The URL can be used to link to this page

Home My WebLink About07-2809.. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY as subrogee of Rodney and Kristina Hall, CIVIL DIVISION -ARBITRATION Plaintiff, vs. A.E.S. HEARTHPLACE, INC. t/d/b/a A.E.S. HEARTHPLACE STOVE SHOP and SHERWOOD INDUSTRIES, LTD., COMPLAINT Filed on behalf of Plaintiff Defendants. Counsel of Record for this Party: Travis L. McElhaney, Esquire PA I.D. # 204023 Christopher P. Deegan, Esquire PA I.D. #85635 WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP Firm #594 Two Gateway Center 14th Floor Pittsburgh, PA 15222 (412) 281-4541 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA NATIONAL CIVIL DIVISION -ARBITRATION MUTUAL CASUALTY INSURANCE COMPANY as subrogee of No.: Rodney and Kristina Hall, Plaintiff, vs. A.E.S. HEARTHPLACE, INC. t/d/b/a A.E.S. HEARTHPLACE STOVE SHOP and SHERWOOD INDUSTRIES, LTD., Defendants. 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 TWENTY (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ON 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 Telephone: (800) 990-9108 t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY as subrogee of Rodney and Kristina Hall, CIVIL DIVISION -ARBITRATION No.: d 7 ~ & a ~, ~,ti.e ~.,, Plaintiff, vs. A.E.S. HEARTHPLACE, INC. t/d/b/a A.E.S. HEARTHPLACE STOVE SHOP and SHERWOOD INDUSTRIES, LTD., Defendants. COMPLAINT AND NOW, comes Plaintiff, Pennsylvania National Mutual Casualty Insurance Company as subrogee of Rodney and Kristina Hall, by and through its counsel, Travis L. McElhaney, Esquire, Christopher P. Deegan, Esquire and the law firm of Weber Gallagher Simpson Stapleton Fires & Newby LLP, and files the following Complaint: 1. Plaintiff, Pennsylvania National Mutual Casualty Insurance Company as subrogee of Rodney and Kristina Hall, is a corporation doing business within the Commonwealth of Pennsylvania and has a place of business at P.O. Box 1670, Harrisburg, Pennsylvania 17105. 2. Rodney and Kristina Hall are adult individuals residing at 8892 Rice Road, Shippensburg, Pennsylvania 17257. 3. Defendant, A.E.S. Hearthplace, Inc. t/d/b/a A.E.S. Hearthplace Stove Shop, is a company doing business within the Commonwealth of Pennsylvania and has a place of business at 1743 Pine Road, Newville, Pennsylvania 17241. 4. Defendant, Sherwood Industries, Ltd., is a company doing business within the Commonwealth of Pennsylvania and has a principle place of business at 6782 Old Field Road, Saanichton, British Columbia V8M2A3. 5. At all times relevant hereto, the Halls maintained a Homeowner's Insurance Policy with Penn National which covered their aforementioned residence at 8892 Rice Road, Shippensburg, Pennsylvania 17257. 6. Pursuant to its policy of insurance, Penn National retains subrogation rights against any party liable for causing damage to the Hall's aforementioned residence. 7. On or about December 7, 2005, Rodney and Kristina Hall purchased an Enviro Evolution Pellet Stove, Model No. EFS, (hereinafter referred to as "the Hall's stove") from A.E.S Hearthplace. 8. Rodney and Kristina Hall orally contracted with A.E.S. Hearthplace for the installation of the Hall's stove, pursuant to the specifications of the attached sales invoice (attached hereto as "Exhibit 1 "). 9. The Hall's stove had been designed, manufactured, produced and/or supplied by Sherwood. 10. Employees and/or agents and/or representatives of A.E.S Hearthplace did install the Hall's stove in the basement of their residence. 11. On or about March 4, 2006, the Hall's residence was consumed by smoke from the Hall's stove, damaging their residence and personal property contained therein. 12. The Hall's stove malfunctioned due to a defective high temperature safety switch and/or safety disk and/or due to A.E.S Hearthplace's failure to perform a magnahelic setup during installation, therefore not adjusting the fuel to air ratio appropriately. 13. As a result of the aforementioned incident, the damages suffered by Rodney and Kristina Hall include, but are not limited to, expenses associated with the cleanup, repair, replacement and/or restoration of damages portions of their walls, floors, ceilings, furniture, cabinets and/or other items of their personal property. 14. Pursuant to its policy of insurance, Plaintiff Penn National paid damages in the amount of $6,615.30 as a result of the aforementioned damages suffered by Rodney and Kristina Hall. COUNT I -NEGLIGENCE Pennsylvania National Mutual Casualty Insurance Comnany as subrogee of Rodney and Kristina Hall v. A.E.S. Hearthplace, Inc. t/d/b/a A E S Hearthplace Stove Shog 15. Paragraphs 1-14 above are incorporated by reference herein as if more fully set forth at length below. 16. The careless, negligent and reckless conduct of A.E.S Hearthplace, by and through its employees and/or agents and/or representatives, was the direct and proximate cause of the damages suffered by Rodney and Kristina Hall, and that conduct is more particularly set forth in the lettered paragraphs below: a. In failing to properly install the Hall's stove; b. In installing the Hall's stove without having a magnahelic setup done, therefore not adjusting the fuel to air ratio appropriately; In failing to properly adjust the Hall's stove's fuel to air ratio during installation; d. In failing to properly test the Hall's stove after it was installed; e. In failing to properly train and/or supervise its employees and/or agents and/or representatives in the installation of a pellet stove and/or the mandatory adjusting of the fuel to air ratio during installation; f. In allowing and/or permitting its employees and/or agents and/or representatives to act or omit to act as described above; g. In failing to warn and/or otherwise alert Rodney and Kristina Hall of the chance that the Hall's stove would overheat and/or create excessive smoke due to its aforementioned negligent installation; and h. In failing to provide Rodney and Kristina Hall with the standard of care owed to them under the existing circumstances. WHEREFORE, Plaintiff, Pennsylvania National Mutual Casualty Insurance Company as subrogee of Rodney and Kristina Hall, demands judgment in its favor and against the defendant, A.E.S Hearthplace, Inc. t/d/b/a A.E.S Hearthplace Stove Shop, in the amount of $6,615.30, exclusive of interest and costs. COUNT II -BREACH OF CONTRACT Pennsylvania National Mutual Casualty Insurance Company as subro~ee of Rodney and Kristina Hall v. A.E.S. Hearthplace, Inc. t/d/b/a A.E.S Hearthplace Stove Shop 17. Paragraphs 1-16 above are incorporated by reference herein as if more fully set forth at length below. 18. A.E.S. Hearthplace did breach its contract with the Halls in general, and in the following particulars: a. In failing to perform the installation of the Hall's stove in a workmanlike manner; b. In failing to install the Hall's stove in accordance with the stove's installation instructions contained within the operator's manual; c. In failing to install the Hall's stove in a manner acceptable within the pellet stove installation industry; d. In installing the Hall's stove without having a magnahelic setup done, therefore not adjusting the fuel to air ratio appropriately; e. In failing to properly adjust the Hall's stove's fuel to air ratio during installation; WHEREFORE, Plaintiff, Pennsylvania National Mutual Casualty Insurance Company as subrogee of Rodney and Kristina Hall, demands judgment in its favor and against the defendant, A.E.S Hearthplace, Inc. t/d/b/a A.E.S Hearthplace Stove Shop, in the amount of $6,615.30, exclusive of interest and costs. COUNT III -STRICT LIABILIITY Pennsylvania National Mutual Casualty Insurance Comuany as subro~ee of Rodney and Kristina Hall v. Sherwood Industries, Ltd 19. Paragraphs 1-18 above are incorporated by reference herein as if more fully set forth at length below. 20. At all times relevant hereto, Sherwood was the in the business of designing, manufacturing, producing, and/or supplying the same kind of stoves as the Hall's stove. 21. The Hall's stove was expected to and/or did reach the Halls without a substantial change in the condition it was in when it left the possession, custody or control of Sherwood. 22. The damages suffered by the Halls were the direct and proximate result of the defective and/or abnormally dangerous condition of the Hall's stove, which was defective and/or abnormally dangerous generally and more specifically as follows: a. In failing to contain a properly working high temperature safety switch and/or safety disk to prevent the Hall's stove from overheating and excessive smoking; b. In failing to contain a properly working mechanism by which the stove automatically shuts off when it reaches excessive temperatures and/or produces excessive smoke; c. In failing to contain a signal or other warning device that signals to the user thereof when the stove is approaching excessive temperatures and/or producing excessive smoke; d. In containing a temperature safety switch and/or safety disk intended to shut off the Hall's stove when it reached excessive temperatures that did not work properly; and e. In failing to contain a temperature safety switch and/or safety disk that was capable of shutting off the stove and/or otherwise preventing excessive temperatures and/or smoke. WHEREFORE, Plaintiff, Pennsylvania National Mutual Casualty Insurance Company as subrogee of Rodney and Kristina Hall, demands judgment in its favor and against the defendant, Sherwood Industries, Ltd., in the amount of $6,615.30, exclusive of interest and costs. COUNT IV -NEGLIGENCE Pennsylvania National Mutual Casualty Insurance Company as subro~ee of Rodney and Kristina Hall v. Sherwood Industries, Ltd 23. Paragraphs 1-22 above are incorporated by reference herein as if more fully set forth at length below. 24. At all times relevant, Sherwood owed a duty to the Halls to design, manufacture, produce, and/or supply a pellet stove which was free from any and all defects. 25. The damages suffered by the Halls were the direct and proximate result of the negligence of Sherwood generally and more specifically as follows: a. In failing to design, manufacture, produce, and/or supply a pellet stove that contained a properly working high temperature safety switch and/or safety disk to prevent the Hall's stove from overheating and excessive smoking; b. In failing to design, manufacture, produce, and/or supply a pellet stove that contained a properly working mechanism by which the stove automatically shuts off when it reaches excessive temperatures and/or produces excessive smoke; c. In failing to design, manufacture, produce, and/or supply a pellet stove that contained a signal or other warning device that signals to the user thereof when the stove is approaching excessive temperatures and/or producing excessive smoke; d. In designing, manufacturing, producing, and/or supplying a pellet stove that contained a temperature safety switch and/or safety disk intended to shut off the Hall's stove when it reached excessive temperatures that did not work properly; and e. In failing to design, manufacture, produce, and/or supply a pellet stove that contained a temperature safety switch and/or safety disk that was capable of shutting off the stove and/or otherwise preventing excessive temperatures and/or smoke. WHEREFORE, Plaintiff, Pennsylvania National Mutual Casualty Insurance Company as subrogee of Rodney and Kristina Hall, demands judgment in its favor and against the defendant, Sherwood Industries, Ltd., in the amount of $6,615.30, exclusive of interest and costs. COUNT V -BREACH OF EXPRESS WARRANTY Pennsylvania National Mutual Casualty Insurance Comnany as subro~ee of Rodney and Kristina Hall v. Sherwood Industries, Ltd 26. Paragraphs 1-25 above are incorporated by reference herein as if more fully set forth in the lettered paragraphs below. 27. At all times relevant hereto, Sherwood was the designer, manufacturer, producer and/or supplier of the Hall's stove and its component parts and, as such, was a merchant as that term is defined in the Pennsylvania Uniform Commercial Code. 28. By and through the written and/or oral affirmations of fact, promises, descriptions, samples and/or models relating to the Hall's stove, all of which were made or given directly or indirectly to the Halls by Sherwood before, during, and/or after the purchase of the Hall's stove, Sherwood created express warranty(ies) that the Hall's stove would conform to said affirmations of fact, promises, descriptions, samples and/or models. 29. The damages suffered by the Halls were the direct and proximate result of said breach of express warranty(ies), which were breached by Sherwood generally and more specifically as follows: a. In designing, manufacturing, producing, and/or supplying the Hall's stove in such a condition that it did not conform to the aforementioned and/or other warranty(ies); b. In designing, manufacturing, producing, and/or supplying the Hall's stove in such a condition that it did not shut off when the stove reached excessive temperatures and/or produced excessive smoke; c. In designing, manufacturing, producing, and/or supplying a pellet stove that contained a defective high temperature safety switch and/or safety disk; d. In designing, manufacturing, producing, and/or supplying a pellet stove that emitted smoke into the Hall's residence rather than venting it through the stove's ventilation system; e. In failing to design, manufacture, produce, and/or supply a pellet stove that contained a properly working high temperature safety switch and/or safety disk to prevent the Hall's stove from overheating and excessive smoking; and f. In failing to ensure that the Hall's stove was free from any and all defects before it left its possession, control or custody. WHEREFORE, Plaintiff, Pennsylvania National Mutual Casualty Insurance Company as subrogee of Rodney and Kristina Hall, demands judgment in its favor and against the defendant, Sherwood Industries, Ltd., in the amount of $6,615.30, exclusive of interest and costs. i COUNT VI -BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY Pennsylvania National Mutual Casualty Insurance Comnany as subro~ee of Rodney and Kristina Hall v. Sherwood Industries, Ltd 30. Paragraphs 1-29 above are incorporated by reference herein as if more fully set forth at length below. 31. At all times relevant hereto, Sherwood was the designer, manufacturer, producer, and/or supplier of the same kind of pellet stoves as the Hall's stove and, as such, was a merchant with respect to goods of the kind purchased by the Halls. 32. As a merchant with respect to goods of the kind purchased by the Halls, Sherwood created an implied warranty(ies) that the Hall's stove and all of its component parts would be merchantable. 33. The damages suffered by the Halls were the direct and proximate result of the breach of said implied warranty(ies) of merchantability, which were breached by Sherwood generally and more specifically as follows: a. In designing, manufacturing, producing, and/or supplying a pellet stove that did not pass without objection in the pellet stove trade; b. In designing, manufacturing, producing, and/or supplying a pellet stove that was not of fair average quality; and c. In designing, manufacturing, producing, and/or supplying a pellet stove that was not fit for the ordinary purposes to which it would reasonably and foreseeably be put. WHEREFORE, Plaintiff, Pennsylvania National Mutual Casualty Insurance Company as subrogee of Rodney and Kristina Hall, demands judgment in its favor and against the defendant, Sherwood Industries, Ltd., in the amount of $6,615.30, exclusive of interest and costs. Respectfully Submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP By: c Travis L. McElhan , E ire Christopher P. Deegan, squire Counsel for Plaintiff a ~ J VERIFICATION I, William Dressler, on behalf of Pennsylvania National Mutual Casualty Insurance Company, verify that the statements made in the Complaint are true and correct to the best of my knowledge. I understand that false statements herein are made subject to the penalties of 18 Pa.C. S.A. Section 4904 relating to unsworn falsification to authorities. ~~/~QCIAcH~ ~`~~~ William Dressler Penn National Insurance Dated: °2~aDly ~7 ( c.'? ''~ ~... ~ n ro -~ '_~ ~ ;i5~ r-_- _ ~ --, ' ._ :; 1i - ~ - '; cr` .1 _~ ~ `,_~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY as subrogee of Rodney and Kristina Hall, CIVIL DIVISION -ARBITRATION No.: 07-2809-Civil Term Plaintiff, vs. A.E.S. HEARTHPLACE, INC. t/d/b/a A.E.S. HEARTHPLACE STOVE SHOP and SHERWOOD INDUSTRIES, LTD., PROOF OF SERVICE Filed on behalf of Plaintiff Defendants. Counsel of Record for this Party: Travis L. McElhaney, Esquire PA I.D. # 204023 Christopher P. Deegan, Esquire PA I.D. #85635 WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP Firm #594 Two Gateway Center 14th Floor Pittsburgh, PA 15222 (412) 281-4541 f,. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY as subrogee of Rodney and Kristina Hall, CIVIL DIVISION -ARBITRATION No.: 07-2809 Civil Term Plaintiff, vs. A.E.S. HEARTHPLACE, INC. t/d/b/a A.E.S. HEARTHPLACE STOVE SHOP and SHERWOOD INDUSTRIES, LTD., Defendants. PROOF OF SERVICE I, Travis L. McElhaney, Esquire, counsel for plaintiff in the above-captioned case, hereby certify that a copy of the Complaint was served upon Sherwood Industries, Ltd. by Certified Mail, Return Receipt Requested. A copy of the Return Receipt from such Certified Mailing, showing that the Civil Complaint was delivered on May 31, 2007, is attached hereto as Exhibit .. A.. I also verify that the statements in this Proof of Service are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A.§ 4904 relating to Unsworn Falsification to Authorities. Respectfully submitted, Dated: .5~~ WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP Travis L. McElhaney, sq ire Counsel for Plaintiff '~ ^ Complete items 1, 2, and 3. Also complete item 4 if Restricted Qefivery is desired. ^ Print your name and address on the reverse so that we can return the card to you. ^ Attach this card to the back of the mailpiece,. or on the front ff space permits. 1. Article Addressed to: ~.Y`u1~ ~Yl~.l.(..S~ccs C~; C~`~82 6[~ ~~.~~ ~va~ ~a ; -~ C~jri~hS~ ~ ~ ~ t C~dC b l a- V~~ a signature X 'Agent ^ Addressee B, by ( e) m C. Date ofpelivery ~ % To 5/3/ /a~ D. is delivery address different from item 1 ?~ ^ Yes If YES, enter delivery address below: ^ No 3. ce Type ed Mail press Mail Registered Retum Receipt for Merchandise ^ Insured Mail C.O.D. 4. Restricted Delivery? (Extra Fee) ^ Y~ 2. Article Number (transfer from service faeeq 7 0 D~ 2 4 0 0 4 0 6 X 9 8 7 7 3 9 7 PS Form 3811, February 2004 Domestic Retum Receipt ~o2sss-o2-M-~sao ~ d ~ tii 4,„~ ~ .l ~` w-- ~ ~}~ U; Cl~ ~.. ~ ~} ~ ~ ~~.. S1 _ ~ ~ ` y ~ jn ~~ ..!' ~J1 SHERIFF'S RETURN - REGULAR CASE NO: 2007-02809 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PENNSYLVANIA NATIONAL MUTUAL C VS A E S HEARTHPLACE INC ET AL WILLIAM CLINE Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon AES HEARTHPLACE INC TDBA AES HEARTHPLACE STOVE SHOP the DEFENDANT at 1440:00 HOURS, on the 17th day of May 2007 at 1743 PINE ROAD NEWVILLE, PA 17241 by handing to AMANDA BORSUK, OFFICE MANAGER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 9.60 Affidavit .00 Surcharge 10.00 .00 5/Jl~e? ~ / 37.60 Sworn and Subscibed to before me this day of , So Answers: :~~~.~~ R. Thomas Kline 05/18/2007 WEBER GALLAGHER SIMPSON STAPLE By. ~~ Deputy Sheriff A.D. .~- ."' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY as subrogee of Rodney and Kristina Hall, CIVIL DIVISION -ARBITRATION No.: 07-2809-Civil Term Plaintiff, vs. A.E.S. HEARTHPLACE, INC. t/d/b/a A.E.S. HEARTHPLACE STOVE SHOP and SHERWOOD INDUSTRIES, LTD., Defendants. PRAECIPE TO SETTLE DISCONTINUE AND END Filed on behalf of Plaintiff Counsel of Record for this Party: Travis L. McElhaney, Esquire PA I.D. # 204023 Christopher P. Deegan, Esquire PA I.D. #85635 WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP Firm #594 Two Gateway Center 14~' Floor Pittsburgh, PA 15222 (412) 281-4541 .~- ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY as subrogee of Rodney and Kristina Hall, CIVIL DIVISION -ARBITRATION No.: 07-2809 Civil Term Plaintiff, vs. A.E.S. HEARTHPLACE, INC. t/d/b/a A.E.S. HEARTHPLACE STOVE SHOP and SHERWOOD INDUSTRIES, LTD., Defendants. PRAECIPE TO SETTLE DISCONTINUE AND END TO THE PROTHONOTARY: Kindly settle discontinue and end the above captioned matter. Respectfully submitted, Dated: g WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP ~~~ ~ ~/~ ravis L. McElh ey, Es re Counsel for Plaintiff C? ~ ~i u ~ _~,;rt c~ -~ ~ .:z_ rr{ ,} ~.~ ~. ~~ ~ ~ ..c