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HomeMy WebLinkAbout07-4740 KRAFT & KRAFT, P.C. BY: Robert E. Cherwony, Esquire Identification No. 17623 1311 Spruce Street Philadelphia, PA 19107 (215) 546-5100 UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK P. O. Box 4780 Syracuse, NY 13221-4780 vs. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS 2831 Waterfront Parkway -East Drive Indianapolis, IN 46214 Attorney for Plaintiff(s) COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION AT LAW NO. 07 - y 7~a l:l vi l ~a~ CIVIL ACTION COMPLAINT "NOTICE" "You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. you may lose money or property or other rights important to you. "YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. 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. "AVISO" "Le han demandado a usted en la corte. Si usted quiere defenderse de este demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demands y la notification. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notification. Ademas, la corte puede decidir a favor dei demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades u ostros derechos importantes para usted. "LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFIICINA CUYA DIRECCION SE ENCUENTRA ESRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENC[A LEGAL." Court Administrator Courthouse, 4th Floor 1 Courthouse Square Carlisle, PA 17013 KRAFT & KRAFT, P.C. BY: Robert E. Cherwony, Esquire Attorney No. 17623 1311 Spruce Street Philadelphia PA 19107 (215) 546-5100 UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK P. O. Box 4780 Syracuse, NY 13221-4780 v. Attorney for Plaintiff(s) COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION AT LAW EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS 2831 Waterfront Parkway -East Drive Indianapolis, IN 46214 ~ No. V 7- `~ 7 `f O ~.c.~;~.(I ~~„~.. CIVIL ACTION 1. Plaintiff is a corporation with an address as set forth above 2. Defendant is a corporation with an address as set forth above. 3. On or about October 19, 2005 due to defendant's negligence and carelessness, plaintiff s insured sustained damages in the sum of $10,910.95. Attached hereto, made a part hereof and marked Exhibit "A" is a true and correct copy of plaintiff s proof of liability. 4. Although demand has been made, defendant has failed and refused to compensate plaintiff. WHEREFORE, plaintiff claims of the defendant(s) the sum of $10,910.95 plus interest in the amount of $1,200.20, for a total of $12,111.15 plus court costs, all of which are justly due and owing from the defendant(s) to the plaintiff. KRAFT & KRAFT, P.C. BY: Robert E. Cherwony, Esquire Attorney for Plaintiff r ,,.~,~~~~„ Di~F~~`$ifi~d ~'r~du,Ct In~pecti~ns, ~Y'1~. t ..., . ~~ Forcnsi~ iny~cscigataan~ ~ Yrc~ductr`ailure ^,r~alysis x ~ ,~~~~ ~. ti~ ~~~~~ ~~~~t~~~~~~ ~~~~~ Csairn (~lo, 33'~ KP3g319~ DPl l`ii~ Na. 2405-1^c-514g~ Tyke of product examined l7y labarator~r inve~tigaticri: lcernaker Frorn the Resici~nce of: L~,URfEf+cHRiS KALINAKIPETERS 61 SGUTM P1N GAK C~t~. BC~lL9M11G SPRINGS, P~ 17Q07 Martiufacturer;. Distributor ~H~R~-P~~~- GGRPCRAT1Gf~ or Retailer oi: Product; ATTN: 20{~~ l~l. M63 nn~i~ DROP 224'l BENTGN HARBC7R Nll, 4922 Phone: 8~0-253-13D1 Fax: 695-X23-38 r Report prepared far DARLENE GREVELC7ING - KENIFER KENtPER IiVSU~'ANGE 5784 ipEWr~7ERS PKV~J1' C7E1I11lTT ~Y 13214 i o the fzESt 4f GPI's knowledge, the ntanu#acturerldisiributor infiarmation prvvidpa herein is Correct concerning "hs product ir~~pe~.ed. :t is the res~ansibllity of cur clients andlar their representatives to ascerC2in own~-rshipleC~u~siti#rr status as D~! cannot file far a matiar~ of dis>;avery of render lega~ services. - F~lesse reed the fu Il rep~art. ~:b+ET~.Ct~+.FltY~t ~G6.5d.°.5~0 ~~InnrSprtngs.T:i'.r,RtQ 8&S•4928•~4 ?sga 9 of3 ,errmvvHne.xm s~.eta~Tr Pte. I~~versified Product IasppCtiUttS, IItC. piy t~l+Rl~} L}PIFilet•~a,'?~303.1~-53£19 t~ ,~+.~ `,;,, . ,~~ ~ r ~''~} HISTC~R`~': The item r.cei~red as cvid~nce for inspection ka'~ an icen7a]cer. F'er the irtformaticm ou the claim form, it was a part e+f the original factory i~t~cal9atic~n in an ±~rrzsna refri~esaivr. The home ~,E~~ s~•r+.'iccd b~' city tir~[er, 'J15L~AL 1=~A141I`•tA'~iQN: • The inspectio~t revealed apt iccrnaker_ Thy ice;rtaker';:timer~drive module was tz~arked FSF~ ~2$13~> indicating cf~~;~t It ~;~35 ll::in'1fACt~1rL".i a~ld+Or rlistrit3uted by W'h'srlpool• • The icemaltcr's date code: indicated ttta-t it was manufactured on i4iay ltd; l~r}f. • The 'see ej~6ctor blades',verc in dte "at rest" (~ o'clock j posizipn. pia evit4e:tte of misuse or external damage to the ieernaker was obser'red, TES'l`11vG PF~OCc~tJR•F ~ R~.5UL`I`S; • The icemaker t~~a: eartneated #o ~ povr'er =aurce. • The icemaker v;as chcck~d for rtlold heater resistance ar:el voltage to the power module ~,vi[h a ~'olt~'ah~n merer, Thesz t.°st:: contirt7ted that the icernaker's mold heater aril po's'er module were operational, + A wire :,huto.fs arm and a wire harness supplied k+y DP1 tivere used #o czs; the icemaker .f~sr proper r~peracian. • 'Tile i~~•~rnalccr ti'~as pl~ice~i thraug~ 1 C- ice harrc;;t cp~4les to cheek the opcrati~~r~ of tt,e timer'drir~e ra~at~~r and the Water ti~al~'e`s refill c,~cle• • I~uritt~ the c`y`cles, t4tc tlmerEdrivc zriotor's gearing periodically stalled ancifar 5lipped• • ThN ~~; ater vaive's refill cycle lasted approximately BO secorAds, whic]~ is abnflrrnally long. FI~CL~SUI;J/5; Photos ~Jt-G9 • 01: DPI's eridence two • il_: Evidence ir~the ''~-received" condition • (}3-~j4; lviarE:in;s an ie~nnaker . ~}~: ply; icion cif ice erector blades • t~6: Icert~er checked for malci heater resistance • ~7: k'rsltage ti~eriliei tc~ ieemaker`s pawar module • ~]~; C}p;ration tf icemzker's ice harvest c;JCle • 44: (:~peratilan cif ~+J$ter ;~alsre's refill cycle 1059E ttub~rcY ~~d 80p~95.6~A oik~r sc• ~a~ rr~ s~r~o sss..+~2~+e~ F~ ag e ~ of 3 ~,~~,~c~n aes.,ez.e~Tr~ax j>riversiPied ProduG~ Itts~~etions, Inc. ~~C~~it~L,L1SIc~~1: .During c,,cle Testing of tI'~~~~ ic.::nab:er, the ~vater vaSti~e'< refill cycle lasted ~n a~sttorma~ly long p~ric~d o~ timc (~pproxit7tately' 3D SCGUrtda)• Tk115 cafldlUQn :v~ttld xllotiv an sxces~i~rv mater aischar~?,e to the i.em11<:er. A.ddi.ti0ri~l[r, 3t WAS ttOteC3 tl7'Li ikSC i1CrieI~ tkr10'~ rz'ot~r anCU'Or its gearing did noc C}°C~e 51n+~Gthky [klr£~Lt~hDUt t n entire ~~Y~~.~_ LlllYtrt~ each cycle, t3~~:. mc+tc~r stalled antll'ar the gearing slipgcd periodically. Based c+n the rricehsni~al oel7awior of t}iis i~cs,~aker during te5tir~„ this tcemakei has fail+:t1 [o pro~'ide tfte servic2S far ~~kiich i*. ~a~~ss desi~tlecl, This titi~as a product failure. P~e~e refe. t,~ the frt gage ~f ck~is report f+~r 9n~oimation regnrcling'dse ~tanufact~arer and'ar d~str'.E;•utor. If,, ou havti airy Guestinns rea:~rding this claitn, pl+:sse ~.o~ttact ihc. Cu~~on3er 5L~ti~ice Der~.m~~stt at (;?R~',~~ X82-~;Sn, exte~isioPS 130, ~ 16 or t ~?, Ins~e~.t4r: e~Eu teeth In:~~stigc~tor': h4arvin Stac~f Date: 1Z128120~~~ t73'te: 1 Zl2S~Z0~]5 :Or1 ~ TrnG)w1r16~•n] idUG.E65.6:~0 Ciwer$pnnge,"N3;~t? 891AP,zt~@=' r3~E ~ CT 3 ww.rACi•rCCam 8g~aee•*~77Pax Divers~tied )Product Xnspecti;ons, ItyC. ;;:., ::, .. '';} :: _ +~ "'.', Qiversifcd Prndncr I[nsgections, Inc. Fr~rensic Investigations & Product Failure Analysi.a Pt~tting the ~r~ces '~agether AuQu.,Si 3; 2U~~ L~arlene CTrevelding L~nitrin l~:ernper ~utr~ & H~}me Y.C. Boy: ~73U SyFracusL, N~ 13221-~7g~ Re: C)aim i~Co,: 331 ~' ~95I~2 Insured, Ck~ristQphcr & La>.~rie I{aliriak Lass Date: IQ,~19~~~C15 ~7F'I File 1(0.: 2CIU~-1?-51Q99 1}~ear h~Is. { Treuclding: --,~~ ~` r~±~,, ~ r Licensed Fri~•ate InF~esti~ators Tht PIC9S5 1 a~n 1~:~.riting ilt response to the denial letter, dated 4~,'C~~'2Ud~, that you rcccil~ed from Erners€~n .Appliance Controls. Thcv stated that it is catrxr..ttion for the gctars to be stripped az~d slip fTOrn rotating the icenr~aker's fingers back4vards. 'T.'ltey surrnis~°d that someone had pu~.~orte:dly rotated the icemaker`s fingers rnanuall}~. They added tl~t~t tlie.4~ are denying this claim >l~ecause the e~•idcnce was not releaaed to them for a, nnn-desttucti .re examination. I?T'I's pc~siiion in regard to this claim is 3s follows: • ~~+-hcn tk~e icerttaker vas evaluated and tested at DPl an 1 ~'28i~4~~ by 13iI1 ~,,eetl~, a lab~aratary technician, the tirnerfdri~ e motor's gearing periodic~;~lly stalled az1.d,'~.~.r, slipped. i~o~vev~, n~ e~~idence of any significant gear damage }~a.s found to indicate that the icemaker's fingers wvere. rotated rnanudll~'. T~ierefore, the icemaker module did rtat fail as the result o~ abuse or. irnprQ~er servic.in+. The icema~er module was olascly rc-examined tc~da}~, Please notice that the dri;len gear did not exhibit any significant damage trorr~ the a1leg~d trtaz~ual rotation tr the icemaker's fnlers (see Exhibit A,), Pl<rase also notice that the driue gear ~3id not e:~chibit any significant dtuz~age from. the alleged z~~,axlual rotation of the icerrzalcer's fingerG (see Exhibit B). The icemalcer mc}dulc's failure ~~~ as not caused tyy darriagud gears. ~ ~ ~ ~ ~ *~ 1454 E. Tri•Caunty 8oul~rrard Ph.: S~~t00) $ti5-622(.1 ($65148-54$0 t~liver Springs,l~ 37340 vvwtiv,dpi-inc,com fax.: ($65;~ 4+~2-~+~77 r The driven gear ~~ss remo~red i.n order tt- facilitate an examitiati«n +1.f the contacts anti the driven gear's contact strips. This revealed tk-,at the contacts and the. corttflct strip far the ~titater control valve were clarsiat;ed and orJerheatecl, canfinning that the timer motor had stalled during the tray refill cycle see Exhibit C:}, 1~~1~ett the timer motor stalled at the installation site. during the refill cycle, this kept the ~vdter control ~ralve energized continuously, causing water to o~~ertlat+~ continuousl}~ lxom the tray. Therefore, the ~3'a.ter damage occurred as a result ~~f the timer motor's failure, Please notice khat one of the pronged contacts for the ti~'ater cantrc~l ~~a1~~~e ~~~as rnissina and destroyed by the arcing see Exhibit D). please also z~oliC:4 that the chan.'ed byproducts fr©m the arcing ~~~ere deposited around the contact strip (see Exhibit F.}. A photo cif a goad used driven gear contact strip and contacts from sn exemplar icermaker module are enclosed far comparison putpUSCS (sec Exhibit F3. ~~'hen a tirnez mater has stalled during, the .refill cy~c~le, the cantacts.can bccarne o~, enc~ated and the resulting resisti~~e heating may produce arcing, L3f'i's positiasi is that the icemaltcr module failed as the result of a dcfecti~~e timer motor. The rnat~ufucturer has nat. providad any facts to confirm that the icenj~er inalfux~ctionecl a5 a result of gear clarnage from manual rotation. of t1~e icemaker: s fingers. The iceinal~er module's extended fill cycle was apparently caused bythe by-products' conductiti~ it,; , "!'he icemaker module's extended fill cycle would cause the try jf to over. ~ou~ each time during the refill cycle. IE l)~nitrin I~.cnc~per is unable to obtain a settlement fzam the mar~.ufacturer, then it may beCt~tine necessary to have tl-re evi.~tence shipped tc~ the rriatiufactureX Far anon.-(lestruc.tisrc. examination. If you lia~~e any questions, then please do not hesitate to cnntact me at }~o«z c.on~rcni4nce. '~ ou may reach me at 84th-855-b224 ext. 13Z_ ~incerel.y~, r-~^,-, T `~% ~~ .'. Craig Korpak Technical Sen~i~es Manager Cause ~. Origin In~restigator Exhibits: {,A-r ~~~~~~~~ A.IJ G 2 ~. 44U6 ~~F~ACIlS~ ~~~tiM .* i , , VERIFICATION I, the undersigned, in my capacity as ~~ ~ ~70r1 ~ IS+ -of Un ~ n ~~~ ~~~~ ,Plaintiff herein.; certify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge or information and belief. I make this Verification subject to the penalties of i8 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false statements, I may be subject to criminal penalties. ,~i ~ °~ ~Aw rl~ 'f ~ ~ !a ~~s ,y 3" j ~+ ~ ~ *~ ~ L,~ Y o~ A~ . b.. ,y\'uV~~' ~,_,Y i „t~ ~~ ~d~ ~~ *~P ~~~e~~a/ J1~.. 26 aO"~ RC~iD' Print or Type Name ~ s ~Y ~ Q C~ r-.~ ~ ;--- ~ ~ ~ h 4".-P Q 1 ~~ ~ ~ > f~- ry r ~ c-j ~ ~~ t~ _.. ..~ C t r1 KRAFT & KRAFT, P.C. By: Robert E. Cherwony, Esquire Attorney No. 17623 1311 Spruce Street Philadelphia, PA 19107 215-546-5100 Attorney for Plaintiff UNITRIN AUTO & HOME INSURANCE CO. SUBROGEE OF LAURIE A. KALINAK vs. EMERSON ELECTRIC CO. tla EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBELAND COUNTY, PA CIVIL ACTION AT LAW No. 07-4740 CIVIL TERM VERIFICATION OF SERVICE The undersigned hereby certifies that he is attorney for the Plaintiff in the above- captioned matter; that on August 14, 2007, he served Emerson Electric Co. t/a Emerson Appliance Controls, 2831 Waterfront Parkway, East Drive, Indianapolis, IN 46214 with a copy of the Civil Action Complaint in the above matter by certified mail, return receipt requested. Attached hereto, made a part hereof and marked Exhibit "A" is a true and correct copy of the results of same. The foregoing statement is made subject to the penalties of the Pennsylvania Crime Code 18 Pa. C.S. 4904 relating to unsworn falsification to authorities. Au ,gust 23, 2007 Date ~~_~,~.._ _ . Win:; _ ,. LLa _~_ _ - -~ A •- iY s ~ L4W UFT"ICES PAUL IfCRRAFI' PRESTY?N H KRAFT I943-1975 STEVEN KOPLUVE .MARTIN J. KII STEIN `ROBERT E. CBERSVONY JAMES M. IhSANTD ~~ ~- (21S}54~3I00 Fax: (21S}~32-346g August 14, 200`7 CERTIFIED_D~AIL_ & .RETURN REGSIPT R84LTESTED Attn: Legal Claims Department Emerson Appliances 2831 Waterfront Parkway-East Drive Indianapolis, IN 46214 Re: Unitrin Auto & Home Insurance Co., Subrogee of Laurie A, Kalinak Dear Sir/Madam: Enclosed please find a copy of the Civil Action Complaint in the above matter. If you have any questions or comments, please da not hesitate to contact me. Thank you for your courtesy and cooperation. Very truly yours, KRAFT P.C. Bober Cherwony Enclosure Carte f~wrs:1.2, and 3. Also campieta ``, ' ~srrt 4 8 Restricted t)sihrery is +desitrdd. O ~ ' it PrMtt your narrw and address on the revereua X D Adclnessas s s0 that YNe can retutTl ttls card to yGU. RrLoslved f~rlrNsd C. 1~s oaf [le~Veey ~ AtCACh this card to the basic of the mailpiece, or cm the trout t# space permits. D. bs dY adtieee rAReirard ttom Eem 17 ^ ''Asa } ~: ~ ~ ~ ~ ~ ~' ~ a~adea~aree:>ea~ m; ~ ,- ~ nos, enter. v Na i s ~'~ ;~unsa ~ t1,~ . L-~:3~,~ '' ~ 2~ '''`~° ~ ~i~~ o t Ci D Return Raoei~R for #~terahenrJrse ~ a gees $ ~ ~ D hmtsae MeN D C.OsD. 4. Reebicted DeNvery? (Ekes Fed ,O 1Ase ~~~-~~.-~~~-=~ .~ --- ~~~.~:!`.. ~ 7 O C14 Z ~ 5 d ~ ~ Ci 3 [I967 67 57 4 ................._...___...._.....___.....----------...._.., QS Fcxm 3811,. February 2004 pomestlc Return Rece6pt .,..._-- 13I1 SPRUCE STREET PHILADELPHIA, PA. 19I07 ~ ,~;. r r r~ N ;~ r ~' t -'G ~. tt SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Mazket Street Suite 1940 Philadelphia, Pennsylvania 19102 (215) 563-9811 FAX 215.557.0999 ATTORNEY FOR: DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW NO.07-4740 ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: Kindly enter my appeazance on behalf of Defendant, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS, in the above captioned matter. Defendant requests a Jury at the time of trial in this matter. SWEENEY & SHEEHAN By: J. chael Kunsch DATE: SEPTEMBER 4, 2007 ., •~ SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Mazket Street Suite 1900 Philadelphia, Pennsylvania 19102 (215) 563-9811 FAX 215.557.0999 UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS ATTORNEY FOR: DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW NO. 07-4740 CERTIFICA'T'ION OF SERVICE I do hereby certify that service of a true and correct copy of the within ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL ON BEHALF OF DEFENDANT, EMERSON ELECTRIC CO. t!a EMERSON APPLIANCE CONTROLS, was made on September 4, 2007 to all counsel of record via United States First Class Mail, postage prepaid. 5WEENEY & SHEEHAN By: J. ichael Kunsch ~ o O .--s "* _i ~ - r _f , } r "J t r ' _..~; _ _ %' ~ ~ „, -"~ SWEENEY & SHEEIiAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Market Street Suite 1900 Philadelphia, Pennsylvania 19102 (215) 563-9811 FAX 215.557.0999 ATTORNEY FOR: DEFENDANT, EMERSON ELECTRIC CO. tla EMERSON APPLIANCE CONTROLS UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW NO.07-4740 DEFENDANT'S, EMERSON ELECTRIC CO. da EMERSON APPLIANCE CONTROLS. PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendant, Emerson Electric Co. t/a Emerson Appliance Controls (hereinafter referred to as "Emerson"), hereby files Preliminary Objections, and avers thereof in support as follows: 1. Plaintiff, Unitrin Auto & Home Insurance Co., Subrogee of Laurie A. Kalinak (hereinafter referred to as "LTnitrin") commenced this negligence action by the filing of a Complaint on or about August 9, 2007. A true and correct copy of Plaintiff's Complaint is attached hereto as Exhibit "A." 2. Plaintiff's Complaint was served upon Emerson on August 20, 2007. 3. Plaintiff's Complaint contains four paragraphs, only one of which (pazagraph 3) contains any averments related to negligence, causation and damages. 4. Plaintiffs' Complaint alleges simply that "on or about October 19, 2005, due to defendant's negligence and carelessness, plaintiff s insured sustained damages in the sum of $10,910.95. Attached hereto, made a part hereof and marked Exhibit "A" is a true and correct copy of plaintiff s proof of liability." See Exhibit "A," paragraph 3. S. Although brought in the name of "Unitrin Auto & Home Insurance Co., Subrogee of Laurie A. Kalinak," Plaintiff s Complaint does not specify the legal basis by which Unitrin claims it is subrogated to the interests of Laurie A. Kalinak. 6. Plaintiff s Complaint is silent as to the location of the incident which allegedly gives rise to Plaintiff's Complaint. 7. Although generically alleging a negligence theory against Emerson, PlaintifFs Complaint is silent regarding the alleged duties breached by Emerson and fails to allege how the alleged breach of those duties caused damages to Plaintiff. Plaintiff s Complaint does not specify the product allegedly supplied and/or manufactured by Emerson which is at issue in this litigation. 9. Plaintiff s Complaint does not specify the nature of the alleged malfunction and/or defect involving Emerson's unspecified product. 10. Although Plaintiff s Complaint is solely for negligence, Plaintiff seeks damages in the nature of interest in the ad damnum clause of the Complaint. 11. Plaintiff s Complaint alleges that "although demand has been made, defendant has failed and refused to compensate plaintiff," sg~ Exhibit "A," paragraph 4, and the reports attached as Exhibit "A" to Plaintiff s Complaint refer to a "denial letter" from Defendant and make reference to potential attempts to compromise this dispute. 12. Plaintiff s Complaint does not specify which type of property was allegedly damaged in the subject incident. MOTION TO DISMISS COMPLAINT PURSUANT TO PA. RCIV.P.1028(a){4) FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED 13. Defendant, Emerson, hereby incorporates by reference Pazagraphs 1 through 12 hereof as if more fully set forth herein at length. 14. Pennsylvania Rule of Civil Procedure 1019(a) and (f) require that the material facts on which a cause of action is based shall be stated in concise summary form, and further require that averments of time, place and items of special damage be specifically stated. 15. Plaintiff s Complaint fails to aver sufficient facts to support any of its claims, and fails to aver the manner in which Emerson's unspecified product is defective and caused Plaintiff s damages. 16. Plaintiffs Complaint, which contains only conclusory allegations of law, is legally insufficient and should be dismissed pursuant to Pa. R.Civ.P. 1028(a)(4). WHEREFORE, Defendant, Emerson Electric Co. t/a Emerson Appliance Controls, respectfully requests this Honorable Court enter an Order in the form attached, dismissing Plaintiffs Complaint with prejudice. MOTION TO DISMISS COMPLAINT PURSUANT TO PA. RCIV.P.1028(a)(Z) FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT 17. Defendant, Emerson, hereby incorporates by reference Paragraphs 1 through 16 hereof as if more fully set forth herein at length. 18. Plaintiff s Complaint violates Pennsylvania Rule of Civil Procedure 1019(a) and (f) in that it fails to state in concise and summary form the material facts upon which the cause of action is based, and does not specifically aver time, place or items of special damage. 19. Interest is not recoverable as damages under Pennsylvania law in a negligence action. 20. Plaintiff s Complaint improperly requests interest as an item of damages. 21. Pennsylvania Rule of Civil Procedure 1028(a)(2) allows for the dismissal of a Complaint for failure to conform to law or rule of Court. 22. Dismissal of Plaintiff's Complaint is appropriate in this matter in light of the numerous and substantial violations of the Pennsylvania Rules of Civil Procedure contained in Plaintiff s Complaint, which prevent Defendant, Emerson, from fairly and properly responding to the Complaint. WHEREFORE, Defendant, Emerson Electric Co. t/a Emerson Appliance Controls, respectfully requests this Honorable Court enter an Order in the form attached, dismissing Plaintiff s Complaint with prejudice. MOTION TO STRIKE ALLEGATIONS RELATED TO ALLEGED OFFERS OF COMPROMISE PURSUANT TO PA. RC.P. 102 23. Defendant, Emerson, hereby incorporates by reference Paragraphs 1 through 22 hereof as if more fully set forth herein at length. 24. Pennsylvania R.Civ.P. 1028(a)(2) permits a party to file Preliminary Objections for failure to conform to law or rule of Court or inclusion of scandalous or impertinent matters. 25. Paragraph 4 of Plaintiff s Complaint alleges that "although demand has been made, defendant has failed and refused to compensate plaintiff." 26. The reports attached as Exhibit "A" to Plaintiff s Complaint make reference to attempts to compromise this matter and Emerson's denial of the 27. Pennsylvania law is clear that offers to compromise are irrelevant and inadmissible in a civil action. ee Pa. R.E. 408. WIIEREFORE, Defendant, Emerson Electric Co. t/a Emerson Appliance Controls, respectfully requests this Honorable Court enter an Order in the form attached, dismissing Plaintiff s Complaint with prejudice. MOTION FOR MORE DEFINITE STATEMENT OF PLAINTIFF'S CLAIM PURSUANT TO PA. RC.P, lOZ8(,~1(31 28. Defendant, Emerson, hereby incorporates by reference Paragraphs 1 through 27 hereof as if more fully set forth herein at length. 29. Pa. R.Civ.P. 1028(a)(3) permits a party to file Preliminary Objections based upon insufficient specificity in a pleading. 30. Plaintiff's failure to abide by the Pennsylvania Rules of Civil Procedure and plead material facts upon which its cause of action is based, failure to aver time and place and items of special damage specifically, in accordance with Pennsylvania Rule of Civil Procedure 1019, prevents Emerson from fairly and properly responding to the Complaint or preparing a defense to these claims. 31. Plaintiff's failure to identify the product at issue and the alleged malfunction and/or defect involving Emerson's product at issue in this litigation prevents Emerson from fairly and properly responding to the Complaint and preparing a defense to these claims. 32. Plaintiff s failure to identify the basis upon which Unitrin allegedly became subrogated to the interests of Laurie A. Kalinak prevents Emerson from fairly and properly responding to the Complaint and preparing a defense to these claims. WHEREFORE, Defendant, Emerson Electric Co. t/a Emerson Appliance Controls, respectfully requests this Honorable Court enter an Order in the form attached, compelling Plaintiff to file a more definite statement of its claims. SWEENEY & SHEEHAN By: . Michael Kunsch VERIFICATION J. MICHAEL KUNSCH verifies and says that he is an attorney-at-law in the offices of SWEENEY & SHEEHAN; that he is authorized to make this Verification; and, that the facts set forth in the foregoing DEFENDANT'S, EMERSON ELECTRIC CO. t!a EMERSON APPLIANCE CONTROLS, PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT are true and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties of 18 PA. C.S. Section 4904 relating to unsworn falsification to authorities. J. hael Kunsch DATE: SEPTEMBER 4, 2007 ~ x ~~ b ~~-1~-- KRAFT & KRAFT, P.C. ,BY: Robert E. Cherwony, Esquire Identification No. 17623. 1311 Spruce Street Philadelphia, PA 19107 (215) 546-5100 UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK P. O. Box 4780 Syracuse, NY 13221-4780 vs. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS 2831 Waterfront Parkway -East Drive Indianapolis; IN 46214 Attorney for Plaintiff(s) COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION AT LAW NO. ~r/- 47y0 Civil ~t~M CIVIL ACTION COMPLAINT 'NOTICE" "You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without.you and a,}udgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. you may lose money or property or other rights important to you. "AVISO" "Le han demandado a ustod en la torte. Si usted quiere defenderse de este demandas expuestas en Ias paginas siguientes, usted tiene veinte (20) dies de platy al partir de la fecha de la demands y la notification. Hate felts asentaz una compazencia escrita o en persona o con un abogado y entregaz a la torte en forma eserite sus defenses o sus objeciones a Ias demandas en contra de su persona. Sea avisado que si usted no se defiende, la torte tomara medidas y puede continuer la demanda en contra suya sin previo aviso o notification. Ademas, la torte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades u ostros derechos importantes paza usted. "YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. TF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. 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 EI;IGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Court Administrator Courthouse, 4th Floor 1 Courthouse Square Carlisle, PA 170]3 "LLEVE ESTA DEMANDA A UN ABOGADO IMA~DIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIBNTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFIICINA CUYA DIRECCION SE ENCUENTRA ESRITA A$AJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL." E~C~F~I IFI~ 3~~C~R~` ;'. ~, ~S. ~7 KRAFT & KRAFT, P. C. BY: Robert E. Cherwony, Esquire Attorney No. 17623 1311 Spruce Street Philadelphia PA 19107 (215) 546-5100 'UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK P. O. Box 4780 Syracuse, NY 13221-4780 v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS 2831 Waterfront Pazkway -East Drive Indianapolis, IN 46214 CIVII, ACTION COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION AT LAW No. 1. Plaintiff is a corporation with an address as set forth above. 2. Defendant is a corporation with an address as set forth above. 3. On or about October 19, 2005 due to defendant's negligence and carelessness, plaintiffs insured sustained damages in the sum of $10,910.95. Attached hereto, made a part hereof and marked Exhibit "A" is a true and correct copy of plaintiffs proof of liability. 4, Although demand has been made, defendant has failed and refused to compensate plaintiff. WHEREFORE, plaintiff claims of the defendant(s) the sum of $10,910.95 plus interest in the amount of $1,200.20, for a total of $12,111.15 plus court costs, all of which are justly due and owing from the defendant(s) to the plaintiff. KRAFT & KRAFT, P.C. BY: Robert E. Cherwony, Esquire Attorney for Plaintiff Attorney for Plaintiff(s) f ~' Di~~ersified Pr~duc~t In~pect~an~, Inc. Fo~'ensic Invtscigatiac~ & Yradutt rtilure 4na1tisis ~~~~~ Glairn hlo. 3.3'f KP395192 DPl f=iie Na. 2406-12-51099 Type of product e~camined fay lafaoratoryr investigation: ic+arnaker From the #tesidsnce ot: LALIRfEICHRES KALINAK,fPETERS 61 SOUTH Plt~ OAK DR. BUlf.1NG SPRINGS, PA 17007 MartiL,facturer, Distributor WHIRI-PQt~t CORPC3RA7iON 4i' Retailer ofi Product q'r{'i~; 200{} hl. M83 tUiAit_ i?ROP 224't 13ENTON f-fARROR Mf, 49022 Pf~one: SQO-25'3-1301 f=ax: 696-923-38'2 Report pt~pared far. DARLEfVE GREVELDING - KEA+tPER fCEN[PER li~SURANCE 678~41MiDEWA7ERS PKWVIE' pi:V-1tTT fd`f 13214 TC tht best of OPI'a knowledge. the manufacturerJd'~stributpr intbrmatiai provides herein is eC~rect concerning the product tn~perted. St is the responsiblpry of dur cC~artCs ands then representatives I:o ascertain ovrnershiplaCCluts~iort status as Chi cannot file for a maroon of dlsrovery or rerxier iag8t services. - Plense rnad tfre fU A report. t:dLET7.CaurM, BnC 80AA~si?!b grovDprrngtTkrrNq ~66ACdi+W mrvcapMnc.ean aatmun R,n I}fyersified Product Iaspectiottss Skc. ?eQe 1 of 3 • Clasrn No. 331KF395192 L~PIFiICTMo, 2003-I2-51049 .,......, HISTORY: The itsrn received S5 eriCt_t1CC for inspection was ari iztmak~er. Per the information ott the claim form, it was a part of the original factory its.+tal9a<ia~ to an t~mana refri~ator, 'i'hz home vHes s~svic~d b~' cite water, 1i ISL:kL E]{,ihlP.VA71t?N: • Tltc insprction t~:vtalad a~z icemakar. • Tke ic~ns-ker's titrnrrdriue rtiodule was m$rkcd F5PcB1 t52813~, indicating ct'.at It uas manufacttue3 attdior distribnud Ly Wbitlpaol. • The ieerrtaicer`s date codC indicated that it tuns manufaca~red on Ivia;~ l 0, i 94b. • 'I'l~e see tjectar blades tivere is the "arrest" (Z D'ciac);) posisiori • Na evidence of misuse or external damagt t© the ictlnaker was observed. TES'I7NG PROCEDURE & R1r..s"ULTS; • The icemaker vans co~meered #o ¢ pov~~er sourte. T'ne ictmaker was chxked for molts heatar;resistarux ara! voltagt to ttx power module wish a volt+ohm meter. • These tests con~rnted that Lht icernaictr's mold heater IIrtd power module v.ert operatiotral. • A wire shutoff' arm end i< wire harntss supp2itd by DPI tiverc used to test tltc ictrnaka for proprr operarinn. • The icernakcr was placed through ! 0 ice harvtst cyCICS to Chtclc tht opu'eti~» of ttte timer'drivc rltator and the water va!-~e's refill cticle. • During the cycles, tltc timtrfdrive motor's geariryg prsiadica![y sraljed andfflr sliplsed: • The water vaivc`s r.lill cycle lasted appmxir~kl}! 24 seconds, whic3t is abnormally lang. 1-.~rCLf}SUR6S: Photos 01.49 • 4.1: DPI`s eti~dencr tae • t?^: Evidence is ~c "as-received" c~ndidon • 03-04: Marlrings an ic~naker • O5: Position of ice erector blades • 46: lcemak~ checked for :Wald hcattr trsistaaoe • 47: Voltage v ezif•ied to itemakCr's pawtx rrtodul e • flS; Operation of iatmakar's ice harvest cycle • 44: Gperatiert of water valve's refill cw'clt ,aaoer~awnrara aaoaasauo - -- --- ower 9p. MP TN rne+o sds.~a27+e3 ...~..na-naw.w a~.aea.a~r-fa Dtvtrsit6ed PrUdQCt IttspeCtioi2s, Inc. Paq®2 of 3 COlvcLUSION: During eycIz tsstis7g of tlx. icetttt+Jtsr, tl-o water valve's rofill rydo lasted an abnorrs-aily long j~'iod of diTic (apprux+ms.Wy ~ seconds). This condition ~v~auld allow an excessive water discharge to the icetnaker. Adtlitio»aliy, it was noted that the timevdriva tttatar andlor its gearing did not cycle srnoothly tl~roughuut an entire cycle. L~ttrtag each cycle, the rratnr stalled andlar the gearing slipQed ~uriddic~illy. Based on the rncehanieal bahRVior o£ this ic~naker during testing, this icemaker hes failed io provide the services for wktich it was cicsigntd, 'Cttis was a praouct failure. Please refer to the fsrst page of this report for information rcgardi.t~, tha maaufactwnr aud;'or distributor. If you bout any questinns rsgartiittg this claim, please cwztact the Customer 5s:n~ice DcpRrtmmsnr at (8fid} 782-8480, extcnsiat+9 130, t 16 or i 17, Insprxtor: 6~I Leeth Investigator: Marvin Stacy Date: 12128120Qs Date: 121ZSl2005 ~:a~Er~.co,r+rs~w xaeess~aa --- --~ ~. c.,~s~, rn i~ s~~4.a .w~.oa+racan, eee.~.u77rea Diversi;fitd ~rodttct Irtrspet:t}ons, ItI~ ;'a4e 3 of 3 s ~.: "~. i Diverdtled Pradaux Inagxtioaf. inc. Forensic Investigatirn~.t & Pmduct Fai~.tre Analysis Pt~tfing the Pieces Together Atisust 3; 2006 ,Darlene Grevelciing L~niirin Ktrnper Auto & Home P.O. Box 4730 Syracuse, lv'Y 13221-4780 Re: Claim No.: lusureci: Loss Date: ppI File Rio.: T3ear has. C,revelding: 331 KF 395192 Christopher & Laurie Kalinak 10119!2005 2UU5-1?-51099 ~~~ Licaase3 Private Irn~estigators TI+T PIC4$5 1 sin ~.xiting iu response to the denial letter, dated OG;'07}100d, that you received from Emerson Appliance Controls. They stated that it is cornoonan far the gears to be stripped and slip from rotating tho iCerdalcer'a fingers backwards. 'They surmised that someone had pt~portedly rotated the ieemakar°s fingers rnauually. Thty added that the~~ are denying this claim because the evidence was sot released to them far anon-destntcti~re examination. z1PI's lSOSitiort in regard to this claim is as follows: ~Jhcn the icsrnaker eves evaluated and tested at DPI on 1712812403 by)3iJ1 I.eetli, a laboratory teehaician, xhe timerldrive motor's gearing periodically stalled turtd'or slipped. i~owevea', uo evidence of any sigtlificam gear damage was found to indicate that the iecmaker's fingers were rotated manttnlly. Therefore, the icemaker module did xlot fail as the result o£ clause ar isnprapt~ servicing. • The icemakcr module was e[oaely ro-e~csmiaed today. Please notice that the driven gear did not ~chibit any significant damage from the alleged rtiazaual rotation o£the ieemaker's fingers (see Exhibit A). Please also notice that the drive gear did teat exht'bit any significant damage from the alleged Humus! rotation of the icemaker's fingers (see Exht'bit B). The icemakcr module's failure tvas not caused by damaged gears. ~ ~ ~ ~ ~ V ~ 1~ AUK ~ Z 2t1~ ' SYf~A~$~ ~~,Ail~ 1459 E. Tit-Coutny 8aalcvud Fb.:' (8i?0) 8fsS-6224 (86482-5980 ()liver Springs, TN 37840 www.dpi-inc.com Fnx: {SbS} 482-8477 L The dricren gear was removtd in order to f~ilitate as exarninatinn, of the contacts and the ririven gear's contact strips. This rcvaaled that the caataots and the contact strip for the ~x-ater control valve nrcro ciamagcd and overheated, confirming tY~at the flour motor had stalled during the tray refill cycle (see Exhibit G'}, When the timer motor atalled at the installation site during the refill oycle, this kept the tivatcr control valve energized continuously, causiztg water to oY.rerIIon~ continuously from the tray, Therefore, the water damabe occuzred as a result of the timermotor's failure. please notice that one of the pronged contacts .for the water costtrol valve RT.as missing and destroyed by the arcing (sec Exhibit D~. Please also notice that the charred by-products from the arcing lucre dEpasited around the contact strip (sec Exhibit E}. A photo of a gaol used drn+en gear cattt€~t strip and contacts from an exemplar icerriakex module are enolosed far campaxisozt purposes (see Exhibit F}. When a timer motor has stalled during the rePlil cycle, the contacts can became overheated and the resultis-g resistive Beating may pxoduce arcing. DPI's position is that the icemalrcr modulo #'ailcd as the rasult of a defective timer motor. T71e manufacturer has not providad any facts to confirm that the iccrnakGr inalfu~nctioned as a result of gear ctanrage from manual rotation of tl~e icemakerzs fingers. The icanaker module's extended fill cycle was apgarantly canscci bythe by-products' conductivity<. The icemaker module's extended fill cycle would cause the tray to overflow each time during the refill cycle. IE Unitrin Kemper is unable to obtain a settlement from the rnanufactur~er, then it may become necessary to have tiro evidence shipped to the msnufactur~,` for x nun.-destructi4~e examination. Ifyou have any questions, than please do not hesitate to contact me et your canvenicnee. 'You may reach mo at 84t}-$65-b22Q ext. 132. - Sincerely, ~~- Craig Korpak Technical Services M~ager• Cause & Origin InS•estigator Exhibits: (A-Fj RECEIVED AUG S 1 2006 SYRACUSE CI.pIM 2 v~zFicA~ION Z, the undersigned, in my capacity as 5~~~~~n ~~~ ~5+ ,J ___ ~ 1 ..~pf~ ~h ~ ~ ~ ~nGi ~rn~- ,Plaintiff herein; certify that the facts set forth in the foregoing Complaint are true and correct to the best of mY knowledge or information and belief . I make this Verification subject to the penalties of 18~ Pa. C.S., section 4904 relating to unsworn falsification to author~:ties, .which provides that if I knowingly make false statements, I may be subject to ~i~ainal penalties . ~-~~ ~-~.~,4 r § ~~ " ~.F ~~~ ~' 1~~ ~.+1 a ~, :~t'~- c~' = ` ~~~ d,~ ~11,-~ ~~ _. ~ ~~la~t s • ~ ~! ~,~ler~e~ r~ Print or Type Name SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Market Street Suite 1900 Philadelphia, Pennsylvania 19102 (215) 563-9811 FAX 215.557.0999 ATTORNEY FOR: DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW N0.07-4740 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the within DEFENDANT'S, EMERSON ELECTRIC CO. t!a EMERSON APPLIANCE CONTROLS, PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT was made on September 4, 2007 to all counsel of record via United States First Class Mail, postage prepaid. SWEENEY & SHEEHAN By: J. ichael Kunsch N ' Cam. _ s G: c~ 'T7 vi f_i? i ' ~r ~'?"p '1 i ^} ?~ -~ t , ~~ ~ ~~ ~ ~ ~~ PRAECIPE FOR LISI'~TG CASE FOR ARGUMENT (Mast be typCwdtten and snbmitied in daplicate) TO TSE PROTHONOTARY OF C[JMBEKI.AND COUNTY: Phase list the within mattez for the next Argument Court. CAPTION OF CASE (entire caption Aeust be stated in full) Unitrin Auto ~ Home Insurance Co., Subrogee of Laurie A. Kalinak ~~~ vs. Emerson Electric Co. t/a Emerson Appliance Controls (Defendant) No. 07-4740 Term 1. State matoer to be argued (i.a, Plaintiff s motion for new trial, defendant's deururrtr to ~p~k ~-)~ Preliminary Obiections of Defendant, Emerson Electric Co t/a Emerson Appliance Controls, to Plaintiff's Comulaint 2. Identify caramel who wt31 argru ~: (s) forph>mtiff Robert Cherwony, Esquire, Kraft & Kraft, P.C. 1311 Spruce Street, Phila., PA 19107 (Name and Addn;ss) (b) fordefeadant: J. Michael Kunsch, Esquire, Sweeney & Sheehan, P.C. 1515 Market Street, Suite 1900. Phila.. PA 191,Q2 (Name and Address) 3. I will notify all parties in writing within taro days that this case has been listed for argument. 4. Argtm~ent Court Date: Si s ,I-t..,~....~ ~,C,,~ J. print your none J. Michael Kunsch, Esquire D~~ `er wJi ~~~~ wuorneyfa Defendant 1 , ~ ~° 0 ~; ;'_. j { ~, i `~ ~ r._ ~ ~"7 ~ ~ ~~ 1 t-. ~. f : ~ ~ =-? ti ' t i , ,. ~ ~ ~ "'~ KRAFT & KRAFT, P.C. BY: Robert E. Cherwony, Esquire Identification No. 17623 1311 Spruce Street Philadelphia, PA 19107 (215) 546-5100 Attorney fox Plaintiff(s) UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK P. O. Box 4780 Syracuse, NY 13221-4780 vs. EMERSON ELECTRIC CO. tla EMERSON APPLIANCE CONTROLS 2831 Waterfront Parkway -East Drive Indianapolis, IN 46214 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION AT LAW NO. 07-4740 Civil Term AMENDED CIVIL ACTION COMPLAINT "NOTICE" "You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. you may lose money or property or other rights important to you. "YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE .4 LAWYER, PHIS UFFICE MAY BE ABLE TO PROVIDE YOtJ WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. "AVISO" "Le han demandado a usted en la corte. Si usted quiere defenderse de este demandas expuestas en las paginas siguientes, usted tiene veinte (20) dial de plazo al partir de la fecha de la demands y la notification. I-Iace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defenses o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede continuer la demanda en contra suya sin previo aviso o notification. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisioner de esta demanda. Usted puede perder dinero o sus propiedades u ostros derechos importantes pare usted. "LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFIICINA CUYA DIRECCION SE ENCUENTRA ESRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL." Court Administrator Courthouse, 4th Floor 1 Courthouse Square Carlisle, PA 17013 KRAFT & KRAFT, P.C. BY: Robert E. Cherwony, Esquire Attorney No. 17623 1311 Spruce Street Philadelphia PA 19107 (215) 546-5100 Attorney for Plaintiff(s) UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK P. O. Box 4780 Syracuse, NY 13221-4780 v. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION AT LAW EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS 2831 Waterfront Parkway -East Drive Indianapolis, IN 46214 No. 07-4740 Civil Term AMENDED CIVIL ACTION 1. Plaintiff is a corporation with an address as set forth above. 2. Defendant is a corporation with an address as set forth above. 3. On or about October 19, 2005 due to defendant's negligence and carelessness, plaintiff s insured sustained damages in the sum of $10,910.95. Attached hereto, made a part hereof and marked Exhibit "A" is a true and correct copy of plaintiff s proof of liability. 4. Pursuant to plaintiff s expert, the defendant's water valve refill cycle lasted an abnormally long period of time -approximately 20 seconds. 5. This condition allowed an excessive discharge of water to the icemaker. 6. Although demand has been made, defendant has failed and refused to compensate plaintiff. WHEREFORE, plaintiff claims of the defendant(s) the sum of $10,910.95 plus interest in the amount of $1,200.20, for a total of $12,111.15 plus court costs, all of which are justly due and owing from the defendant(s) to the plaintiff. KRAFT & KRAFT, P.C. BY. Robert E. Cherwony, Esquire Attorney for Plaintiff r Divers~rfi;vd Product Inspections, Inc. Forensic InYC.~;igntiaa5 & Yraduet r ailurC "~rralgsis LE1/~~. i !~'~i~STi~~T~~~i ~~P~R'~'" Giairn No. 33'{ KP395192 DPl 1=ile Na. 24Q5-12-51099 Type of product examined by laboratory investlgatton_ lcernaker From the Reslcl~ence flF LAURfEtCHRfS KALINAKIPETERS 61 SOUTH P1N OAK QR. Bt7lI.ING SPRINGS, PA 17Q07 Manufacturer, Distributor WHIRLP4~~ CQRPQRA710N or Retailer of Praduot: ATTN: 200Q ~1.1N63 1NA1L DROP 22Q't t3EN170N HF~R130R MI, X19022 Phone: 840-253-130'i Fax: 696-523-3812 Report prepared tar. DARLENE GREV1=[.DING •KEMPER KEMPER INSURAl~iCE 5784 WtQEVIrA7ERS PKWY Df~IVITT IVY 13214 Ta the bea! of apl'a knowl~e, the manufacturerldistributor irrtorn~atton provides herein is tarred eoncerrNnq the product tr~specad. 4t is ihs resAanslblpty of our clients and~or their reaeserrtatives to pscergin ownershipleCctn9itian status is Cam! cannot file far a matins at dtst;overy or re:xier lega- senricee, -Please rued the fu n report. +tdE ETV1.Cq~n{r ~iv¢ baaaesfzaa ---'^-~ ~ ,~ ~nnr spnnoc TH ;.70W aas.Nai~a ~~...w~.xM saa.rzaarr ~.~ I~iversitied Ptrodnct Iaspectio~ts, Inc, ?eqe 1 of 3 I• Claim No. 331KF395192 L7PI FiIC too, 200-(2-530199 HISTORY; e~lE.~a Ctrs ~,rw~'t~w.l' ~•,~ ,+5~ :. ~~.~! The itcrn recc{ved as evicitnce for (nsptetiort ~uas an icemaker. Far the infotrnatian otr the clatim roan, it was a part of the ar(ginal factory t~~staiSaticm in zn Amana refrigtrator, The homt was serviced b~~ etty w•nter, V [S~~ ~.L FXl'~h1T'.`~IA7ION: • The inspeaiion rs:vealad ~z icemalter• • ~'he icctnaker's timer~drive module was n.,arked FSl'Qs1 F~2813 ~, indicating that it was u:amtfaaured attdJ'or ~listribuud L•y Wbsrlpoot. • The ieemaker's dau cods. indiCatad that it was manufactured fln May 10; 1996. • The (ca ejector blades were in the "at rest" (2 o°ctock) position. • Na evittZacc crf misuse or external damage to the icemaker was obser<eti, 'fE5't'TNG FKOCET)URt= &. RESUL'T'S; • Tha icemaksr was ca~ineettd to a po~~er source. • T'nc ictmaktr was checked for mots! heaLar rrsistanco anti voltage to the power motiult with a volL'ahvn mater, • These tests confimted that tt~c icernaker's mold heater and mower module were operational. • A .wire ,hutoff arrri end 1 wire harness supplied ry DPl tivare used to Iasi tl~e icemaker Ibr prflper operation. • Tne icernaker was plaeecl through ! 0 ice harvest cye(es to check tho opcratic~n of ttte tirnet.'drive mtrtflr and the water ~~a(ve`s real) cycle, • During the cye(es, the t'smt~drlvc trtat~ar's gtarin$ periodically stalled aactrar slipped. • The water vaYvc's re.Ct( cycle lasted apgmximakly 20 seconds, whic3t is zkayarmatly long. F.I~~CLpS UitE5: Fhatos 0 t .49 • 0.1: DPI's ei7denct tag + 112: Evidence is3 the "as-received" canditian • A3-04; Marlrings on icttnaker • OS; Position office vector blades • 06: Tceraake; checked far raolct heater resistaaoe • 017: Voltage veritie~i to idcmaker's pawar module • U8; Operation of ictmakcr`s ice harvest cycle • 44: f~peratiart of water valve's refill cycle ~amErn.ca,roraw eWaeaana ~...- - .- ~sc.~ rr+~~&a aa.~eas.n ,wwaa.naco.~ ex.+a.arrr.,c It1~CriLfied Product Inspections, Int.. Page 2 of 3 4 CQI~iCLUSlQiV; During eyck ttsti7g of the. icuttaker, tltc water valve's refill cycle lasted an abnormally long period of :irrac (eppraximattly 36 seconds). This condition would alfo-v an excessive watsr discharge tti the icertl<zker. Additionally, it was noted that the timeridriva nnotar antllor its gearing did not cycle smoothly throt~haut an entire cyc14. Lluring each cycle, the orator stal[cd andlorthe gearittg slipped periodically. Based on the mcchaetienl behavior of th[s ic~;ssaker during testing, this icemaker has failed co provide tite services far which It was designed, 'Chis was a procsuct failure. Piea~e Left; to the fstst page of this report for in:ormfltian regarding •~he ntanufaeturer anci~or distrbutor. [f you have auy questions r:gardiag this claim, plvsse contact the Customer Scr-~ics Department at (BEs~) X82-848Q, exte~~s.ioax 13Q, E 16 or 1 S7. Inspector: Bit- teeth Data: 12.~28t2Q0~ investigator: Marvin Stacy ~a'te: 12lZ812005 +oo~.r~cn~,gw~a aaoeese.ao Cn~srSpmq~,TNB;#!CD 8~A62W!? rwrDq.rowm 9S6~rY.f+77Fa Diversified Product ltnspectsons, Iti~ Page 3 of 3 . +, .,.~. •.{ ~• 7. "!.'~ Diverdt'tcd Preadtrtx Insgecttans, Inc. Forensic Investigations & Product Tallurc Analysis Pr~tfing the Pieces Tage#her AtiQUSt 3; 2006 Darlene Grevelding L~niirin Kemper Auto & FIome t'.(7. Box 4730 Syracuse, lv~ 13221-4784 Re: C)aim 1V'o.: Insured; Liss Date: pl?I File ~(o.: Dear)41s. Cnevelding: ;31 KP 395142 Christopher & Laurie Kt-lmsk ~oil4n~as 2045-1?-51099 ~~/ ~ ~J Licensed Private Investigators 1'N PIC9$5 1 azn ~~.~riting iu response to the decrial 1Gtt~, dated OGi02}200fi. that you receiti~ed from Emerson Appliance Cgntmis. They stated that it is cotxtoanan for the gears to be stripped and slip from rotting the icer»aker's fiagcrs backwards. They surtrrised that someone had purportedly rotated the icemaker`s fingers manually. They added that they are denying this olaim because the Gvidence was not releasCd to them for anon-destructive examination. I?PI's positiozt in regard to this claim is as follows: • t~Vlten the zcetYtaker was evatuatsd and tested at DPI on 12!28!2405 by 13111 Teeth, a laboratory technician, the timer/drive motor's gasring neriodiet-lly stalled tu~,d'or slipped. however, no evidence of any sigrlii'icant gsar damage was found to indicate that the icemaker's fingers were rotated rrt,anuatly. ThGrcfore, the icemaker module did x-ot fail as the result of abuse ar itnpropcr servicing. • The icesnalcer module was closely rc-Gxatnined today. Please natic~ that the drivetl gear did not exhibit any significant damage from the alleged manual rotation of the ic~tnaker's fmgers (see Exhibit A). Please also notice that the drive gear did not exht~it any sigtficant dEUnage from the alleged rzttmual rotation of the icetnaker's fingers (see Exhibit B}. The icemakcr module's failure Suss not caused by damaged gears. ~ ~ ~ ~ ~ ~ ~ E AU~~121j~ $YftA~u~~ ~i,A1Ni , t~~~-dz2o {s65)aa2-s4go 1459 E. Tn.~ourny 8onlcvaxd OJivcr Springs, TN 37840 rvwardpi-inc.com Pax: {8651 d82-677 ' ~ •1 ~. • The driven gear wss removed in order m facilitate an cxaminatign o.f the contacts and the driven gear's contact strips_ This revealed that the cantas:ts and the contact strip far the water control valve were damaged and overheated, confrmmzing that the timer orator had stalled during ~e tray refill cycle (see Exhibit C'}, Wlten the tiirtar motor etallGd fit the installation site during the refill cycle, this kept the water control valve energized continuously, causiztg water to a~,~erfla«~ continuously ~orrt the tray. Therefore, the water dactt~re occuaxed as a result of the timer motor's failure. 1'lea~e notice that one of the pronged contacts -far the water control valve K°.as rniesing and destroyed by the arcing (see Exhibit D). Please also xotice that the chatxed by-products froau the arcing were deposited aroun3 the contact strip (sea Exhibit 1?). A photo of a good used driven gear contact strip and contacts Pram an cxcrnplar icemeker module are enclosed far comparison purposes (sec Exhibit F). When a timer rotor has staked during the refill cycle, the eontacts,can bccorr~c ot~enc~ated and thin resulting resistive heating Tt7ay produce arcing. DPi's position is that the iaemalccr module f'ailcd as the result of a dcfecticc Grner motor. TFie manufacturer has act ptnvided any facts ro confirm that the icemaker inalfuzictioned as a result of gear damage from manual rotation of the icernaker's fingers. The icemaker module's cYtcnded fill cycle was apparently caused bythe by-products' conductivity. The icernakcr module's extended fill cycle would cause the tray to overflow each time during the refill cycle. It: Unitarin ICeml~er is unable to obtain a settlement from the manufacturer, then it may become necessary to have tiie evkdencc shipped to the manufacturer fQr a non-tlestn2ctivc examination. Tf you have any questions, then please do not hesitate to contact me at ya~ur convenience. 'You racy reach me at 1;00.865-6220 ext. 132. Sincoreky, .~- t, ~ ~- _~~ Craig Korpak Teebtucai Services Manager Cause & Origin l;ncrestigator Exhibits: (A-r) RECEIVED AUU ~ I Zfl~6 SYRACUSE CLpiM 2 . ,~ ,. v~F=caT=ox I, the undersigned, in my capacity as ~-~ ~ ~~~ Una n ~~d ~~ ~af ,Plaintiff herein.; certify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge ar information and belief . I make this Verification subject to the penalties of 18 Pa. C.S., Section 4904 relating .to unsworn falsification to authorities, .which provides that if I knowingly make false statements, I may be subject to criminal penalties. ~~ c!'~ ~~, < ~~ ~~~ ~~ ,~ ~~ Ju ~'0't RCVD ~~~'~ r~ , Print or Type Name ... VERIFICATION Robert E. Cherwony, Esquire hereby states that he is the Attorney for Plaintiff in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties 18 Pa. C.S. 4904 relating to unsworn falsification to authorities. Date: September 17, 2007 Robert E. Cherwony r~ * c° ~ ~ ^"[„t(Zi~ ~ ~ "'`'~ ~' N ~ ~ ~= ~ ~ N ~ .-~~, '~ =~ SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Market Street Suite 1900 Philadelphia, Pennsylvania 19102 (215) 563-9811 FAX 215.557.0999 UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS ATTORNEY FOR: DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW N0.07-4740 DEFENDANT'S, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS, PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT Defendant, Emerson Electric Co. t/a Emerson Appliance Controls (hereinafter referred to as "Emerson"), hereby files Preliminary Objections, and avers thereof in support as follows: 1. Plaintiff, Unitrin Auto & Home Insurance Co., Subrogee of Laurie A. Kalinak (hereinafter referred to as "Unitrin") commenced this negligence action by the filing of a Complaint on or about August 9, 2007. A true and correct copy of Plaintiff's Complaint is attached hereto as Exhibit "A." 2. Plaintiff s Complaint was served upon Emerson on August 20, 2007. 3. On September 5, 2007, Emerson filed Preliminary Objections to Plaintiffs Complaint. 1 4. On or about September 17, 2007, Plaintiff filed an Amended Complaint. A true and correct copy of Plaintiff s Amended Complaint is attached hereto as Exhibit "B." 5. Plaintiff s Amended Complaint adds two additional averments, contained in Paragraphs 4 and 5 of the pleading. See Exhibit "B." 6. Although brought in the name of "Unitrin Auto & Home Insurance Co., Subrogee of Laurie A. Kalinak," Plaintiff s Amended Complaint does not specify the legal basis by which Unitrin claims it is subrogated to the interests of Laurie A. Kalinak. 7. Plaintiff s Amended Complaint is silent as to the location of the incident which allegedly gives rise to Plaintiff's claims. Although generically alleging a negligence theory against Emerson, Plaintiff s Amended Complaint is silent regarding the alleged duties breached by Emerson and fails to allege how the alleged breach of those duties caused damages to Plaintiff. 9. Plaintiff s Amended Complaint does not specify the product allegedly supplied and/or manufactured by Emerson which is at issue in this litigation. 10. Plaintiff s Amended Complaint does not specify the nature of the alleged malfunction and/or defect involving Emerson's unspecified product. 11. In support of its claim, Unitrin attaches two reports prepared by its "expert" rather than pleading sufficient facts to support the Amended Complaint. 12. Plaintiff s Amended Complaint does not specify which type of property was allegedly damaged in the subject incident. 13. Although Plaintiff s claim is solely for negligence, Plaintiff seeks damages in the nature of interest in the ad damnum clause of the Complaint. 2 14. Plaintiff s Amended Complaint alleges that "although demand has been made, defendant has failed and refused to compensate plaintiff," see Exhibit "B,"paragraph 6, and the reports attached as Exhibit "A" to Plaintiff's Amended Complaint refer to a "denial letter" from Defendant and make reference to potential attempts to compromise this dispute. MOTION TO DISMISS COMPLAINT PURSUANT TO PA. R.CIV.P. 1028(a)(4) FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED 15. Defendant, Emerson, hereby incorporates by reference Paragraphs 1 through :l4 hereof as if more fully set forth herein at length. 16. Pennsylvania Rule of Civil Procedure 1019(a) and (f) require that the material facts on which a cause of action is based shall be stated in concise and summary form, and further require that averments of time, place and items of special damage be specifically stated. 17. Plaintiff s Amended Complaint fails to aver sufficient facts to support any of its claims, and fails to aver the manner in which Emerson's unspecified product is defective and caused Plaintiff's damages. 18. Plaintiff s Amended Complaint, which contains only conclusory allegations of law, is legally insufficient and should be dismissed pursuant to Pa. R.Civ.P. 1028(a)(4). WHEREFORE, Defendant, Emerson Electric Co. t/a Emerson Appliance Controls, respectfully requests this Honorable Court enter an Order in the form attached, dismissing Plaintiff s Amended Complaint with prejudice. MOTION TO DISMISS COMPLAINT PURSUANT TO PA. R.CIV.P. 1028(a)(2) FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT 19. Defendant, Emerson, hereby incorporates by reference Paragraphs 1 through 18 hereof as if more fully set forth herein at length. 3 20. Plaintiff's Amended Complaint violates Pennsylvania Rule of Civil Procedure 1019(a) and (f) in that it fails to state in concise and summary form the material facts upon which the cause of action is based, and does not specifically aver time, place or items of special damage. 21. Interest is not recoverable as damages under Pennsylvania law in a negligence action. 22. Plaintiff s Amended Complaint improperly requests interest as an item of damages. 23. Pennsylvania Rule of Civil Procedure 1028(a)(2) allows for the dismissal of a Complaint for failure to conform to law or rule of Court. 24. Dismissal of Plaintiff's Amended Complaint is appropriate in this matter in light of the numerous and substantial violations of the Pennsylvania Rules of Civil Procedure contained in Plaintiff s Amended Complaint, which prevent Defendant, Emerson, from fairly and properly responding to the Complaint. MOTION TO STRIKE "EXPERT" REPORTS ATTACHED TO AMENDED COMPLAINT PURSUANT TO PA. R.C.P.1019(al AND 1028(al(21 25. Defendant, Emerson, hereby incorporates by reference Paragraphs 1 through 24 hereof as if more fully set forth herein at length. 26. Pennsylvania Rule of Civil Procedure 1028(a)(2) permits a party to file Preliminary Objections for failure to conform to law or rule of court or inclusion of scandalous or impertinent matters. 4 27. Pennsylvania Rule of Civil Procedure 1019(a) requires the materials facts on which a cause of action is based to be stated in concise and summary form. 28. In lieu of pleading sufficient facts and legal allegations, Plaintiff's Amended Complaint attaches reports from its "expert," the credentials of which are not stated therein. 29. The attached expert reports are not based upon facts of record, serve no useful purpose at this stage of the proceedings and cannot be substituted properly pled facts under the law of this Commonwealth. See Deltar Development, Inc. v. Kreger, 12 Pa. D. & C.3d 371 (1979). 30. The attachment of the "expert" reports violates Pa. R.Civ.P. 1022 in that the reports contain more than one material allegation, which prejudices the Defendant's ability to properly respond to the Plaintiff's allegations. WHEREFORE, Defendant, Emerson Electric Co. t/a Emerson Appliance Controls, respectfully requests this Honorable Court enter an Order in the form attached, dismissing Plaintiff s Amended Complaint with prejudice. MOTION TO STRIKE ALLEGATIONS RELATED TO ALLEGED OFFERS OF COMPROMISE PURSUANT TO PA. R.C.P. 1028(a)(2) 31. Defendant, Emerson, hereby incorporates by reference Paragraphs 1 through 30 hereof as if more fully set forth herein at length. 32. Pennsylvania R.Civ.P. 102$(a)(2) permits a party to file Preliminary Objections for failure to conform to law or rule of Court or inclusion of scandalous or impertinent matters. 33. Paragraph 6 of Plaintiff s Amended Complaint alleges that "although demand has been made, defendant has failed and refused to compensate plaintiff." 34. The reports attached as Exhibit "A" to Plaintiff's Amended Complaint make reference to attempts to compromise this matter and Emerson's denial of same. 35. Pennsylvania law is clear that offers to compromise are irrelevant and inadmissible in a civil action. See Pa. R.E. 408. WHEREFORE, Defendant, Emerson Electric Co. t/a Emerson Appliance Controls, respectfully requests this Honorable Court enter an Order in the form attached, dismissing Plaintiff s Amended Complaint with prejudice. MOTION FOR MORE DEFINITE STATEMENT OF PLAINTIFF'S CLAIM PURSUANT TO PA. R.C.P. 1028(al(3) 36. Defendant, Emerson, hereby incorporates by reference Paragraphs 1 through 35 hereof as if more fully set forth herein at length. 37. Pa. R.Civ.P. 1028(a)(3) permits a party to file Preliminary Objections based upon insufficient specificity in a pleading. 38. Plaintiff s failure to abide by the Pennsylvania Rules of Civil Procedure and plead material facts upon which its cause of action is based, failure to aver time and place and items of special damage specifically, in accordance with Pennsylvania Rule of Civil Procedure 1019, prevents Emerson from fairly and properly responding to the Amended Complaint or preparing a defense to these claims. 39. Plaintiff s failure to identify the product at issue and the alleged malfunction and/or defect involving Emerson's product at issue in this litigation prevents Emerson from fairly and properly responding to the Amended Complaint and preparing a defense to these claims. 6 40. Plaintiff s failure to identify the basis upon which Unitrin allegedly became subrogated to the interests of Laurie A. Kalinak prevents Emerson from fairly and properly responding to the Amended Complaint and preparing a defense to these claims. WHEREFORE, Defendant, Emerson Electric Co. t/a Emerson Appliance Controls, respectfully requests this Honorable Court enter an Order in the form attached, compelling Plaintiff to file a more definite statement of its claims. SWEENEY & SHEEHAN B Y~ . Michael Kunsch 7 VERIFICATION J. MICHAEL KUNSCH verifies and says that he is an attorney-at-law in the offices of SWEENEY & SHEEHAN; that he is authorized to make this Verification; and, that the facts set forth in the foregoing DEFENDANT'S, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS, PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT are true and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties of 18 PA. C.S. Section 4904 relating to unsworn falsification to authorities. J. Michael Kunsch DATE: OCTOBER 2, 2007 EXHIBIT "A" KRAFT & KRAFT, P.l.. BY: Robert E. Cherwony, Esquire Identification No. 17623 Attorney for Plaintiff(s) 1311 Spruce Street Philadelphia, PA 19107 (215) 546-5100 UNiTRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK P. 0. Box 4780 Syracuse, NY 13221-4780 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA vs. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS 2831 Waterfront Parkway -East Drive Indianapolis, IN 46214 CIVIL ACTION AT LAW NO. ~'~- H7yo Cavil ~e-rM CIVIL ACTION COMPLAINT "NOTICE" "You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. you may lose money or property or other rights important to you. "AVISO" "Le han demandado a usted en la cone. Si usted quiere defenderse de este demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demands y la notification. Hate falta asentar una comparencia escrita o en persona o con un abogado y entregar a la Corte en forma escrita sus defenses o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la Corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notification. Ademas, la torte puede decidir a favor dei demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades u ostros derechos importantes para usted. "YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRtT~G A LAWY"ER. 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. Court Administrator Courthouse, 4th Floor 1 Courthouse Square Carlisle, PA 17013 "LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TJENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFIiCINA CUYA DIRECCION SE ENCUENTRA ESRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGU'IR ASISTENCIA LEGAL." P ~ ~~ ~~hK-. a r c r,,. 4t~A~ V{5\ ~'~ `=fir '. ~~ ~n.° ~. ~~t~iS~~, 1~~. '~ ~ , ~ • - 007 ~• o KRAFT & KRAFT, P.C. BY: Robert E. Cherwony, Esquire Attorney No. 17623 1311 Spruce Street Philadelphia PA 19107 (215)546-5100 UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK P. O. Box 4780 Syracuse, NY 13221-4780 v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS 2831 Waterfront Parkway -East Drive Indianapolis, IN 46214 CIVIL ACTION COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION AT LAW No. 1. Plaintiff is a corporation with an address as set forth above. 2. Defendant is a corporation with an address as set forth above. 3. On or about October 19, 2005 due to defendant's negligence and carelessness, plaintiff s insured sustained damages in the sum of $10,910.95. Attached hereto, made a part hereof and marked Exhibit "A" is a true and correct copy of plaintiff s proof of liability. 4. Although demand has been made, defendant has failed and refused to compensate plaintiff. WHEREFORE, plaintiff claims of the defendant(s) the sum of $10,910.95 plus interest in the amount of $1,200.20, for a total of $12,111.15 plus court costs, all of which are justly due and owing from the defendant(s) to the plaintiff. KRAFT & KRAFT, P.C. BY: Robert E. Cherwony, Esquire Attorney for Plaintiff Attorney for Plaintiff(s) ,~.~,~'~~~~ Di~Tersified Product ~iinspec#ians, one. { ~,u~e. ~, la$I FGrcnsic I nw,~;i~aTs:,~ ~ YrcduGt r ailurt :~nalti•sis .~~. ,. ~+ L~11'~L i l~V~STICA'!'~t3N #~:~P~R'T Claim No. DP1 l=iie AJo_ Type of product e~camined by laboratory investigatior3: From the residence of: Martiufacturer, Distributor or Retailer of Product: Phone: Fax: Report prepared for, 33ti K>=a95192 2405-12-51099 lcarnaker LAURfl=tCHRIS KALINAK~'PETERS 51 SOUTH P1N C~AK DR. BC)lt_tNG SPRINGS, PA 17007 WHIRL-PODt_ CORPGRATION ATTN: 2000 l~l, 1u963 MAiI.OP,OP 2201 t3EN?aN FiARSOR M~, 49022 soa253-1 ~o~ 616-923-3872 I]ARLENE OREVE~DING - KEIUIFER KE(v1PER i~15UP,ANC!_ 5784 V'diDEW',a7ERS P}M1Y C?EUVITf A!Y 13?14 i o the best Of L}PL's kno,~~ledge, tFte manu#acturerfdistributor information provitiEa hErein is cptrect concErning ;he ~.~roduct insaec:ed.:t is the resp~nsibllity of dur clients and~or their reoreszntatives to ascerbin ownershipleCCU~sitiGn status as ~~! cannot f31e for a rnation of dist;over~ or render legal servicas, -Please read the fill report. t.~ ETa•Cauar 3na 63G.33S5:2G ,~ glncr 3trm~. T:: 2 ND eiE.S.<923•~A 7-~ •tMW.ypM~:,xM aFdp¢?JATi P.tix 1,1 ~r~rsified Product InspectiUttss TIt C. ?age 1 of 3 ' Clssm ?~o. 3~ 1KF39?19? L~AI i•ilelvo, "~tl~-li-53t~9A ,. . +1 ply..I.ilf1 ll .I.O i1 C~ S k~ ~`+.~ 1-IISTCih"~r: T1~e itcrn receivEd a5 cvi~~:nce #~or ict~pectton was an icemak~r. Per d'~e information ou the. claim form, it was a part of. the originzl fac.ary in;~calfatiUn in ari Atrana refrigeraicr, The home ~~as s4rviccd by cirr w•:~ter, V[SCI.~L l:~~h~ll'.`dtl'1'1QN: • The inspection i~.:vaaled ~z icetnaker. • The ic~•naker's tirnerldrive nic~dule was tnarked FSPt~ E,~81 ~~, indicating tl~~ac lr. yeas tranufttctlared ~tcL'or distributed L}~ W'bsrl}~ool, • Tltc icemakcr's date cadL indicated that it was manufactured on I~1av 10; 194b. • The ice sj~.-ctQr blades ~.vere in the "at rest" (Z o'clock) posiiiaa. • Nts evidence of misuse or external damage to the iceniaker was ooser.•ed, 'fE5'1'tTvr FRgCEI7URp ~: R£SLII,'I'S: • The icemaker uRas con~ie~rt:d #o a power source. • T'ne icetnaker vras checked for mold heater resistance and voltage to tht power module ~aaittt ¢ volt.'ahm meter. • These tests conlsrnted that tFtc icernaker`s mold heater and powez module v~•erc operational, • A v,•3re shutofs-arm and a wire harness supplied by nPl were usid to rtes tic iccmaker far ptt~pzr operation, - The ic~rnaker tiaras placed tliraugl~ ! b ice harvest eycltis to check thG opcratior~ of tt:e tirner'driv~ motor and th,r wattr ral~~e's reftll cycle. • Durim khe cycl ~, t#te tmtddrive tnotor'S gear9n, periodically stalled anchor slipped, • The ti•ater valve's refill cycle lastett appmxitnatsly, 20 ,econds, wbiclt is normally lang. F1~;CLgsURE5: Photos 41-G9 • ~J1: DPI's e,zdebca t2~ • ~_': Evidence in the "as-rcteived" condition • ();-D~: IviarF:in;s or ic~z;aker - 0~: Position s~fice erector blades • t7b: lcesrcaker checked for mold heater tti~istanee • t)7: Voltage verifies to ictmaker`s pawar module • U~: gperatian of iceniaher`s ice harvest ercle • 04; Gperatian ~~f vrzter •'alva'; refill cycle ,nsAerl~:b.rera,.~ aro~o:a - -. OIn~9r $pi ngY tt137N9 385.dA29+6~ u~..,~.~~.~,1 ~~~~.~rtF~ lliversified ProdactInspection~, Inc. Page ~ a63 co:~ci..us14V: During eycla tesrittg of tlt.'. ic•r.•naker, tltc 4vatzr va6ve's refill cycle lasted an a~nt~rma:ly Jong p:riod of time (approximately 36 sccond5). This sgnditiQn would xllo'sv an exc+:ssiae water discharge to the iaemaker. A.dditiorally, it u~as noted that the; tirneridri~•s motor andior its gearing did noc cycle smoothly throughout an entire cycl.. Clueing each circle, (;te ma9~r stalled andl~orthe gLsring slipgod periodically. Based c+n the rriechanical behavinr of this icemakcr during te;:ting, this icemaker hss fail~;cl to provide the services for +~~ktich it •a~as designed. This tix,+as a product failure. Plc~e refer to the fsrt psge of this report f:,r 9nibt7nfltien regttrding thz manufacturer anr3;'Ur distr.butor. If,~ou havti ~ttty questions rea3rdin~ this claim, plesse contact th~r Customer 5en~ice Department at (8~~} X82-E~80, exteoisions 13~, f I6 or 1 S7. InsQeCtCr: E~EU teeth Data: 12l2312Q0~ Imlestiaator: h4arvin Stacy date: 1217Sf20C5 :tvt ~ trncnunrr 6~va 2[~.:%5.6c'?0 _~- - --- CnoerSpnnue,TlJ3;o~t] o95AC~E~ wwxaa.racam 8~car.2.¢.77~q,~ Diver&ified ~raduct fiuspections, Inc. gage 3 ai 3 . ~ , .. '~'.', ~~ :~ Dtversificd Product Insgectians, Tnc. Forensic Investigations & Product I'aiJursAnalysis Puffing the Pieces '~oge~her at~Qu.St ~; aoc~~ ]7arlene Grevelding L~niirin Kemper Auto & Ht~rne Y.C1. liox ~73Q Syracuse, lv'Y 13221-478 Re: Claim i`fa.: ltlsured: Lass Date: E~F'I Filc No.: Tear A~1s. CTrevclding: ;311 395192 Christopher 8,: Lurie Kalindk 10~'19f20(~5 2005-12-5199 J~~~;~ ,~ i~- Licensed Frivate Investigators TTI PIr_?55 1 atn ~~:xiting itt response to the denial letter, dated 4G;'42f200~, that you rcceivcd from >merson Appliance Controls. They stated that it is cotnrttan far the gears to be stripped and slip from rot<`tting fife iCer>aaker's fingers back~.vards. They surirtisec~ that someonc had ptuportedly rotated the icemaker`s fingers manually. They added that the.; are denying this claim because the evidence was not relea-4ed to them for anon-destructi .~e ~Xamination. DPI's position in regard to this claim is as follows: ~~+~ten the icemaker vas evaluated and tested at DP1 on l2l23I2~~5 by I3iI1 l,..eeth, a lab~~ratazy technician, the timerldtive motor's gearing periodically stalled an.d'az slipped..f-lowevez, no evidence of any significant gear damage 4~as found to indicate that the ieemaker's fingers were rotated manually. Therefore, the icemaker module did:nat fail as the result oi, abuse ax isnpropez servicing. The icemaker maduls was closely rc-examined toga}~. Please notice that the driti~en gear did not exhibit any si~mificant damage frorra the a1leg~d manual rotation of the icemak:er's fingers (see )~xhibit A). Please also notice that the drive gear did trot exhibit any significant dsznage from. thu alleged ntatlual rotation of the icernaker's fingers (see Exhibit B}. The icemaker modules failure lures not caused by damaged gears. ~ ~ ~. AUK ~ 1 ID~~ 1 SY~~~t~~~ ~~.Ri1+~ 1059 E. Tri-County 8aulcvard Ply.:' (804) 8b5-6220 (86~-} a$2-$480 QJivcr Springs, TAf 37544 w-vtiv.dpi-inc.com Fw :: {86Sj 4$2-84i7 The driven gear was removed in order to facilitate an exarninatian, of the contact`s and the dri~~en gear's contact strips. This revealed that the contacts arzd the contact strip foa• the water control valve were tlamxged and overheated, confirming that the timer motor had stalled during the tray refill cycle (see Exhibit C}, `~Fhen the timer motor stalled at the installation site during the refill cycle, this 1`ept the tivater control valve energiaed continuously, causing water t.o ay~erflos;~ ovntirtuously Exam the tray. Therefore, the water damage occwred as a result of the timer motor's failure. Please notice that one of the pronged contaots for the tivater control ~,al~,~e u~.as missing and destroyed by the arcing (see Exhibit D). Please also notice that the charred by-products from the arcin;lvere deposited around the-contact snip fsec Exhibit Fr}. A photo of a ,good used driven gear contact strip and cpr~tacts from sn exemplar icernaker module are enclosed far comparison purposes (sec Exhibit F~. When a timer rn.ator has stalled during the refill cyoie, the contacis.can become o1~erheated and the resulting resisti~~e heating may produce arcing. L}PI's position is that the icemalcer module Failed as the result of a defective timer motor, 'I"l,.e manufacturer has not provided any facts to confirm that the icenzaker malfunctioned as a result of gear damage from manual rotation of the icemaker's fingers. The icernaker module's extended fill cycle vas apparently caused by the by-products' conductivity. The icernaker module's extended fill cycle would cause the trey to overflow each time during the refill cycle. If U"nitrin K.einl?er is unable to obtain a settlement from the manufactzxrer, then it may become necessar}~ to have tiie evidence shipped to the manufacturer fc~r a non-destructive examination. If you have any questions, then please do not hesitate to contact me at your cpnvcnience. You may reach me at 5~0-855-b?~Q ext. 132. ~incerel.y, ~~. '~~...- ~Craig Karpak Technical Sen~iaes Manager Cause &: Origin Ins°estiaator Exhibits: f,A-r) i~~CEy~~i~ A~.IG 2 ]. L~U6 - SYRACU~~ ~~,A~M VERIFICATION - I, the undersigned, in my capacity as ~~ ~ Cx~7D1'1 C,l..l iS~" ____ . of u n ~ n ~ ~~ ~D ~~ , Plaintif f herein.; certify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge or information and belief . I make this Verification sabjeet to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, .which provides that if I knowingly make false statements, I may be subject to criminal penalties. .~~ ~~" "~ ~ ~, R r-;, 4 ~..~ .~ ':~ tis ;~ ~. ~~ °6~' ; <?~ ,_ ~ e? i ~,fj ~~~~ ~~ I~ ~~ _. ~~ ~.~, °U"~ RCVt~ _ a r ~~~~~ r~ Print or Type Name EXHIBIT "B" KRAFT & KRAFT, P.C. BY: Robert E. Cherwony, Esquire Identification No. 17623 1311 Spruce Street Philadelphia, PA 19107 (215) 546-5104 UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK P. O. Box 4780 Syracuse, NY 13221-4780 vs. Attorney fox Plaintiff(s) COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION AT LAW EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS 2831 Waterfront Parkway -East Drive Indianapolis, IN 46214 NO. 07-4740 Civil Term AMENDED CIVIL ACTION COMPLAINT "NOTICE" "You have been sued in court..1f you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. you may lose money or property or other rights important to you. "YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, 'CHIS 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. "AVISO" "Le han demandado a usted en la corte. Si usted quiere defenderse de este demandas expuestas en las paginas siguientes, usted tiene veinte (20) dial de plazo al partir de la fecha de la demands y la notification. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notification. Ademas, la corte puede decidir a favor dei demandante y requiere que usted cumpla con todas las provisioner de esta demanda. Usted puede perder dinero o sus propiedades u ostros derechos importantes para usted. "LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFIICINA CUYA DIRECCION SE ENCUENTRA ESRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGiJIR ASISTENCIA LEGAL." Court Administrator Courthouse, 4th Floor 1 Courthouse Square Carlisle, PA 17013 KRAFT & KRAFT, P.C. BY: Robert E. Cherwony, Esquire Attorney No. 17623 1311 Spruce Street Philadelphia PA 19107 (215) 546-5100 UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK P. O. Box 4780 Syracuse, NY 13221-4780 v. Attorney for Plaintiff(s) COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION AT LAW EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS 2831 Waterfront Parkway -East Drive Indianapolis, IN 46214 No. 07-4740 Civil Term AMENDED CIVIL ACTION 1. Plaintiff is a corporation with an address as set forth above 2. Defendant is a corporation with an address as set forth above. 3. On or about October 19, 2005 due to defendant's negligence and carelessness, plaintiff s insured sustained damages in the sum of $10,910.95. Attached hereto, made a part hereof and marked Exhibit "A" is a true and correct copy of plaintiff s proof of liability. 4. Pursuant to plaintiff s expert, the defendant's water valve refill cycle lasted an abnormally long period of time -approximately 20 seconds. 5. This condition allowed an excessive discharge of water to the icemaker. 6. Although demand has been made; defendant has failed and refused to compensate plaintiff. WHEREFORE, plaintiff claims of the defendant(s) the sum of $10,910.95 plus interest in the amount of $1,200.20, for a total of $12,111.15 plus court costs, all of which are justly due and owing from-the defendant(s) to the plaintiff. KRAFT & KRAFT, P.C. BY. Robert E. Cherwony, Esquire Attorney for Plaintiff ,. ~,.~,~rr,r, I)i~rersifi~d Pr~duc~t In~pec#iuns, Inc. ~.1 Q~I ~' Forensic Invr,.~;i~atior~ ~ Yrc~duct r"ailur.° analysis ,. ~ 1• ~~ x ~~ Glaim Ala. 33't KP39599? DPl Piie Na. 2405'12-51009 Type of product examined by laboratory inuestigatior~: lcernaker From the RPsicfsnce of LAURil=1CHR~S KALINAKIPETERS 61 SbUTH P1N flAK DP,. BdILiNG SPRINGS, Pk 17007 Martiufacturer, Distributor WHIRLPOOL CORPGRA710N ar R.etaileroi' ProdtJOt; ATTN: 2034 hl.1Ui63 MAfL DP,OP 22Q'4 'FEN70N FiARBOF~ hlll, 49022 r='hone: 3Q0-253-130~i Fax: 6 9 5-923-3872 Report prepared for: DARLENE GREVELDING - KEltAFER K>±MPER l~lSUP,ANCE 578 U'JIDEWA7ERS PKWY DEV11ll'T NY 13214 7o the best of C7P1's knowledge, the manu#actvrerldistributar irttarmation provitlea hErein is correct concerning the product fr~.pected. ~t is the respansiblliry of-our clients and~or their representatives to asoertain ownershiplacc;u~siti~n status as ~s~! cannot file for a motion of dlst;overy or re:xier legal servicts• -Please read the fu n rep~art. !jlrer SGnngs. T:: Li 6tC SES.dg23dAr1 •„~..~~Hn:.xm ~~;..e~aar, F~ I}~versifted Froduct Inspections} Inc. F•e,~e 1 of 3 Ciaint iVo. ~~ tKF;9}19" API FiIC Tvo• ?403-12-S1Cr7g HISTUR`~': .,y ~~ 1.1 I t Y 4~• , ~ ~, r ~~ l , i The item received as evidence For inspection was an i~emaker. Per tt-re information ott thr. claicrt-farm, it ~uas a part of the original facmry i~ts~alfation in an a.n:ana refrigtraior. The hamt tiv;is s•er. iced b,' cin~ ~>~ter, • The inspection revealed a~z icernakr;r_ • ~'he icemaker';: timerr'drive module was marked FSP~r ~i281a~~, indieatin~; chat it was ntamafncu~rcd attcL'or distriLuted L~y Whirlpool. • The icama;rrs's date cod indicated thet it ivaS rnanufsctured an T~iay l 4; 11r}6. • Thr ice sjcctorl,lades'~ver~ in the "3t rest" (? o'clock] position. * No evicleslc.e of misuse or external damage to the icemaker was poser.~ed• 'fE5'1'TivG PRUCcDURE 3t. RE.5UI.,'T'S: • The icemaker was connected td ~ pourer source. T'nc icemaker was checked for mold heatea• n:sistancc anel voltage to the power module with a ti vla'ahm meter. ' T1lC$c twSC:: contimted that the icetnaker's mold heater and power module wtrc Upe: ativnal. • :, .wire shutofs" arat end a wire harness supplied by DPl vest used to ttst the icemaker fctr prap~r operation. • Tile i.:ernakcr ti~;as pla.ecl throrz;'1 ! U ice harvtst cycles to cheek the opcratiorY of tl:e timer'dri~~e motor rind tha water val'e's real) cycle. • During the c;; ties, tsle t=merfdrivc tnoior's g~2ring periodically stalled aact+nr slipped. • The water valve's refill cycle lasted appro.:imately 20 second:Y; which is abnvrrnall.y Jong. El`CLOSUitirS: Photos 01-09 • 41: DPI`s evidence two • 0 Evidence in the "a-received" canditie~n • Q, 04; Marltm;s an icemaker - 4~: Position cif ice erector blades • 06: icemaker checked fnr mold heater reSistanCe • 0?: Voltage verili.d to iccmaker's pawzr module • 0~, Operation of icetrizkar`s ice harvest cycle • 49: Operation of v;zter :'aloe's refill cycle 7059E rM1+C61M,Y did EtO t)95.6~ orrver~.oga rr+rero sds.ae29.7t» .,~.w~;..,c~r ,~„,e~,c~;,r~ Tli~rersified ProduGi Inspections, Inc. Page of 3 ,. C.ONCLLiSI~N, ~urin~, cycle testing of the. icemaker, the water va6ve's refill cycle lasted an al;norma.ly Jang p~riasi c; :imc (approximately 30 seconds). This condition •tivauld allow an axci:ssive water dzscharse tc~ the ioemak:r, ,additionally, it ~;u noted that the timer; driti•s rxotor andior its gearing did not cycle smoothl,,r throughout an Pntire cycle. Luring each cycle, (;tit motor stalled andJorthe gearing slipped periodically. Based cut tht mechanical beha~nor of thcs icer;taker durin'testistg, t3tis icemaL:er hss failirl zo prow•ide the sen+ice; for witiclt it was designed, 'i.'his eras a product failure. Plcsse refer to tfze fsrst F+sge of this repilrt fcr ;niormatian regarding thz manufacturer ~nei; ar distr.~tttt~r. If you have arty Guestinns rep:trdictg this claim, plisse contact thc+:ustomer Ss.:~~ic° Depst~ment at (8~~? X82-t;G80, P7(Lp7151Qt1S 130, t 16 or 1 F7. , Inspector: Btu teeth Gate: 1212312Q05 Int~estitsator: tdlaNin Stacy t~aie: iZlZ${2005 •0.Po~irnu7ul11y a•A iCG.&6s.F22~ CligBf Sphryo, YIJ S7?WJ o95AEZWA" •uwwaa»ra wm 8°,~a~''.P+77 Fox Di~ersifted ~radut:t .Cuspcctions, Ins ?age 3 ai 3 .. ``~ i} ~~ ~' Biversified Prndnc[ tlnsgections, Inc. Forrnsic Investigations ~c Product Failure Analysis PUtfing fht? pieces '~ogsther Ausu,St 3. 2U06 ]7arlene Grcvelding L~nitrin 1•:emper Auto ~;. Home P.C~. $ox x#730 Syracuse, NY 13221-4784 13e: G)aini i~Ia.: Insured: Loss Date: ~FFI File ~fo.: Dear R~Ss. ~Trevelding: 331 1~ 395192 Christopher & Laurie Kalmak lotl9naa~ 20U5-12-51099 -_`',. ~} ~, J Licensed Prirate Investigators TTI PIC4S5 1 ainl~:xiting iii response to the denial lettdr, dated aGia21200G, that you received from Emersan.~ppliance Controls. Thev stated that it is cotnanon for the gears to be stripped and slip from rot<~ting the icerztal:er's fingers backwards. T#te}~ sut~nised that someone had purportedly rotated the ieemaker's fingers manually. They added that they are denying this claim because the evidence was not released to them for anon-destntcti~re examination. IaT'I's position in reward to this claim is as follows: • ~~4'hcn the icemaker vas evaluated and tested at DPl an 12.x'2312405 by 13111 Leeth, a labarataxy technician, the timerldzive motor's gearing periodically stalled ancl'or slipped. l~owever•, na evidence of any sigraii'ieant gear damage was found to indicate that the icemaker's fingers tivere rotated manually. Therefore, the icerttaker module did zlat fail as the result o£ abuse ax improper setvicing. • The icemaker module was closely rc-examined today, Please notice that the driven gear did not exhibit any significant damage from the alleged rttanual rotation of the icemaker's fngers (see )~xhibit A). Please also notice that the drive gear did not exhibit any significant damage frnm the alleged zxtsrlual rotation of the icemaker's fingers (see Exhibit B). The icernaker module's failure vas not caused by damaged gears. ~ ~ ~ ~ ~ ~ E AUK ~ 1 2t3~~ !~ ~Yft~~tl~~ ~t,~i~li 11154 Is. Tri•{:aunry 8ouicvard Ph.: lR00) 8b5-62211 (865} 482-5480 C3livrr Springs, TIY 37S40 v~~tlv.dpi-inc,cam Fax: {c~55i dg2-S~i ; ., ~ v - - -. .. . The driven gear was removed in order to facilitate an e~:atninatic~zt ol• the contacts and the driven gear's contact strips. This revealed that the contacts and the contact strip far the ti~rater control ~-alva were damaged and o~~erheated, confirming tkrat the timer matox had stalled during the tray refill cycle (see Exhibit C'l, 1~rhen the timer motor stalled at the instal3ation site. during tlce refill cycle, this kept the water control rralti-e energized continuously, causiztg water to ay~erfloty cantinuoual}~ fxom the tsay. Therefore, the water damage occurred as a result ~f the timer motor's failure, Please notice khat one of the pronged contacts for the water control ~ral~re ~v.as missing and destroyed by the arcznD (see Exhibit I?). l'leasc also notice that the ehArred by-products from the green; were deposited around the contact strip {see Exhibit F}, A photo of a good aged driven gear contact strip and contacts from an exemplar icernaker module are enolosed for comparison purposes (sec Exhibit 1?}. ~~'hen :i timer m.ator Sias stalled during the refill cycle, the contacts can bccorrie o<<c-nc~ated anc~ the resulting tesisti~~e heating may produce erein~;. L~Pi's pasitiflii is -that the icemaiccr module failed as the result of a defective timer motor. Tire manufacturer has not provided any foots to confirm that the icexrsakermalfutzclioned as EL result of gear damage from manual rotation. of the icemaker's fngers. The icernaker. moduIe's e:tended fill cycle vas apparently caused bythelay-products' conciuctivitr. The icernaker module's extended fill cycle would cause the tray to overl3ow each tinte during the rcfrll cycle. If Urtikrin Kemper is unab3e to obtain a settlerntnt £rom the man.ufacturcr, then it may beco>rte rleCesS~T}' to have the evi.denco shipped to the rrienufacturer for anon.-destructive examirxation. If you leave any questions, then phase do not hesitate to contact me at your. convenience. 'You may reach me at 800.85.5-6~2Q ext. 132. Sincerely, ~~~ ~' Craig Korpak Tschnicat Sen•~ices Manager Cause & Origin Investigator Exhibits: {A-r) ~~~~+~~~ U G 2 ]. 206 ~~RACIlS~ ~~~tiNl ,. VERIFICATION I, -the undersigned, in my capacity as ~~ ~ ~©/'1 S ~) a ~a u.(is-F of ~n ~ n ~~~ ~~pVl;~. ,Plaintiff herein..; certify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge ar information and belief. I make this Verification s-abject to the penalties of 18 Fa. C.S. Section 4904 relating to unsworn falsification to authorities, .which provides that if I knowingly make false statements, I may be subject to criminal penalties. ~.`4~~ ~~ ~~ .~ ~~`~- ~j ~*..,, C`O ~Ga~ ~' ~r ~,'. P~ ' ~ti r~~ d „'r- ~~~~ ~~ •~~~~e,n ~~LL,,• i ~! a~r,l~Q. ,rte Print or Type Name r VERIFICATION Robert E. Cherwony, Esquire hereby states that he is the Attorney for Plaintiff in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties 18 Pa. C.S. 4904 relating to unsworn falsification to authorities. Date: September 17, 2007 Robert E. Cherwony SWEENEY &SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Market Street Suite 1900 Philadelphia, Pennsylvania 19102 (215)563-9811 FAX 215.557.0999 ATTORNEY FOR: DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW NO.07-4740 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the within PRELIMINARY OBJECTIONS OF DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS, TO PLAINTIFF'S AMENDED COMPLAINT was made on October 2, 2007 to all counsel of record via United States First Class Mail, postage prepaid. SWEENEY &SHEEHAN By: ichael Kunsch PRAECIPE FOR LISTING CASE FOR ARGiJMENT (Mast 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) Unitrin Auto & Home Insurance Co., Subrogee of Laurie A. Kalinak (Plaintiff) vs. Emerson Electric Co. t/a Emerson Appliance Controls (Defendant) No. 07-4740 Term 1. State matter to be azgued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendant, Emerson Electric Co. t/a Emerson Appliance Controls, to Plaintiff's Amended Complaint 2. Identify counsel who will azgue cases: (a) for plaintiff: Robert Cherwony, Esquire, Kraft & Kraft, P.C. 1311 Spruce Street, Phila., PA 19107 (Name and Address) (b) fordefendant:J. Michael Kusnch, Esquire, Sweeney & Sheehan, P.C. 1515 Market Street, Suite 1900, Phila.. PA 19102 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Print your name ( J. Michael Kunsch, Esquire Date: C~b~ Z ZOQ~ Attorney for Defendant ., ry f.°? ° =ci 1i:: '-; ~~ ~~ ~.~ .. ~..'~+ KRAFT & KRAFT, P.C. BY: Robert E. Cherwony, Esquire Identification No. 17623 1311 Spruce Street Philadelphia, PA 19107 (215) 546-5100 Attorney for Plaintiff(s) UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK P. O. Box 4780 Syracuse, NY 13221-4780 vs. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS 2831 Waterfront Parkway -East Drive Indianapolis, IN 46214 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION AT LAW NO. 07-4740 Civil Term SECOND AMENDED CIVIL ACTION COMPLAINT "NOTICE° "You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. you may lose money or property or other rights important to you. "YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. 1F YOU CANNOT AFFORD TO HIRE A LAWYER, PHIS OFFICE MAY BE ABLE TO PROVIDE YOU W1TH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. "AVISO" "Le han demandado a usted en la Corte. Si usted quiere defenderse de este demandas expuestas en las paginas siguientes, usted tiene veinte (20) dins de plazo at partir de la fecha de la demands y la notification. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la Corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la cone tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notification. Ademas, la Corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisioner de esta demanda. Usted puede perder dinero o sus propiedades u ostros derechos importantes para usted. "LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFIICINA CUYA DiRECCION SE ENCUENTRA ESRITA ABAJO PARR AVERIGUAR DONDE SE PUEi~E CONSEGU[R ASISTr;NCIA LEGAL." Court Administrator Courthouse, 4th Floor 1 Courthouse Square Carlisle, PA 17013 .~ KRAFT & KRAFT, P.C. BY: Robert E. Cherwony, Esquire Attorney No. 17623 1311 Spruce Street Philadelphia PA 19107 (215} 546-5100 UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK P. O. Box 4780 Syracuse, NY 13221-4780 v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS 2831 Waterfront Parkway -East Drive Indianapolis, IN 46214 Attorney for Plaintiff(s) COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION AT LAW No. 07-4740 Civil Term SECOND AMENDED CIVIL ACTION 1. Plaintiff is a corporation with an address as set forth above and the insurer of subragor pursuant to a homeowner's policy. 2. Defendant is a corporation with an address as set forth above. 3. On or about October 19, 2005 due to defendant's negligence and carelessness, plaintiff s insured sustained damages in the sum of $10,910.95. Subrogor resides in Boiling Springs, Pennsylvania. 4. Pursuant to plaintiff s expert, the defendant's water valve refill cycle lasted an abnormally long period of time -approximately 20 seconds. 5. This condition allowed an excessive discharge of water to the icemaker. 6. Although demand has been made, defendant has failed and refused to compensate plaintiff. WHEREFORE, plaintiff claims of the defendant(s) the sum of $10,910.95 plus interest in the amount of $1,200.20, for a total of $12,111.15 plus court costs, all of which are justly due and owing from the defendant(s) to the plaintiff. KRAFT & KRAFT, P.C. BY: R Bert E. Cherwony, Esquire Attorney for Plaintiff VERIFICATION Robert E. Cherwony, Esquire hereby states that he is the Attorney for Plaintiff in this action and verifies that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties 18 Pa. C.S. 4904 relating to unsworn falsification to authorities. Date: obert E. Cherwony w ~ Q ' rr .' c -`~ -` r. ~ CI~,~',, ~=: C7 ~ a ~~ ~: ~ _ , ~ ~~y7 -~ ~ L SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Market Street Suite 1900 Philadelphia, Pennsylvania 19102 (215) 563-9811 FAX 215.557.0999 FAX 215.557.0999 UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS TO: PLAINTIFF YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM THE SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. ATTORNEY FOR: DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW N0.07-4740 ANSWER OF DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS, TO PLAINTIFF'S SECOND AMENDED COMPLAINT TOGETHER WITH NEW MATTER After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. 2. It is admitted that Emerson Electric Co. is a corporation. By way of further response, it is admitted that Emerson Appliance Controls is a division of Emerson Electric Co. with a place of business at 2831 Waterfront Parkway -East Drive, Indianapolis, Indiana 46214. The remaining averments of this paragraph are denied as conclusions of law requiring no response. 3. Denied. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. By way of further response, it is specifically denied that Defendant was in any way negligent and/or careless. 4. Denied. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. By way of further response, it is specifically denied that Defendant designs, manufactures and/or supplies a water valve. 5. Denied. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 6. Denied. This averment constitutes a conclusion of law requiring no answer. By way of further response, Defendant denies all liability to Plaintiff. WHEREFORE, Answering Defendant demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. NEW MATTER 7. Plaintiff s Second Amended Complaint fails to state a claim upon which relief cn be granted against the Defendant. 8. Defendant avers that Plaintiffs injuries and damages, if any, were solely and proximately caused or contributed to by the failure of Plaintiff or Plaintiff's subrogor to exercise ordinary care for their own safety and by the negligence of Plaintiff and/or Plaintiff's subrogor and were not caused by or through any fault or negligence on the part of the Defendant and, therefore, Plaintiff is not entitled to recover from Defendant. 9. Defendant avers that the Plaintiff s injuries and damages, if any, were proximately caused or contributed to by or through the fault or negligence of persons or entities other than Defendant and, therefore, Plaintiff is not entitled to recover from Defendant. L 10. Defendant avers that if Plaintiff sustained any damages or injuries, the Plaintiff's subrogor was negligent, and such negligence proximately caused or contributed to any such injuries or damages; and any amount which Plaintiff might be entitled to recover shall be reduced by the amount of negligence attributable to the Plaintiff and Plaintiff's subrogor. 11. Defendant avers that any product allegedly designed, marketed, manufactured and sold by Defendant was designed, marketed, manufactured and sold in accordance with and consistent with the state of the art and free of any defect. 12. Defendant avers that in the event the product at issue in this lawsuit is identified as having caused or contributed to Plaintiff's alleged damages, which is expressly denied, said injuries and damages were the result of the product having been used in a manner not intended by Defendant and not in accordance with the instructions and labels provided by Defendant or with known safety practices. 13. Defendant avers that if there was any defect or deficiency in the product as of the time of the incident alleged in Plaintiff's Second Amended Complaint, such being expressly denied, such defect or deficiency did not relate to the design, manufacture, warnings or sale of the product, but was the result of abnormal use, misuse, abuse, improper maintenance, substantial alteration, change or modification, or other actions on the part of Plaintiff's subrogor, Lori A. Kalinek, or others for whom Defendant is not responsible. 14. Defendant denies all negligence in the design, manufacture, warnings or sales of the product in question. 15. The provisions of the Pennsylvania Compazative Negligence Act, 42 Pa. C.S.A. Section 7102, et sue., apply in this case to limit or bar Plaintiff's cause of action. 16. Plaintiff and/or Plaintiff's subrogor assumed the risk of their own conduct. 17. Plaintiff and/or Plaintiff's subrogor have failed to mitigate their damages. 18. The acts or omissions of Defendant, if any, were not a substantial contributing factor to the alleged damages of the Plaintiff. 19. Plaintiff's claims aze barred by spoliation of evidence. ~~ 20. Plaintiff s claims are barred by the Component Part Doctrine. 21. In the event the Plaintiff requests damages for delay pursuant to Pennsylvania Rule of Civil Procedure 238, Defendant challenges the applicability and constitutionality of said Rule and places same at issue. 22. Interest is not a proper component of damages in a negligence action. WHEREFORE, Answering Defendant demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. SWEENEY & SHEEHAN >3y: ~~ . Michael Kunsch DATE: /~~Z~fG'~ VERIFICATION JON KILLION, Product Safety Analyst, verifies and says that he is authorized to make this Verification on behalf of Defendant, EMERSON ELECTRIC CQ, t/a EMERSON APPLIANCE CONTROLS, and that the facts set forth in the foregoing ANSWER OF DEFENDANT, EMERSON ELECTRIC CO. t!a EMERSON APPLIANCE CONTROLS, TO PLAINTIFF'S SECOND AMENDED COMPLAINT TOGETHER WITH NEW MATTER are true and correct to the best of his/her knowledge, information and belief. This statement is made subject to the penalties of 1$ PA. C.S. Section 4904 relating to unsworn falsification to authorities. DATE: f p~~ CJ 7 Jon Killion SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Market Street Suite 1900 Philadelphia, Pennsylvania 19102 (215) 563-9811 FAX 215.557.0999 UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. tla EMERSON APPLIANCE CONTROLS ATTORNEY FOR: DEFENDANT, EMERSON ELECTRIC CO. tJa EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW NO.07-4740 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the within ANSWER OF DEFENDANT, EMERSON ELECTRIC CO. tla EMERSON APPLIANCE CONTROLS, TO PLAINTIFF'S SECOND AMENDED COMPLAINT TOGETHER WITH NEW MATTER was made on October 22, 2007 to all counsel of record via United States First Class Mail, postage prepaid. SWEENEY & SHEEHAN By: L~ ichael Kunsch _' y (_' N ~ _r~? N _~~ r~: ., :_~t.+ 'j ~ ~ ;_ ra `=-r :-;~ --- -..: ~ SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Market Street Suite 1900 Philadelphia, Pennsylvania 19102 (215)563-9811 FAX 215.557.0999 ATTORNEY FOR: DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CNIL ACTION LAW NO. 07-4740 MOTION OF DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS, TO COMPEL PLAINTIFF'S ANSWERS TO INTERROGATORIES AND RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS Defendant, Emerson Electric Co. t/a Emerson Appliance Controls, by and through its attorneys, Sweeney & Sheehan, hereby moves this Honorable Court to enter an Order compelling Plaintiff, Unitrin Auto & Home Insurance Co., Subrogee of Laurie A. Kalinak, to provide full and complete answers to Interrogatories and produce the requested documents and, in support thereof, avers as follows: 1. Plaintiff, Unitrin Auto & Home Insurance Co., Subrogee of Laurie A. Kalinak, commenced this action by the filing of a Complaint on or about August 9, 2007. 2. Plaintiff s Complaint arises out of an incident which occurred on October 19, 2005 at the home of Laurie Kalinek, located at 61 South Pin Oak Drive, Boiling Springs, Pennsylvania 19007. 3. Plaintiff alleges that on the aforementioned date, the home of Laurie A. Kalinek was damaged as the result of an alleged defect in a water valve for a Whirlpool ice maker, which was manufactured in May, 1996. 4. On October 23, 2007, Defendant served Interrogatories under Pennsylvania Rule of Civil Procedure 4005 and a Request for Production of Documents under Pennsylvania Rule of Civil Procedure 4009 upon counsel for Plaintiff. 5. More than thirty days have passed and Plaintiff has not provided answers to Interrogatories and/or a response to the Request for Production of Documents. 6. Plaintiff is in willful disregard of the applicable Pennsylvania discovery rules as it has not provided answers, produced the requested documents and information nor objected to the discovery requests. 7. The requested Interrogatories and Request for Production of Documents seek information which is relevant and reasonably calculated to lead to admissible evidence. 8. On November 28, 2007, counsel for movant forwarded correspondence to counsel for Plaintiff, reminding him that Plaintiff's responses were overdue and requesting full and complete responses within two weeks to avoid the necessity of filing a Motion to Compel same. A true and correct copy of said letter is attached hereto, marked as Exhibit "A" and incorporated by reference herein. 9. On January 16, 2008, counsel for movant forwarded correspondence to counsel for Plaintiff, again reminding him that Plaintiff s discovery responses were overdue and requesting that they be produced without further delay. A true and correct copy of said correspondence is attached hereto, marked as Exhibit "B" and incorporated by reference herein. 10. Despite the requirements of the Pennsylvania Rules of Civil Procedure and Defendant's attempts to secure Plaintiff's discovery responses without Court intervention, Plaintiff has refused to provide the requested responses and/or to contact counsel for Defendant regarding this issue. 11. The undersigned counsel hereby certifies that all attempts to resolve this discovery dispute without Court intervention have failed. 12. As set forth herein, counsel for Defendant sought the concurrence of counsel for Plaintiff regarding the filing of this motion, but Plaintiff's counsel has refused to contact counsel for Defendant to resolve this issue. 13. No Judge has ruled upon any other issue in this or any related matter. WHEREFORE, Defendant, Emerson Electric Co. t/a Emerson Appliance Controls, respectfully requests this Honorable Court to issue an Order in the form attached. SWEENEY & SHEEHAN gy: . Michael Kunsch DATE: ~ ~/~//D~ VERIFICATION J. MICHAEL KiTNSCH verifies and says that he is an attorney-at-law in the offices of SWEENEY & SHEEHAN; that he is authorized to make this Verification; and, that the facts set forth in the foregoing MOTION OF DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS, TO COMPEL PLAINTIFF'S ANSWERS TO INTERROGATORIES AND RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS are true and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties of 18 PA. C.S. Section 4904 relating to unsworn falsification to authorities. J. c ael Kunsch DATE: ~ ~y/~~ LAW OFFICES SWEENEY &SHEEHAN A PROFE$$IONAL CORPORATION 19TN FLOOR-1515 MARKET STREET PHILADELPHIA, PA 1910 2-19 8 3 J. MICHAEL KUNSCH 121a1663-9ea - PNONe DIRECT DIAL (21~ 963-2181 12131 557-0999 -FAX ®k9ndkrotchQswcnleylirm.eom November 28, 2007 Robert E. Cherwony, Esquire KRAFT & KRAFT, P.C. 1311 Spruce Street Philadelphia, Pennsylvania 19107 NEW JERSEY OFFICE SENTRY OFflCE PLAZA Z16 NAOOON AYENUE WESTMONT, NJ 0810$ 1$661 869-5800 P140NE 18661 665-5606 FAX RE: Unitrin Auto & Home Insurance Co., Subrogee of Laurie A. Kalinak v. EMERSON ELECTRIC CO. t!a EMERSON APPLIANCE CONTROLS DATE OF LOSS: OCTOBER 19, 2005 OUR FILE: E-1439 Dear Mr. Cherwony: On October 23, 2007, I served Interrogatories and a Request for Production of Documents upon Plaintiff for answering in accordance with the Pennsylvania Rules of Civil Procedure. More than thirty days have passed since this Discovery has been propounded, and we have not received Plaintiff's responses or any indication as to the delay in providing the responses to us. Please be advised that unless we receive full and complete responses to these discovery requests within two weeks, I will have no alternative but to file a Motion to Compel same. I would certainly like to avoid this if possible. Accordingly, kindly contact me upon receipt of this correspondence to discuss when you will be providing the responses. I look forward to hearing from you in this regard. Very truly yours, SWEENEY &SHEEHAN By: ~-~-~ ichael Kunsch JMK:dac LAW OFFICES SWEENEY & SHEEHAN A PROFESSIONAL CORPORATION 19TN FLOOR-1515 MARKET STREET PHILADELPHIA. PA 1910 2-19 8 3 .T. Mj~t~i'T, ~N.S~ 121ST 563-9811- PHONE DRIECT DW. w&Y(2aeL1 bu~dlQ~aeaaey6rs.av 52151557-0999 -FAX January 16, 2008 Robert E. Cherwony, Esquire KRAFT & KRAFT, P.C. 1311 Spruce Street Philadelphia, Pennsylvania 19107 NEW JERSEY OFFICE SENTRY OFFICE PLAZA 216 NADDON AVENUE WE6TMONT, NJ 06106 (5561 069-5600 PHONE (6561 069-6605 FAX RE: Unitrin Auto & Home Insurance Co., Subrogee of Laurie A. Kalinak v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS DATE OF LOSS: OCTOBER 19, 2005 OUR FILE: E-1439 --------------------------------------------------------------------------------------------------------- Dear Mr. Cherwony: On October 23, 2007, I served Interrogatories and a Request for Production of Documents upon Plaintiff for answering in accordance with the Pennsylvania Rules of Civil Procedure. These discovery responses aze now more than forty-five days overdue, and you have neither advised us when we can expect the responses to these discovery requests nor requested an extension to answer same. On November 28, 2007, I forwazded you a letter reminding you that the responses were overdue and requesting those responses within two weeks. I did not heaz from you in response to same. Accordingly, unless I receive the responses within the next seven (7) days, I will file a motion to compel the responses, and will seek sanctions for the costs and fees incurred obtaining an order to compel your client's responses to this discovery. I hope that will not be necessary. In addition, I would like to schedule the deposition of Laurie Kalinak. Kindly contact my office within seven days and provide dates on which that deposition can be scheduled so that I can issue a notice. We should also discuss the location for such a deposition, since we aze both ioc~ted in Philadelphia. If-you would iike to conduct the deposition in Cumberland County, I am certainly agreeable to doing so. I look forward to hearing from you in this regazd. Very truly yours, SWEENEY & SHEEHAN By: . Michael Kunsc --- _ __ SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Market Street Suite 1900 Philadelphia, Pennsylvania 19102 (215)563-9811 FAX 215.557.0999 UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS ATTORNEY FOR: DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CNIL ACTION LAW NO. 07-4740 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the within MOTION OF DEFENDANT, EMERSON ELECTRIC CO. tJa EMERSON APPLIANCE CONTROLS, TO COMPEL PLAINTIFF'S ANSWERS TO INTERROGATORIES AND RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS was made on January 24, 2008 to all counsel of record via United States First Class Mail, postage prepaid. SWEENEY & SHEEHAN By: ~~~ . Michael Kunsch ~~ ("'~ t'-'a ~~ ~:~+ ..... f. ~ ._ "r1 ~1 :~- ~~. -~ ~..,3 . ~~ +rT i .. ; ~~ r _ •° -{ 3::W Y Y' ~-.3 ::~ ~~. JAN 2 9 2DD$ ~~ UNITRIN AUTO & HOME INSURANCE CO., SLTBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CNIL ACTION LAW NO.07-4740 ORDER AND NOW, this ~ ~~ day of ~~,A~'~0.~~ , 2008, upon consideration of the Motion of Defendant, Emerson Electric Co. t/a Emerson Appliance Controls, to Compel Plaintiff s Answers to Interrogatories and Response to Request for Production of Documents, and any answer thereto, it is hereby ORDERED AND DECREED that said Motion is GRANTED. Within twenty (20) days of the date hereof, Plaintiff, Unitrin Auto & Home Insurance Co., Subrogee of Laurie A. Kalinak, shall provide full and complete answers to Defendant's Interrogatories and produce for inspection and copying those documents requested, or suffer such sanctions as may be imposed upon application to the Court. rt E. Cherwony, Esquire . Michael Kunsch, Esquire BY THE COURT: J. L ! =QI ~d~ i - 83~ 800Z Ai~fiC~av,'--tied ~Nl ~0 ~i-?~~~Q~IL~ SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Market Street Suite 1900 Philadelphia, Pennsylvania 19102 (215) 563-9811 FAX 215.557.0999 ATTORNEY FOR: DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW NO. 07-4740 MOTION OF DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS. FOR SANCTIONS AGAINST PLAINTIFF Defendant, Emerson Electric Co. t/a Emerson Appliance Controls, by and through its attorneys, Sweeney & Sheehan, hereby moves this Honorable Court to enter an Order for sanctions against Plaintiff, and, in support thereof, avers as follows: 1. Plaintiff, Unitrin Auto & Home Insurance Co., Subrogee of Laurie A. Kalinak, commenced this action by the filing of a Complaint on or about August 9, 2007. 2. Plaintiff s Complaint arises out of an incident which occurred on October 19, 2005 at the home of Laurie A. Kalinak, located at 61 South Pin Oak Drive, Boiling Springs, Pennsylvania 19007. Plaintiff alleges that on the aforementioned date, the home of Laurie A. Kalinak was damaged as a result of an alleged defect in a water valve for a Whirlpool ice maker, which was manufactured in May, 1996. 4. On October 23, 2007, Defendant served Interrogatories under Pennsylvania Rule of Civil Procedure 4005 and a Request for Production of Documents under Pennsylvania Rule of Civil Procedure 4009 upon counsel for Plaintiff. 5. On February 1, 2008, this Court granted Defendant's Motion to Compel the Plaintiff to provide full and complete answers to discovery within twenty (20) days or suffer such sanctions as the Court may deem fit. A true and correct copy of said Order is attached hereto and marked as Exhibit "A." 6. The Order was uncontested and moving counsel served a copy of same upon counsel for Plaintiff via correspondence dated February 5, 2008. A true and correct copy of said correspondence is attached hereto and marked as Exhibit "B." 7. Despite the requirements of the Pennsylvania Rules of Civil Procedure and this Court's Order of February 1, 2008, Plaintiff has not produced its discovery responses nor has Defendant received any indication from the Plaintiff as to the cause of this undue delay. 8. On March 5, 2008, counsel for Defendant spoke to counsel for Plaintiff, reminding him that his discovery responses were overdue and demanding the responses. 9. On March 6, 2008, counsel for movant forwarded correspondence counsel for Plaintiff, again reminding him of the overdue responses and advising that unless the responses were received by March 10, 2008, or a commitment when those responses would be produced, counsel for movant would have no alternative but to file a Motion for Sanctions. A true and correct copy of said correspondence is attached hereto, marked as Exhibit "C," and incorporated by reference herein. 10. The Interrogatories and Request for Production of Documents seek information which is relevant and reasonably calculated to lead to admissible evidence. 11. Plaintiff is in conscious and willful disregard of the applicable discovery rules as it has not provided answers, produced the requested documents and information, nor objected to the discovery requests. 12. The undersigned counsel hereby certifies that all attempts to resolve this discovery dispute without Court intervention have failed. 13. As set forth herein, counsel for Defendant sought the concurrence of counsel for Plaintiff regarding the issues presented in this Motion, but Plaintiff's counsel has refused to produce the responses and resolve this issue. WHEREFORE, Defendant, Emerson Electric Co. t/a Emerson Appliance Controls, respectfully requests this Honorable Court to issue an Order in the form attached. SWEENEY & SHEEHAN By: ~. . Michael unsch DATE: I"~c~~-a. -7.7..~~u VERIFICATION J. MICHAEL KUNSCH verifies and says that he is an attorney-at-law in the offices of SWEENEY & SHEEHAN; that he is authorized to make this Verification; and, that the facts set forth in the foregoing MOTION OF DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS, FOR SANCTIONS AGAINST PLAINTIFF are true and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties of 18 PA. C.S. Section 4904 relating to unsworn falsification to authorities. ~^---~- J. ichael Kunsch DATE: ~~, ~~,Z.c~=t; A .JAN R920D8p~f UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW NO. 07-4740 O ER AND NOW, this ~ S~ day o , 2008, upon consideration of the Motion of Defendant, Emerson Electric Co. tJa Emerson ppliance Controls, to Compel Plaintiff's Answers to Interrogatories and Response to Request for Production of Documents, and any answer thereto, it is hereby ORDERED AND DECREED that said Motion is GRANTED. Within twenty (20} days of the date hereof, Plaintiff, Unitrin Auto & Home Insurance Co., Subrogee of Laurie A. Kalinak, shall provide full and complete answers to Defendant's Interrogatories and produce for inspection and copying those documents requested, or suffer such sanctions as maybe imposed upon application to the Court. Robert E. Cherwony, Esquire J. Michael Kunsch, Esquire BY THE COURT: 5 , J. ~a S~ LAW OFFICES J. MICHAEL KUNSCH DIRECT DIAL ~us~ s~-zasi mlckaelkuosch~sweeaeylirm.com SWEENEY &SHEEHAN A PROFESSIONAL COgPORATION 19TH FLOOR-ISIS MARKET STREET PHILADELPHIA, PA 1910 2-19 6 3 (2151 563-9811 -PHONE 12151 557-0999 -FAX February 5, 2008 Robert E. Cherwony, Esquire KRAFT & KRAFT, P.C. 1311 Spruce Street Philadelphia, Pennsylvania 19107 NEW JERSEY OFFICE SENTRY OFFICE PLAZA 816 NADDON AVENUE WESTMONT, NJ OB108 18561 869-5600 PHONE IS561 869-560E FAX RE: Unitrin Auto & Home Insurance Co., 5ubrogee of Laurie Ar Kalinak v. EMERSON ELECTRIC CO, tJa EMERSON APPLIANCE CONTROLS DATE OF LOSS: OCTOBER 19, 2005 OUR FILE: E-1439 Dear Mr. Cherwony: Enclosed herewith please find a copy of the Order entered on February 1, 2008 regarding Defendant's Motion to Compel Plaintiff's Discovery Responses the above referenced matter. Kindly be guided accordingly. Very truly yours, SWEENEY &SHEEHAN By: . Michael Kunsch JMK:dac Enclosure C LAW OFFICES SWEENEY &SHEEHAN A PROFESSIONAL CORPORATION 19TH FLOOR-1515 MARKET STREET PHILADELPHIA, PA 1910 2-19 8 3 J. MICHAEL KUNSCH DIREC'[ DIAL (2115) 967-2181 mlckadkunuhQaweeneylirm.eom (2131 563-9811 -PHONE (2151 857-0999 -FAX March 6, 2008 Robert E. Cherwony, Esquire KRAFT & KRAFT, P.C. 1311 Spruce Street Philadelphia, Pennsylvania 19107 NEW JERSEY OFFICE SENTRY OFFICE PLAZA 216 HAODON AVENUE WE$TMONT, NJ 08508 18881 8817-5800 PHONE 18 681 889-360 6 FAX RE: Unitrin Auto & Home Insurance Co., Subrogee of Laurie A. Kalinak v. EMERSON ELECTRIC CO. tla EMERSON APPLIANCE CONTROLS DATE OF LOSS: OCTOBER 19, 2005 OUR FILE: E-1439 Dear Mr. Cherwony: This will confirm our conversation of March 5, 2008. At that time, you advised me that you had to postpone the deposition of Laurie Kalinak which was scheduled for March 6, 2008 due to both your trial schedule and the fact that. she had not been notified of the deposition. My office will contact you to reschedule the deposition. In addition, during our conversation, we discussed the Court's Order of February 1, 2008, compelling your client's discovery responses. As you know, the time for complying with that Order has passed. Unless I receive the responses by March 10, 2008, or a commitment from you when those responses will be produced, I will have no alternative but to file a Motion for Sanctions. I hope this will not be necessary. I look forward to hearing from you in this regard. Very truly yours, SWEENEY &SHEEHAN By: ichael Kunsch JMK:dac SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Market Street Suite 1900 Philadelphia, Pennsylvania 19102 (215)563-9811 FAX 215.557.0999 ATTORNEY FOR: DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW NO.07-4740 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the within MOTION OF DEFENDANT, EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS, FOR SANCTIONS AGAINST PLAINTIFF was made on March 17, 2008 to the following interested counsel via United States First Class Mail, postage prepaid: Robert E. Cherwony, Esquire KRAFT & KRAFT, P.C. 1311 Spruce Street Philadelphia, Pennsylvania 19107 SWEENEY & SHEEHAN By: ichael Kunsch N _; ~~ r~ -,- ' _ :~~- ~ , 'i_l~Y ~ ~~ ;`l1 <;~ } %; ~, -_ ~, t*.J •,-.l UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURA A. KALINAK PLAINTIFF V. EMERESON ELECTRIC CO., Ua EMERSON APPLIANCE CONTROLS DEFENDANT 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-4740 CIVIL ORDER OF COURT AND NOW, this 25th day of March, 2008, upon consideration of the Defendant's Motion for Sanctions for Failure of the Plaintiff to comply with this Court's Order of February 1, 2008, IT IS HEREBY ORDERED AND DIRECTED that the Motion is GRANTED and: 1. Plaintiff shall provide full and complete answers to the Defendant's Interrogatories and produce all documents in its possession in response to the request for production within 20 days of this Order; 2. Plaintiff shall pay $300.00 in costs and fees for preparation and filing of the Defendant's Motion; and, 3. Plaintiff is advised that failure to comply with this Court's Order will result in the imposition of any and all sanctions provided for in Pa.R.C.P. 419. By the Court, M. L. Ebert, Jr., J. ,Robert Cherwony, Esquire Attorney for Plaintiff J. Michael Kunsch, Esquire Attorney for Defendant a bas e~~, ~ h ~e e~nah ~w~~ Q 7~ rr,~ 1 ~1 ,~ ~~ ~~ ~ ~~% ~ ' ' ~i~~~~ ~~~' -_ ,. KRAFT & KRAFT, P.C. BY: Robert E. Cherwony, Esquire Attorney No. 17623 1311 Spruce Street Philadelphia PA 19 p 07 (215) 546-5100 Attorney for Plaintiff UNITRIN AUTO ~ HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK vs. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS CGURT OF COMi~iON PLEAS CUMBERLAND COUNTY CIVIL ACTION AT LA~A~ NO. 07-4740 ORDER TO SETTLE DISCONTINUE AND END TO THE PROTHOIv7OTARY: Kindly mark the above matter settled, discontinued, and ended, upon payment of your costs only. ~~/~;6~ ~J ~~ obert E. Cherwony, Esquire Attorney for Plaintiff K SWEENEY &SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 1515 Market Street Suite 1900 :Philadelphia, Penns+~lvania 19102 (215) 563-9811 ATTORNEY FOR: DEFENDANT, :FAX 215.557.0999 EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS UNITRIN AUTO & HOME INSURANCE CO., SUBROGEE OF LAURIE A. KALINAK v. EMERSON ELECTRIC CO. t/a EMERSON APPLIANCE CONTROLS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW NO. 07-4740 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the within ORDER TO SETTLE, DISCONTINUE AND END was made on Apri121, 2008 to the following interested counsel via United States First Class Mail, postage prepaid. INTERESTED COUNSEL: Robert E. Cherwony, Esquire I{RAFT & KRAFT, P.C. 1311 Spruce Street Philadelphia, Pennsylvania 19107 SWEENEY &SHEEHAN 7 By: ~-----~ __ J. ichael Kunsch