part thereof; (iv) the identity (as defined in paragraph 4(a) or 4(b) hereof) of each person who performed any function or had any role in connection therewith (i.e., speaker, participant, contributor or information, witness, etc.) or who has any knowledge thereof; (v) the identity (as defined in paragraph 4(c) hereof) of each document which refers thereto or which was used, referred to or prepared in the course or as a result thereof; and, (vi) the identity (as defined in paragraph 4(d) hereof) of each oral communication which was a part thereof or referred thereto. (b) When used in connection with any calculation or computation, the terms "describe" or "description" mean to provide the following information: (i) an explanation of its meaning (including the nature, source and meaning of each component part thereof); (ii) an explanation of the manner in which it was derived; (iii) the identity (as defined in paragraph 4(a) hereof) of each person who performed any function with respect thereto; (iv) the identity of each document (as defined in paragraph 4(c) hereof) which refers thereto or which was used, referred to or prepared in the course or as a result thereof; and, (v) the identity (as defined in paragraph 4(d) hereof) of each oral communication which occurred in the course of the preparation thereof or which referred thereto. 6. The term "factual basis", as used herein, means: (a) set forth each term of information upon which the allegation, contention, claim or demand to which it pertains is based; -5- and (b) with respect to each such item of information, identify each person having knowledge thereof and identify and describe (as defined in paragraphs 4 and 5 hereof) each source thereof, including, but not limited to, each document, oral communication, act, action, activity, accounting, negotiation, practice, process, occurrence, occasion, course of conduct, happening, relationship, scheme, conference, discussion, development, service, instance, incident, event, calculation and computation upon which you rely with respect thereto. 7. The terms "relates to" or "relating to" when used in connection with any act, action, activity, accounting, practice, process, occurrence, occasion, course of conduct, contractual provision or document, happening, relationship, scheme, conference, discussion, development, service, instance, incident, event, etc., means used or occurring or referred to in the preparation therefore, or in the course thereof, or as a consequence thereof, or referring thereto. 8. The term "person" means all natural persons, corporations, partnerships or other business associations, public authorities, municipal corporations, state governments, local governments, all governmental bodies, and any other legal entities. 9. "And" and "or" shall be construed conjunctively and disjunctively so as to bring within the scope of these Interrogatories any information which might otherwise be construed to be outside their scope. 10. The singular shall include the plural and the plural shall include the singular. 11. A masculine, feminine or neuter pronoun shall be construed to refer to all other gender pronouns. 12. If you claim that the subject matter of a document or oral communication is privileged, you need not set forth the brief statement of the subject matter of the document, or the -6- substance of the oral communication called for above. You shall, however, otherwise "identify" such document or oral communication and shall state such ground on which you claim that such document or oral communication is privileged. 13. In lieu of identifying documents in response to these Interrogatories, you may provide copies of such documents with appropriate references to the corresponding Interrogatories. 14. "Incident" means the occurrence that forms the basis of a cause of action or claim for relief set forth in the complaint or similar pleading. 15. "Person" means a natural person, partnership, association, corporation, or government agency. STANDARD INSTRUCTIONS The following instructions are applicable to these standard interrogatories: (1) Duty to answer. -- The interrogatories are to be answered in writing, verified, and served upon the undersigned within 30 days of their service on you. Objections must be signed by the attorney making them; In your answers, you must furnish such information as is available to you, your employees, representatives, agents, and attorneys. Your answers must be supplemented and amended as required by the Pennsylvania Rules of Civil Procedure. (2) Claim of privilege. -- With respect to any claim of privilege or immunity from discovery, you must identify the privilege or immunity asserted and provide sufficient information to substantiate the claim. (3) Option to produce documents. -- In lieu of identifying documents in response to these interrogatories, you may provide copies of such documents with appropriate references to the corresponding interrogatories. -7- INTERROGATORIES State: a. your full name; b. each other name, if any, which you have used or by which you have been known; and c. your present address and telephone number; ANSWER: -8- 2. Identify: a: where the vehicle last traveled; b. the duration of travel; and c. the accessories used during travel (air conditioner, heater, radio, cruise control, etc.) ANSWER: -9- 3. If you were covered by any type of insurance, including any excess or umbrella insurance, that might be applicable to the subject matter of this action, state the following with respect to each such policy: a. the name of the insurance carrier which issued the policy; b. the named insured under each policy and the policy number of each policy; C. the type(s) and effective date(s) of each policy; d. the amount of coverage provided for injury to each person, for each occurrence, and in the aggregate for each policy; and e. each exclusion, if any, in the policy which is applicable to any claim thereunder and any reasons, if any, why you or the carrier claim the exclusion is applicable. ANSWER: -10- 4. List and describe all expenses and losses that you allege you have incuried as a result of the allegations set forth in your Fourth Amended Complaint. ANSWER: -11- 5. State with particularity the factual basis for each claim or defense you are asserting in this case. ANSWER: -12- 6. If you know of anyone that has given any statement (as defined by the Rules of Civil Procedure) concerning this action or its subject matter, state: a. the identity of such person; b. when, where, by whom, and to whom each statement was made, and whether it was reduced to writing or otherwise recorded; and c. the identity of any person who has custody of any such statement that was reduced to writing or otherwise recorded. ANSWER: -13- Identify documents (except reports of experts subject to Pa. R.C.P. No. 4003.5) which describe or in any way relate to the subject matter of the Fourth Amended-Complaint. ANSWER: -14- If you, or someone not an expert subject to Pa. R.C.P. 4003.5, conducted any investigations of the facts giving rise to the claim in your Fourth Amended Complaint, identify: a. each person, and the employer of each person, who conducted any investigation(s); and b. all notes, reports or other documents prepared during or as a result of the investigation(s) and the persons who have custody thereof. ANSWER: -15- 9. If you know of the existence of any photographs, motion pictures, video recordings, maps, diagrams, or models relevant to the incident, state: a) the nature or type of such item; b) the date when such item was made; C) the identity of the person that prepared or made each item; and d) the subject that each item represents or portrays. ANSWER: -16- 10. Identify each person you intend to call as a non-expert witness at the trial of this case, and for each person identified state your relationship with the witness and the substance of the facts to which the witness is expected to testify. ANSWER: -17- 11. Identify each expert you intend to call as a witness at the trial of this matter, and for each expert state: a. the subject matter about which the expert is expected to testify; and b. the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (You may file as your answer to this interrogatory the report of the expert or have the interrogatory answered by your expert.) ANSWER: -18- 12. Identify all exhibits that you intend to use at the trial of this matter and state whether they will be used during the liability or damages portions of the trial. ANSWER: -19- 13. If you intend to use any book, magazine, or other such writing at trial, state: a. the name of the writing; b. the author of the writing; c. the publisher of the writing; d. the date of publication of the writing; and e. the identity of the custodian of the writing. ANSWER: -20- 14. If you intend to use any admission(s) of a party at trial, identify such admission(s). ANSWER: -21- 15. Identify each individual who participated in the preparation of the responses to Defendant Graham Motors First Set of Interrogatories Directed to Plaintiff. ANSWER: -22- 16. If you are withholding any documents from production in response to Defendant's First Request for Production of Documents on the grounds of privilege or immunity, identify each document and separately as to each: a. state the grounds upon which the document was withheld (e.g. attorney client privilege or work product immunity) and the complete factual basis for the claim of privilege or immunity; b. in the case of an allegedly privileged document, identify all persons who have been privy to it, including, but not limited to, all cc and bcc recipients, and in the case of an allegedly privileged communication also identify all persons who were privy to the underlying communication; C. in the case of a document that is allegedly work product, identify the litigation in connection with which, or in anticipation of which, the document was prepared, and identify all persons who have been privy to the document; and d. identify each interrogatory and each document request to which the respective document is responsive. ANSWER: -23- 17. With respect to the allegation set forth in paragraph 10 of the Fourth Amended Complaint, please state each fact or circumstance which you contend supports this contention, identify each witness with knowledge relative to this contention, and identify each document which discusses, refers to, or in any way pertains to the information contained in said allegation. ANSWER: -24- 18. In paragraph 22(a)(i) of your Fourth Amended Complaint, you allege that Graham failed to properly inspect, diagnose, service, repair and/or test the vehicle. Please set forth all facts upon which you base your allegation. ANSWER: -25- 19. In paragraph 22(a)(ii) of your Fourth Amended Complaint, you allege that Graham failed to properly recommend and/or warn the plaintiff that the vehicle was defective and could fail in the matter complained of. Please set forth all facts upon which you will rely at trial to prove such contention. ANSWER: -26- 20. In paragraph 22(a)(iii) of your Fourth Amended Complaint, you allege that Graham failed to provide plaintiff with instructions and/or warnings regarding the proper care, maintenance, and/or servicing of the vehicle so as to prevent the incident complained of. Please set forth all facts upon which you will rely at trial to prove such contention. ANSWER: -27- 21. Identify each and every instruction and/or warning that you contend Graham should have provided you so as to prevent the incident complained of. ANSWER: -28- 22. Please set forth the factual basis of your allegation in Paragraph 22(b) of your Fourth Amended Complaint wherein you allege that Graham failed to adequately instruct and/or supervise its employees, agents, technicians, and/or servants so as to avoid the problems set forth in subparagraph 22(a)(i-iii). ANSWER: -29- 23. Please set forth the factual basis of your allegation in Paragraph 22(c) of your Fourth Amended Complaint wherein you allege that Graham failed to adequately warn plaintiff and others of the dangers and hazardous conditions of the vehicle. ANSWER: -30- 24. In paragraph 22(d) of your Fourth Amended Complaint, you allege that Graham failed to provide, establish, and/or follow proper and adequate control of its employees so as to avoid the problems enumerated in subparagraph 22(a)(i-iii). Please set forth all facts upon which you base your allegation. ANSWER: -31- 25. Identify all damages which you allege are directly and proximately caused by the negligence and/or other unlawful conduct of Graham Motors. ANSWER: -32- 26. Identify any and all expenses and hardships plaintiff has incurred as a result of Graham Motor's alleged negligence. ANSWER: Respectfully Submitted, RHOADS & SINON LLP 04 ooo Sy: Vincent L. Champion, Esq. One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Graham Motors Company Dated: January 9 2008 -33- CERTIFICATE OF SERVICE I hereby certify that on this 9t' day of January, 2008, a true and correct copy of the foregoing Defendant Graham Motor Company's First Set of Interrogatories Directed to Plaintiff was served by means of United States mail, first class, postage prepaid, upon the following: Jeffrey M. Zielinski, Esquire Nelson Levine de Luca & Horst Four Sentry Parkway Blue Bell, PA 19422 Jeffrey Cohen, Esquire Meyer Darragh Buckler Bebenek & Eck, P.L.L.C. U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 YCL.o.t?,- Ne -34- EXHIBIT "B" Vincent L. Champion, Esquire Attorney I.D. No. 88411 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Graham Motors Company Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2265 DEFENDANT'S, GRAHAM MOTORS COMPANY, FIRST REQUEST FOR PRODUCTION OF DOCUMENTS ELWOOD YOHE V. Plaintiff GENERAL MOTORS CORPORATION c/o CT CORPORATION and GRAHAM MOTORS COMPANY TO: Elwood Yohe c/o Jeffrey Zielinski, Esq. Nelson Levin deLuca & Horst, LLC Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 PLEASE TAKE NOTICE that you are hereby required, pursuant to Pa. R. Civ. P. 4009, as amended, to produce for inspection, examination and copying, at the offices of Rhoads & Sinon LLP, One South Market Square, 12th Floor, P.O. Box 1146, Harrisburg, PA 17108-1146, not later than thirty (30) days after service of this request, the following documents. These Requests shall be continuing. If you or anyone acting on your behalf learns of additional documents responsive to this Request, you shall produce such document by Supplemental Response. 673205.1 DEFINITIONS AND INSTRUCTIONS (A) "You" and "your" refers to the person or persons to whom these Requests are propounded. (B) "And" and "or" shall be construed conjunctively and disjunctively so as to bring within the scope of this Request for Production any information which might otherwise be construed to be outside its scope. (C) The word "document" means any correspondence, memoranda, inter- office communication, intea.-office communication, agreement, minute, report, note, schedule, book of account, ledger, invoice, receipt, purchase order, pleading, questionnaire, contract, bill, check, draft, diary, log, proposal, bid, recording, telex, telegram, drawing, picture, table, graph, chart, map or survey, including the originals and working, handwritten drafts of all of the above and any copies thereof which are different from the original by way of interlineation or notation, including any transcript or summary of the foregoing and any other tangible date compilations from which information may be used, including word processor systems. (D) If you claim that the subject matter of a document or oral communication is privileged you are required to identify the document or communication by stating the following information: (1) Its nature (e.g., letter, memorandum, tape recording, etc.); (2) Its date (or if it bears no date, the date when it was prepared); (3) The name, address, employer and job position of the signer or signers (or if there is no signer, of the person who prepared it); (4) The name, address, employer and job position of the person, if any, to whom the document was sent; (5) The name, address, employer and job position of each person known or believed to have originals of copies of the documents; or (6) A brief statement of the subject matter of the document; and state each ground or basis on which you contend that the document or oral communication is privileged. (E) If you do not have possession, custody or control of a document request, but know who does have possession, custody or control, you are required to identify the document and the person who has possession, custody or control in the manner requested in subparagraph (D) thereof. 11 YOU ARE REQUESTED TO PRODUCE THE FOLLOWING DOCUMENTS: 1. All statements, summaries of statements, transcripts of recorded statements or interviews, or any memoranda or transcripts of statements or interviews of any parry, person or witness, or their agents or employees, relating to, referring to or in any way describing the allegations and events regarding the issues of this case, who have any knowledge of the facts surrounding any of the matters, transactions or occurrences involved in this case. Attached to each statement provided pursuant to the preceding request should be an explanation including: (a) the name, address and occupation of the person who gave the statement, and of the person who obtained the statement and the date and time it was obtained; and (b) the manner in which the statement was taken; i.e. electronic recording, written, oral, etc. 2. All documents prepared by you, or by an representative, agent, or anyone acting on your behalf, except your attorneys, during an investigation of the allegations and events regarding the issues of this case, or prepared in anticipation of litigation or trial of this matter. Such documents shall include any documents made or prepared up through the present time, with the exclusion of the mental impressions, conclusions, or the opinions respecting the value or merit of the claim or respecting strategy or tactics. 3. All photographs, films or videotapes taken in regard to this matter. 4. The complete investigative or claim file, whether formally designated as such or otherwise, maintained by Plaintiff and/or its insurance company, concerning the F1 issues raised in Plaintiff's Complaint, excluding mental impressions, opinions and material protected by attorney/client privilege. 5. All statements of any person(s) who will be called as witness at trial of this matter. 6. All documents or other demonstrative evidence which will be introduced or used at trial. 7. All expert opinions, expert reports, expert summaries or other writings in your custody or control or in the custody or control of your attorneys, agents or representatives, which relate to the subject matter of this litigation and the proposed testimony of the preparer of such opinion, report, summary or other writing. 8. • A current Curriculum Vitae for each expert retained by you or your attorneys in connection with this case. 9. All documents, including but not limited to, advertisements, circulars, brochures, pamphlets, leaflets, writings, and other such promotional items any expert witness you have retained for use at trial uses and has used in the past to promote his services as an expert witness. 10. All documents, diaries, correspondence or other drawings, sketches, diagrams, or writings in your custody or in the custody or control of your attorneys, which related to the subject matter of this litigation. 11. Any non-privileged information critical of Defendants. 12. Any and all documents, potential exhibits, or other tangible thing, including, but not limited to, electronic or video recordings, films, photographs, diagrams and charts, believed by you or anyone acting on your behalf or have potential probative value regarding your claim against Defendants. Also, provide the name and address of the person presently having possession, custody or control of each such item. 13. Any and all documents which evidence any facts on the basis of which it will be asserted that Defendants were negligent in maintaining the property which is the subject ofPlaintiff s complaint. 14. All documents relating in any way to all damages and losses allegedly sustained by you. 15. Copies of your federal income tax forms filed with the IRS from the year of the incident to date. 16. Any and all documents referred to, relied upon, or identified in your responses to Defendants' interrogatories. Respectfully submitted, RHOADS & SINON LLP By: &?? Vincent L. Champion, Esq. One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Graham Motors Company CERTIFICATE OF SERVICE I hereby certify that on this 9t' day of January, 2008, a true and correct copy of the foregoing Defendant Graham Motor Company's First Request for Production of Documents was served by means of United States mail, first class, postage prepaid, upon the following: Jeffrey M. Zielinski, Esquire Nelson Levine de Luca & Horst Four Sentry Parkway Blue Bell, PA 19422 Jeffrey Cohen, Esquire Meyer Darragh Buckler Bebenek & Eck, P.L.L.C. U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 EXHIBIT "C" FILE NO: 9881/04 March 10, 2008 Re: Elwood Yohe v General Motors Corporation and Graham Motors Company, In the Court of Common Pleas, Cumberland Country, Pennsylvania, Civil Action - Law, No. 07-2269 Civil Jeffrey M. Zielinski, Esquire Nelson Levine de Luca & Horst Four Sentry Parkway Blue Bell, PA 19422 Dear Mr. Zielinski: This will confirm Graham Motor Company's January 9, 2008 service of Interrogatories and Requests for the Production of Documents in the above-referenced matter. As you know, pursuant to the Pennsylvania Rules of Civil Procedure, your client, Elwood Yohe's responses were due on or before February 9, 2008. To date, I have not yet received your client's responses to the aforementioned discoveries. Consequently, your client's discovery responses are severely past due. Kindly provide your client's responses to the foregoing on or before March 21, 2008. Otherwise, I will have no choice but to seek Court intervention. Thank you for your cooperative assistance with regard to the above. Please contact me at your earliest convenience if you have any comments or questions. Very truly yours, RHOADS & SINON LLP By: Vincent L. Champion cc: Jeffrey Cohen, Esquire Yvonne Frey (Claim No. 1174561) Marc T. Levin, Esquire 682075.1 Rhoads & Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square • P.O. Box 1146 Harrisburg, PA 17108-1146 • ph (717) 233-5731 • fx (717) 232-1459 • www.rhoads-sinon.com a CERTIFICATE OF SERVICE I hereby certify that on this 31St day of March, 2008, a true and correct copy of the foregoing Motion to Compel Discovery was served by means of United States mail, first class, postage prepaid, upon the following: Jeffrey M. Zielinski, Esquire Nelson Levine de Luca and Horst Four Sentry Parkway Blue Bell, PA 19422 Jeffrey Cohen, Esquire Myer Darragh Buckler Bebenek & Eck P.L.L.C. U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 L&)ft' --nA, A , - 684586.1 hi V e.Aw tiA f ti N j n 74 , Sj APR 0 92008e! ELWOOD YORE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. GENERAL MOTORS CORPORATION and GRAHAM MOTOR COMPANY CIVIL ACTION - LAW NO. 07-2269 CIVIL Defendants ORDER AND NOW, this 7* day of 2008, upon consideration of the Motion to Compel Discovery filed on behalf of Graham Motor Company it is hereby ORDERED that: 1) A rule is issued upon the Plaintiff Elwood Yohe to show cause why Graham Motor Company is not entitled to the relief requested; and 2) The Plaintiff shall file an answer to this Rule within twenty (20) days of service. B HE COURT- J. Service List Attached: bw' o% VINVA-IASNN3d Be :8 WV 8- ddv 8002 jkWVI 3 OH4'dd 3H};4 JO 30KXI-Q - Marc T. Levin, Esquire Attorney I.D. No. 70294 Vincent L. Champion, Esquire Attorney I.D. No. 88411 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1 146 Harrisburg, PA 17108-1146 (717) 233-5731 Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2269 CIVIL PRAECIPE TO WITHDRAW DEFENDANT GRAHAM MOTOR COMPANY'S MOTION TO COMPEL DISCOVERY Attorneys for Defendant Graham Motor Company ELWOOD YOHE, V. Plaintiff GENERAL MOTORS CORPORATION and GRAHAM MOTOR COMPANY TO THE PROTHONOTARY: Kindly withdraw Defendant Graham Motor Company's Motion to Compel Discovery which was filed on April 2, 2008. Respectfully submitted, R.IIOADS &, SINON LLP By: X-,;/,"?, 4"-, ---? A , , - Marc T. Levin Vincent L. Champion One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Graham Motor Co. 690679.1 CERTIFICATE OF SERVICE I hereby certify that on this 201h day of May, 2008, a true and correct copy of the foregoing Praecipe to Withdraw Plaintiff Graham Motor Company's Motion to Compel Discovery was served by means of United States mail, first class, postage prepaid, upon the following: Jeffrey M. Zielinski, Esquire Nelson Levine de Luca and Horst Four Sentry Parkway Blue Bell, PA 19422 Jeffrey Cohen, Esquire Myer Darragh Buckler Bebenek & Eck P.L.L.C. U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELWOOD YOHE CIVIL, ACTION NO: 067-2269 Plaintiff MOTION FOR ADMISSION PRO HAC VICE OF ANDREW F. MERRICK, V. ESQUIRE GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY, Filed on Behalf of Defendant, GENERAL MOTORS CORPORATION Defendants Counsel of Record for this Party: .1FFFRI:Y COHEN, ESQUIRE PA I.D. #76512 MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 (412) 261-6600 (412) 471-2754 - FAX 'T'RIAL 13Y JURY DEMANDED (P08463 75. 11, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ELWOOD YOHE Plaintiff V. CIVIL ACTION - LAW NO. 07-2265 GENERAL MOTORS CORPORATION c/o CT CORPORATION and GRAHAM MOTORS COMPANY Defendants MOTION FOR ADMISSION PRO HAC VICE AND NOW, comes this defendant, General Motors Corporation ("General Motors"), by and through its counsel, Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C., and files its Motion for Admission Pro Hac Vice of Andrew F. Merrick as follows: 1. Andrew F. Merrick, Esquire has been practicing law since 2006 and is a member of the firm of Jenner & Block, I.I.P. 2. He is a member in good standing of the Illinois Bar and is of good moral character. He is also admitted to practice before the United States District Court for the Northern District of Illinois. 3. In support of this Motion, the applicant submits the Affidavit of Andrew F. Merrick, attached hereto as Exhibit "'A", attesting to the above and further attesting that no disciplinary proceedings or criminal charges have ever been instituted against him. 4. The applicant will be assisted by undersigned counsel of record of the law firm of Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. and, specifically, by Jeffrey Cohen, who is a member in good standing of the Bar of the Commonwealth of Pennsylvania. Po84637s.1; 5. The required $100.00 fee has been paid to the PA IOLTA Board as evidenced by Exhibit "B". 6. Counsel for the plaintiff and for the co-defendant have advised of their consent to this Motion. WHEREFORE,, this defendant, General Motors Corporation, respectfully requests that this Honorable Court grant its Motion for Admission Pro Hac Vice and that Andrew F. Merrick, Esquire be admitted to practice before this Honorable Court in the within matter. Respectfully submitted, MEYER, DARRAGH, BUCKLER, BEBENECK & ECK, P,L.;,.C. By: HEN, ESQUIRE Counsel for Defendant, GENERAL MOTORS CORPORATION 2 P0846375.1 } IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ELWOOD YOHE Plaintiff, V. GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendants. CIVIL DIVISION No. 07-2265 AFFIDAVIT OF ANDREW F. MERRICK I, Andrew F. Merrick, being first duly cautioned and sworn, states as follows: I am an attorney licensed to practice law in the state of Illinois and practice with the firm of Jenner & Block LLP. 2. I am one of the counsel for defendant General Motors Corporation. 3. I am admitted to practice and am in good standing with the Bar of the Supreme Court of Illinois, as well as the United States District Court for the Northern District of Illinois. 4. I have not been the subject of any disciplinary action by any Bar or any court. 5. No criminal charges have ever been instituted against me. 6. I have become familiar with, and agree to abide by, the local rules of practice governing these proceedings, as well as the requirements governing professional behavior of members of the Pennsylvania Bar. 1631428.2 D FURTHER AFFIANT SAYETH NAUGHT. Sworn to and subscribed before me, a Notary Public, this Nr.- day of \ i&• N SON 10, STATE OF ILLIN013 silON iXPIRit 12.1.2011 2 1631428.2 f. , - PENNSYLVANIA IOLTA BOARD 'Form for PRO`HAG WCE.ADMISSION (For all nonresident attorneys requesting permission to participate in proceedings in a Pennsylvania Court) Applicant [X ] Mr. Name: [ J Ms. Merrick Andrew F. Last First Middle Date of Birth: October 9, 1981 i Your Firm's Name & Mailing Address: (All correspondence will be mailed to this address.) Jenner Block, LLP Firm Name 330 N. Wabash Ave., 40th Fl., Chicago, IL 60611 Street AddretslP.O. Box Ste. No. City State Zip Code i • j • i Your Firm's Physical Address: X Check.here if same as above Street Address Ste. No. City State Zip Code Office Phone Office Fax Contact E-Mail Address Acknowledgment Letter'should be faxed to: Andrew F. Merrick 312=840-7795 Gontact.Name Contact Fax Name & Office Address of Attorney: of Record in the Pennsylvania Proceeding who is filing the Motion for your admission Pro Hac Dice: i Jeffrey Cohen Moyer, Darragh, Buckler, Bpbenek & Fekp P L.L C I Name. Fircra Name (ifapP..licabie) i 4850 U.S.''5teel Tower,` 600 Grant-Street,-Pittsburgh, PA 15219 Street'AddresslP,O. Box Ste. No. City State Zip Code 4_12-261=6600. 4,12=471-2754 76512. ` i 44 3,ffice Phone = ©ffice Fax ". PR 1 Q Number; Cas'e.Number Docket No. 07-2265 Case Name: Elwood. Yohe y: General.'Motors Corporation, and Crahair 'Motors Company Pennsylvania Court of Record: Court of Common Pleas of Cumberland County, Pennsylvania Address of Court: Cumberland County C 03 1 _Q P_ house Square, Carlisle, PA 17013 1: List all foreign, state and federal jurisdictions in which :you have been qualified, licensed or admitted to practice law and are currently active and in good Sanding, the.year of licensure,'and your license or bar card numbers, if applicable. Use-the Contlnuation'FdIm if additional space is needed. .Jurisdiction(s) Year(s) of Licensure(s) License Number(s) Illinois 2006 ARDC 6290213 U.S. District Court for the Northern District of Illinois 2006 ARDC 6290213 2. If you have ever practiced law under another name, please state that name here. List also all jurisdictions in which you practiced law under that name, license number, and the time period involved. Use the Continuation Form if additional space is needed. Other Name(s) Jurisdiction(s) License Number(s) Time Period(s) N/A 3. Are you familiar with the Pennsylvania Rules of Professional Conduct; Pennsylvania Rules of I Disciplinary Enforcement, and the rules and court procedures of the court before :which you seek to I appear, and will you at all times abide by and comply with the same so long as such Pennsylvania pro-ceeding is pending and.you have, not-withdrawn.as counsel therein? I Yes` No` j Certify that the information provided on.this form is true: If any statements are false,.l realize ) am subject to discipline try :the Supreme Court of Pennsylvania. I hereby certify thatsl am enclosing the fee required: by Rule 30.1 of the Pennsylvania Bar Admission n-Rulesr I hereby:agree that any action .brought against me by the Supreme Court of Pennsylvania-or any of its boards or instrumentai•itips.may be brought in the Court of G.ommo Pl r? eas of'Allegheny; Dauphrn or PhiladeLphia County; Pe syIva is Sig>'iat r f A— Hac Ice Applicant { Date o .Appli ation •2 - DATE DESCRIPTION INVOICE NO. AMOUNT DEDUCTION NET AMOUNT 5172.00 PA IOLTA BOARD 06/27108 FEE FOR PRO HAC VICE ADMISSION-ANDREW MERRICK-GMPD.111928 100.00 100.00 CHECK DATE CHECK NO. 06/27/08 104484 Gross: 100.00 Ded: 0.00 Net: 100.00 MEYER, DARRAGH BUCKLER 'PNC P NO N AK 001 PITTSBURGH PA 104484 BEBENEK & ECK, P.L.L.C. , i GENERAL ACCOUNT 600 GRANT STREET, SUITE 4850 8-9/430 PITTSBURGH; PA 15219 CHECK DATE CHECK NO. CHECK AMOUNT (412) 261-6600 06/27108 104484 ****$100.00 s ? 3 *** ONE HUNDRED & 00/100 DOLLARS s I PAY PA IOL-TA BOARD "GEN ERA CC T - VOID AFTER 180 DAYS To THE P. O. BOX 105` I ORDER HARRISBURG PA 17108-1025 ' to OF pAP ?,MP f ;pFS v/ 'o 8 U SECURITY FEATURES INCLUDED. DETAILS ON BACK. 115 10448411' j:0 4 30000961: 10 2 148048 211' Vendor 5172.00 PA IOLTA BOARD Date Description 06/27/08 FEE FOR PRO HAC VICE ADMISSION-ANDREW MERRICK-GMPD.111928 Check Date Check # 06/27/08 104484 WL65112LN1 THE MOORE STORE PRINTED IN U.S.e_ CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading has been forwarded to all counsel of record by: ?_ U.S. First Class Mail, Postage Paid Hand Delivery Certified Mail, Return Receipt Requested Facsimile Transmittal UPS Delivery at the following address: Jeffrey M. Zielinski, Esquire Nelson Levine deLuca &Horst, LLC Four Sentry Parkway, Sutie 300 Blue Bell, PA 19422 (Counsel for Plaintiffi Vincent Champion, Esquire Rhodcs & Sinon, 1_I,11 One South Market Street, I"" Floor P.O. Box 1146 Harrisburg, PA 17108-1 146 (Counsel for Graham Motors Company) Dated: MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. B-, ,S QUIRE POSn637s.1; ? M1a `,.. te=a c _? ?? ??°„ "'?, !1 N ,_ ,•? s ? ?r r? `; e'z a r? ' -.? C.rp JUL 0 ? LUIt? IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION ELWOOD YOHE Plaintiff, V. GENERAL MOTORS CORPORATION C/O CT CORPORATION AND GRAHAM MOTORS COMPANY Defendants. No. 07- RA U q ORDER I` AND NOW, this q44\ day of LA* Inr , 2008, upon consideration of the defendant's Motion for Admission Pro Hac Vice, it is hereby Ordered, Adjudged and Decreed that said motion is GRANTED. Andrew F. Merrick, ESQ. is-hereby a*itted pro hac vice as counsel for General Motors Corporation in the above /r/ 1631428.2 ? M ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELWOOD YOHE, Plaintiff, V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY, CIVIL ACTION - LAW NO. 07-2269 CIVIL NOTICE OF BANKRUPTCY Filed on Behalf of Defendant, GENERAL MOTORS CORPORATION Defendants Counsel of Record for this Party: JEFFREY COHEN, ESQUIRE PA I. D. #76512 MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. U.S. Steel Tower, Suite 4850 600 Grant Street Pittsburgh, PA 15219 (412) 261-6600 (412) 471-2754 - FAX JURY TRIAL DEMANDED (P0876398.1) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ELWOOD YOHE, Plaintiff, CIVIL ACTION - LAW NO. 07-2269 CIVIL V. GENERAL MOTORS CORPORATION and GRAHAM MOTORS COMPANY, Defendants. NOTICE OF BANKRUPTCY PLEASE TAKE NOTICE that, on June 1, 2009, (the "Commencement Date"), General Motors Corporation filed a voluntary petition seeking bankruptcy protection under chapter 11 of title 11 of the United States Code, 11 U.S.C. § 101 et seq. ("Bankruptcy Code"), in the United States Bankruptcy Court for the Southern District of New York ("Bankruptcy Court"). The bankruptcy case has been assigned Case No. 09- 50026 (REG). A copy of General Motors Corporation's chapter 11 petition is attached hereto as Exhibit A. PLEASE BE ADVISED that, as of the Commencement Date, any new or further action against General Motors Corporation is stayed pursuant to section 362 of the Bankruptcy Code (the "Automatic Stay"), which provides that the filing of the petition, among other things, "operates as a stay, applicable to all entities, of . . . the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title ..." and of "any act to obtain possession of property of the estate or of (P0876398.1) property from the estate or to exercise control over property of the estate." 11 U.S.C. §§ 362(a)(1) & 362(a)(3). PLEASE BE FURTHER ADVISED that any action taken against General Motors Corporation without obtaining relief from the Automatic Stay from the Bankruptcy Court may be void ab initio and may result in a finding of contempt against Plaintiff. General Motors Corporation reserves and retains its statutory right to seek relief in the Bankruptcy Court from any judgment, order, or ruling entered in violation of the Automatic Stay. Respectfully submitted, MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. JEFFREY COHEN, ESQUIRE Counsel for Defendant, GENERAL MOTORS CORPORATION (P0876398.1 ) 2 EXHIBIT A Chapter II Petition of General Motors Corporation (P0876398.1) (Official United States Bankruptcy CAW 24 Voluntary Petition Southern District of New York Name of Debtor (if individual, enter Last, First, Middle): Name of Joint Debtor (Spouse) (Last, First, Middle): GENERAL MOTORS CORPORATION N/A All Other Names used by the Debtor in the last 8 years All Other Names used by the Joint Debtor in the last 8 years (include married, maiden, and trade names): (include married, maiden, and trade names): See Schedule 1 Attached N/A Last four digits of Soc. Sec. or Individual-Taxpayer I.D. (ITIN) No./Complete EIN (if Last four digits of Soc. Sec. or Individual-Taxpayer I.D. (ITIN) No./Complete EIN (if more more than one, state all): than one, state all): 38-0572515 N/A Street Address of Debtor (No. and Street, City, and State): Street Address of Joint Debtor (No. and Street, City, and State): 300 Renaissance Center N/A 1P C ODE Z Detroit, Michigan 48265-3000 1 ZIP CODE County of Residence or of the Principal Place of Business: Wayne County County of Residence or of the Principal Place of Business: N/A Mailing Address of Debtor (if different from street address): Mailing Address of Joint Debtor (if different from street address): N/A ZIP CODE ZIP CODE Location of Principal Asses of Business Debtor (if different from street address above): 767 Fifth Avenue, New York, New York ZIP coDE 10153 Type of Debtor Nature of Business Chapter of Bankruptcy Code Under Which (Form of Organization) (Check one box.) the Petition Is Filed (Check one box) (Check one box.) ? Health Care Business ? Individual (includes Joint Debtors) ? Single Asset Real Estate as defined i n El Chapter 7 [3 Chapter 15 Petition for Recognition of a Foreign See Exhibit D on page 2 of'this form. I I U.S.C. § 10 1 (S 1 B) ? Chapter 9 Main Proceeding ® Corporation (includes LLC and LLP) ® Chapter 11 ? Chapter 15 Petition for Recognition of a Foreign [3 Partnership ? Railroad [I Chapter 12 Nonmain Proceeding ? Stockbroker ? Chapter 13 ? Other (If debtor is not one of the above di ? C B k entities, check this box and state type of ommo ty ro er entity below.) ? Clearing Bank Nature of Debts (Check one box) ® Other ? Debts are primarily consumer ® Debts are primarily business debts, defined in I I U.S.C. § debts. Automotive Manufacturin ¢ 101(8) as "incurred by an Tax-Exempt Entity individual primarily for a personal, (Check box, if applicable.) family, or household purpose." ? Debtor is a tax-exempt organization Chapter 11 Debtors under Title 26 of the United States Check one box: Code (the Internal Revenue Cade). ? Debtor is a small business debtor as defined in I I U § 101(51 D) S C Filing Fee (Check one box) . . . . bt i t ll b i d b 11 U ® D d fi d i S C 101 5 D ® Full Filing Fee attached or a sma e s no us ness e tor as ne e n . . ( I ). . i ? Filing Fee to be paid in installments (applicable to individuals only) Check If. Must attach signed application for the court's consideration certifying that the debtor is unable to pay fee [I Debtor's aggregate noncontingent liquidated debts (excluding debts owed to except in installments. Rule 1006(6). See Official Form 3A . insiders or affiliates) are less than $2 190 000 ? Filing Fee waiver requested (applicable to chapter 7 individuals only). Must attach signed application for , , . the court's consideration. See Official Form 3B. ------------------------------- Check all applicable boxes: ? A plan is being filed with this petition. ? Acceptances of the plan were solicited prepetition from one or more classes of creditors, in accordance with 11 U.S.C. § I I26(B). StatisticaUAdministrative Information THIS SPACE IS FOR COURT USE ® Debtor estimates that funds will be available for distribution to unsecured creditors. ONLY ? Debtor estimates that, after any exempt property is excluded and administrative expenses paid, there will be ra funds available for distribution to unsecured creditors. Estimated Number ofCredaon (on a Consolidated Basis) ? ? ? ? ? ? ? ? ? 149 50-99 100-199 200-999 1,000- 5.001- 10,001 - 25,001 50,001- Over 5,000 10,000 25,000 50,000 100.000 100,000 Estimated Assets on a Consolidated Basis ? ? ? ? ? ? ? ? ? SO to 550,001 to $100,00110 5500,001 to $1,000,001 $10,000,001 550,000,001 $1(0,000,001 $500,000,001 More than 550,000 SI00,000 $500,000 SI million to Slo to $50 to $100 to $500 to SI billion $1 billion million million million million Estimated Liabilities on a Consolidated Basis ? ? ? ? ? ? ? ? ? $oto $50,001 to S100,001 to $500,001 to 51,000,001 $10,000,001 $50,000,001 5100.000.001 S500,000,(01 More than $50,000 $100.000 $500,000 $I million !Oslo to S50 to SlOo to$500 to Sl billion Sl billion million million million million NY2:\1991951\11\16 ZZI1!.DOC\72240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg Onleiel Form 1 l/OS FORM 81, Page 2 Voluntary Petition Name of Debtor(s): (This page marl be completed and filed in every erne) GENERAL MOTORS CORPORATION All Prior Bankruptcy Case Filed Within Last 8 Years (If more than two, attach additional sheet.) Location Case Number: Date Filed: Where Filed: N/A N/A N/A Location Case Number: Date Filed: Where Filed: N/A N/A N/A Pending Bankruptcy Case Filed by any Spouse, Partner or Affiliate of this Debtor (If more than one, attach additional sheet.) Name of Case Number: Date Filed: Debtor: Chevrolet-Saturn of Harlem, Inc. As filed June 1, 2009 District: Relationship: Judge: Southern District of New York Wholly-Owned Direct Subsidiary of Undetermined General Motors Corporation Exhibit A Exhibit B (To be completed ifdelaor is an individual (To be completed if debtor is required to file periodic reports (e.g., forms lOK and IOQ) "- dc'm sre isruns rily -- debts.) with the Securities and Exchange Commission pursuant to Section 13 or 15(d) of the 1, the attorney for the petitioner named in the foregoing petition, declare that 1 have informed Securities Exchange Act of 1934 and is requesting relief under chapter 11.) the petitioner that [he or she] may proceed under chapter 7, 11, 12, or 13 of title 11, United States Code, and have explained the relief available under each such chapter. 1 further certify that 1 have delivered to the debtor the notice required by § 342(b). X ® Exhibit A is attached and made a part of this petition. Signature of Attorney for Debtor(s) Date Exhibit C Does the debtor own or have possession of any property that poses or is alleged to pose a threat of imminent and identifiable harm to public health or safety? ? Yes, and Exhibit C is attached and made a part of this petition. H No. Exhibit D (To be completed by every individual debtor. If a joint petition is filed, each spouse must complete and attach a separate Exhibit D.) ? Exhibit D completed and signed by the debtor is attached and made a part of this petition. Ifthis is ajoint petition: ? Exhibit D also completed and signed by the joint debtor is attached and made a part of this petition. Information Regarding the Debtor - Venue (Check any applicable box.) ? Debtor has been domiciled or has had a residence, principal place of business, or principal assets in this District for 180 days immediately preceding the date of this petition or for a longer part of such 180 days than in any other District.] ® There is a bankruptcy case concerning debtor's affiliate, general partner, or partnership pending in this District. ? Debtor is a debtor in a foreign proceeding and has its principal place of business or principal assets in the United States in this District, or has no principal place of business or assets in the United States but is a defendant in an action or proceeding [in a federal or state court] in this District, or the interests of the parties will be served in regard to the relief sought in this District. Certification by a Debtor Who Resides as a Tenant of Residential Property (Check all applicable bares) ? Landlord has a judgment against the debtor for possession of debtor's residence. (If box checked, complete the following.) (Name of landlord that obtained judgment) (Address of landlord) ? Debtor claims that under applicable nonbankniptcy law, there are circumstances under which the debtor would be permitted to cure the entire monetary default that gave rise to the judgment for possession, after the judgment for possession was entered, and ? Debtor has included with this petition the deposit with the court of any rent that would become due during the 30-day period after the filing of the petition. ? Debtor certifies that he/she has served the Landlord with this certification. (11 U.S.C. § 362(1)). NY2:\1991951\1 1\16 ZZI1!.DOC\72240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg Official Form I 1/08 FORM BI Pee 3 Voluntary Petition Name of Debtor(s): Mis page must be completed amt filed in every cave) GENERAL MOTORS CORPORATION Signatures Signature(s) of Debtor(s) (individual/Joint) Signature of a Foreign Representative I declare under penalty of perjury that the information provided in this petition is true and I declare under penalty of perjury that the information provided in this petition is correct. true and correct, that I am the foreign representative of a debtor in a foreign [If petitioner is an individual whose debts are primarily consumer debts and has chosen to proceeding, and that I am authorized to file this petition. file under chapter 7] 1 am aware that I may proceed under chapter 7, 11, 12 or 13 of title 11, United States Code, understand the relief available under each such chapter, and choose to proceed under chapter 7. (Check only one box.) [If no attorney represents me and no bankruptcy petition preparer signs the petition] 1 have obtained and read the notice required by t I U.S.C. § 342(b). ? I request relief in accordance with chapter 15 of title 11, United States Code. Certified copies of the documents required by 11 U.S.C. § 1515 are attached. I request relief in accordance with the chapter of title 11, United States Code, specified in t t ? P 11 U S C 1 li f i 1511 d this petition ursuan o . . . § request re , e n accor ance with the chapter of title I I specified in this petition A certified copy of the order granting recognition of the foreign main proceeding is attached X Signature of Debtor X jSignature of Foreign Representative) X Signature of Joint Debtor iPrinted Name of Foreign Representative) Telephone Number (if not represented by attorney) Date Date Signature of Attorney* Signature of Non-Attorney Bankruptcy Petition Preparer I declare under penalty of perjury that: (1) 1 am a bankruptcy petition preparer as defined in I 1 U.S.C. § 110; (2) 1 prepared this document for compensation and have provided the debtor with x /s/ Stephen Karotkin a copy of this document and the notices and information required under I 1 U.S.C. §§ 110(b), Signature of Attomey for Debtor(s) 110(h), and 342(b); and (3) if rules or guidelines have been promulgated pursuant to 11 U.S.C. § I I0(h) setting a maximum fee for services chargeable by bankruptcy petition preparers, I Stephen Karotkin have given the debtor notice of the maximum amount before preparing any document for filing f d Printed Name of Attorney for Debtor(s) or a ebtor or accepting any fee from the debtor, as required in that section. Official Form 19B is attached Weil. Gotshal & Manges LLP Firm Name Printed Name and title, if any, of Bankruptcy Petition Preparer 767 Fifth Avenue Address Social-Security number (If the bankruptcy petition preparer is not an individual, state the Social-Security number of the officer, principal, responsible person or partner of the bankruptcy New York. New York 10153 petition preparer.) (Required by 1 I U.S.C. § 110.) Address (212) 310-8000 Telephone Number X June 1. 2009 • In a case in which § 707(bx4XD) applies, this signature also coretitutes a certification that the attorney Date has no knowledge after an inquiry that the information in the schedules is incorrect. Signature of bankruptcy petition preparer or officer principal responsible person or artner Signature of Debtor (Corporation/Partnership) , , , p whose Social-Security number is provided above. 1 declare under penalty of perjury that the information provided in this petition is true and Names and Social-Security numbers of all other individuals who prepared or assisted in preparing this document unless the bankruptcy petition preparer is not an individual: correct, and that I have been authorized to file this petition on behalf of the debtor. The debtor requests the relief in accordance with the chapter of title 11, United States If mone than one person prepared this document, attach additional sheets conforming to the Code, specified in this petition. appropriate official form for each person. A bankruptcy petition preparer's failure to comply with the provisions of title l/ and the Federal Rules of Bankruptcy Procedure may result in fines or imprisonment or both. I1 U. S. C. x /s/ Frederick A. Henderson 0 110; 18 U.S.C. 0 156. Signature of Authorized Individual , . Frederick A. Henderson Printed Name of Authorized Individual President and Chief Executive Officer Title of Authorized Individual June 1, 2009 Date NY2i\1991951\11\16 ZZIP.DOC\72240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 4 of 24 Schedule 1 All Other Names Used By the Debtor in the Last 8 Years 1. GMC Truck Division 2. NAO Fleet Operations 3. GM Corporation 4. GM Corporation-GM Auction Department 5. National Car Rental 6. National Car Sales 7. Automotive Market Research NY2:\1991951\11\16 ZZI1!.DOC\72240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document 5 of 24 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK _-___x In re Chapter 11 Case No. GENERAL MOTORS CORPORATION, 09- Debtor. -- - x CONSOLIDATED LIST OF CREDITORS HOLDING 50 LARGEST UNSECURED CLAIMS' Pg Following is the consolidated list of the creditors of General Motors Corporation and its affiliated debtors in the above-captioned chapter 11 cases, as debtors and debtors in possession (collectively, the "Debtors"), holding the 50 largest noncontingent unsecured claims as of May 31, 2009. Except as set forth above, this list has been prepared in accordance with Rule 1007(d) of the Federal Rules of Bankruptcy Procedure and Rule 1007-1 of the Local Rules of Bankruptcy Procedure. This list does not include persons who come within the definition of "insider" set forth in section 101(31) of chapter 11 of title 11 of the United States Code. 1 The information herein shall not constitute an admission of liability by, nor is it binding on, the Debtors. All claims are subject to customary offsets, rebates, discounts, reconciliations, credits, and adjustments, which are not reflected on this Schedule. NY2:\1991951\II\l6 MILD0072240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 6 of 24 1. Wilmington Trust Attn: Geoffrey J. Lewis Bond Debt $22,759,871,912 Company Phone: (302) 636-6438 Fax: (302) 636-4145 Rodney Square North Rodney Square North 1100 North Market Street I100 North Market Street Wilmington, DE 19890 Wilmington, DE 19890 United States United States 2. International Union, Attn: Ron Gettlefinger Employee $20,560,000,000 United Automobile, Obligations Aerospace and Phone: (313) 926-5201 Agricultural Implement Fax: (313) 3314957 Workers of America (UAW) 8000 East Jefferson 8000 East Jefferson Detroit, MI 48214 Detroit, MI 48214 United States United States 3. Deutsche Bank AG, Attn: Stuart Harding Bond Debt $4,444,050,000 London As Fiscal Agent Phone:(44) 207 547 3533 Fax: (44) 207 547 6149 Theodor-Heuss-Allee 70 Winchester House Frankfurt, 60262 1 Great Winchester Street Germany London EC2N 2DB England This amount consolidates Wilmington Trust Company's claims as indenture trustee under.the indentures, dated December 7, 1995 ($21,435,281,912) and November 15, 1990 ($1,324,590,000). 2 This liability is estimated as the net present value at a 9% discount rate of future contributions, as of January 1, 2009, and excludes approximately $9.4 billion corresponding to the GM Internal VEBA. 3 The amount includes outstanding bond debt of $4,444,050,000, based on the Eurodollar exchange rates of $1.39. NY2:\1991951\11\16 ZZIH.D0072240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 7 of 24 a 4. International Union of Attn: Mr. James Clark Employee $2,668,600,000 Electronic, Electrical, Obligations Salaried, Machine and Phone: (937) 294-9764 Furniture Workers - Fax: (937) 298-633 Communications Workers of America (IUE-CWA) 3461 Office Park Drive 2701 Dryden Road Kettering, OH 45439 Dayton, OH 45439 United States United States 5. Bank of New York Attn: Gregory Kinder Bond Debt $175,976,800 Mellon Phone: (212) 815-2576 Fax: (212) 815-5595 Global Corporate Trust, 101 One Wall Street Barclay, 7W New York, NY 10286 New York, NY 10286 United States United States 6. Starcom Mediavest Attn: Laura Desmond Trade Debt $121,543,017 Group, Inc. Phone: (312) 220-3550 Fax: (312) 220-6530 35 W. Wacker Drive 35 W. Wacker Drive Chicago, IL 60601 Chicago, IL 60601 United States United States 7. Delphi Corp. Attn: Rodney O'Neal Trade Debt $110,876,324 Phone: (248) 813-2557 Fax: (248) 813-2560 5725 Delphi Drive 5725 Delphi Drive Troy, MI 48098 Troy, MI 48098 United States United States This liability estimated as the net present value at a 9% discount rate. NY2:\1991951\1 1\16 ZZI H.D0072240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 8of24 j . 8. Robert Bosch GmbH Attn: Franz Fehrenbach Trade Debt $66,245,958 Phone: (49 71) 1811-6220 Fax: (49 71) 1 811-6454 38000 Hills Tech Drive Robert-Bosch-Platt 1 / 70839 Farmington Hills, MI 48331 Gerlingen-Schillerhoehe, United States German 9. Lear Corp. Attn: Robert Rossiter Trade Debt $44,813,396 Phone: (248) 447-1505 Fax: (248) 447-1524 21557 Telegraph Road 21557 Telegraph Road Southfield, MI 48033 Southfield, MI 48033 United States United States 10. Renco Group, Inc. Attn: Lon Offenbacher Trade Debt $37,332,506 Phone: (248) 655-8920 Fax: (248) 655-8903 1 Rockefeller Plaza, 1401 Crooks Road 29th Floor Troy, MI 48084 New York, NY 10020 United States United States 11. Enterprise Rent A Car Attn: Greg Stubblefiled Trade Debt $33,095,987 Phone: (314) 512 3226 Fax: (314) 512 4230 6929 N Lakewood Ave 600 Corporate Park Drive Suite 100 St. Louis, MO 63105 Tulsa, OK 74117 United States United States NY2:\1991951\1 1\16 ZZIP.D0072240.0635 09-50026 Doc 1 Filed 06101/09 Entered 06/01/09 07:57:51 Main Document Pg 9 of 24 12. Johnson Controls, Inc. Attn: Stephen A. Roell Trade Debt $32,830,356 Phone: (414)-524-2223 Fax: (414)-524-3000 5757 N. Green Bay Avenue 5757 N. Green Bay Avenue Glendale, WI 53209 Milwaukee, WI 53201 United States United States 13. Denso Corp. Attn: Haruya Maruyama Trade Debt $29,229,047 Phone: (248) 350-7500 Fax: (248) 213-2474 24777 Denso Drive 24777 Denso Drive Southfield, MI 48086 Southfield, MI 48086 United States United States 14. TRW Automotive Attn: John Plant Trade Debt $27,516,189 Holdings, Corp. Phone: (734) 855-2660 Fax: (734) 855-2473 12025 Tech Center Dr. 12001 Tech Center Drive Livonia, MI 48150 Livonia, MI 48150 United States United States 15. Magna International, Inc. Attn: Don Walker Trade Debt $26,745,489 Phone: (905) 726-7040 Fax: (905) 726-2593 337 Magna Drive 337 Magna Drive Aurora, ON L4G 7K1 Aurora, ON L4G 7KI Canada Canada 16. American Axle & Mfg Attn: Richard Dauch Trade Debt $26,735,957 Holdings, Inc. Phone: (313) 758-4213 Fax: (313)758-4212 One Dauch Drive One Dauch Drive Detroit, MI 48211-1198 Detroit, MI 48211 United States United States NY2:\1991951\11\16 ZZI1!.DOC\72240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 10 of 24 17. Maritz Inc. Attn: Steve Maritz Trade Debt $25,649,158 Phone: (636)827-4700 Fax: (636) 827-2089 1375 North Highway Drive 1375 North Highway Drive Fenton, MO 63099 Fenton, MO 63099 United States United States 18. Publicis Groupe S.A. Attn: Maurice Levy Trade Debt $25,282,766 Phone: (33 01) 4 443-7000 Fax: (33 01) 4 443-7550 133 Ave des Champs Elysees 133 Ave des Champs-Elysees Paris, 75008 Paris, 75008 France France 19. Hewlett Packard Co. Attn: Mike Nefkens Trade Debt $17,012,332 Phone: (313) 230 6800 Fax: (313) 230 5705 3000 Hanover Street 500 Renaissance Center, Palo Alto, CA 94304 MC:20A Detroit, MI 48243 United States United States 20. Interpublic Group of Attn: Michael Roth Trade Debt $15,998,270 Companies, Inc. Phone: (212) 704-1446 Fax: (212) 704.2270 1114 Avenue of the Americas 1114 Avenue of the Americas New York, NY 10036 New York, NY 10036 United States United States 21. Continental AG Attn: Karl-Thomas Trade Debt $15,539,456 Phone: 49-69-7603-2888 Fax: 49-69-7603-3800 Vahrenwalder Str. 9 Guerickestrasse 7, 60488 D-30165 Hanover, Frankfurt 60488 German German NY2:\1991951\1 1\16 ZZIV.D0072240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 11 of 24 22. Tenneco Inc. Attn: Gregg Sherrill Trade Debt $14,837,427 Phone: (847) 482-5010 Fax: (847) 482-5030 500 North Field Drive 500 North Field Drive Lake Forest, IL 60045 Lake Forest, IL 60045 United States United States 23. Yazaki Corp. Attn: George Perry Trade Debt $13,726,367 Phone: (734) 983-5186 Fax: (734) 983-5197 6801 Haggerty Road 6801 Haggerty Road, 48E Canton, MI 48187 Canton, MI 48187 United States United States 24. International Automotive Attn: James Kamsickas Trade Debt $12,083,279 Components Phone: (313) 253-5208 Fax: (313) 240-3270 5300 Auto Club Drive 5300 Auto Club Drive Dearborn, MI 48126 Dearborn, MI 48126 United States United States 25. Avis Rental Car Attn: Robert Salerno Trade Debt $12,040,768 Phone: (973) 496-3514 Fax: (212) 413-1924 6 Sylvan Way 6 Sylvan Way Parsippany, NJ 07054 Parsippany, NJ 07054 United States United States 26. FMR Corp. Attn: Robert J. Chersi Trade Debt $11,980,946 Phone: (617)563-6611 Fax: (617) 598-9449 82 Devonshire St 82 Devonshire St Boston, MA 02109 Boston, MA 02109 United States United States NY2:\1991951\11\16 ZZ1 H.D0072240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 12 of 24 27. AT&T Corp. Attn: Richard G. Lindner Trade Debt $10,726,376 Phone: (214) 757-3202 Fax: (214) 746-2102 208 South Akard Street 208 South Akard Street Dallas, TX 75202 Dallas, TX 75202 United States United States 28. Union Pacific Corp. Attn: Robert M. Knight, Jr. Trade Debt $10,620,928 Phone: (402) 544-3295 Fax: (402) 501-2121 1400 Douglas Street 1400 Douglas Street Omaha, NE 68179 Omaha, NE 68179 United States United States 29. Warburg E M Pincus & Attn: Joseph P. Landy Trade Debt $10,054,189 Co., Inc. Phone: (212) 878-0600 Fax: (212) 878-9351 466 Lexington Ave 466 Lexington Ave New York, NY 10017 New York, NY 10017 United States United States 30. Visteon Corp. Attn: Donald J. Stebbins Trade Debt $9,841,774 Phone: (734) 710-7400 Fax: (734) 710-7402 One Village Center Drive One Village Center Drive Van Buren Township, Van Buren Twp., MI 48111 MI 48111 United States United States 31. US Steel Attn: John Surma Trade Debt $9,587,431 Phone: (412) 433-1146 Fax: (412) 433-1109 600 Grant Street Room 1344 600 Grant Street Pittsburgh, PA 15219 Room 1344 United States Pittsburgh, PA 15219 United States NY2:\1991951\1 1\16 ZZIH.D0072240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 13 of 24 32. Arcelor Mittal Attn: Lakshmi Mittal Trade Debt $9,549,212 Phone: 44 20 7543 1131 Fax: (44 20) 7 629-7993 19, Avenue De La Liberte Berkley Square House, 7th Luxembourg, L-2930 Floor Berkley Square House Luxembourg London, En land W l J6DA 33. AK Steel Holding, Corp. Attn: Jim Wainscott Trade Debt $9,116,371 Phone: (513) 425-5412 Fax: (513) 425-5815 9227 Centre Pointe Drive 9227 Centre Pointe Drive Westchester, OH 45069 Westchester, OH 45069 United States United States 34. CSX Corp. Attn: Oscar Munoz Trade Debt $8,884,846 Phone: (904) 359-1329 Fax: (904) 359-1859 500 Water Street, 15th Floor 500 Water Street, 15th Floor Jacksonville, FL 32202 Jacksonville, FL 32202 United States United States 35. Hertz Corporation Attn:.Elyse Douglas Trade Debt $8,710,291 Phone: (201) 450-2292 Fax: (866) 4444763 14501 Hertz Quail Springs 225 Brae Boulevard Park Parkway Ridge, NJ 07656 Oklahoma City, OK 73134 United States United States NY2:\1991951\1 1\16 ZZIII.D 072240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 14 of 24 36. Alpha S.A. de C.V. Attn: Manuel Rivera Trade Debt $8,209,133 Phone: (52 81) 8 748 1264 Fax: (52 81) 8 748-1254 Ave. Gomez Morin No. 1111 Ave. Gomez Morin No. 1111 Sur Col. Carrizalejo Sur Col. Carrizalejo San Pedro Garza Garcia, N. San Pedro Garza Garcia, N. L. L. C.P. 66254 C.P. 66254 Mexico Mexico 37. Voith AG Attn: Hubert Lienhard Trade Debt $7,146,187 Phone: 49 7321 372301 2200 N. Roemer Rd St. Poltener Strasse 43 Appleton, WI Heidenheim, D-89522 United States German 38. Goodyear Tire & Rubber Attn: Robert Keegan Trade Debt $6,807 312 Co. , Phone: (330) 796-1145 Fax: (330) 796-2108 1144 E Market St 1144 East Market Street Akron, OH 44316-0001 Akron, OH 44316-0001 United States United States 39. Manufacturers Attn: Greg M. Gruizenga Trade Debt $6 695 777 Equipment & Supply Co. , , Phone: (800) 373-2173 Fax: (810) 239-5360 2401 Lapeer Rd 2401 Lapeer Rd Flint, MI 48503-4350 Flint, MI 48503 United States United States 40. Severstal O A O Attn: Gregory Mason Trade Debt $6,687,993 Phone: (313) 317-1243 Fax: (313) 337-9373 4661 Rotunda Drive 14661 Rotunda Drive, P.O. Box 1699 P.O. Box 1699 Dearborn, MI 48120 Dearborn, MI 48120 United States United States NY2:\1991951\] 1\16 ZZI H DOC\72240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 15 of 24 41. Exxon Mobil Corp. Attn: James P. Hennessy Trade Debt $6,248,959 Phone: (703) 846-7340 Fax: (703) 846-6903 5959 Las Colinas Boulevard 3225 Gallows Road Irving, TX 75039 Fairfax, VA 22037 United States United States 42. Hitachi Ltd. Attn: Yasuhiko Honda Trade Debt $6,168,651 Phone: (8134) 564-5549 Fax: (81 34) 564-3415 955 Warwick Road Akihabara Daibiru Building 18- P.O. Box 510 13, Soto-Kanda, 1-Chome Harrodsburg, KY 40330 Chiyoda-Ku, Tokyo, 101-8608 United States Japan 43. Mando Corp. Attn: Zung Su Byun Trade Debt $5,459,945 Phone: (82 31) 680-6114 Fax: (82 31) 681-6921 4201 Northpark Drive 343-1, Manho-Ri ,Poseung- Opelika, AL 36801 Myon, Pyongtaek Kyonggi, United States South Korea, Korea 44. General Physics Corp. Attn: Sharon Esposito Mayer Trade Debt $5,208,070 Phone: (410) 379-3600 Fax: (410) 540-5302 1500 W. Big Beaver Rd. 6095 Marshalee Drive, St. 300 Troy, MI 48084 Elkridge, MD 21075 United States United States 45. Sun Capital Partners, Attn: Mr. Kevin Trade Debt $4,747 353 Inc. , Phone: (561) 948-7514 Fax: (561) 394-0540 5200 Town Center Circle, 5200 Town Center Circle, Suite Suite 600 600 Boca Raton, FL 33486 Boca Raton, FL 33486 United States United States N Y2:\ 1991951 \ 1 1 \ 16 _ZZ I R D0072240.0635 D0072240.0635 10 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 16 of 24 46. Jones Lang Lasalle, Inc. Attn: Colin Dyer Trade Debt $4,651,141 Phone: (312) 228-2004 Fax: (3 12) 601 -1000 200 East Randolph Drive 200 East Randolph Drive Chicago, IL 60601 Chicago, IL 60601 United States United States 47. McCann Erickson Attn: Gary Lee Trade Debt $4,603,457 Phone: (646) 865 2606 Fax: (646)865 8694 238 11 Avenue, SE 622 3rd Avenue Calgary, Alberta T2G OX8 New York, NY 10017 Canada United States 48. Flex-N-Gate Corp. Attn: Shahid Khan Trade Debt $4,490,775 Phone: (217) 278-2618 Fax: (217) 278-2318 1306 East University Ave. 1306 East University Urbana, IL 61802 Urbana, IL 61802 United States United States 49. Bridgestone Corp. Attn: Shoshi Arakawa Trade Debt $4,422,763 Phone: (8133) 567 0111 Fax: (81 33) 567 9816 535 Marriott Drive 10-1 Kyobashi 1-chome Chuo- Nashville, TN 37214 ku, Tokyo, Japan 104 United States Japan 50. Cap Gemini America Inc Attn: Thierry Delaporte $4,4 5,93bade Debt $4,415,936 Phone: (212) 314-8327 Fax: (212) 314-8018 623 Fifth Avenue, 33rd Floor 623 Fifth Avenue, 33rd Floor New York, NY 10022 New York, NY 10022 United States United States NY2:\1991951\11\16 ZZIV.D 072240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document 17 of 24 DECLARATION UNDER PENALTY OF PERJURY: I, the undersigned authorized officer of the corporation named as Debtor in this case, declare under penalty of perjury that I have reviewed the foregoing Consolidated List of Creditors Holding the 50 Largest Unsecured Claims and that the list is true and correct to the best of my information and belief. Dated: June 1, 2009 Pg /s/ Frederick A. Henderson Signature NAME: Frederick A. Henderson TITLE: President and Chief Executive Officer NYIA"195I\I1\16 ZZII!.DOC\72240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 18 of 24 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re Chapter 11 Case No. GENERAL MOTORS CORPORATION, 09- Debtor. EXHIBIT "A" TO VOLUNTARY PETITION 1. The debtor's securities are registered under Section 12 of the Securities and Exchange Act of 1934, and the SEC file number is 1-143. 2. The following financial data is the latest available information and refers to the debtor's condition on March 31, 2009. a. Total assets on a consolidated basis: $82.290.000.000 b. Total debts on a consolidated basis (including debts listed in 2.c., below): $172 810 000 000 Approximate number of holders. C. Debt securities held by more than 500 holders. secured unsecured subordinated ? ® ? $21,694,000,0001 Greater than 500 secured unsecured subordinated ? ® ? $3,221.000,0002 Greater than 500 secured unsecured subordinated ? ® ? $1,388,000,0003 Greater than 500 d. Number of shares of preferred stock: 6.000,000 shares authorized, no shares issued and outstandin¢. 'Issued pursuant to Senior Indenture, dated as of December 7, 1995. 2 Issued pursuant to Senior Indenture, dated as of July 3, 2003. 3 Issued pursuant to Senior Indenture, dated as of November 15, 1990. NY2:\ 1991951 \ 11 \ 16_ZZ I 1 !. D0072240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 19 of 24 e. Number of shares of common stock: 2,000,000,000 shares authorized 800,937,541 shares issued, and 610,505,273 shares outstanding all as of March 31, 2009. 3. Brief description of debtor's business: The debtor, together with its affiliates is engaged in the manufacturing marketing and distribution of cars and trucks worldwide. 4. List the names of any person who directly or indirectly owns, controls, or holds, with power to vote, 5% or more of the voting securities of debtor: State Street Bank and Trust Company 0 7.0%1 NY2:\1991951\11\16 ZZI1!.DOC\72240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document 20 of 24 APPROVAL OF BANKRUPTCY FILING, 363 SALE AND RELATED MATTERS WHEREAS, at this meeting and at prior meetings, the Board of Directors (the "Board") of General Motors Corporation (the "Corporation") has extensively reviewed the alternatives available to the Corporation and its direct and indirect subsidiaries Saturn, LLC, Saturn Distribution Corporation and : Chevrolet-Saturn of Harlem, Inc. (the "Filing Subsidiaries") and has determined that the commencement of a Chapter 11 case in the United States by each of the Corporation and the Filing Subsidiaries presents the only opportunity for preserving and maximizing the value of the enterprise for the benefit of the Corporation's stakeholders and other interested parties; COMMENCEMENT OF BANKRUPTCY CASES RESOLVED, that the Corporation and each of the Filing Subsidiaries be, and it hereby is, authorized and directed to file a petition seeking relief under the provisions of Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code"); RESOLVED, that each of the Proper Officers (it being understood that, for the purposes of these resolutions, the "Proper Officers" shall include, without limitation, the President and Chief Executive Officer, any vice president of the Corporation (including executive or group vice presidents), the Controller and Chief Accounting Officer, the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer and any other officer of the Corporation determined by the Legal Staff of the Corporation to be an appropriate officer with respect to the action taken) is hereby authorized and directed, in the name and on behalf of the Corporation, to execute, verify, and file all petitions under Chapter 11 of the Bankruptcy Code and to cause the same to be filed in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court") at such time as such Proper Officer shall determine; RESOLVED, that in connection with the commencement of the Chapter 11 case by the Corporation, each Proper Officer is hereby authorized, in the name and on behalf of, the Corporation, to negotiate, execute, and deliver such notes, security and other agreements, and instruments as such Proper Officer considers appropriate to enable the Corporation to utilize cash collateral on the terms and conditions such Proper Officer or Proper Officers executing the same may consider necessary, proper, or desirable, and to consummate the transactions contemplated by such notes, security and other agreements and instruments on behalf of the Corporation, subject to Bankruptcy Court approval; RESOLVED, that each Proper Officer is hereby authorized and directed, in the name and on behalf of the Corporation, to cause the Corporation to enter into, execute, deliver, certify, file and/or record, negotiate, and perform, any and all petitions, schedules, lists, motions, certifications, agreements, instruments, affidavits, applications, including without limitation, applications for approvals or rulings of governmental or regulatory authorities, or other documents and to take such other actions, as in the judgment of such Proper Officer shall be or become necessary, proper, or desirable in connection with the Corporation's Chapter 11 case; RESOLVED, that the Board sees no objection to each of the Filing Subsidiaries taking any and all action, including authorizing a filing in the Bankruptcy Court, and to executing and delivering all documents, agreements, motions and pleadings as are Pg NY2:\1991951\11\16_ZZI f.D0072240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 21 of 24 necessary, proper, or desirable to enable such Filing Subsidiary to carry out the filing in Bankruptcy Court contemplated hereby; RESOLVED, that the Board sees no objection to a filing by GMCL, if determined to be appropriate by the Board of Directors of GMCL, for protection from its creditors under the Companies' Creditors Arrangement Act (the "CCAA") or to any actions taken by GMCL as are necessary, proper, or desirable to enable GMCL to carry out such filing; EXECUTION OF MASTER SALE AND PURCHASE AGREEMENT RESOLVED, that the Board finds that the sale of substantially all of the assets of the Corporation to Auto Acquisition Corp., a new entity formed by the United States Department of the Treasury, in accordance with the Purchase Agreement (as defined below), is expedient and in the best interests of the Corporation; RESOLVED, that the form, terms and provisions of the proposed Master Sale and Purchase Agreement (the "Purchase Agreement") by and among the Corporation, the Filing Subsidiaries and Vehicle Acquisition Holdings LLC., in substantially the form reviewed by the Board, are hereby approved, and the sale of substantially all of the assets of the Corporation set forth in the Purchase Agreement on the terms set forth in the Purchase Agreement be, and hereby is, authorized and approved; RESOLVED, that each of the Proper Officers, or any of them, is hereby authorized and directed to execute and deliver the Purchase Agreement, with such changes therein or revisions thereto as the Proper Officer or Officers executing and delivering the same may in his or their sole and absolute discretion approve consistent with these Resolutions and with the advice of the Corporation's Legal Staff, and to cause the Corporation to cant' out the terms and provisions thereof; RESOLVED, that each of the Proper Officers, or any of them, is hereby authorized and directed to approve, execute and deliver from time to time such amendments, changes or modifications to the Purchase Agreement as any such Proper Officer shall, consistent with these Resolutions and with the advice of the Corporation's Legal Staff, deem necessary, proper or advisable; RESOLVED, that if the Corporation determines no later than the due date (including any extensions) of the Corporation's tax return for the taxable year in which the sale contemplated by the Purchase Agreement is closed that an Agreed G Transaction (as defined in the Purchase Agreement) has occurred, (i) the Purchase Agreement will be deemed to constitute a "plan" of the Corporation for purposes of Sections 368 and 354 of the Internal Revenue Code of 1986, as amended (the "Tax Code"), and (ii) the Corporation shall treat the transactions contemplated in the Purchase Agreement, in combination with the subsequent liquidation of the Corporation and the Filing Subsidiaries (as defined in the Purchase Agreement), as a tax-free reorganization pursuant to Section 368(a)(1)(G) of the Tax Code (with any actual or deemed distribution by the Corporation qualifying solely under Sections 354 and 356 of the Tax Code but not under Section 355 of the Tax Code); EXECUTION OF LOAN FACILITIES - U.S. AND CANADA RESOLVED, that in connection with the commencement of the Chapter 11 case by the Corporation, each of the Proper Officers, or any of them, is hereby authorized to NY2:\1991951\11\16_ZZII!.D 072240.0635 4 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 22 of 24 negotiate, execute, deliver and cause the Corporation to perform its obligations under (i) a secured superpriority debtor-in-possession credit agreement (the "Credit Agreement"), among the Corporation, a debtor and debtor in possession under Chapter 11 of the Bankruptcy Code, as borrower, certain subsidiaries of the Corporation listed therein, as guarantors, the United States Department of the Treasury, as lender, and Export Development Canada, as lender, substantially in the form and on the terms and conditions presented to the Board; (ii) one or more notes ("Notes") providing for loans under the Credit Agreement in an aggregate principal amount not to exceed $65 billion plus the principal amount of any Additional Notes (as defined in the Credit Agreement), in each case together with interest thereon at the rate specified in the Credit Agreement and (iii) the other agreements contemplated by the Credit Agreement, including pledge agreements, security agreements, mortgages, financing statements and any other similar documents in connection with granting a security interest in or a pledge of the Corporation's assets as collateral to secure the Obligations (as defined in the Credit Agreement) and any other agreements or documents (the documents described in this clause (iii) collectively described herein as the "Other Financing Documents"), as any Proper Officer determines is necessary, proper, or desirable to consummate the transactions contemplated by the Credit Agreement and the Other Financing Documents, in each case consistent with these Resolutions and the advice of the Corporation's Legal Staff, as evidenced by the execution thereof by the Proper Officer; RESOLVED, that each of the Proper Officers, or any of them, is hereby authorized to grant a security interest in and pledge assets as collateral under the Guaranty and Security Agreement, the Equity Pledge Agreement and each Other Financing Document to which the Corporation is party; RESOLVED, that the Board sees no objection to the issuance by all or any of the direct or indirect subsidiaries of the Corporation of guarantees of the Obligations and the granting of a security interest in or the pledge of any assets by such subsidiaries as collateral to secure the Obligations by entering into the Guaranty and Security Agreement and the Equity Pledge Agreement, in each case substantially in the form reviewed by the Board, together with the Other Financing Documents to which such subsidiary is party; RESOLVED, that the Board sees no objection (a) to the execution and delivery by GMCL of an amended and restated loan agreement with Export Development Canada ("EDC") as lender (the "Canadian Credit Agreement") amending the loan agreement between GMCL and EDC, among other parties, dated as of April 29, 2009 (the "April EDC Credit Agreement") or (b) to the provision of secured guaranties of certain obligations of GMCL under the Canadian Credit Agreement to be given by 1908 Holdings Limited, Parkwood Holdings Limited, and GM Overseas Funding LLC, each of which is a direct or indirect subsidiary of GMCL; NY2:\199195 1\1 1\16_ZZI I !.DOC\72240.0635 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 Main Document Pg 23 of 24 RESOLVED, that the Corporation's guarantee of certain obligations of GMCL under the Canadian Credit Agreement secured by the pledge of some or all of its ownership interest in GMCL is approved on terms to be approved by the CFO, which may include the Corporation's participation in the Canadian Credit Agreement as a borrower, consistent with the advice of the Corporation's Legal Staff; RESOLVED, that the Corporation's guarantee of GMCL's obligations under the April EDC Credit Agreement as approved at the meeting of the Board on April 24, 2009 will continue to be valid, binding and enforceable until the effectiveness of the Canadian Credit Agreement, and in connection with the foregoing, the Proper Officers, or any Proper Officer, is authorized to execute and deliver a Confirmation and Acknowledgment (the "Acknowledgment") stating that the April EDC Credit Agreement may be modified or supplemented by EDC and GMCL without the Corporation's participation; RESOLVED, that the Proper Officers, or any Proper Officer, is hereby authorized to execute and deliver the guaranty and any other agreements or documents to which the Corporation is a party or to take any other actions that he determines are necessary, appropriate or advisable to consummate the transactions contemplated by the Canadian Credit Agreement; GENERAL AUTHORIZATION AND RATIFICATION RESOLVED, that each Proper Officer is authorized and directed, consistent with these Resolutions and with the advice of the Corporation's Legal Staff: (i) to negotiate, execute, deliver, certify, file and/or record, and perform, any and all of the agreements, documents, and instruments referenced herein, and such other agreements, documents, and instruments and assignments thereof as may be required or as such Proper Officer deems appropriate or advisable, or to cause the negotiation, execution, and delivery thereof, as the case may be, in such form and substance as such Proper Officer may approve, together with such changes and amendments to any of the terms and conditions thereof as such Proper Officer may approve, (ii) to negotiate, execute, deliver, certify, file and/or record, and perform any agreements, documents, certificates, consents, filings, and applications relating to the Resolutions adopted and matters ratified or approved herein and the transactions contemplated thereby, and amendments and supplements to any of the foregoing, and to take such other action as may be required or as such Proper Officer deems appropriate or advisable in connection therewith, and (iii) to do such other things as may be required, or as may in such Proper Officer's judgment be necessary, proper, or desirable, to carry out the intent and effectuate the purposes of the Resolutions adopted and matters ratified or approved herein and the consummation of the transactions contemplated hereby; and RESOLVED, that all actions taken by the Proper Officers, or any of them, prior to the date of the foregoing Resolutions adopted at this meeting and within the authority conferred, are hereby ratified, confirmed, approved in all respects as the act and deed of the Corporation. NY2:\1991951\11\16_ZZII -DO072240.0635 6 09-50026 Doc 1 Filed 06/01/09 Entered 06/01/09 07:57:51 24 of 24 ASSISTA_ _ SECR>» TARV'S CER LATE GENERAL MOTORS CORPORATION May 31, 2009 Main Document Pg As a duly elected and appointed Assistant Secretary of General Motors Corporation a Delaware corporation (the "Corporation") I, Anne T. Lain, certify that a true and complete copy of resolutions duly adopted by the Board of Directors of the Corporation on May 31, 2009 is attached to this Certificate and that such resolutions have not been modified, rescinded or amended and are now in full force and effect. IN WITNESS WHEREOF, I have executed this certificate as of the date written above. _?F*-?-TLS-? Name: Anne T. Larin Title: Assistant Secretary CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading has been forwarded to all counsel of record by: U.S. First Class Mail, Postage Paid Hand Delivery Certified Mail, Return Receipt Requested Facsimile Transmittal UPS Delivery at the following address: Jeffrey M. Zielinski, Esquire Nelson Levine deLuca & Horst, LLC Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 (Counsel for Plaintiff) Vincent Champion, Esquire Rhodes & Sinon, LLP One South Market Street, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (Counsel for Graham Motors Company) MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. Dated: (Z2 =F Y OHEN, ESQUIRE (P0876398.1) OF' k av !u"! 23 7 NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YOHE Plaintiff(s) V. IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA GENERAL MOTORS CORPORATION AND CIVIL ACTION NO: 07-2269 GRAHAM MOTORS COMPANY STIPULATION OF DISMISSAL Plaintiff, Elwood Yohe, and Defendants, General Motors Corporation and Graham Motors Company, hereby stipulate and agree that the above-captioned matter be Dismissed with Prejudice. NELSON LEVINE de LUCA & HORST, LLC BY: JEFFREY M. ZIELINSKI, ESQUIRE ATTORNEYS FOR PLAINTIFF Dated: April 7, 2010 t., n r_? r; c v . NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFFS BY: JEFFREY M. ZIELINSKI, ESQUIRE IDENTIFICATION NO.: 91390 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 ELWOOD YORE Plaintiff(s) V. IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA GENERAL MOTORS CORPORATION AND CIVIL ACTION NO: 07-2269 GRAHAM MOTORS COMPANY CERTIFICATE OF SERVICE I, Jeffrey M. Zielinski, Esquire, hereby certify that a true and correct copy of the Stipulation of Dismissal was served on April 7, 2010, upon counsel listed below by United States Mail, postage prepaid. Vincent L. Champion Rhoads & Sinon LLP One South Market Square, Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Jeffrey Cohen, Esquire Meyer Darragh Buckler Bebenek & Eck, LLC U.S. Steel Tower Suite 4850 600 Grant Street Pittsburgh, PA 15219 NELSON LEVINE de LUCA & HORST, LLC BY,, -?K - JE EY M. ZIELINSKI, ESQUIRE ATTORNEYS FOR PLAINTIFF Dated: April 7, 2010