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HomeMy WebLinkAbout07-5843 ORIGINAL ANGINO & ROVNER, P.C. Lisa M.B. Woodburn Attorney ID# : 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: LWOODBURNCANGINO-ROVNER.COM LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, 1880 Century Park East, Suite #900 Los Angeles, CA 90067 OMNI FITNESS ACQUISITION CORPORATION T/D/B/A OMNI FITNESS EQUIPMENT 60 Oxford Drive Moonachie, NJ 07074 Corporation Service Company 2704 Commerce Drive Harrisburg, PA 17110 BRUNSWICK CORPORATION T/D/B/A LIFE FITNESS 5100 North River Road Schiller Park, IL 60176 1 North Field Court Lake Forest, IL 60045 CT Corporation System 1515 Market Street, Suite 1210 Philadelphia, PA 19102 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01- -li8'f3 0i v l j e -m CIVIL ACTION JURY TRIAL DEMANDED Defendants NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and 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 LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street, Carlisle, PA Telephone number- 717- 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se persentan mas adelante en las siguientes paginas, debe tomar accion dentro de los pr6ximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a , las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamac16n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Used puede perder dinero o propiedad u otros derechos importantes para used. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA Telephone number- 717- 249-3166 2 ANGINO & ROVNER, P.C. Lisa M.B. Woodburn Attorney ID# : 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: LWOODBURN@ANGINO-ROVNER.COM LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, 1880 Century Park East, Suite #900 Los Angeles, CA 90067 OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT 60 Oxford Drive Moonachie, NJ 07074 Corporation Service Company 2704 Commerce Drive Harrisburg, PA 17110 BRUNSWICK CORPORATION T/DB/A LIFE FITNESS 5100 North River Road Schiller Park, IL 60176 1 North Field Court Lake Forest, IL 60045 CT Corporation System 1515 Market Street, Suite 1210 Philadelphia, PA 19102 Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 1) I - -5 P 9,3 t .c rn-f _7_" ? CIVIL ACTION JURY TRIAL DEMANDED 3 F- . COMPLAINT 1. Plaintiffs, Larry E. Sheriff and Teresa M. Sheriff, are husband and wife, and are adult individuals residing in Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant Hancock Park Associates is a Los Angeles based private equity firm which owns Omni Fitness Equipment. 3. Defendant, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment, hereinafter, ("Omni Fitness") is a Delaware corporation qualified to do business in the state of Pennsylvania and operates the Omni Fitness Equipment store located at 4830 Carlisle Pike, Mechanicsburg, Pennsylvania, Cumberland County, Pennsylvania 17055. 4. Brunswick Corporation t/d/b/a Life Fitness, hereinafter, ("Life Fitness") is a Delaware corporation operating Life Fitness and doing business in the state of Pennsylvania. 5. Life Fitness, a division of Brunswick Corporation, is responsible for the design and manufacturing of the Life Fitness Para CM3005 Cable Gym, herein after "Cable Gym," purchased by Plaintiffs, Larry E. Sheriff and Theresa M. Sheriff. Defendant, Brunswick Corporation, t/d/b/a Life Fitness, places their items for sale and into the stream of commerce in the state of Pennsylvania. 6. Plaintiffs, Larry E. Sheriff and Teresa M. Sheriff purchased the aforementioned Cable Gym on February 5, 2006, from Defendant, Omni Fitness in Mechanicsburg, Pennsylvania and paid to have it installed in their home. 7. On March 7, 2006 Plaintiff, Larry E. Sheriff was exercising on the Cable Gym when a cable snapped on the equipment causing a 140 pound weight to fall on the back of Plaintiff s head and neck. 4 COUNT I- NEGLIGENCE PLAINTIFFS, LARRY E. SHERIFF AND TERESA M. SHERIFF v. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/D/B/A OMNI FITNESS EQUIPMENT 8. Paragraphs 1 through 7 of this Complaint are herby incorporated by reference. 9. The injuries sustained by Plaintiff, Larry E. Sheriff, and all damages as set forth hereinafter are the direct and proximate result of the negligent, careless, wanton, and reckless manner in which Defendants sold the Cable Gym as follows: a) Defendants failed to adequately inspect the Cable Gym before selling it; b) Defendants failed to properly construct the Cable Gym so as to prevent the cable holding the weights from injuring the Plaintiff when using the equipment; c) Defendants failed to inspect the equipment to ensure that it was safe to be used; d) Defendants created a dangerous condition by negligently assembling the Cable Gym; e) Defendants failed to take actions and precautions that a reasonably prudent person would in the assembly of the Cable Gym. WHEREFORE, Plaintiffs, Larry E. Sheriff and Teresa M. Sheriff, demand judgment against Defendant, Hancock Park Associates, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment, in an amount in excess of Fifty Thousand ($50,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT II- NEGLIGENCE PLAINTIFFS, LARRY E. SHERIFF AND TERESA M. SHERIFF V. BRUNSWICK CORPORATION T/DB/A LIFE FITNESS 10. Paragraphs 1 through 9 of this complaint are herby incorporated by reference. 5 11. The injuries sustained by Plaintiff, Larry E. Sheriff, and all damages as set forth hereinafter are the direct and proximate result of the negligent, careless, wanton, and reckless manner in which Defendant manufactured and designed the Cable Gym as follows: a) Defendant failed to adequately inspect the Cable Gym before placing it into the stream of commerce; and b) Defendant failed to properly manufacture and design the Cable Gym so as to prevent the cable from giving way and breaking when weight was placed on the cable while in use for its intended purpose. WHEREFORE, Plaintiffs, Larry E. Sheriff and Teresa M. Sheriff, demand judgment against Defendant, Brunswick Corporation t/d/b/a Life Fitness, in an amount in excess of Fifty Thousand ($50,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT III- STRICT LIABILITY PLAINTIFF, LARRY E. SHERIFF AND TERESA M. SHERIFF v. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/D/B/A OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION T/D/B/A LIFE FITNESS 12. Paragraphs 1 through 11 of this Complaint are hereby incorporated by reference. 13. Defendants are strictly liable to Plaintiff under Section 402A of the Restatement (Second) of Torts for the damages alleged herein which were proximately caused by the defective Cable Gym fitness equipment for the following reasons: a) All Defendants engaged in the business of designing, manufacturing, selling, and/or installing the Cable Gym to the Plaintiff, b) The Cable Gym reached the Plaintiff in accordance with its design and manufacture with no alterations; C) The Plaintiff did not participate in the assembly of the Cable Gym at any time; 6 d) The defect existed prior to the time the Cable Gym was sold to the Plaintiff or at the time the Cable Gym was assembled; e) All Defendants failed to properly inspect the Cable Gym before it was sold and also after installation; and Plaintiff was injured as a direct result of the malfunctioning and/or design defect of the Cable Gym. WHEREFORE, Plaintiffs, Larry E. Sheriff and Teresa M. Sheriff, demand judgment against Defendants, Hancock Park Associates, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment and Brunswick Corporation t/d/b/a Life Fitness, in an amount in excess of Fifty Thousand ($50,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. CLAIM I DAMAGES PLAINTIFF, LARRY E. SHERIFF v. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION T/D/B/A LIFE FITNESS 14. Paragraphs 1 through 13 of this Complaint are incorporated herein by reference. 15. As a result of Defendants' negligence and sale of a defective product, Plaintiff Larry E. Sheriff, sustained painful and severe injuries which include, but are not limited to, a concussion, headaches, and two herniated cervical disks for which surgery was required. 16. As a result of the aforesaid injuries sustained by Plaintiff, Larry E. Sheriff, he was forced to incur expenses for medical treatment, medications, and other similar expenses in an effort to restore himself to health, and claim is made therefor. 17. As a result of the nature of his injuries, Plaintiff, Larry E. Sheriff, will be forced to incur similar expenses in the future, and claims are made therefor 7 I 18. As a result of the aforementioned injuries, Plaintiff, Larry E. Sheriff has undergone and in the future may undergo, physical and mental pain and suffering, inconvenience in carrying out his daily activities, loss of life's pleasures and enjoyment, and claims are made therefor. 19. As a result of the aforementioned injuries, Plaintiff, Larry E. Sheriff, has been and in the future may be, subject to humiliation and embarrassment, and claims are made therefor 20. As a result of the aforementioned injuries, Plaintiff, Larry E. Sheriff, continues to be plagued by persistent pain and limitation, and therefore avers that his injuries may be of a permanent nature causing residual problems for the remainder of his lifetime, and claim is made therefor. 21. As a result of the aforesaid injuries, Plaintiff, Larry E. Sheriff, has sustained scarring, which will result in permanent disfigurement, and claim is made therefor. 22. As a result of his injuries, Plaintiff, Larry E. Sheriff, has sustained wage loss and diminution in his earning power and capacity, and claim is made therefor. WHEREFORE, Plaintiff, Larry E. Sheriff, demands judgment against Defendants, Hancock Park Associates, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment and Brunswick Corporation t/d/b/a Life Fitness in an amount in excess of Fifty Thousand ($50,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. CLAIM II LOSS OF CONSORTIUM PLAINTIFF, TERESA M. SHERIFF v. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION T/DB/A LIFE FITNESS 23. Paragraphs 1 through 22 are hereby incorporated herein by reference 8 24. As a result of the injuries suffered by her husband, Larry E. Sheriff, Plaintiff, Teresa M. Sheriff has lost the companionship, consortium, and society of her husband and claim is made therefor. WHEREFORE, Plaintiff, Teresa M. Sheriff, demands judgment against Defendants, Hancock Park Associates, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment and Brunswick Corporation t/d/b/a Life Fitness, in an amount in excess of Fifty Thousand ($50,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully submitted, ANG1NO & ROVNER, P.C. Lis M. B. Woodburn, Esquire PA No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 (717) 238-5610 (fax) lwoodbum@angino-rovner.com Attorney for Plaintiff Dated: 1 Q r? .? /*, -) 9 VERIFICATION I, Larry E. Sheriff, Plaintiff, have read the foregoing Complaint and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unworn falsification to authorities. W U / juA?- Witness / Larry E. S riff Date: / Date: 10 VERIFICATION I, Teresa M. Sheriff, Plaintiff, have read the foregoing Complaint and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relatin to unworn falsification to authorities. O Witness Teresa M. Sheriff Date: ?v Date: 11 1 ` L.._ ( _? .? ? ? ? ? T? y ? ? ? d f r O ? ? a ? ?_ d .. ? ' ? ? 107300103 LAW OFFICES OF RALPH F. TOUCH By: Edward J. Cermanski, Esquire Attorney I.D. No. 56278 401 Penn Street, Suite 100 Reading, PA 19601 Tel. 610-320-4663, Fax 610-320-4767 Attorney for Defendant, Omni Fitness Acquisition Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Larry E. Sheriff and Teresa M. Sheriff, Plaintiffs CIVIL DIVISION NO. 2007-5843 V. Hancock Park Associates, Omni Fitness Acqusition Corportation, Brunswick Corporation t/d/b/a Life Fitness Defendant ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance in the above-entitled matter on behalf of the Defendant, Omni Fitness Acquisition Corporation. Dated: Wednesday, October 31, 2007 r l Edwar ski, Esquire Atto y for Defendant Omni Fitness Acquisition Corporation JURY TRIAL DEMANDED PANEL OF TWELVE JURORS REQUESTED CERTIFICATION OF SERVICE I hereby certify that I have served a copy of the ENTRY OF APPEARANCE upon all parties, their attorneys or representatives, and all other relevant organizations, in the manner(s) set forth below: By first-class, United States mail, postage prepaid: Lisa Woodburn, Esquire Angino & Rovner, P.C. 4503 N. Front St. Harrisburg, PA 17110 Attorney for Plaintiffs Hancock Park Associates 1880 Century Park East, Suite #900 Los Angeles, CA 90067 Brunswick Corporation t/d/b/a Life Fitness 5100 North River Road Schiller Park, IL 60176 Dated: Wednesday, October 31, 2007 rmanski, Esquire Vey rforeDefendant 4? )? ".? '1 f? ` i ? _Y? ? s +y N { ? .?. ?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Larry E. Sheriff and Teresa M. Sheriff, Plaintiffs V. Hancock Park Associates, Omni Fitness Acqusition Corportation, Brunswick Corporation t/d/b/a Life Fitness Defendant CIVIL DIVISION NO. 2007-5843 PRAECIPE FOR WRIT TO JOIN ADDITIONAL DEFENDANT TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue Writ to Join the following as additional defendant(s) in the above-captioned case: Amco Distribution, 2807 El Presidio Road, Carson, CA 90810 Counsel for the Plaintiff is: Lisa Woodburn Counsel for the Additional Defendant(s) (if known and verified) is/ e' Date: Tuesday, November 13, 2007 Signature: Print Name: Edward J. Cermanski, Esquire Attorney for: Omni Fitness Acqusition Corportation Address: 401 Penn Street, Suite 100 Reading PA 19601 Telephone No.: (610) 320-4780 Supreme Court ID No.: 56278 WRIT TO: Amco Distribution, 2807 El Presidio Road, Carson, CA 90810 You are notified that Defendant, Omni Fitness Acqusition Corportation, has joined you as an additional defendant in this action, which you are required t defend. 1 Date: 114 1,07 ar Prothonotary/Clerk, Civil -Di n By: Deputy CJDI 5- C N LARRY E. SHERIFF and TERESA M. SHERIFF, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs, V. No. 07-5843 HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT, BRUNSWICK CORPORATION T/DB/A LIFE FITNESS, Defendants. CIVIL ACTION DEFENDANT BRUNSWICK CORPORATION T/DB/A LIFE FITNESS' ANSWER TO PLAINTIFFS' COMPLAINT Now Comes Defendant, Life Fitness, a division of Brunswick Corporation, ("Life Fitness") and in answering Plaintiffs' Complaint (the "Plaintiffs' Complaint"), states as follows: 1. Plaintiffs, Larry E. Sheriff and Teresa M. Sheriff, are husband and wife, and are adult individuals residing in Mechanicsburg, Cumberland County, Pennsylvania. ANSWER: Denied. Brunswick lacks knowledge and information sufficient to form a belief as to the truth or falsity of the allegations set forth in Paragraph 1 of Plaintiffs' Complaint and, as such, all said allegations are denied in accordance with PA R.C.P. 1029(c). 2. Defendant Hancock Park Associates is a Los Angeles based private equity firm which owns Omni Fitness Equipment. ANSWER: Denied. Brunswick lacks knowledge and information sufficient to form a belief as to the truth or falsity of the allegations set forth in Paragraph 2 of Plaintiffs' Complaint and, as such, all said allegations are denied in accordance with PA R.C.P. 1029(c). 3. Defendant, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment, hereinafter, ("Omni Fitness") is a Delaware corporation qualified to do business in the state of Pennsylvania and operates the Omni Fitness Equipment store located at 4830 Carlisle Pike, Mechanicsburg, Pennsylvania, Cumberland County, Pennsylvania 17055. CHOI /LUZAM/224083.1 ANSWER: Denied. Brunswick lacks knowledge and information sufficient to form a belief as to the truth or falsity of the allegations set forth in Paragraph 3 of Plaintiffs' Complaint and, as such, all said allegations are denied in accordance with PA R.C.P. 1029(c). 4. Brunswick Corporation t/d/b/a Life Fitness, hereinafter, ("Life Fitness") is a Delaware corporation operating Life Fitness and doing business in the state of Pennsylvania. ANSWER: Admitted in part; denied in part. Brunswick Corporation admits it is a Delaware corporation with its principal place of business in Lake Forest, Illinois. Brunswick further admits that Life Fitness is a wholly-owned division of Brunswick. Brunswick admits that on and prior to March 7, 2006, it sold, among other things, exercise equipment, in the state of Pennsylvania. Brunswick denies any remaining allegations set forth in Paragraph 4 that are inconsistent with the foregoing. 5. Life Fitness, a division of Brunswick Corporation, is responsible for the design and manufacturing of the Life Fitness Para CM3005 Cable Gym, herein after "Cable Gym," purchased by Plaintiffs, Larry E. Sheriff and Theresa M. Sheriff. Defendant, Brunswick Corporation, t/d/b/a Life Fitness, places their items for sale and into the steam of commerce in the state of Pennsylvania. ANSWER: Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, said averments are admitted in part and denied in part. Brunswick admits that Life Fitness is a division of Brunswick Corporation and on and prior to March 7, 2006, Life Fitness sold exercise equipment to purchasers, in the state of Pennsylvania. Brunswick lacks knowledge and information sufficient to form a belief as to the truth or falsity of the remaining allegations set forth in Paragraph 5 of Plaintiffs' Complaint and, as such, all said allegations are denied in accordance with PA R.C.P. 1029(c). 6. Plaintiffs, Larry E. Sheriff and Teresa M. Sheriff purchased the aforementioned Cable Gym on February 5, 2006, from Defendant, Omni Fitness in Mechanicsburg, Pennsylvania and paid to have it installed in their home. ANSWER: Denied. Brunswick lacks knowledge and information sufficient to form a belief as to the truth or falsity of the allegations set forth in Paragraph 6 of Plaintiffs' Complaint and, CHOI /LUZAM/224083.1 -2- as such, all said allegations are denied in accordance with PA R.C.P. 1029(c). 7. On March 7, 2006 Plaintiff, Larry E. Sheriff was exercising on the Cable Gym when a cable snapped on the equipment causing a 140 pound weight to fall on the back of Plaintiff's head and neck. ANSWER: Denied. Brunswick lacks knowledge and information sufficient to form a belief as to the truth or falsity of the allegations set forth in Paragraph 7 of Plaintiffs' Complaint and, as such, all said allegations are denied in accordance with PA R.C.P. 1029(c). WHEREFORE, Defendant, Brunswick Corporation t/d/b/a Life Fitness, demands judgment in its favor and against Plaintiffs, together with such other relief as this Court deems just and appropriate. COUNT I - NEGLIGENCE PLAINTIFFS, LARRY E. SHERIFF AND TERESA M. SHERIFF V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT 8. Paragraphs 1 through 7 of this Complaint are herby incorporated by reference. ANSWER: Brunswick adopts and incorporates by reference its responses to Paragraphs 1 through 7 of Plaintiffs' Complaint as though set forth fully herein. 9. The injuries sustained by Plaintiff, Larry E. Sheriff, and all damages as set forth hereinafter are the direct and proximate result of the negligent, careless, wanton, and reckless manner in which Defendants sold the Cable Gym as follows: a) Defendants failed to adequately inspect the Cable Gym before selling it; b) Defendants failed to properly construct the Cable Gym so as to prevent the cable holding the weights from injuring the Plaintiff when using the equipment; C) Defendants failed to inspect the equipment to ensure that it was safe to be used; d) Defendants created a dangerous condition by negligently assembling the Cable Gym; e) Defendants failed to take actions and precautions that a reasonably prudent person would in the assembly of the Cable Gym. CHO1 /LUZAM/224083.1 -3- ANSWER: The allegations set forth in Paragraph 9, subparagraphs (a)-(e), of Plaintiffs' Complaint are not directed against Brunswick. Accordingly, Brunswick makes no response to the allegations. To the extent that the allegations are directed against Brunswick, they are denied in accordance with PA R.C.P. 1029(e). WHEREFORE, Defendant, Brunswick Corporation t/d/b/a Life Fitness, demands judgment in its favor and against Plaintiffs, together with such other relief as this Court deems just and appropriate. COUNT II - NEGLIGENCE PLAINTIFFS, LARRY E. SHERIFF AND TERESA M. SHERIFF V. BRUNSWICK CORPORATION T/D/B/A LIFE FITNESS 10. Paragraphs 1 through 9 of this complaint are herby incorporated by reference. ANSWER: Brunswick adopts and incorporates by reference its responses to Paragraphs 1 through 9 of Plaintiffs' Complaint as though set forth fully herein. 11. The injuries sustained by Plaintiff, Larry E. Sheriff, and all damages as set forth hereinafter are the direct and proximate result of the negligent, careless, wanton, and reckless manner in which Defendant manufactured and designed the Cable Gym as follows: a) Defendant failed to adequately inspect the Cable Gym before placing it into the stream of commerce; and b) Defendant failed to properly manufacture and design the Cable Gym so as to prevent the cable from giving way and breaking when weight was placed on the cable while in use for its intended purpose. ANSWER: Denied. The averments set forth in this Paragraph are specifically denied and strict proof thereof is demanded at the time of Trial. CH01 /LUZAM/224083.1 -4- WHEREFORE, Defendant, Brunswick Corporation t/d/b/a Life Fitness, demands judgment in its favor and against Plaintiffs, together with such other relief as this Court deems just and appropriate. COUNT III - STRICT LIABILITY PLAINTIFF, LARRY E. SHERIFF AND TERESA M. SHERIFF V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/D/B/A OMNI FITNESS EQUIPMENT AND BRUNSWICK CORPORATION T/D/B/A LIFE FITNESS 12. Paragraphs 1 through 11 of this Complaint are hereby incorporated by reference. ANSWER: Brunswick adopts and incorporates by reference its responses to Paragraphs 1 through 11 of Plaintiffs' Complaint as though set forth fully herein. 13. Defendants are strictly liable to Plaintiff under Section 402A of the Restatement (Second) of Torts for the damages alleged herein which were proximately caused by the defective Cable Gym fitness equipment for the following reasons: a) All Defendants engaged in the business of designing, manufacturing, selling, and/or installing the Cable Gym to the Plaintiff; b) The Cable Gym reached the Plaintiff in accordance with its design and manufacture with no alterations; C) The Plaintiff did not participate in the assembly of the Cable Gym at any time; d) The defect existed prior to the time the Cable Gym was sold to the Plaintiff or at the time the Cable Gym was assembled; e) All Defendants failed to properly inspect the Cable Gym before it was sold and also after installation; and f) Plaintiff was injured as a direct result of the malfunctioning and/or design defect of the Cable Gym. ANSWER: Denied. Brunswick lacks knowledge and information sufficient to form a belief as to the truth or falsity of the allegations set forth in Paragraph 13, subparagraphs (a)-(c) and (e), of Plaintiffs' Complaint and, as such, all said allegations are denied in accordance with PA R.C.P. 1029(c). Brunswick specifically denies the allegations set forth in Paragraph 11, subparagraphs (d) and(f), of Plaintiffs' Complaint to the extent that those allegations are directed at Brunswick. To the extent that the allegations set forth in Paragraph 11, subparagraphs (d) and (f), are directed at the other Defendants, Brunswick makes no response CHO1/LUZAM/224083.1 -5- to the allegations. WHEREFORE, Defendant, Brunswick Corporation t/d/b/a Life Fitness, demands judgment in its favor and against Plaintiffs, together with such other relief as this Court deems just and appropriate. CLAIM 1 DAMAGES PLAINTIFF, LARRY E. SHERIFF V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT, AND BRUNSWICK CORPORATION T/DB/A LIFE FITNESS 14. Paragraphs 1 through 13 of this Complaint are incorporated herein by reference. ANSWER: Brunswick adopts and incorporates by reference its responses to Paragraphs 1 through 13 of Plaintiffs' Complaint as though set forth fully herein. 15. As a result of Defendants' negligence and sale of a defective product, Plaintiff Larry E. Sheriff, sustained painful and severe injuries which include, but are not limited to, a concussion, headaches, and two herniated cervical disks for which surgery was required. ANSWER: Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments are denied in accordance PA R.C.P. 1029(e). By way of further response, Brunswick specifically denies the allegations set forth in Paragraph 15 of Plaintiffs' Complaint and strict proof thereof is demanded at the time of Trial. To the extent that the allegations set forth in Paragraph 15 are directed at the other Defendants, Brunswick makes no response to these allegations. 16. As a result of the aforesaid injuries sustained by Plaintiff, Larry E. Sheriff, he was forced to incur expenses for medical treatment, medications, and other similar expenses in an effort to restore himself to health, and claim is made therefor. ANSWER: Denied. The averments set forth in this Paragraph constitute conclusions of law CHO1 /LUZAM/224083.1 -6- to which no responsive pleading is required. To the extent a response is deemed required, the averments are denied in accordance PA R.C.P. 1029(e) and strict proof thereof is demanded at the time of Trial. 17. As a result of the nature of his injuries, Plaintiff, Larry E. Sheriff, will be forced to incur similar expenses in the future, and claims are made therefor ANSWER: Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments are denied in accordance PA R.C.P. 1029(e) and strict proof thereof is demanded at the time of Trial. 18. As a result of the aforementioned injuries, Plaintiff, Larry E. Sheriff has undergone and in the future may undergo, physical and mental pain and suffering, inconvenience in carrying out his daily activities, loss of life's pleasures and enjoyment, and claims are made therefor. ANSWER: Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments are denied in accordance PA R.C.P. 1029(e) and strict proof thereof is demanded at the time of Trial. 19. As a result of the aforementioned injuries, Plaintiff, Larry E. Sheriff, has been and in the future may be, subject to humiliation and embarrassment, and claims are made therefore. ANSWER: Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments are denied in accordance PA R.C.P. 1029(e) and strict proof thereof is demanded at the time of Trial. 20. As a result of the aforementioned injuries, Plaintiff, Larry E. Sheriff, continues to be plagued by persistent pain and limitation, and therefore avers that his injuries may be of a permanent nature causing residual problems for the remainder of his lifetime, and claim is made therefor. ANSWER: Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the CHO1/LUZAM/224083.1 -7- averments are denied in accordance PA R.C.P. 1029(e) and strict proof thereof is demanded at the time of Trial. 21. As a result of the aforesaid injuries, Plaintiff, Larry E. Sheriff, has sustained scarring, which will result in permanent disfigurement, and claim is made therefor. ANSWER: Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments are denied in accordance PA R.C.P. 1029(e) and strict proof thereof is demanded at the time of Trial. 22. As a result of his injuries, Plaintiff, Larry E. Sheriff, has sustained wage loss and diminution in his earning power and capacity, and claim is made therefor. ANSWER: Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments are denied in accordance PA R.C.P. 1029(e) and strict proof thereof is demanded at the time of Trial. WHEREFORE, Defendant, Brunswick Corporation t/d/b/a Life Fitness, demands judgment in its favor and against Plaintiffs, together with such other relief as this Court deems just and appropriate. COUNT II LOSS OF CONSORTIUM PLAINTIFF, TERESA M. SHERIFF V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT AND BRUNSWICK CORPORATION T/DB/A LIFE FITNESS 23. Paragraphs 1 through 22 are hereby incorporated herein by reference ANSWER: Brunswick adopts and incorporates by reference its responses to Paragraphs 1 through 22 of Plaintiffs' Complaint as though set forth fully herein. CHOI /LUZAM/224083.1 -8- 24. As a result of the injuries suffered by her husband, Larry E. Sheriff, Plaintiff, Teresa M. Sheriff has lost the companionship, consortium, and society of her husband and claim is made therefor. ANSWER: Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments are denied in accordance PA R.C.P. 1029(e) and strict proof thereof is demanded at the time of Trial. WHEREFORE, Defendant, Brunswick Corporation t/d/b/a Life Fitness, demands judgment in its favor and against Plaintiffs, together with such other relief as this Court deems just and appropriate. NEW MATTER DIRECTED TO PLAINTIFFS 25. Answering Defendant did not owe any duty to Plaintiffs. 26. Answering Defendant did not breach any duty owed to Plaintiffs. 27. Plaintiffs' claims for injuries and/or damages are barred or limited by the comparative negligence of the Plaintiffs in accordance with the provisions of the Pennsylvania Comparative Negligence Act. 28. Plaintiffs' claims for injuries and/or damages are barred or limited by Plaintiffs' voluntary assumption of risk. 29. Plaintiffs' alleged injuries and/or damages were caused or contributed to by individuals and/or entities over which Answering Defendant had no control or no right to control. 30. There may have been negligent acts or omissions of other individuals and/or entities constituting intervening or superseding causes of the damages and/or injuries alleged to have been sustained by the Plaintiffs, all such damages and/or injuries being specifically denied.. CHO1 /LUZAM/224083.1 -9- 31. The incident and/or damages, all said damages being specifically denied, alleged to have been sustained by Plaintiffs were not proximately caused by Answering Defendant. 32. Plaintiffs' alleged injuries and/or damages existed before the incident at issue and/or subsequent to the incident at issue, all said injuries and/or damages being specifically denied. 33. Plaintiffs' Complaint fails to state a claim against Answering Defendant, and/or portions of the Plaintiffs' Complaint fail to state a claim upon which relief may be granted against Answering Defendant. 34. Plaintiffs are barred from recovery as a result of comments to Section 402A of the Restatement (2d) of Torts. 35. If Plaintiffs' injuries and damages were caused in any respect by a product of Answering Defendant, all such injuries and damages being specifically denied, said product was substantially and materially altered after leaving Answering Defendant's control and, accordingly, Answering Defendant is not liable. 36. If Plaintiffs' injuries and damages were caused in any respect by a product of Answering Defendant, all such injuries and damages being specifically denied, said product was not maintained properly after leaving the control of Answering Defendant and prior to the incident involving the Plaintiffs and, accordingly, Answering Defendant is not liable. 37. If Plaintiffs' injuries and damages were caused in any respect by a product of Answering Defendant, all such injuries and damages being specifically denied, said product was substantially changed, altered, modified, misused or abused, which change, alteration, modification, misuse or abuse was unforeseeable and was the proximate cause of Plaintiffs' injuries and damages, and, accordingly, Answering Defendant is not liable. 38. The incident and injuries complained of in Plaintiffs' Complaint, all such injuries being specifically denied, were caused by unauthorized, unintended, or improper use of the CHO1 /LUZAM/224083.1 -10- product complained of, and the failure to exercise reasonable and ordinary care, caution and vigilance in the use of the product. 39. The characteristics of the product identified in Plaintiffs' Complaint are known to the ordinary consumer or user, and the harm asserted was caused by an aspect of the product that is an inherent characteristic of the product and that would be recognized by the ordinary parson who uses the product with the ordinary knowledge to the class of persons for whom the product is intended. 40. Answering Defendant asserts that its liability, if any, is limited to those parts or components of the product which it manufactured, produced, prepared, marketed and/or sold. 41. Any and all products sold by Answering Defendant were sold to a sophisticated user. 42. Plaintiffs' claims are barred to the extent they are preempted by federal, statutory, regulatory and/or decisional law. 43. Plaintiffs had knowledge of and was aware of the potential risks allegedly associated with using exercise equipment. Plaintiffs made an informed decision to purchase and use exercise equipment and thereby knowingly assumed any risks or injuries which Plaintiffs allege resulted from the product and, therefore, Plaintiffs are barred from recovery against Answering Defendant. 44. If Answering Defendant manufactured, produced and/or distributed the product identified in the Plaintiffs' Complaint, then Answering Defendant fully disclosed all possible risks associated with the use of the product prior to Plaintiffs' use of the product and, therefore, Plaintiffs are barred from recovery against Answering Defendant for failure to disclose. 45. If Answering Defendant manufactured, produced and/or distributed the product identified in the Plaintiffs' Complaint, then Answering Defendant's acts in the manufacture, production and/or distribution of the product were in conformity with state of the art technology CHOI /LUZAM/224083.1 -11- existing at the time of such manufacture, production and/or distribution and, therefore, no liability may be imposed against Answering Defendant for failure to disclose any risks or damages not known at the time of manufacture, production and/or distribution of the product. 46. Plaintiffs' claims for injuries and/or damages, all said injuries and/or damages being specifically denied, are barred by any release entered into by Plaintiffs relating to the injuries and/or damages alleged by Plaintiffs in the Plaintiffs' Complaint. 47. Plaintiffs' claims are or may be barred by all applicable statute of limitations and/or the doctrine of laches. 48. Plaintiffs' Complaint fails to set forth sufficient facts necessary to constitute any cause or causes of action against this Answering Defendant, and fails to state any claim upon which relief may be granted. 49. Plaintiffs are estopped by their own conduct, and by reason of their Plaintiffs' Complaint, from asserting the claims for recovery set forth in their Plaintiffs' Complaint. 50. At all times and places mentioned in the Plaintiffs' Complaint herein, Plaintiffs failed to exercise that quality and quantity of care and caution which a reasonable individual in the same or similar circumstances would have exercised for the protection of themselves; said failure and negligence by Plaintiffs proximately caused and contributed to the injuries and damages, if any, sustained by Plaintiffs. 51. At all times and places mentioned in the Plaintiffs' Complaint, Answering Defendant alleges that no act, omission, conduct, or product attributable to it caused or contributed to any injury or damage sustained by the Plaintiffs, and that if Plaintiffs' injuries and damages, if any, were not solely caused by Plaintiffs' own acts, omissions, and other conduct, then said injuries and damages were proximately caused or contributed to by the negligent or other tortious acts, omissions, conduct and products of persons and parties other than Answering Defendant; any damages recoverable by Plaintiffs must be diminished in proportion to the CHO1 /LUZAM/224083.1 -12- amount of fault attributable to said other persons and parties. There should also be an apportionment of the harm and damage claimed. 52. At all times and places mentioned in the Plaintiffs' Complaint therein, the Plaintiffs were aware of each and all of the conditions and circumstances then and there existing and prevailing, but nonetheless knowingly and voluntarily exposed themselves to each and every risk which then and there was attendant upon such circumstances and conditions; said assumption of the risk by Plaintiffs proximately caused any injuries and damages which may have been sustained by Plaintiffs. 53. At the time of the occurrence alleged in the Plaintiffs' Complaint, the product was used by Plaintiffs or other parties in a wrongful manner without Answering Defendant's knowledge, approval, or consent, and contrary to instructions and the custom and practice in the industry, and that such use was not reasonably foreseeable by Answering Defendant, either at or before the time of sale, or at any time prior to the time Answering Defendant received a notice of the alleged occurrence described in the Plaintiffs' Complaint; that Answering Defendant thereon alleges that the incident for which recovery is herein sought was solely and proximately caused by such misuse, among other misuses, of the product. 54. The product described in the Plaintiffs' Complaint, was, without Answering Defendant's knowledge, approval, or consent, and contrary to instructions and the custom and practice in the industry, redesigned, modified, altered, or subjected to other treatment which substantially changed its character; that if there was a defect in the products, which is specifically denied, such defect resulted solely from the redesign, modification, alternation, treatment or other change therein and not from any act or omission of Answering Defendant; that said defect, if any, was created by Plaintiffs and/or others over whom Answering Defendant had no control nor any right to control, and was the sole and proximate cause of injuries or damages sustained by Plaintiffs. 55. Answering Defendant believes and therefore avers that the negligence, CHO1 /LUZAM/224083.1 -13- carelessness and other acts or omission of other Defendants in this lawsuit as well as other persons and entities not parties to this lawsuit proximately caused or contributed to Plaintiffs' injuries or damages, if any. The negligence, carelessness and other acts or omissions of the other Defendants in this lawsuit and/or other persons and entities not parties to this lawsuits account for all or a portion of the casual or contributory factors relating to Plaintiffs' injuries and damages, if any, and/or constitute supervening and/or intervening causes of Plaintiffs' injuries and damages, if any. Such conduct of other parties reduces the recovery of damages, if any, by Plaintiffs against Answering Defendant. 56. Answering Defendant alleges, on information and belief, that the Plaintiffs' Complaint and each cause of action therein is barred by the doctrine of unclean hands. 57. Plaintiffs could have and should have reasonably anticipated and guarded against any alleged injury. 58. Plaintiffs failed to properly mitigate their damages. 59. Answering Defendant is entitled to a setoff of any and all monies paid to the Plaintiffs as a result of the subject matter herein. 60. The product was fit for its intended use and was not defective or otherwise unfit. 61. If there is a judicial determination that Pennsylvania Rule of Civil Procedure 238 is constitutional, liability for any injuries imposed by Pa.R.C.P. 238 should be suspended during the time that the Plaintiffs: a) Delay in identifying a trial expert or delays in providing an expert report; b) Delay in responding to interrogatories and expert witness interrogatories of Defendant; C) Delay in responding to request for production of documents; d) Delay in producing Plaintiffs for deposition; CHO1 /LUZAM/224083.1 -14- C) Delay in responding to any other discovery requests made by the Defendant. 62. Answering Defendant hereby gives notice that it intends to rely upon such other affirmative defenses as may become apparent during the course of discovery, and thus reserves the right to amend this Answer with New Matter to assert such defenses. WHEREFORE, Defendant, Brunswick Corporation t/d/b/a Life Fitness, respectfully requests judgment in its favor and against Plaintiffs, together with such other relief as this Court deems just and appropriate. CROSSCLAIMS OF DEFENDANT, BRUNSWICK CORPORATION, AGAINST DEFENDANTS, HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/D/B/A OMNI FITNESS EQUIPMENT, PURSUANT TO PA.R.C.P.1031.1 85. The material and well plead allegations of Plaintiffs' Complaint as against Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment, are hereby incorporated without admission as if fully set forth at length herein. 86. Defendant, Brunswick Corporation, incorporates by reference the averments of its Answer with New Matter to Plaintiffs' Complaint, as if fully set forth herein at length. 87. Defendant, Hancock Park Associates is a private equity firm is a Delaware corporation with its principal place of business in Los Angeles, California. 88. Defendant, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment, is a Delaware corporation with its principal place of business in Glastonbury, Connecticut. CHO1 /LUZAM/224083.1 -15- 89. At all times relevant hereto, defendant, Omni Fitness Equipment, owned, operated and maintained a retail store at 4830 Carlisle Pike, Mechanicsburg, Pennsylvania, Cumberland County, Pennsylvania 17055. 91. At all times relevant hereto, defendant, Omni Fitness Equipment and Hancock Park Associates, were responsible for the assembly, construction and inspection of the exercise equipment for sale to members of the public and others at Omni Fitness Equipment, 4830 Carlisle Pike, Mechanicsburg, Pennsylvania, Cumberland County, Pennsylvania 17055. 92. As a result of the careless and negligent actions and/or omissions of Defendants, Hancock Park Associates and Omni Fitness Equipment, the accident and alleged injuries and damages, if any, occurred. 93. The aforesaid accident and/or alleged injuries, if any, were caused, in whole or in part, as a result of the negligence and/or carelessness of Defendants, Hancock Park Associates and Omni Fitness Equipment. 94. The aforesaid actions and/or inactions on the part of Defendants, Hancock Park Associates and Omni Fitness Equipment, may have been and/or were a substantial contributing cause of the accident in question and resulted in Plaintiffs' alleged injuries and damages. 95. Any damages suffered by Plaintiffs were caused in whole, or in part, by the aforesaid failures and/or due to the negligence and/or carelessness of Defendants, Hancock Park Associates and Omni Fitness Equipment. 96. Defendant, Brunswick Corporation, believes and therefore avers, that Defendants, Hancock Park Associates and Omni Fitness Equipment, are liable over to Defendant, or are jointly and severally liable with Defendant, and Defendant, Brunswick Corporation, joins Defendants, Hancock Park Associates and Omni Fitness Equipment, to protect its rights to CH01 /LUZAM/224083.1 -16- contribution and indemnity in the event it is determined that Defendant, Brunswick Corporation, and Defendants, Hancock Park Associates and Omni Fitness Equipment, are jointly and severally liable for any of Plaintiffs' claims, any liability on the part of Defendant, Brunswick Corporation, being expressly denied. WHEREFORE, Defendant, Brunswick Corporation, demands judgment in its favor and against Defendants, Hancock Park Associates and Omni Fitness Equipment, and that Defendants, Hancock Park Associates and Omni Fitness Equipment, be found liable to Plaintiffs or liable over to original Defendant, Brunswick Corporation, by way of contribution and/or indemnify or jointly or severally liable to Plaintiff or liable to Defendant, Brunswick Corporation, directly for the reasons set forth in this New Matter Crossclaim, and grant any other relief the Court deems just and appropriate. Dated: November 14, 2007 O f the Defendant, Brunswick Corporation t/d/b/a Life Fitness CHO1 /LUZAM/224083.1 -17- VERIFICATION Donald L. Carmelite, Esquire, Attorney for Defendant, Brunswick Corporation t/d/b/a Life Fitness, verifies that the facts set forth in the Answer to Plaintiffs' Complaint are true to the best of his knowledge, information and belief. If the above statements are not true, the deponent is subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. DON LD L. C , ESQUIRE DATE: / 11(1116-T- 05/360086A CERTIFICATE OF SERVICE 1, Diane E. Black, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this day of November, 2007, I served a copy of the foregoing document via First Class United States mail, postage prepaid, as follows: Lisa M. B. Woodburn, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiffs) Diane E. Black 05/360089.v l CHOI /LUZAM/224083.1 -18- * ? ??? ?? ?? ?` ?' ?- r ?,? ?? :?. ? -fir -?, ?l ? tip 3 ",` ORIGINAL ANGINO & ROVNER, P.C. Lisa M.B. Woodburn Attorney ID# : 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: LW00DBURN@ANG1N0•R0vNER.C0M LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION T/D/B/A LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL ACTION JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE This is to certify that on the 3`d of October, 2007 a true and correct copy of the Complaint to Civil Action No. 07-5843 was mailed to Brunswick Corporation t/d/b/a Life Fitness 5100 River Road, Schiller Park, IL 60176 by certified mail, return receipt requested. A c North certified mail receipt 7007 0710 0002 1393 8161 is att hed hereto. opY of the Lisa B, oodburn ACCEPTANCE OF SERVICE This is to certify that a true and correct copy of the above-noted Complaint was served upon the Brunswick Corporation t/d/b/a Life Fitness via certified mail, return receipt requested at the above-noted address. A copy of the signed receipt No: 7007 0710 0002 1393 8161 is attached hereto. Lisa B. Woodburn Sworn to and subscribed before me this ?Q day of ?o 11007. 4` Notary public COMMONWEALTH OF PFNNM, NOTARIAL SEAL FCHRISTINE M. GALLAGHER, NOTARY pM= SUSQUEHANNA TWP., DAUPHIN Co. COMMISSION EXPIRES FEB. i6 200! 70269 2 1 1. ¦ C +?lete items " 2, and 3. Also complete it( if Restricted Delivery is desired. ¦ Pr._ your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: u n&)j l 1 t t_ LUG 0 axtl5? -Ij?? U St UU f`J? P?v?a eQ C9a i ? Agent 7 ? Addressee eceived by PC. Date of Delivery / Q Is delivery address different from item I? Yes 13 If YES, enter delivery address below; No ? W yy?p??Jj? Mail Registered PS Form 3811, February 2004 __-- y..r rj 0 1J6 .IJ - Domestic Return Receipt 102595-02-M-1540 • I• . E" M Postage $ r_3 tU Certified Fee C3 Return Receipt Fee Q (Endorsement Required) Postmark M Here Restricted Delivery Fee Q (Endorsement Required) r-1 IL Total Postage & Fees O It O Z;117" 0. O IL orp CERTIFICATE OF SERVICE I, Lauren M. Arnold, an employee of the law firm of Angino & Rovner, P.C. do h hereby certify that I am this day serving a true and correct co , py of this Affidavit of Service upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edward J. Cermanski, Esquire 401 Penn Street, Suite 100 Reading, PA 19601 Attorney for Defendant Omni Fitness Acquisition Corp Donald L. Carmelite Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorneys for Defendant, Brunswick Corporation t/d/b/a Life Fitness Hancock Park Associates "'0 Century Park East, Suite #900 Los Angeles, CA 90067 Dated: I (f?A -d-A-- Lauren M. Arnold 0269 N C' _- .+? tTT T tV -K) co -G ORIGINAL ANGINO & ROVNER, P.C. Lisa M.B. Woodburn Attomey ID# : 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: LWOODBURWANGINO-ROVNE&COM LAxx Y E. SHERIFF and TERESA M SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION T/DB/A LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL ACTION JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE This is to certify that on the 3rd of October, 2007 a true and correct copy of the Complaint to Civil Action No. 07-5843 was mailed to Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment, 60 Oxford Drive, Moonachie, NJ 07074 by certified mail, return receipt requested. A copy of the certified mail receipt 7007 0710 0002 Z139 8154 is a ach hereto. Lis . oodburn ACCEPTANCE OF SERVICE This is to certify that a true and correct copy of the above noted Complaint was the Omni Fitness Acquisition Corporation t/d/b/a served upon receipt requested at the above-noted address. A co Omni Fitness Equipment via certified mail, return 1393 8154 is attached hereto. COPY f the signed receipt No: 7007 0710 0002 Lisa B. oodburn Sworn to and subscribed before me this q day of NYQ'n , 2007. otary Public COMMONWEALTH OF PENN VAN NOTARIAL SEAL CHRISTINE M. GALLAGHER, NOTARY FM MY COMMISSION EXXPIRESDAFE . 6 200 0269 2 plete items 1, 2, and 3. Also complete -?h 4 if Restricted Delivery ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to or on the front if the back of the mailpiece, space permits. 1.'; Article Addressed to: rn PL, Pj +1?e" ?V c.c t? II Uti &C Ok-71 ? rn (?llUl6??Ltti?, ills 2. Article Number (transfer from service labeg PS Form 3811, February 2004 7007 vin -----,, nuuress below: 3. Srerv_ice Tye .+Zc Itified Mail 0 Registered 0 Insured Mail 4. Restricted Deliver F-dress mail ?5etum Receipt for Merchandise 0 C.O.D. Y?(Extra Feel 0002 0 Yes 1393 8154 Domestic Return Receipt 102595-02.M•1540 ¦ , Ln M Er M Postage $ 111 Certified Fee C3 Return Receipt Fee Postmark Q (Endorsement Required) Here C3 Restricted Delivery Fee C3 (Endorsement Required) r-I D- Total Postage & Fees I3 tt L7 O Iti CERTIFICATE OF SERVICE I, Lauren M. Arnold, an employee of the law firm of certify that I ?gmo & Rovner, P.C., do hereby Y am this day serving a true and correct copy of this Affidavit of Service of record via Postage pr upon all counsel epaid first class United States mail addressed as follows: Edward J. Cer nanski, Esquire 401 Penn Street, Suite 100 Reading, PA 19601 Attorney for Defendant Omni Fitness Acquisition Corp Donald L. Carmelite Esquire Marshall, Dennehey, Warner, Coleman & Go 4200 Crums Mill Road, Suite B ggm Harrisburg, pA 17112 Attorneys for Defendant, Brunswick Corporation t/d/b/a Life Fitness Hancock Park Associates 1880 Century Park East, Suite #900 Los Angeles, CA 90067 Dated: auren M. Arnold 370269 C'3 +v Cp y'' ? `? C7 C.7 r+°3 N co -{ ORIGINAL ANGINO & ROVNER, P.C. Lisa M.B. Woodburn Attorney ID# : 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: LWOODBURN@ANGINO-ROvNER.COM T A r `'" m x M ?itiEKIFF and TERESA M. SHERIFF, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION T/DB/A LIFE FITNESS, Defendants NO. 07-5843 CIVIL ACTION JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE This is to certify that on the 3rd of October, 2007 a true and correct copy of the Complaint to Civil Action No. 07-5843 was mailed to Hancock Park Associates, 1880 Century Park East Suite 900, Los Angeles, CA 90067 by certified mail, return re eipt requested. A copy of the certified receipt 7007 0710 0002 1393 8147 is attached beret . ?l Lisa M.B. Woodburn ACCEPTANCE OF SERVICE This is to certify that a true and correct copy of the above-noted Complaint was served upon the Hancock Park Associates via certified mail, return receipt requested at the above-noted address. A copy of the signed receipt No: 7007 0710 0002 13 81 fia ached hereto. Lisa B. oodburn Sworn to and subscribed before me this i ol",-\ da of x'2007. Notary Public COMMONWEALTH OF PENNSMLYANtA NOTARIAL SEAL CHRISTINE M. GALLAGHER, NOTARY PUBIC SUSQUEHANNA TWP., DAUPHIN CO. MY COMMISSION EXPIRES FEB. 16, 20M 370269 2 ¦ Complete items 1, 2, and 3. Also complete ,m 4 if Restricted Delivery is desired. ? . Ant your name and address on the reverse so that we can return the card to you. ¦ Attach this cans to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: Pte- 'Puss t-6 &?Lo Sf -e q00 (mss ?,??, c? A. ? Addressee B. Received by ( Tinted Name C. Date of Delivery D. Is delivery address different frok item 1? ? Yes If YES, enter delivery address below: ? No 3. Service Type 1 Certified Mail .?? Express Mail ? Registered ZIP Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number +' 70:07 ' [1710 0002 1393 8147 (Transfer from service fabeo PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 p ??n9ed? Iree R e9W O (Entl en RElpt 1 fF.,?t?fen n_ .. M Cj R CERTIFICATE OF SERVICE I, Lauren M. Arnold, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of this Affidavit of Service upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edward J. Cermanski, Esquire 401 Penn Street, Suite 100 Reading, PA 19601 Attorney for Defendant Omni Fitness Acquisition Corp Donald L. Carmelite Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorneys for Defendant, Brunswick Corporation t/d/b/a Life Fitness Hancock Park Associates 1880 Century Park East, Suite #900 Los Angeles, CA 90067 9W? M Dated: I x-20 -</k Lauren M. Arnold 370269 3 C O P:t `ry_ tV T,f?t F) C7 _ C') C 1 1 "'Z7 c - C.w C.7 ? rNj co LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/D/B/A OMNI FITNESS EQUIPMENT, BRUNSWICK CORPORATION T/D/B/A LIFE FITNESS, No. 07-5843 CIVIL ACTION Defendants. PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached Verification of Rebecca Bolger in the above-referenced matter for that of the undersigned to be attached to Defendant, Brunswick Corporation t/d/b/a Life Fitness', Answer with New Matter filed in this matter. Respectfully submitted, DENNEHEY, WARNER, & GOGGIN DATE: BY: D01 AL/D L. CARMELITE, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Defendant, Brunswick Corporation t/d/b/a Life Fitness VERIFICATION I hereby affirm that the following facts are correct: Brunswick Corporation t/d/b/a Life Fitness is a Defendant in the foregoing action and I am authorized to execute this Verification on their behalf. The attached Answer to Plaintiffs' Complaint is based upon information which has been gathered by my Counsel in the defense of this lawsuit. The language of the Answer to Plaintiffs' Complaint is that of Counsel and not of me. I have read the Answer to Plaintiffs' Complaint and to the extent that the responses are based upon information which I have given to my Counsel, they are true and correct to the best of my knowledge, information and belief To the extent that the contents of the responses are that of Counsel, I have relied upon Counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid responses are made subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities. DATE: AP? U B Rebecca Bolger Y Manager, Legal & Risk Management Services, Life Fitness, a division of Brunswick Corporation CHOl/LUZAM/225158.1 N CERTIFICATE OF SERVICE I, Diane E. Black, an employee of Marshall, Dennehey, Warner Co hereby certify that on this Leman & Goggin, do -?_ day of November, 2007, I served a c document via First Class United States mail, postage prepaid, as copy of the foregoing follows: Lisa M. B. Woodburn, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiffs) Diane E .Black 05/360963.v1 Or Cr . N -r; C? y ( _ 0 m , c o ? - ORIGINAL ANGINO & ROVNER, P.C. Lisa M.B. Woodburn Attomey ID# : 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: LWOODBURWANGINO-ROVNER COM LAR1?V r7 rrrr.r,?, L,. -i-L"'rr ana I'RRESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION T/DB/A LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL ACTION JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE This is to certify that on the 3rd of October, 2007 a true and correct copy of the Com laint to Civil Action No. 07-5843 was mailed to Brunswick Corporation t/d/b/a Life Fitness 1 Nop Court, Lake Forest, IL 60045 by certified mail, return receipt requested. A copY of the certified Field mail receipt 7007 0710 0002 1393 8178 is attached he eto. fied Lis M.B. Woodburn ACCEPTANCE OF SERVICE This is to certify that a true and correct copy of the above-noted Complaint was served upon the Brunswick Corporation t/d/b/a Life Fitness via certified mai l, return receipt requested at the above-noted address. A copy of the signed receipt No: 7007 r . hereto 0710 0002 1393 8178 is attached i Lisa M.B. Woodburn Sworn to and subscribed before me this p4" day ofoo2007. Notary Public MMMWrA1-TV, OF PENNSYLVANIA e'.:!*)/1.:. SEAL COSTME I, . _. uHLR, NOTARYPUBUC $USQUc r;' Nr, `NP, DAUPHIN CO. Aff COMMISSION EXPIRES FEB. 16,2M9 10269 2 ¦ complete items 1, 2, and 3. Also complete n 4 if Restricted Delivery is desired. f rrint your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: G>Z,c VtS` t cC? Co rpu . [ Ili ?+(--`-k•? ?1 ?- --C? ? +.??" A. Signature X ?,lu? .? Wit. ---zm - B. Received by (Printed Name) C. Date of Deli lj- 6 'l D. Is delivery address different from item 1? ? Yes If YES, enter delivery address below: ? No J! , 13 C.O.D. 4. Restricted. Delivery? (Extra Fee) s Mail Receipt for Merchandise ? Yes 2. Article Number 7007 0710 ODOR 1393 8178 (rransfer from service label) - PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540. U.S. Postal Service T ERTIFIED MAIL., RECEIPT mestic Mail Only; No Insurance Coverage ided) For delivery information visit our wohcif? M 0" M r-1 Ili C3 C3 C3 C3 rR r O IL O C3 f? Postage $ Certified Fee Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) 1 IL ?OQ Postmark Here Total Postage & Fees I -g I CERTIFICATE OF SERVICE I, Lauren M. Arnold, an employee of the law firm of Angino & Rovner P.C. certify that I am this day serving a true and correct co , do hereby py of this Affidavit of Service upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edward J. Cermanski, Esquire 401 Penn Street, Suite 100 Reading, PA 19601 Attorney for Defendant Omni Fitness Acquisition Corp Donald L. Carmelite Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorneys for Defendant, Brunswick Corporation tl&b/a Life Fitness Hancock Park Associates 1880 Century Park East, Suite #900 Los Angeles, CA 90067 Dated: VV Lauren M. Arnold 0269 3 C' N ? O C:) :T-- - n _ C ) to "C r ORIGINAL ANGINO & ROVNER, P.C. Lisa M.B. Woodburn Attorney 1D# : 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) Larry E. Sheriff and Teresa M. Sheriff E-mail: LWOODBURN@ANGINaROVNER.COM LARRY E. SHERIFF and TERESA M. IN THE COURT OF COMMON PLEAS SHERIFF, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 07 (3 HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION T/DB/A LIFE FITNESS, Defendants CIVIL ACTION JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT, BRUNSWICK CORPORATION T/DB/A LIFE FITNESS 25 - 26. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied that answering Defendant did not owe a duty to Plaintiff. To the contrary, answering Defendant owed a duty to Plaintiffs and breached their duty causing harm to Plaintiffs as set forth in Plaintiffs' Complaint. 27. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied that Plaintiffs' claims for injuries and/or r damages are barred or limited in any manner by the Pennsylvania Comparative Negligence Act. To the contrary answering Defendant's actions were the proximate cause of all Plaintiffs' damages. 28. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs' claims for injuries and/or damages are barred or limited by Plaintiffs voluntary assumption of the risk. To the contrary, assumption of the risk does not apply in this case. 29. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs' injuries and/or damages were caused or contributed to by individuals and/or entities over which answering Defendant had no control or right to control. To the contrary, answering Defendant's actions were the proximate cause of all Plaintiffs' damages. 30. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied there may have been negligent acts or omission or other individuals and/or entities constituting intervening or superseding causes of the damages and/or injuries sustained by Plaintiffs. To the contrary, answering Defendant's actions were the proximate cause of all Plaintiffs' damages. 31. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied answering Defendant's actions were not the proximate cause of Plaintiff's injuries. To the contrary answering Defendant's actions were the proximate cause of all of Plaintiffs' damages. 32. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs' injuries and/or damages existed before 371072 2 the incident at issue and/or subsequent to the incident at issue. To the contrary, answering Defendant's actions were the proximate cause of all Plaintiff's injuries. Plaintiff's condition may include pre-existing conditions aggravated or made symptomatic by the incident set forth in the Complaint. 33. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs' Complaint fails to state a claim against answering Defendant or fails to state a claim upon which relief may be granted against answering Defendant. To the contrary, Plaintiffs' Complaint states a valid claim under Pennsylvania law. 34. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs' claims are barred from recovery by Section 402A of the Restatement (2d) of Torts. To the contrary, Section 402A of the Restatement (2d) of Torts does not bar or limit Plaintiffs' claim in any manner. 35. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied the product was substantially and materially altered after leaving answering Defendant's control, therefore relieving answering Defendant of liability. In the event this averment proves to be true, Plaintiff played no role in substantially and materially altering the product at issue. 36. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied said product was not maintained properly after leaving control of answering Defendant prior to the incident involving Plaintiffs. To the contrary, Plaintiffs did properly maintain the product which had only been in their possession a short while. 37. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied said product was substantially changed, altered, 371072 3 modified, misused or abused in any manner causing unforeseeable harm to the Plaintiffs. To the contrary, Plaintiffs did not substantially change, alter, modify, misuse or abuse the product which is subject of Plaintiffs' Complaint. Answering Defendant was the proximate cause of all Plaintiffs' damages. 38. This averment contains a conclusion of law to which no response is required In the event a response is deemed required it is denied Plaintiff's injuries were caused by unauthorized unintended, improper use or failure to exercise reasonable and ordinary care caution and vigilance when using the product. To the contrary, Plaintiffs used the gym in an appropriate manner and for its intended use and purpose, exercising due care while doing so. 39. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied the characteristics of the product identified in Plaintiffs' Complaint are known to the ordinary consumer or user and the harm asserted was caused by an aspect of the product that is an inherent risk of the product to be recognized by the ordinary person who uses the product with ordinary knowledge of the class of persons for whom the product is intended. To the contrary, the breaking of the cable is not an inherent characteristic of the product or one to be recognized by an ordinary person who uses the product with the ordinary knowledge of the class of persons for whom the product is intended. 40. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied that answering Defendant's liability is limited in any manner in this case. Further, answering Defendant did manufacturer, produce, re are p P , market, and sell the gym in question. 971072 4 41. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs qualify as a sophisticated user relieving answering Defendant of its duty of care to Plaintiffs. 42. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs' claims are barred in any manner Y or preempted by federal, statutory, regulatory and/or decisional law. 43. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied that informed consent, assumption of the risk or any other defenses made in this averment are a bar to recovery against answering Defendant. To the contrary, answering Defendant's actions were the proximate cause of all Plaintiffs' damages. 44. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied answering Defendant fully disclosed all possible risks associated with the use of the product prior to Plaintiffs' use of the product and therefore Plaintiffs' claims are barred for failure to disclose. To the contrary, the breaking of the cable was due to a defect, not an inherent or common risk of the product. 45. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied answering Defendant's actions in the manufacture, production and or distribution of the gym were in conformity with the state of the art technology existing at the time of such manufacture, production or distribution and therefore Plaintiffs' claims against answering Defendant for failure to disclose any risks or damages not known at the time of manufacture of the product and/or distribution are limited. 371072 5 46. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs' claims are barred by any release. Y To the contrary, Plaintiffs have not entered into any release. 47. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs' claims may be barred by applicable statute of limitations and/or doctrine of laches. To the contrary, Plaintiffs' claim was timely filed as evidenced by the Complaint. 48. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs' Complaint fails to set forth sufficient facts necessary to constitute any cause or causes of action against answering Defendant and/or fails to state any claim upon which relief may be granted. To the contrary, Plaintiffs' Complaint states a valid claim under Pennsylvania law. 49. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs are estopped by their own conduct and by reason of their Complaint from asserting claims for recovery set forth in the Complaint. To the contrary, Plaintiffs' actions played no role in bringing about the injuries set forth in Plaintiffs' Complaint. 50. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs failed to exercise that quality and quantity of care in caution in which a reasonable individual in the same or similar circumstances would have exercised for the protection of themselves and this failure and negligence by P lainhffs proximately caused and contributed to the injuries and damages sustained by Plaintiffs. To the contrary, answering Defendant's actions were the proximate cause of all Plaintiffs' damages. 71072 6 Plaintiffs exercised reasonable care under the circumstances and played no role in causing the malfunction and breaking of the cable gym. 51. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied answering Defendants were not the proximate cause of all of Plaintiffs' damages as set forth. The doctrine of comparative negligence and/or joint and several liability does not relieve answering Defendant from complete liability in this matter. 52. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs were aware of each and all of the conditions and circumstances then and there existing and prevailing but none the less knowingly and voluntarily exposed themselves to each and every risk which then and there was attendant upon such circumstances and conditions. To the contrary, no assumption of the risk applies in this case, and further, the breaking of the cable on this defective product is not an assumed risk. Answering Defendant's actions were the cause of all Plaintiffs' damages. 53. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied the product was used by Plaintiffs or other parties in a wrongful manner and without answering Defendant's knowledge, approval or consent and contrary to the instructions and the custom and practice in the industry which was not reasonably foreseeable by answering Defendant either at or before the time of sale or at any time prior to answering Defendant receiving notice of the alleged occurrence as described in Plaintiffs' Complaint, thereby relieving answering Defendant from liability based upon misuse of the product. To the contrary, answering Defendant is the proximate cause of all Plaintiffs' damages. Plaintiffs did not misuse or use the product in a manner contrary to its intended purpose. The 171072 7 product was used by Plaintiffs for its intended purpose and with reasonable care under the circumstances. 54. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied the product was used without answering Defendant's knowledge, approval, consent and contrary to instructions and the custom of the practice in the industry, redesigned, modified, altered or subjected to other treatment which , substantially changed its character. It is further denied any defect in the product resulted solely from the redesign, modification, alteration, treatment and/or other change, not an act or omission of answering Defendant. To the contrary, the design and manufacture of the product was solely performed by answering Defendant and not by others over whom answering Defendant had no control or any right to control. The product was not redesigned, modified, altered or subjected to other treatment substantially changing its character and the breaking of the cable was the sole and proximate cause of Plaintiffs' damages at the hands of answering Defendant's negligence. 55. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied acts or omissions of any other persons aside from those named in Plaintiffs' Complaint are responsible for Plaintiffs' damages. If other persons or entities are responsible, they are unknown to Plaintiffs at this time. It is denied answering Defendant's liability is reduced in any manner. To the contrary, answering Defen dart's actions were the proximate cause of Plaintiffs' damages and Plaintiffs are able to recover fully from answering Defendant. 56. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied the doctrine of unclean hands bars or limits 371072 g Plaintiffs' claim in any manner. To the contrary, the doctrine of unclean hands does not apply in this case. 57• This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs reasonably anticipated and guarded could have and/or should have against any alleged injury. To the contrary, plaintiffs the product for its intended purpose and with due care used . Plaintiffs could not guard against the defect in this case. 58. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Plaintiffs failed to properly mitigate their damages. 59. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied answering Defendant is entitled to set off of any and all monies paid to the Plaintiffs as a result of subject herein. To the contrary, answering Defendant's actions were the proximate cause of Plaintiffs' damages and answering Defendants are fully liable for Plaintiffs' damages. No offset of monies applies in this case. 60. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied the product was fit for its intended use and was not defective or otherwise unfit. 61. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied Pennsylvania Rule of Civil Procedure 238 will limit or bar Plaintiffs' recovery in any manner. Plaintiffs do not intend to delay the progress of this case in any manner. 371072 9 62. This averment contains a conclusion of law to which no response is required. In the event a response is deemed required it is denied answering Defendant will discover affirmative defenses during the course of discovery. To the contrary, no affirmative defenses will be discovered to serve as a bar or limitation to Plaintiffs' claims. WHEREFORE, Plaintiffs request Your Honorable court dismiss the New Matter of the Defendant, Brunswick Corporation, T/D/B/A Life Fitness and enter Judgment in Plaintiffs' favor. Respectfully submitted, ANGIW & ROVNER, P.C. Date: Jg) 31,; 0o7 371072 Lisa`M. B. Woodburn, Esquire I.D. No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiffs 10 ATTORNEY AFFIDAVIT I, Lisa M. B. Woodburn, Esquire, state that I am counsel fo to make this Verification on behalf of said Plaintiffs, and have read the foregoing and do hereby declare and affirm that the facts set forth in the foregoing are correctly derived from the discovery record. I understand that this Verification is made subject to the relating to unworn falsification to authorities penalties of 28 U.S.C. §1746, . to and subscribe to Lis awRw,----- SWOM . urn, Esquire before me on this December, 2007, day of COMMONWEALTH OF PE"IRMANIA NOTARIAL SEAL dlRt$TIlIEM. &WGHER, NOTARY PUBLIC IvMWOmNRATwP., UAUPHM CO. 00 EXPIRES FEB. 15 'T11 371072 I1 CERTIFICATE OF SERVICE I, Lauren Arnold, an employee of the law firm of An certify that I am this day serving a gino & Rovner, P.C., do hereby true and correct copy of pLAINTIFFS' REPLY TO N MATTER OF DEFENDANT, BRUNSWICK CO EW RPORATION T/D/B/A LIFE FITNESS on the following via postage prepaid, first class United States mail, addressed as follows: Edward J. Cermanski, Esquire 401 Penn Street, Suite 100 Reading, PA 19601 Attorney for Defendants Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment and Hancock Park Associates Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Brunswick Corporation t/d/b/a Life Fitness Date: 371072 Lauren Arnold 12 ? ? ?,? ?::? .:x ?,? -+ 7 f?' 1 ? j !,_ p ?"? ?"?. 107300103 LAW OFFICES OF RALPH F. TOUCH By: Edward J. Cermanski, Esquire Attorney I.D. No. 56278 401 Penn Street, Suite 100 Reading, PA 19601 Tel. 610-320-4663, Fax 610-320-4767 Attorney for Defendants, Omni Fitness Acquisition Corporation And Hancock Park Associates IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Larry E. Sheriff and Teresa M. Sheriff, Plaintiffs V. Hancock Park Associates, Omni Fitness Acqusition Corportation, Brunswick Corporation t/d/b/a Life Fitness Defendant CIVIL DIVISION NO. 2007-5843 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance in the above-entitled matter on behalf of the Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation. Dated: /? '/ Ed d J. Cermanski, Esquire A rney for Defendants, Omni Fitness Acquisition Corporation & Hancock Park Associates JURY TRIAL DEMANDED PANEL OF TWELVE JURORS REQUESTED A- CERTIFICATION OF SERVICE I hereby certify that I have served a copy of the ENTRY OF APPEARANCE upon all parties, their attorneys or representatives, and all other relevant organizations, in the manner(s) set forth below: By first-class, United States mail, postage prepaid: Lisa Woodburn, Esquire Angino & Rovner, P.C. 4503 N. Front St. Harrisburg, PA 17110 Attorney, for Plaintiffs Brunswick Corporation tldlbla Life Fitness 5100 North River Road Schiller Park, IL 60176 Dated: December 5, 2007 ffi J. Cermanski, Esquire A ey for Defendants, Omni Fitness Acquisition Corporation And Hancock Park Associates t? ? C? °.l t? =- ?- ?:? ? try T ,_ C rl ORIGINAL ANGINO & ROVNER, P.C. Lisa M.B. Woodburn Attorney ID# : 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: LWOODBURN@ANGINO-ROVNERCOM LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/D/B/A OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION T/D/B/A LIFE FITNESS, Defendants CIVIL ACTION JURY TRIAL DEMANDED PLAINTIFF, THERESA M. SHERIFF'S RESPONSE TO REQUEST FOR ADMISSIONS OF DEFENDANT BRUNSWICK CORPORATION T/D/B/A LIFE FITNESS 1. This averment can neither be admitted nor denied. Money damages may be deemed to damages for loss of consortium, which is within the sole province of the jury. 2. This averment can neither be admitted or denied since the amount in controversy includes damages for loss of consortium which is within the sole province of the jury. 40 ANGWO & ROVNER, P.C. Lisa/M. B. Woodburn, Esquire I.D. No. 89397 Date: 1? /1; y Ij 7 371570 2 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiffs ATTORNEY AFFIDAVIT I, Lisa M. B. Woodburn, Esquire, state that I am counsel for Plaintiffs, that I am authorized to make this Verification on behalf of said Plaintiffs, and have read the foregoing and do hereby declare and affirm that the facts set forth in the foregoing are correctly derived from the discovery record. I understand that this Verification is made subject to the penalties of 28 U.S.C. §1746, relating to unsworn falsification to authorities. Sworn to and subscribed to before me on this 2Z? day of December, 2007 C7? :"Q? COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL CHRISM M. 0LIA6HER, NOTARY PUBLIC SUSQUEHANNA TWP., DAUPHIN M MY COMMISSION UPIRES FEB. 16, 2 a-] 371570 3 Lisa M. B. Woodburn, Esquire CERTIFICATE OF SERVICE I, Lauren M. Arnold, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of Plaintiffs' Response to Request for Admissions of Defendant, Brunswick Corporation t/d/b/a Life Fitness upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edward J. Cermanski, Esquire 401 Penn Street, Suite 100 Reading, PA 19601 Attorney for Defendant Omni Fitness Acquisition Corp. and Hancock Park Associates Donald L. Carmelite Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorneys for Defendant, Brunswick Corporation t/d/b/a Life Fitness Dated: , o M A4? Lauren M. Arnold 371570 4 •,a ? :t --S . ? : _. y t.. 4? tom) (`.,:? '~ j?.. T °3.1 ` ..? A ORIGINAL ANGINO & ROVNER, P.C. Lisa M.B. Woodburn Attorney ID# : 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: LWOODBURN@ANGINOdROVNER.COM LARRY E. SHERIFF and TERESA M. IN THE COURT OF COMMON PLEAS SHERIFF, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 07-5843 V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION T/D/B/A LIFE FITNESS, Defendants CIVIL ACTION JURY TRIAL DEMANDED PLAINTIFF, LARRY E. SHERIFF'S, RESPONSE TO REQUEST FOR ADMISSIONS OF DEFENDANT BRUNSWICK CORPORATION T/DB/A LIFE FITNESS 1. This averment can neither be admitted nor denied. Money damages may be deemed to include non-economic damages which includes pain and suffering and within the sole province of the jury, as well as, lost earnings in the approximate amount of $7,376.40, and medical bills in the approximate amount of $18,565.47. 2. This averment can neither be admitted or denied since the amount in controversy includes non-economic damages which are within the sole province of the jury, in addition to 11 'A lost earnings in the approximate amount of $7,376.40, and medical bills in the approximate amount of $18,565.47. Date:) o? ?/0 7 371570 ANGINO & ROVNER, P.C. ?/ po vv Li 4a M. B. Woodburn, Esquire I.D. No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiffs 2 a ATTORNEY AFFIDAVIT I, Lisa M. B. Woodburn, Esquire, state that I am counsel for Plaintiffs, that I am authorized to make this Verification on behalf of said Plaintiffs, and have read the foregoing and do hereby declare and affirm that the facts set forth in the foregoing are correctly derived from the discovery record. I understand that this Verification is made subject to the penalties of 28 U.S.C. §1746, relating to unworn falsification to authorities. lir6a M. B. Woodburn, Esquire Sworn to and subscribe d to before me on this c? day of December, 2,Q07 Y Nt AW A B.iIt CiORD 37157 0 IIti CERTIFICATE OF SERVICE I, Lauren M. Arnold, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of Plaintiffs' Response to Request for Admissions of Defendant, Brunswick Corporation t/d/b/a Life Fitness upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edward J. Cermanski, Esquire 401 Penn Street, Suite 100 Reading, PA 19601 Attorney for Defendant Omni Fitness Acquisition Corp. and Hancock Park Associates Donald L. Carmelite Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorneys for Defendant, Brunswick Corporation t/d/b/a Life Fitness V-? W'? Dated: 11,1D] 371570 Lauren M. Arnold 4 C.3 C-7 €i ?J SHERIFF'S RETURN - REGULAR CASE NO: 2007-05843 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHERIFF LARRY E ET AL VS HANCOCK PARK ASSOCIATES ET AL TIMOTHY BLACK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon OMNI FITNESS EQUIPMENT the DEFENDANT , at 1040:00 HOURS, on the 12th day of October , 2007 at 4830 CARLISLE PIKE MECHANICSBURG, PA 17050 by handing to ROBERT INGERSOLL, STORE MANAGER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 ..i'" ?a ....?P Service 11.52 Affidavit .00 Surcharge `p1 10.00 R. Thomas Kline 00 `?`a 39.52 11/07/2007 ANGINO & ROVNER Sworn and Subscibed to By:_ before me this day eputy Sheriff of A.D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-05843 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHERIFF LARRY E ET AL VS HANCOCK PARK ASSOCIATES ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: OMNI FITNESS ACQUISITION CORP TDBA OMNI FITNESS EQUIPMENT but was unable to locate Them deputized the sheriff of DAUPHIN serve the within COMPLAINT & NOTICE in his bailiwick. He therefore County, Pennsylvania, to On November 7th , 2007 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 6.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin County 35.25 Postage .92 So answers: R. Thomas Kline Sheriff of Cumberland County 61.17 V `a\ 11/07/2007 ANGINO & ROVNER Sworn and subscribe to before me this day of A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-05843 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHERIFF LARRY E ET AL VS HANCOCK PARK ASSOCIATES ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: BRUNSWICK CORPORATION T/D/B/A LIFE FITNESS but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of PHILADELPHIA County, Pennsylvania, to serve the within COMPLAINT & NOTICE On November 7th , 2007 , this office was in receipt of the attached return from PHILADELPHIA Sheriff's Costs: Docketing 6.00 Out of County 9.00 Surcharge 10.00 Dep Philadelphia 116.00 Postage .92 X 141.92 11/07/2007 ANGINO & ROVNER So answers- e?lll1 . Thomas Kline( Sheriff of Cumberland County Sworn and subscribe to before me this day of A. D. In The Court of Common asiof Cumberland County, Pennsylvania Larry E. Sheriff et al i VS. Hancock Park Associates et al SERVE: Brunswick Corporation tdba Life Fitness No. 07-5843 civil Now, October 8, 2007 I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of philadelphia County to execute this Writ,'this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, _ __ 0&t0j0tr t--+ , 20 01, at ( -l?)O o'clock P M. served the within uponVl't/1 VWl C,k at 9l G by handing to a and made known to MS sl-, ? ?z?a the contents thereof. So answers, me-6-,"Dn f aunty, PA COSTS Sworn and ubscribefore SERVICE $ me thi day of , 200'7 NELEAGE I? AFFIDAVIT COMMOWWEMTH OF PENNSSYLWANIP. NOTARIAL. SEAL SUSAN L. ROSENFELD, Notary Public City of Philgdolphis, Phila. County My CGirtt lg§ibh.Expitds_Mdith 11, 2008 copy of the ongmal In The Court of Common Pleas of Cumberland County, Pennsylvania Larry E. Sheriff et al vs. Hancock Park Associates et al SERVE: Omni Fitness Acquisition Corporation No. 07-5843 civil t/d/b/a Omni Fitness Equipment Now, October 8, 2007 I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of "ph" County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, , 20 , at within upon at by handing to a and made known to So answers, Sheriff of Sworn and subscribed before me this day of , 20, o'clock M. served the copy of the original COSTS SERVICE MILEAGE _ AFFIDAVIT the contents thereof. County, PA .- Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania SHERIFF LARRY E Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy vs County of Dauphin OMNI FITNESS ACQUISITION CORP Sheriff's Return No. 1436-T - - -2007 OTHER COUNTY NO. 07-5843 AND NOW:October 11, 2007 at 8:53AM served the within COMPLAINT OMNI FITNESS ACQUISITION CORP T/D/B/A OMNI FITNESS EQUIPMENT to WENDY SMITH of the original upon by personally handing 1 true attested copy(ies) COMPLAINT and making known to him/her the contents thereof at 2704 COMMERCE DR HBG, PA 17110-0000 Sworn and subscribed to before me this 15TH day of OCTOBER, 2007 11 X4-?l NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2010 (Of£trQ of f4r "19*-Priff So Answers, Sheriff of Dauphin County, Pa. By Nj??,,o ?? - Deputy Sheriff Sheriff's Costs:$35.25 PAID BY COUNTY SNYDER THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire I.D. No. 06776 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 255-7632 kprice@tthlaw.com LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. Attorney for Additional Defendant Amco Distribution IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -LAW : NO. 07-5843 HANCOCK PARK ASSOCIATES, OMNI : FITNESS ACQUISITION CORPORATION: t/d/b/a OMNI FITNESS EQUIPMENT, BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, V. Defendants AMCO DISTRIBUTION, Additional Defendant : JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of THOMAS, THOMAS & HAFER, LLP as counsel on behalf of Additional Defendant Amco Distribution in the above-captioned matter. All papers may be served upon the undersigned at P.O. Box 999, Harrisburg, PA 17108-0999. THOMAS, THOMAS & HAFER, LLP 0, W? ?" .' ? C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 I.D. No. 06776 ATTORNEYS FOR ADDITIONAL DEFENDANT CERTIFICATE OF SERVICE AND NOW, this 28?h day of December, 2007, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Additional Defendant, hereby certify that I have this day served the within Praecipe for Entry of Appearance by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Lisa M. Woodburn, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 Edward J. Cermanski, Esquire Law Office of Ralph F. Touch 401 Penn Street, Suite 100 Reading, PA 19601 Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire C3 cam --s : d f _ ?. ? l "t S s THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire I.D. No. 06776 305 North Front Street P. O. Box 999 Harrisburg. PA 17108 (717) 255-7632 kprice@tthlaw.com LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs : CIVIL ACTION -LAW V. AMCO DISTRIBUTION, Additional Defendant : JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE ADDITIONAL DEFENDANT COMPLAINT TO THE PROTHONOTARY: Please issue a Rule directing Defendant Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment to file an Additional Defendant Complaint against Additional Defendant within twenty (20) days or non pros seq. reg. THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 I.D. No. 06776 ATTORNEYS FOR ADDITIONAL DEFENDANT V. Attorney for Additional Defendant Amco Distribution IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 HANCOCK PARK ASSOCIATES, OMNI : FITNESS ACQUISITION CORPORATION: t/d/b/a OMNI FITNESS EQUIPMENT, BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants °? ?;; _ .,, _ y ,. . ? ? • ? f M ??. THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire I.D. No. 06776 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 255-7632 kprice@tthlaw.com LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. Attorney for Additional Defendant Amco Distribution IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -LAW : NO. 07-5843 HANCOCK PARK ASSOCIATES, OMNI : FITNESS ACQUISITION CORPORATION: t/d/b/a OMNI FITNESS EQUIPMENT, BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants V. AMCO DISTRIBUTION, Additional Defendant : JURY TRIAL DEMANDED RULE TO FILE ADDITIONAL DEFENDANT COMPLAINT TO: Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment c/o Edward J. Cermanski, Esquire Law Office of Ralph F. Touch 401 Penn Street, Suite 100 Reading, PA 19601 You are hereby directed to file an Additional Defendant Complaint against Additional Defendant within twenty (20) days or non pros seq. reg. "'? V Prot notary DATED: 1/11/02 iW. -t CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: SHERIFF MCS on behalf of EDWARD J. CERMANSKI, ESQ. certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. -VS- OMNI FITNESS ACQUISITION CORPORATIONINA ? COURT OF COMMON PLEAS TERM, CUMBERLAND CASE NO: 2007-5843 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 DATE: 01/09/2008 is ,MCS on behalf Af/yJ?YytC??ti/Nw I/ C EDWARD J. CER ERMANSKI, ESQ. Attorney for DEFENDANT R1.51 133-H DEii 63947-LO1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: SHERIFF -VS- OMNI FITNESS ACQUISITION CORPORATION COURT OF COMMON PLEAS TERM, CASE NO: 2007-5843 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 [ Note: see enclosed list of locations ] TO: LISA M. B. WOODBURN, ESQ., PLAINTIFF COUNSEL MCS on behalf of EDWARD J. CERMANSKI, ESQ. intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 12/20/2007 CC: EDWARD J. CERMANSKI, ESQ. - 107300103 PHILIP HOODACK - E2394842 Any questions regarding this matter, contact MCS on behalf of EDWARD J. CERMANSKI, ESQ. Attorney for DEFENDANT THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 R1.49S 133-H DE02-0382619 63947-C02 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SHERIFF File No. 2007-5843 VS. OMNI FITNESS ACQUISITION CORPORATION TO: Custodian of Records for JOHNS HOPKINS HOSPEL i . (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: **** SEE ATTACHED RIDER**** at _ The MCS Group. Inc.- 1601 MarketStreet. Suite 800, Philadelphia- PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: EDWARD J. CERMANSKI. ES ADDRESS: 401 PENN STRRFT TELEPHONE: _(215) .246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant BY THE COURT: J. 1_ Proth notary/ ivil vision JLAN 0 9 2008 Deputy y old G '7 Date: 16 de , Seal of the Court 63947-01 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: JOHNS HOPKINS HOSPITAL MEDICAL RECORDS 600 N. WOLFE STREET BALTIMORE. MD 21287 RE: 63947 LARRY E. SHERIFF Prior approval is required for fees in excess of $150.00 for hospitals, $100.00 for all other providers. Entire hospital medical file, including but not limited to any and all records, correspondence to and from the consulting and/or treating physician, files, memoranda, handwritten notes, history and physical reports, medication/ prescription records, nurse's notes, doctor's comments, dietary restrictions, and all patient consent or refusal of treatment, procedures, test, and/or medication, lab and diagnostic test results, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, consultation, diagnosis, care, treatment, admission, discharge, or emergency care pertaining to: Dates Requested: from: 11-22-1951 to the present. Subject : LARRY E. SHERIFF 3860 SULLIVAN STREET, MECHANICSBURC, PA 17050 Social Security #: 209-36-2717 Date of Birth: 11-22-1951 R1.49S 133-H SU10-0715878 63947-LO1 I CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 INAL IN THE MATTER OF: COURT OF COMMON PLEAS SHERIFF TERM, CUMBERLAND -VS- CASE NO: 2007-5843 OMNI FITNESS ACQUISITION CORPORATION As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of EDWARD J. CERMANSKI, ESQ. certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE: 01/09/2008 /? Son beh 1f? f EDWARD J. CERMANSKI, ESQ. Attorney for DEFENDANT R1.51 133-H DEil 63947-L02 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: SHERIFF -VS- OMNI FITNESS ACQUISITION CORPORATION COURT OF COMMON PLEAS TERM, CASE NO: 2007-5843 NOTICE OF INTENT TO SERVE .A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 ( Note: see enclosed list of locations TO: LISA M. B. WOODBURN, ESQ., PLAINTIFF COUNSEL MCS on behalf of EDWARD J. CERMANSKI, ESQ. intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 12/20/2007 CC: EDWARD J. CERMANSKI, ESQ. - 107300103 PHILIP HOODACK - E2394842 Any questions regarding this matter, contact R1.49S 133-H MCS on behalf of EDWARD J. CERMANSKI, ESQ. Attorney for DEFENDANT THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 DIC02-0382619 63947-C02 >>> LOCATION LIST <<< PAGE: 1 LOCATION NAME RECORDS REQUESTED JOHNS HOPKINS HOSPITAL JOHN HOPKINS HOSPITAL JOHN HOPKINS UNIVERSITY HOSP JOHN HOPKINS HOSPITAL SUSQUEHANNA VALLEY PAIN MGMT. NEUROLOGICAL SURGERY, LTD. HEALTHSOUTH REHAB SILVERCREEK FAMILY PHYSICIANS R1.49S 133-H MEDICAL RECORDS BILLING ONLY X-RAY ONLY PATHOLOGY MEDICAL, BILLING, AND X-RAY(S) MEDICAL, BILLING, AND X-RAY(S) MEDICAL, BILLING, AND X-RAY(S) MEDICAL, BILLING, AND X-RAY(S) DE02-0382619 63947-C02 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SHERIFF vs. OMNI FITNESS ACQUISITION CORPORATION File No. 2007-5843 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS . FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for JOHN HOMES HOSPITAL (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: * * * * SEE ATTACHED RIDER * * * * at The MCS Ga=. Inc 1601 Market Street, Suite 800, Philadelphia, PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: EDWARD J. CERMANSKI. ES ADDRESS: 401 PENN STREET TELEPHONE: (215) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant JAN 0 8 2LL0//08 Date: ?i1rCtl 7? 6U 7 Seal of the Court BY THE C URT: Proth otary/ r i '1 vision Deputy 63947-02 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: JOHN HOPKINS HOSPITAL BILLING DEPT. 600 N. WOLFE STREET BALTIMORE, MD 21287 RE: 63947 LARRY E. SHERIFF Prior approval is required for fees in excess of $150.00 for hospitals, $100.00 for all other providers. Any and all billing, insurance claims, payments, outstanding and/or delinquent invoices, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, consultation, diagnosis, care or treatment pertaining to: Dates Requested: from: 11-22-1951 to the present. Subject : LARRY E. SHERIFF 3860 SULLIVAN STREET, MECHANICSBURG, PA 17050 Social Security #: 209-36-2717 Date of Birth: 11-22-1951 R1.49S 133-H SU10-0715880 63947-L02 INAL CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS SHERIFF TERM, CUMBERLAND -vs- CASE NO: 2007-5843 OMNI FITNESS ACQUISITION CORPORATION As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of EDWARD J. CERMANSKI, ESQ. certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. ? S on beha J - DATE: 01/09/2008 EDWARD J. CERMANSKI, ESQ. J Attorney for DEFENDANT Z?7 R1.51 133-H DE11 63947-L03 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: SHERIFF -vS- OMNI FITNESS ACQUISITION CORPORATION COURT OF COMMON PLEAS TERM, CASE NO: 2007-5843 NOTICE OF INTENT TO SERVE A StIBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 ( Note: see enclosed list of locations ] TO: LISA M. B. WOODBURN, ESQ., PLAINTIFF COUNSEL MCS on behalf of EDWARD J. CERMANSKI, ESQ. intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 12/20/2007 CC: EDWARD J. CERMANSKI, ESQ. - 107300103 PHILIP HOODACK - E2394842 MCS on behalf of EDWARD J. CERMANSKI, ESQ. Attorney for DEFENDANT Any questions regarding this matter, contact THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 R1.49S 133-H DE02-0382619 63947-CO2 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SHERIFF VS. File No. 2007-5843 OMNI FITNESS ACQUISITION CORPORATION SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for JOHN HOP IN UNIVERSITY HOOP (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: ****SEE ATTACHED RIDER**** at The M rouro Inc.- 1601 Market Street, Suite 800, Philade42hia, PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: EDWARD J. CERMANSKI. ES ADDRESS: 401 PENN STRFFT TELEPHONE: 415) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant BY THE C T: Proth /Cl i D' 'sion JAN 0 9 200!8/ Date: /7 'V-W2 Deputy Seal of the Court 63947-03 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: JOHN HOPKINS UNIVERSITY HOSP RADIOLOGY DEPARTMENT 600 N. WOLFE STREET BALTIMORE, MD 21205 RE: 63947 LARRY E. SHERIFF Prior approval is required for fees in excess of $150.00 for hospitals, $100.00 for all other providers. Any and all x-ray films and reports, including any and all such items as may be stored in a computer database or otherwise in electronic form, pertaining to: Dates Requested: from: 11-22-1951 to the present. Subject : LARRY E. SHERIFF 3860 SULLIVAN STREET, MECHANICSBURG, PA 17050 Social Security #: XXX-XX-2717 Date of Birth: 11-22-1951 R1.49S 133-H SU10-0715882 63947-LO3 CERTIFICATE ,JA f71 risVAL PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS SHERIFF TERM, CUMBERLAND -vs- CASE NO: 2007-5843 OMNI FITNESS ACQUISITION CORPORATION As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of EDWARD J. CERMANSKI, ESQ. certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. iCS on beh lf?f . DATE: 01j09j200$ EDWARD J. CERMANSKI, ESQ. Attorney for DEFENDANT R1.51 133-H DEll 63 94 7 -LO4 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: SHERIFF -VS- OMNI FITNESS ACQUISITION CORPORATION COURT OF COMMON PLEAS TERM, CASE NO: 2007-5843 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 [ Note: see enclosed list of locations ] TO: LISA M. B. WOODBURN, ESQ., PLAINTIFF COUNSEL MCS on behalf of EDWARD J. CERMANSKI, ESQ. intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 12/20/2007 CC: EDWARD J. CERMANSKI, ESQ. - 107300103 PHILIP HOODACK - E2394842 MCS on behalf of EDWARD J. CERMANSKI, ESQ. Attorney for DEFENDANT Any questions regarding this matter, contact THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 R1.49S 133-H D802-0382619 63947-C02 >>> LOCATION LIST <<< PAGE: 1 LOCATION NAME RECORDS REQUESTED JOHNS HOPKINS HOSPITAL JOHN HOPKINS HOSPITAL JOHN HOPKINS UNIVERSITY HOSP JOHN HOPKINS HOSPITAL SUSQUEHANNA VALLEY PAIN MGMT. NEUROLOGICAL SURGERY, LTD. HEALTHSOUTH REHAB SILVERCREEK FAMILY PHYSICIANS R1.49S 133-H MEDICAL RECORDS BILLING ONLY X-RAY ONLY PATHOLOGY MEDICAL, BILLING, AND X-RAY(S) MEDICAL, BILLING, AND X-RAY(S) MEDICAL, BILLING, AND X-RAY(S) MEDICAL, BILLING, AND X-RAY(S) DE02-0382619 63947-C02 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SHERIFF File No. 2007-5843 VS. OMNI FITNESS ACQUISITION CORPORATION SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for JOHN HOPKINS HOSPITAL. (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: **** SEE ATTACHED RIDER **** at The MCS Ga=. Inc- 1601 Market Street Suite 800. Philadelphia. PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: EDWARD J. CERMANSKI. ES ADDRESS: 401 PENN STREET TELEPHONE: (215) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant JAN 0 9 2008 Date: ?4-? 02007 7 Seal of the Court BY THE URT: Prot notary/Cle Sion Deputy 63947-04 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: JOHN HOPKINS HOSPITAL PATHOLOGY DEPT. 600 N. WOLFE STREET BALTIMORE, MD 21287 RE: 63947 LARRY E. SHERIFF Prior approval is required for fees in excess of $150.00 for hospitals, $100.00 for all other providers. Any and all pathology reports and records, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, consultation, diagnosis, care or treatment pertaining to: Dates Requested: from: 11-22-1951 to the present. Subject : LARRY E. SHERIFF 3860 SULLIVAN STREET, MECHANICSBURG" PA 17050 Social Security #: XXX-XX-2717 Date of Birth: 11-22-1951 R1.49S 133-H SU10-0715884 63947-L04 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF : SHERIFF -VS- OMNI FITNESS ACQUISITION CORPORATION COURT OF COMMON PLEAS TERM, CASE NO: 2007-5843 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 ( Note: see enclosed list of locations TO: LISA M. B. WOODBURN, ESQ., PLAINTIFF COUNSEL MCS on behalf of EDWARD J. CERMANSKI, ESQ. intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 12/20/2007 CC: EDWARD J. CERMANSKI, ESQ. - 107300103 PHILIP HOODACK - E2394842 MCS on behalf of EDWARD J. CERMANSKI, ESQ. Attorney for DEFENDANT Any questions regarding this matter, contact THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 19103 (215) 246-0900 R1.49S 133-H DE02-0382619 63947-cn9 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SHERIFF VS. File No. 2007-5843 OMNI FITNESS ACQUISITION CORPORATION TO: Custodian of Records for SUSQIMHANNA VALLEY PAIN MGMT, (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: **** SEE ATTACHED RIDER **** at The MCS Qr=-Inc., 1601 Market Street, Suite 800' Philadelphia, PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: EDWARD J. CERMANSKI. ES ADDRESS: 401 PENN STREET TELEPHONE: (215) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant JAN 0 9gf 08 ??}} J Date: aao Seal of the Court BY THE URT: Proth notary/Cl i Di 'ion ,044 Deputy 63947-05 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: SUSQUEHANNA VALLEY PAIN MGMT. 825 SIR THOMAS COURT HARRISBURG, PA 17109 RE: 63947 LARRY E. SHERIFF Prior approval is required for fees in excess of $150.00 for hospitals, $100.00 for all other providers. INCLUDING PATHOLOGY RECORDS Entire medical, billing, and diagnostic file, including but not limited to any and all records, correspondence to and from the consulting and/or treating physicians, files, memoranda, handwritten notes, history and physical reports, medication/prescription records, medical billing and payment records, x-ray films and tests with subsequent reports, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, consultation, diagnosis, care or treatment pertaining to: Dates Requested: from: 11-22-1951 to the present. Subject : LARRY E. SHERIFF 3860 SULLIVAN STREET, MECHANICSBURG, PA 17050 Social Security #: XXX-XX-2717 Date of Birth: 11-22-1951 R1.49S 133-H SU10-0715886 63947-L05 CERTIFICATE , 71r., ANAL PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS SHERIFF TERM, CUMBERLAND -vs- CASE NO: 2007-5843 OMNI FITNESS ACQUISITION CORPORATION As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of EDWARD J. CERMANSKI, ESQ. certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE: 01/09/2008 l f S on be ?f /?_S &'? ii EDWARD J. CERMANSKI, ESQ. Attorney for DEFENDANT R1.51 133-H DEil 63947-L06 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: SHERIFF -VS- OMNI FITNESS ACQUISITION CORPORATION COURT OF COMMON PLEAS TERM, CASE NO: 2007-5843 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 ( Note: see enclosed list of locations ) TO: LISA M. B. WOODBURN, ESQ., PLAINTIFF COUNSEL MCS on behalf of EDWARD J. CERMANSKI, ESQ, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 12/20/2007 CC: EDWARD J. CERMANSKI, ESQ. - 107300103 PHILIP HOODACK - E2394842 MCS on behalf of EDWARD J. CERMANSKI, ESQ. Attorney for DEFENDANT Any questions regarding this matter, contact THE MCS GROUP INC. 1601 MARKET STREET #800 PHILA)ELPHIA, PA 19103 (215) 246-0900 R1.49S 133-H DE02-0382619 63947-C02 >>> LOCATION LIST <<< PAGE: 1 LOCATION NAME RECORDS REQUESTED JOHNS HOPKINS HOSPITAL MEDICAL RECORDS JOHN HOPKINS HOSPITAL BILLING ONLY JOHN HOPKINS UNIVERSITY HOSP X-RAY ONLY JOHN HOPKINS HOSPITAL PATHOLOGY SUSQUEHANNA VALLEY PAIN MGMT. MEDICAL, BILLING, AND X-RAY(S) NEUROLOGICAL SURGERY, LTD. MEDICAL, BILLING, AND X-RAY(S) HEALTHSOUTH REHAB MEDICAL, BILLING, AND X-RAY(S) SILVERCREEK FAMILY PHYSICIANS MEDICAL, BILLING, AND X-RAY(S) R1.49S 133-H DE02-0382619 63947-C02 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SHERIFF VS. File No. 2007-5843 OMNI FITNESS ACQUISITION CORPORATION SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for- NEUROLOGICAL SURGERY. LTD. (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: _ **** SEE ATTACH .D RIDER **** at The M roo. Inc 1601 Market Street Suite 800, Philadelphia- PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: EDWARD J. CERMANSKI. ES ADDRESS: 401 PENN STREET TELEPHONE:- 15) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant BY THE URT: MAI Pro notary--_ D' 'sion JAN 0 9 2008 O Deputy Date: y, 2 7 Seal of the Court 63947-06 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: NEUROLOGICAL SURGERY, LTD. 920 CENTURY DRIVE MECHANICSBURG, PA 170558404 RE: 63947 LARRY E. SHERIFF Prior approval is required for fees in excess of $150.00 for hospitals, $100.00 for all other providers. INCLUDING PATHOLOGY RECORDS.; ALSO ANY AND ALL RECORDS FROM BARRY MOORE, M.D. Entire medical, billing, and diagnostic file, including but not limited to any and all records, correspondence to and from the consulting and/or treating physicians, files, memoranda, handwritten notes, history and physical reports, medication/prescription records, medical billing and payment records, x-ray films and tests with subsequent reports, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, consultation, diagnosis, care or treatment pertaining to: Dates Requested: from: 11-22-1951 to the present. Subject : LARRY E. SHERIFF 3860 SULLIVAN STREET, MECHANICSBURG, PA 17050 Social Security #: XXX-XX-2717 Date of Birth: 11-22-1951 R1.49S 133-H SU10-0715888 63947-LO6 LA W OFFICES OF RALPH F. TOUCH By: Edward J. Cermanski, Esquire Attorney I.D. No. 56278 401 Penn Street, Suite 100 Reading, PA 19601 Tel. 610-320-4663, Fax 610-320-4767 Attorney for Defendants, Omni Fitness Acquisition Corporation and Hancock Park Associates IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Larry E. Sheriff and Teresa M. Sheriff, Plaintiffs V. Hancock Park Associates, Omni Fitness Acqusition Corportation, Brunswick Corporation t/d/b/a Life Fitness Defendants CIVIL DIVISION NO. 2007-5843 NOTICE TO PLEAD To Plaintiffs: You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Edward J. ermanski, Esquire Attorney for Defendants, Omni Fitness Acquisition Corporation & Hancock Park Associates LAW OFFICES OF RALPH F. TOUCH By: Edward J. Cermanski, Esquire Attorney I.D. No. 56278 401 Penn Street, Suite 100 Reading, PA 19601 Tel. 610-320-4663, Fax 610-320-4767 Attorney for Defendants, Omni Fitness Acquisition Corporation And Hancock Park Associates IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Larry E. Sheriff and Teresa M. Sheriff, Plaintiffs CIVIL DIVISION NO. 2007-5843 V. Hancock Park Associates, Omni Fitness Acqusition Corportation, Brunswick Corporation t/d/b/a Life Fitness Defendants DEFENDANTS, HANCOCK PARK ASSOCIATES AND OMNI FITNESS ACQUISITION CORPORATION'S ANSWER TO PLAINTIFFS' COMPLAINT WITH NEW MATTER AND NEW MATTER CROSSCLAIM AND NOW, comes the Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation, by and through their attorney, Edward J. Cermanski, Esquire and the Law Offices of Ralph F. Touch, and answers the Plaintiffs' Complaint as follows: Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. Denied. The allegations contained in the corresponding paragraph pertain to a Defendant other than Answering Defendants. 5. Denied. The allegations contained in the corresponding paragraph pertain to a Defendant other than Answering Defendants. 6. Admitted in part, denied in part. It is admitted only that Plaintiffs purchased the Cable Gym from Answering Defendant, Omni Fitness. It is denied that Answering Defendant, Omni Fitness, installed the Cable Gym in plaintiff's home. 7. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. COUNT I - NEGLIGENCE 8. Answering Defendants hereby incorporate by reference prior paragraphs 1 through 7 above as though more fully set forth hereinafter. 9. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. WHEREFORE, Answering Defendants demand judgment be entered in their favor and against Plaintiffs, and thus prays that Plaintiffs' Complaint be dismissed with prejudice. COUNT II - NEGLIGENCE 10. Answering Defendants hereby incorporate by reference prior paragraphs 1 through 9 above as though more fully set forth hereinafter. 11. Denied. The allegations contained in the corresponding paragraph pertain to a Defendant other than Answering Defendants. WHEREFORE, Answering Defendants demand judgment be entered in their favor and against Plaintiffs, and thus prays that Plaintiffs' Complaint be dismissed with prejudice. COUNT III - STRICT LIABILITY 12. Answering Defendants hereby incorporate by reference prior paragraphs 1 through 11 above as though more fully set forth hereinafter. 13. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied. WHEREFORE, Answering Defendants demand judgment be entered in their favor and against Plaintiffs, and thus prays that Plaintiffs' Complaint be dismissed with prejudice. CLAIM I DAMAGES 14. Answering Defendants hereby incorporates by reference prior paragraphs 1 through 13 above as though more fully set forth hereinafter. 15. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 16. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 17. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 18. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 19. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 20. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 21. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 22. Answering Defendants hereby incorporate by reference prior paragraphs 1 through 21 above as though more fully set forth hereinafter. WHEREFORE, Answering Defendants demand judgment be entered in their favor and against Plaintiffs, and thus prays that Plaintiffs' Complaint be dismissed with prejudice. CLAIM II - LOSS OF CONSORTIUM 23. Answering Defendants hereby incorporate by reference prior paragraphs 1 through 23 above as though more fully set forth hereinafter. 24. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. WHEREFORE, Answering Defendants demand judgment be entered in their favor and against Plaintiffs, and thus prays that Plaintiffs' Complaint be dismissed with prejudice. NEW MATTER 25. The accident in question was caused by Plaintiffs own negligence and carelessness. Plaintiff s cause of action is therefore barred or limited by the terms and provisions of the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. Sec. 7102. 26. Plaintiffs' Complaint fails to state a claim upon which relief can be granted. 27. Plaintiffs cause of action is barred by operation of the doctrine of assumption of the risk. 28. Answering Defendants were not negligent. 29. Any acts or omissions of Answering Defendants alleged to constitute negligence were not substantial causes or factors of the subject incident and/or did not result in the injuries and/or losses alleged by Plaintiffs. 30. The incident and/or damages described in Plaintiffs' Complaint were caused, or contributed to by, the Plaintiffs. 31. The negligent acts or omissions of other individuals and/or entities may have constituted intervening superseding causes of the damages and/or injuries alleged to have been sustained by Plaintiffs. 32. The incident, injuries and/or damages alleged to have been sustained by the Plaintiff were not proximately caused by the Answering Defendants. 33. Plaintiffs have failed to properly mitigate their damages. 34. In the event that it is established that the Plaintiffs sustained any injuries or damages as alleged, said injuries and/or damages were caused by the acts or omissions of other persons or parties and Answering Defendants assert that there is not liability on their part. 35. The accident described in Plaintiffs' Complaint may have been caused by the abuse, misuse or non-intended abnormal use of the product in question after it left the possession and control of the Answering Defendants. It is further averred that any such abuse, misuse or abnormal use of this product was unforeseeable by the Answering Defendants. 36. The accident described in Plaintiffs' Complaint may have been caused by a substantial change in the product in question after it left the Answering Defendant's possession and control. It is further averred that any such change was unforeseeable by the Answering Defendants. 37. The accident described in plaintiffs' complaint may have been caused by the abuse, misuse or non-intentional abnormal use of the product in question and that constitutes a complete defense to this action. It is further averred that any such abuse, misuse or abnormal use of this product was unforeseeable by Answering Defendants. 38. The acts described in plaintiffs' complaint may have been caused by a substantial change in the product in question and was not made by Answering Defendants. It is further averred that any such change was unforeseeable by the Answering Defendants. 39. Answering Defendants had no knowledge of the alleged defects or had any reason to suspect an alleged defective condition of the product at issue and/or its component parts. 40. Answering Defendants did not make any misrepresentations of material fact concerning the character or quality of the product in question and/or its component parts. 41. The product in question and/or its component parts were never in the possession of Answering Defendants. 42. The product in question and/or its component parts were not defective while in the possession of Answering Defendants. 43. Answering Defendants did not ship the product in question or its component parts. 44. Answering Defendants did not install the product in question and/or its component parts. 45. The product in question and/or its component parts was not serviced at any time by Answering Defendants. 46. Answering Defendants did not design, manufacture or distribute the product in question and/or its component parts. 47. Answering Defendants was not a supplier of the product in question and/or its component parts. 48. The product in question and/or its component parts may have been modified and/or substantial changes may have been made to the product in question by persons other than Answering Defendants. THE LAW OFFICES OF RALPH F. TOUCH G Edward J. Cermanski, Esquire Attorney for Defendants, Omni Fitness Acquisition Corporation And Hancock Park Associates VERIFICATION The undersigned, being duly sworn according to law, deposes and says that he is counsel for the party or parties indicated on the preceding page as being represented by said counsel, that he has examined the pleadings and the entire investigative file made on behalf of said party or parties, that he is taking this verification to assure compliance with the pertinent rules pertaining to timely filing of pleadings and other documents described by said rules; and that the facts set forth in the foregoing document 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 of 18 PA C.S.A. SECTION 4904 relating to unswom falsification to authorities. The Verification of the attorney is being attached hereto because the Verification of the Defendants cannot be obtained in the time allowed for filing of the subject pleading with the Court. The executed Verification of the Defendants will be filed as soon as it is obtained. Date: Edward J. Cermanski, Esquire CERTIFICATION OF SERVICE I hereby certify that I have served a copy of the DEFENDANTS, HANOVER PARK ASSOCIATES AND OMNI FITNESS ACQUISITION CORPORATION'S ANSWER TO PLAINTIFFS' COMPLAINT WITH NEW MATTER AND NEW MATTER CROSSCLAIM upon all parties, their attorneys or representatives, and all other relevant organizations, in the manner(s) set forth below: By first-class mail, postage prepaid: Lisa Woodburn, Esquire Angino & Rovner, P.C. 4503 N. Front St. Harrisburg, PA 17110 Attorney for Plaintiff C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (Attorney for Addl. Defendant Amco Distribution) Brunswick Corporation t/d/b/a Life Fitness 5100 North River Road Schiller Park, IL 60176 Dated: 1/25/08 Edward J. Cermanski, Esquire Attorney for Defendants, Omni Fitness Acquisition Corporation and Hancock Park Associates fj c1 r17- h t t'i 7 r; wi LA W OFFICES OF RALPH F. TOUCH By: Edward J. Cermanski, Esquire Attorney I.D. No. 56278 401 Penn Street, Suite 100 Reading, PA 19601 Tel. 610-320-4663, Fax 610-320-4767 Attorney for Defendants, Omni Fitness Acquisition Corporation And Hancock Park Associates IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Larry E. Sheriff and Teresa M. Sheriff, Plaintiffs V. CIVIL DIVISION NO. 2007-5843 Hancock Park Associates, Omni Fitness Acqusition Corportation, Brunswick Corporation t/d/b/a Life Fitness Defendant V. Amco Distributor Services, Inc. Additional Defendant DEFENDANT, HANCOCK PARK ASSOCIATES AND OMNI FITNESS ACQUISITION CORPORATION'S JOINDER COMPLAINT AGAINST ADDITIONAL DEFENDANT AMCO DISTRIBUTOR SERVICES, INC. 1. Plaintiff commenced this instant action by filing a Complaint on or about October 3, 2007 against, among others, Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation (copy of Plaintiff's Complaint is attached hereto and marked as Exhibit «A„ 2. Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation filed an answer to Plaintiff's Complaint denying all allegations therein. (See copy of Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation's Answer and New Matter, attached hereto and marked as Exhibit `B"). 2. In Plaintiff's Complaint it is alleged that Plaintiff purchased a "Life Fitness, Para CM3005 Cable Gym", (hereinafter referred to as "cable gym".) 3. At all times relevant hereto, Defendant Brunswick Corporation t/d/b/a Life Fitness was the manufacturer and/or distributor of the cable gym. 4. In Plaintiff's Complaint, it is alleged that Plaintiffs purchased the subject product from Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation. 5. Plaintiff alleges that on or about March 7, 2006 while exercising on the cable gym, a cable snapped causing personal injuries as set forth in the Complaint. 6. In Count I of the Complaint, it alleged that Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation failed to adequately inspect the cable gym before selling it; failed to properly construct the cable gym; failed to inspect the equipment to insure that it was safe to be used; created a dangerous condition by negligent assembling of the cable gym; and failed to take actions and precautions that a reasonable person would in the assembly of the cable gym. (See Plaintiff's Complaint attached as Exhibit "A", Paragraph 9). 7. In paragraph 13 of Plaintiff's Complaint, plaintiff sets forth allegations against all defendants sounding in strict liability. 8. At all times relevant hereto, Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation entered into a "Warehousing and Distribution Agreement" with additional defendant, Amco Distribution Services, Inc. (Copy of the Warehousing and Distribution Agreement is attached hereto and marked as Exhibit "C"). 9. At all times relevant hereto, Additional Defendant, Amco Distribution Services, Inc. was responsible for delivery, installation and assembly of the subject cable gym. 10. Additional Defendant, Amco Distribution Services, Inc. delivered and installed the subject cable gym at Plaintiff's home. 11. Without admission or adoption, the well pleaded allegations contained in Plaintiff's Complaint against Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation are plead over and against Additional Defendant, Amco Distribution Services, Inc. 12. Without admission or adoption, at all times relevant hereto all allegations of negligent inspection, construction, assembly set forth in Paragraph 9 and its subparts of Plaintiff's Complaint, are hereby plead over and against Additional Defendant, Amco Distribution Services, Inc. 13. To the extent that Additional Defendant, Amco Distribution Services, Inc. is a distributor of the subject cable gym pursuant to 402(a), then all allegations set forth in Count III of Plaintiff's Complaint, without admission or adoption, are plead over and against Additional Defendant, Amco Distribution Services, Inc. 14. If the Plaintiffs sustained any damages as alleged in theirr Complaint, then they were caused by the negligence, carelessness, recklessness and/or unlawfulness of Additional Defendant, Amco Distribution Services, Inc.. 15. If Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation are found liable to Plaintiff, any such liability being strictly denied, then Additional Defendant, Amco Distribution Services, Inc. is solely liable to Plaintiff, jointly and/or severally liable or liable over to Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation by way of contribution and/or full indemnity in all claims made by Plaintiff. 16. Additional Defendant, Amco Distribution Services, Inc., pursuant to the Warehousing and Distribution Agreement, is liable over to Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation based on a breach of contract. WHEREFORE, should Judgment be entered against Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation, liability for which is strictly denied, Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation demands Judgment be further entered against Additional Defendant, Amco Distribution Services, Inc., by way of contribution and/or full indemnity. THE LAW OFFICES OF RALPH F. TOUCH Edward J. Cermanski, ESqdi're Attorney for Defendants, Omni Fitness Acquisition Corporation And Hancock Park Associates EXHIBIT `A' _ :0'ct. 10.' 2007LE 3:09PM201':HUB International of CA OMNI FITNESS No. 1884 P. 83E 06116 X470DI T SOB7F COPY ANMO & RO'VWXX 7.C. Wsa KB. Woodburn Attomty MX : 89397 4503 North Franz Suut Harri.Sburg, PA 17110-1708 (717} 239.6791 PAX (717) 233-36 10. Attolmcyz for PlAntiIRa} E-mail: LW00DaUV1AftMW0-Ro'v-NER.C0)d LAM L. SIERUT and TERBSA M. SDEERIFF, Plaintiffs V. HANCOCK PARK ASSOCIAT)8S, 1880 Century Park Bast, Suite 4900 Los Angeles, CA 90067 OMNI FITNESS ACQUISITION CORPORATION T/DWA OMNI FITNESS EQUIP MEN' 60 Oxford Drivo - MooAacbie, NJ 07074 Corporation Service Company 2704 Commerce Drive Harrisburg, PA 17110 BRUNSWICK CORPORATION TID/B/A LIFE FITNESS , 5100 North River Road SchWer Fark, IL 60176 1 North. Hold Court Lake Forest, M 60045 CT Corporatiop System 1515 Market Stzeet, Suite 1210 Philadelphia, PA 19102 Defmdants IN THE. COURT OF COMMON PLEAS C UMERLAND COUNTY, PENNSYLVANIA NO, w- 58V awl I Tow CIVIL ACI'IQN I Litft 'r7 ?-j,,; ??x ; L L A 11 XMY TRIAL DEMANDED owr 4> 0 MN f F"405 p a II Received Time Oct, 10, 8:99AM Page 8 of 18 received on 1011012007 6;14:08 PM (Eastern Daylight Time) on server SPR1FRFX 10ct, 10. 2QQ]1 3;49pM2013HU8 International of CA014Nl FITNESS j+ MC47017180BE N0nCE TO DEMD No.1884 P, 9E 07/16 You bavo beam euod in coutt. If you vviab to defend agaiatst the claims set fMI m the fol]ow>3ag Paga, yw n1w take atation witban two my (20) days after ft Complsivt and Notice axe served, by entming a wxib= appeuauce penoanaDy or by sttoo ey and fiiusg in writing with ft Cowl your defenses or objections to the claims sett forth 4aira you- You = w=d that if you W to do so %be oase may proceed without you and judgneut may be enwed aplut you by the Court witbovt fiwffia -00dee for any ztmoncy clammed in the Complaint or for arty other claim or xeiiefrequestcd by rho Plaintiff You, my lose money or property or other r*u kmor= to you, YOU SHOULD TAKE THIS PAPER TO YOUR LAWY'E'R AT ONCE. IF YOU DO NOT HAVE LAWYER OR CANNOT AFFORD ONE, 00 TO OR T IdONB THE OFFICE SET FORTH BELOW TO MID OUT WMME YOU CAN GET LEGAL HELP. Cumberland County I3ar Association 32 South Bedford Street, Carlisle, PA Telephone number- 717- 249-3166 Ati''TSO USTED HA SIDO DEMANDADOIA EN CORTE. Si u3ted do= defe adewe de la de map 4m qua at pme atsa mis uWante a In sioenw pins, debe toenar acci6n dwto do kd pr64wm veinte (20) dins despu s de la notific"n de esta Dcmanda y Aviso raftwdo personalnsmte o por medic de un abogado =a compareecucia escri% y radicando eta: la Corte per escrito suo dofcvm de, y objeceiooes a , in dewaindas prasmx?tadas aqul an oomm buys. Se It advierte de que si useed Ma de =ar aooion 0010 se describe auteriormente, el woo puede prooedzr sin usted y un fhilo poor eusaquie r sx=a de dime xealaixmda m la doanaaada o oual#er otra reclamcft o reme dlo soUcitado por el dewmidante puede ser dictado an contra soya por la Corte sm mks aviso a&orW. Used pvede pe rder dmero o p *edad u otros dowbos Para used. USTED DN3E LLEVAR ES'TE DOCLNENTO A SU AEOGADO R1I WLkTAbffWM SI USE17 NO TIENE UN ABOGADO, LLAM E 0 VAYA A LA SIGUMNTE OFICRI& MA OFICINA PUEDE PROV)MUE IIJI''ORl4SAMNA CERCADE COMO CONSEGUMUN ABOGADO. . SI USED NO FUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA P'ROVEER INFORMACION SOME AGENCIA5 QM OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALZ7:I'CAN Cwnberia nd County Bar Association 32 South Bcdfmd Street Carlisle, PA Telcphmo u=bcr- 717- 249-3166 i Page 9 of 18 received on 10110307 6:14:08 PM (Eastern Daylight Time] on server SPRIFRFX -0H. 10.'2007.1 3:09PM201?HUB International of CA MVI FITNESS No. 1884 it CK470D27180B7F ANGYNO & ROVnlR P.C. Lisa M.H. woodb= Attomby ID#t, 89397 4501 Noph Front Saeot Heat W.F, PA )7110-1708 (717) 238-6791 FAX (717) 238.5610 Attorneys fat P1AtnMs) Ismail: Lw00rn6vuN4&Hc9N0->-'0VNSF..C0M P. 10- 08/16 LARRY E. SHERIFF and TERBSA M. SHBRJFF, Pla ntiffi v. HANCOCK PARK ASSOCIATES, 1880 Century Park East, Suite #900 Los Angeles, CA 90067 OMNI FI'T'NESS ACQUISITION CORPORATION TIDB/A. OMNI F7TNB.SS EQUIPMENT 60 Oxford Drive Moonacbie, NJ 07074 Corpoxation Service Company 2704 Commerce Drive Harrisburg, PA 17110 BRUNSWICK COUORATIQN T/D/B/A. LIFE FITNESS 5100 Noztb River Road Schiller Park, IL 60).76 1 North Field Court Lake Forest, IL 60045 CT Corporation System 1515 Market Street, Suite 1210 PhOadolphia, PA 19102 Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA' NO. CIVIL ACTION JURY TRIAL DEMANDED 0 Received Time Oct,10. 8:29AM 3 Page 10 of U received on 1011012007 614;08 PM [Eastern Daylight Time] on server SPR1FRFX 10ct.IV 20071 3:09PM2013HUB International of CA OMNI FITNESS No. 1884 1 X470D17180B7F P. 11 09; 16 1. Plaintiffs, LmrTy E. Sheriff and Teresa X Sheriff, are husband and wife, and are adult individuals raiding in Mechaniesbuzg, Cumberland County, Penasylvania. 2. Defaudent Hancock Park Associates is a Los Angeles based private equity fum which owns Omni Fitness Egidpnaemt. 3. Defendant, Omni Fitness AcquisWota Corporation t/d/b/a Omni Fitness Equipment, hereinafter, ("Omni Fitness') is a Delaware oorporation qualified to do buskeas in the state of Pennsylvnii and operates the Omni Fitness Equipment store located at 4830 Carlisle Pike, Mechanicsburg, Pon nsylvan* Cumberland County, Pemisylvauia 17055. 4. Brunswick Corporation t/cf/b/a Lie Fitwo, hereinafter, ("Life Fitness") is a Delaware corporation operating LA Fitness and doizg business in the state ofPemsylvauia. 5. Life F'itms, a division of Brunswick Corporation, is responsible for the design and umamfaeburing of the Life 'Fitness Para CM3005 Cable Gym, herein after "Cablo Gym," purchased by Plaintiffs, Larry E. Shmiff and Theresa M. Sheriff, Defendant, Brunswick Corporation, t/d/b/a Life Fitness, places their items for sale and into the stream of commune in the state of Pennsylvania. 6. Plaintiffs, Lary E. Sheriff and Teresa M. Sheriff purchased the aforementioned Cable Gym on February 5, 2006, from Defendant, 0=4 Fitness in Mechaui.csburg, Pezmaylvania and paid to have it iztstalled in their home. 7. On March 7, 2006 Plainti Lauy B. Sheriff was exercising on the Cable Gym when a cable snapped on the equipment causing a 140 po=d weigbt to fall on the back of Flaiz fC9 head and neck. Page 11 of 18 received on 10!10120076.14:08 PM (Eastern 0a ght T' el on server SPRIFRFX 10et 10 '2001 3.lOPMzeia:HU6 International of CAOPINZ FITWSS No. 1884 X470D17180M CoUN".r 1- NEGLIGENCE P. 12 1e/i6 PLAXNTIMS LARRY E. SBZ>ftW AND '1<MSA X SHERIFF' v. HANCOM FART ASSOCLA:M OMNI Flt rMS ACQUISITION COUOR A.TION TID/B/A QMNI FITNESS EQUIP ME,N'T 8. Paragraphs 1 through 7 of thia Camplabt are herby incorporated by ref'eren.ee. 9. The injufies sustained by Plaintiff Larry 1~, Sbmriff, and all damages as set forth hereinafter are the direct and proximate result of the niegligent, careless, wmtou, and reckless manner in which Defendants sold the Cable C* v. as follows; a) Defendants failed to adequately inspect tba Cable Gym before selling it; b) Defendants failed to properly construct the Cable Gym so as to prevent the cable bolding the weights fxom injuring the Plaintiff when using the equipment; c) Defendants failed to impact the equipment to a=e that it was safe to be used, d) Defendants created a dangerous condition by negligently assembling the Cable Gym.; e) Defendants failed to take actions and precautions that a reasonably prudent person would in the sesembly of the Cable Gyre. WHMFORE, Plaintiffs, Lany E. Shaiff and Teresa Ni ShozK demand judgment against Defendaamt, Hwcock Pak Associates, Omni Fitness Acquisition Corporation t/d/b/a, Omni Fitness Rq pmcut, in an ammnt in excess of fifty Thousand ($50,040) Dollars, exclusive of interest and costs, and in a xeess of any jurisdictional amount requiting compulsory arbitration. COUNT 11- NEGLIGENCE PLAUMMF LARRY F. SHERIFF' AND TTRESA M. SHERIFF V. BRUNSWICX- CORPQRATIQN T/ WA I-= k'ITNESS 10. Paragraphs 1 through 9 of this complaint are herby incorporated by re#'m=ce:. Page 12 of 18 received on 14!10120016;14;08 PM [Eastem Daylight 1i a on server SP 1 G RIFRFX 10ct. 10. 20071 3:IOPM2013HUB International of CAoMHr FrTWSS No. 1884 P. 13 11!16 CNC470D17180B7F 11. Tlxc injurito sustained by Plaintiff, Larry E. Sheri.M and all damages as set foa bemiDafCer are the direct and proximate result of the negligent, careless, wanton, and reeldess manner in which Defendant manufactured and designed the Cable Gym as follows: a) Defendant failed to adequately inspect the Cable Gym before placiAg it into the strum of comurcroe; anal b) Defendant failed to properly manufacture and design the Cable Gym so as to prevent the cable from giving way and breaking when weight was placed on the cable while in use for its intended purpose. WHEREFORE, Plairotiffs, Larry E. Shcdff and Teresa M. ShaA demand judgment agatst Defendant, Brunswick Corporation t/dVa Life Fitnesa, in an amount in excess of Fifty Thousand ($50,000) Dollars, exclusive of interest and coats, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT M STRICT LL4BrLIT'Y PLAINTM, LARRY E. SHERIFF AND TERESA M. SHERM v. HANCOCK PARK ASSOCIATES, OXK FITNESS ACQMSTT ON CORPORATION T/D/R/A OMNI FITNESS EQUi1P,AMNT And 00§MCCK CORPORATION TIDf,?I Y.TFE +'ITNES_S 12. Paragraphs 1 through 11 of this Complaint are hereby bompozated by refu=os. 13. Dafendants.are strictly liable to Plaintiff udder Section 402A of the kcstaternent (Second) of Torts for the damages alleged hw it which were proximately caused by the defective Cable Gym fitness equipment for the fbllowiing Mons: a) All Defendants engaged in the business of ds4pirg, manufacturing, selling, and/or itrstalliq the Gable Gynq to the Plaintit b) The Cable Gym reached the Plaintiff in accordance with its'design and manufacture with no alterations; c) The Plaintiff did not participate in the aesernbly of the Cable Gym at any time; Page 13 of 18 received on 10110/2007 8;14;08 PM [Eastern Daylight Time] on server SPRIFRFX 2act.10.' 20071 3:JOPM2013HUB International of CA OWI FITNESS X470D 17180B7F No. 1884 P. 14: d) 7be defect existed prior to the time the Cable Qym was sold to the Plaintiff or at the time the Cable Gym was assembled; e) All Defendants failed to properly inspect the Cable Gym before it was sold and also after installation; and f) Plaintiff was injured as a direct result of the malfunctioning aad/or design, defect of the Cable Gym. WHEREFORE, Plaintiffs, Larry R Sheriff and Teresa M. Shw:lr, demand judgment against Defendants, Hancock Park Associates, Omni Fitness Acquisition Corporation t/d/b/a Omni pztness Equipment and Bnmswick Corporation t/d/wa Life Fitness, in an amount in excess of Foy Thousand ($50,000) Dollars, exehssive ofintwest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. CLAM I DAMAGES PLAT-NM F, LARRY E. SHERIFF v. BL4,NCOCK PA.RX ASSOCIATES, OKK M MSS ACQUISITION CORPORATIONT/DIR/A? OhM FffNESS EQUIPMENT nand BRUNSWICK CORPORATION T/D/B/A, = „K=SS 14, Paragraphs 1 through 13 of Us Complaint are incorporated herein by reference. 15. 'Asa result of Defendants' negligence and sale of a defective pmdnct, Plaintiff' Larry E. Sheriff:, sustained painful and severe injuries whicb include, but are not limited to, a concussion, headaches, and two herniated cervical disks for which surgery was required. 16. As a result of the aforesaid injuries sustained by P116=4 Larry E. Sheriff, he was forced to incur expenses for medical treatment, modicatious, and other similu expenses in an effort to restore hiansolf to health, and claim is made therefor. 17. As a result of the natare of his injuries, PlaindIX Larry E. Sheriff, will be forced to incur similar expwscs in the fixture, and claims are made therefor 12/16 II Received Time Oct.10. 8:29AM 7 Page 14 of 18 received on 1011012007 6;14;08 PM (Eastem Daylight Timel on server SPR1FRFX sOct. 10.'20071 3:10PMze13:NUB International of CAOMI FITNESS 747017180BE No. 1884 P. 15 tsizs 19. As a result of the aforementioned igjuries, Plaintiff, Lwy E. Sheziff has undergone and in the future may undergo, physical and mental pain and suffering, inconvenience in carrying out his daily activities, loss of life's ploamres and c4oyment, and claims are made therefor. 14. As a result of the aforementioned Wuriess, Plaiat4 Larry E. S'herift has been and in the ftwo may be, subj wt to humiliation and embeiz u6ment, and claims are made th emfor 20. As a result of the aforementioned injuries, Plaintiff, Larry E. Sheriff, continues to be plagued by persistent pain and limitation, aad therefore avers that his injuries may be of a permanent nature causing residual problevis for the remainder of his 9fetima, and claim is made therefor. 21. As a result of the aforesaid W= ies, Plaintiff, Larry E. Sheliff, has sustained scarring, which will result in pe muent disSgunmemr, and claim is made therefor. 22. Aa'a result of his injuries, PlaSntiM Larry E. Sheriff has sustained wage, loss and diminution in bzs Earning power and opacity, and claim is made therefor. WMREFORE, Plainda Larry E, Sheriff, demands judgment against Defendants, Haucock Pack Associates, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness F. gdpn=t and Bnwswick Corporation t/d/b/a Life Fitness in an amount in excess of Fifty Thousand ($50,000) Dollars, exclusive of interest and casts, and in excess of any jurisdictional amount roquiring compulsory arbitration. CLAIM U LOSS OF CONSORTMU )PLALN'>l`I", TERESA M. SHERIFF v_ WCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISMON CORPORATION T/J)BIA, OMNI HPMSS EQUUVNINT and BRUNSMCK COR=ATQ-.N TAINVA INS FITNESS 23. Paragraphs 1 through 22 are beseby incorporated herein by reference Page 15 of 18 received on 10102007 6;14;08 PM Pastem Day ON Timel on server SPRIFRFX a. Dc t. 10.' 20071 3:1M01a:H013 International of CAOMNI FITNESS No 1884 MCMD1718OBT P. 16 14/ 16 24. As a resWt of the injuries suffered by her husband, 1=ry E. Sheriff Plaintiff, Teresa M, Sheriff has lost tho companiOPS4, coasortiuna, and society of her husband and claim is made thereft. WHEREFORE, PlaiutiA Teresa M. Shexifl demmds judgment against Defendants, Hancock Park Associates, Omni Fitness Acquisition Corporradon VO/a Chnni Fitness Fgdpmeut and Brwswick Corporation t/d/b/a Ufe Fitness, in an amo= in excess of Fifty Thousand ($50,000) Dollus, exc1mive of intaest and costs, sad in excess of any juriAc:tional amount reguittg CqvApulsory arbitmtiom Respectfrdly submitted, ANG]NO & ROVNM P.C. -I ula - Us M. B. Woodbuu;4 Esquire PA, No. 89397 4503 N. Front Street 5-arisbur& FA 17110 (717) 2386791 (717) 238-5610 (fax) Iwoodbw @aggino-rovner.com Attomey for Plaintiff Dated: 0 -? Page 16 of 18 received on 1011012007 6:14:08 PM ]Eastern OaOight Time] on server SPR 1FRFX Oct. 10.' 20071: 3:10PM?e1s:HUB International of CA114NI FITWSS No. 1864 CNC470D17180B7F VUM!Q&MN P. 17 15"IG I, Lany B. Sheriff Plaint A bravo read the foregoing Complaint and do h"by swear or aft that the facts set forib m the foregoing = txue and convect to the best of my knoMedge, infonaation and belief. I understamd that this Verification is made subject to the Pevalties of 18 P&C.S.A. Section 4944, relating to unswworm falsification to authorities. Witness I,azry -E. SAW Date: Date: 9 Jdc' d 11 PoeAivAd Timo Ni 1A R•79AM 10 Page 17 of 18 received on 10110/2007 6:14:08 PM (Eastern Daoi# Time) on server SPRIFRFX 06t: 10. '200h 3:lOP*e13AB International of CA"I FITNESS No. 1884 V . 'MC470DITSET VERIFXCATI - P, 18 16116 4 Teresa M. Shftif? PlaintiM have read the foregoing Complaint and do b=by swear or affl= that the facts sex forth in the foregoing arc true and correct to the best of my Imawledge, information and belief. I wad=t=d that this Veificati,on is made subject to the peualties of 18 Pa.C.S.A Section, 4Wt, relator' uaswozu falsi2o4on toa authorities. rte, C?yy TemOLM, Sheriff bate: /'o ?- d Date., 0 RPrplvP4 Time Ott.1n. 8:79AM 11 Page 18 of 18 received on 1011012007 6,14:08 PM (Eastern Dwight Time] on server SPR1 FRFX EXHIBIT `B' LAW OFFICES OF RALPH F. TOUCH By: Edward J. Cermanski, Esquire Attorney I.D. No. 56278 401 Penn Street, Suite 100 Reading, PA 19601 Tel. 610-320-4663, Fax 610-320-4767 Attorney for Defendants, Omni Fitness Acquisition Corporation and Hancock Park Associates IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Larry E. Sheriff and Teresa M. Sheriff, Plaintiffs CIVIL DIVISION NO. 2007-5843 V. Hancock Park Associates, Omni Fitness Acqusition Corportation, Brunswick Corporation t/d/b/a Life Fitness Defendants NOTICE TO PLEAD To Plaintiffs: You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Edward J.`Cennanski, Esquire Attorney for Defendants, Omni Fitness Acquisition Corporation & Hancock Park Associates LAW OFFICES OF RALPH F. TOUCH By: Edward J. Cermanski, Esquire Attorney I.D. No. 56278 401 Penn Street, Suite 100 Reading, PA 19601 Tel. 610-320-4663, Fax 610-320-4767 Attorney for Defendants, Omni Fitness Acquisition Corporation And Hancock Park Associates IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Larry E. Sheriff and Teresa M. Sheriff, Plaintiffs CIVIL DIVISION NO. 2007-5843 V. Hancock Park Associates, Omni Fitness Acqusition Corportation, Brunswick Corporation t/d/b/a Life Fitness Defendants DEFENDANTS, HANCOCK PARK ASSOCIATES AND OMNI FITNESS ACOUISITION CORPORATION'S ANSWER TO PLAINTIFFS' COMPLAINT WITH NEW MATTER AND NEW MATTER CROSSCLAIM AND NOW, comes the Defendants, Hancock Park Associates and Omni Fitness Acquisition Corporation, by and through their attorney, Edward J. Cermanski, Esquire and the Law Offices of Ralph F. Touch, and answers the Plaintiffs' Complaint as follows: Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. Denied. The allegations contained in the corresponding paragraph pertain to a Defendant other than Answering Defendants. 5. Denied. The allegations contained in the corresponding paragraph pertain to a Defendant other than Answering Defendants. 6. Admitted in part, denied in part. It is admitted only that Plaintiffs purchased the Cable Gym from Answering Defendant, Omni Fitness. It is denied that Answering Defendant, Omni Fitness, installed the Cable Gym in plaintiffs home. 7. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. COUNT I - NEGLIGENCE 8. Answering Defendants hereby incorporate by reference prior paragraphs 1 through 7 above as though more fully set forth hereinafter. 9. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. WHEREFORE, Answering Defendants demand judgment be entered in their favor and against Plaintiffs, and thus prays that Plaintiffs' Complaint be dismissed with prejudice. COUNT II -NEGLIGENCE 10. Answering Defendants hereby incorporate by reference prior paragraphs 1 through 9 above as though more fully set forth hereinafter. 11. Denied. The allegations contained in the corresponding paragraph pertain to a Defendant other than Answering Defendants. WHEREFORE, Answering Defendants demand judgment be entered in their favor and against Plaintiffs, and thus prays that Plaintiffs' Complaint be dismissed with prejudice. COUNT III - STRICT LIABILITY 12. Answering Defendants hereby incorporate by reference prior paragraphs 1 through 11 above as though more fully set forth hereinafter. 13. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied. WHEREFORE, Answering Defendants demand judgment be entered in their favor and against Plaintiffs, and thus prays that Plaintiffs' Complaint be dismissed with prejudice. CLAIM I DAMAGES 14. Answering Defendants hereby incorporates by reference prior paragraphs 1 through 13 above as though more fully set forth hereinafter. 15. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 16. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 17. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 18. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 19. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 20. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 21. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 22. Answering Defendants hereby incorporate by reference prior paragraphs 1 through 21 above as though more fully set forth hereinafter. WHEREFORE, Answering Defendants demand judgment be entered in their favor and against Plaintiffs, and thus prays that Plaintiffs' Complaint be dismissed with prejudice. CLAIM II - LOSS OF CONSORTIUM 23. Answering Defendants hereby incorporate by reference prior paragraphs 1 through 23 above as though more fully set forth hereinafter. 24. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. WHEREFORE, Answering Defendants demand judgment be entered in their favor and against Plaintiffs, and thus prays that Plaintiffs' Complaint be dismissed with prejudice. NEW MATTER 25. The accident in question was caused by Plaintiffs own negligence and carelessness. Plaintiffs cause of action is therefore barred or limited by the terms and provisions of the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. Sec. 7102. 26. Plaintiffs' Complaint fails to state a claim upon which relief can be granted. 27. Plaintiffs cause of action is barred by operation of the doctrine of assumption of the risk. 28. Answering Defendants were not negligent. 29. Any acts or omissions of Answering Defendants alleged to constitute negligence were not substantial causes or factors of the subject incident and/or did not result in the injuries and/or losses alleged by Plaintiffs. 30. The incident and/or damages described in Plaintiffs' Complaint were caused, or contributed to by, the Plaintiffs. 31. The negligent acts or omissions of other individuals and/or entities may have constituted intervening superseding causes of the damages and/or injuries alleged to have been sustained by Plaintiffs. 32. The incident, injuries and/or damages alleged to have been sustained by the Plaintiff were not proximately caused by the Answering Defendants. 33. Plaintiffs have failed to properly mitigate their damages. 34. In the event that it is established that the Plaintiffs sustained any injuries or damages as alleged, said injuries and/or damages were caused by the acts or omissions of other persons or parties and Answering Defendants assert that there is not liability on their part. 35. The accident described in Plaintiffs' Complaint may have been caused by the abuse, misuse or non-intended abnormal use of the product in question after it left the possession and. control of the Answering Defendants. It is further averred that any such abuse, misuse or abnormal use of this product was unforeseeable by the Answering Defendants. 36. The accident described in Plaintiffs' Complaint may have been caused by a substantial change in the product in question after it left the Answering Defendant's possession and control. It is further averred that any such change was unforeseeable by the Answering Defendants. 37. The accident described in plaintiffs' complaint may have been caused by the abuse, misuse or non-intentional abnormal use of the product in question and that constitutes a complete defense to this action. It is further averred that any such abuse, misuse or abnormal use of this product was unforeseeable by Answering Defendants. 38. The acts described in plaintiffs' complaint may have been caused by a substantial change in the product in question and was not made by Answering Defendants. It is further averred that any such change was unforeseeable by the Answering Defendants. 39. Answering Defendants had no knowledge of the alleged defects or had any reason to suspect an alleged defective condition of the product at issue and/or its component parts. 40. Answering Defendants did not make any misrepresentations of material fact concerning the character or quality of the product in question and/or its component parts. 41. The product in question and/or its component parts were never in the possession of Answering Defendants. 42. The product in question and/or its component parts were not defective while in the possession of Answering Defendants. 43. Answering Defendants did not ship the product in question or its component parts. 44. Answering Defendants did not install the product in question and/or-its component parts. 45. The product in question and/or its component parts was not serviced at any time by Answering Defendants. 46. Answering Defendants did not design, manufacture or distribute the product in question and/or its component parts. 47. Answering Defendants was not a supplier of the product in question and/or its component parts. 48. The product in question and/or its component parts may have been modified and/or substantial changes may have been made to the product in question by persons other than Answering Defendants. THE LAW OFFICES OF RALPH F. TOUCH Edward J. Cermanski, Esquire Attorney for Defendants, Omni Fitness Acquisition Corporation And Hancock Park Associates VERIFICATION The undersigned, being duly sworn according to law, deposes and says that he is counsel for the party or parties indicated on the preceding page as being represented by said counsel, that he has examined the pleadings and the entire investigative file made on behalf of said party or parties, that he is taking this verification to assure compliance with the pertinent rules pertaining to timely filing of pleadings and other documents described by said rules; and that the facts set forth in the foregoing document 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 of 18 PA C.S.A. SECTION 4904 relating to unworn falsification to authorities. The Verification of the attorney is being attached hereto because the Verification of the Defendants cannot be obtained in the time allowed for filing of the subject pleading with the Court. The executed Verification of the Defendants will be filed as soon as it is obtained. Date: Edward J. Cermanski, Esquire CERTIFICATION OF SERVICE I hereby certify that I have served a copy of the DEFENDANTS, HANOVER PARK ASSOCIATES AND OMNI FITNESS ACQUISITION CORPORATION'S ANSWER TO PLAINTIFFS' COMPLAINT WITH NEW MATTER AND NEW MATTER CROSSCLAIM upon all parties, their attorneys or representatives, and all other relevant organizations, in the manner(s) set forth below: By first-class mail, postage Drepaid: Lisa Woodburn, Esquire Angino & Rovner, P.C. 4503 N. Front St. Harrisburg, PA 17110 Attorney for Plaintiff C. Kent Price, Esquire - 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (Attorney for Add'l. Defendant Amco Distribution) Brunswick Corporation t/d/b/a Life Fitness 5100 North River Road Schiller Park, IL 60176 Dated: 1/25/08 Edward J. Cermanski, Esquire Attorney for Defendants, Omni Fitness Acquisition Corporation and Hancock Park Associates EXHIBIT "C" 10/12/•2007 13:03 12013341105 OMNI FITNESS PAGE 02 WAREHOUSING AND DISTMUTION AGREEMENT THIS WAREHOUSING AND DISTRIBUTION AGREEMENT (the "Agreement") is made effective this lay day of January, 2005 (the "Effective Date"), by and between Omni Fitness Acquisition Corp., a Delaware corporation ("Omni"), and A.MCO Distribution Services, Inc., a California corporation ("AMCO"). BACI£GROUND MORE MA,TION A. Omni operates retail fitness equipment stores (each a "Store") located in New Jersey, New York, Pennsylvania, Delaware, Connecticut, New Hampshire and Rhode Island, and two warehouse and distribution centers known as the Moonachie Warehouse and the Westborough Warehouse (as defined in Section 4(a)). B. AMCO provides customers with warehousing, distribution and inventory services. C. Concurrent with the execution of this Agreement, Omni and AMCO will enter into a certain Sublease Agreement, in substantially the form attached as Exhibit A (the "Assignment"). D. Omni desires to engage AMCO to perform certain warehousing and distribution services for Omni as described herein, and AMCO desires to accept such engagement, all on the terms and conditions set forth herein. PROVISIONS NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth herein, the parties hereto agree as follows: 1. Wareh0=1112r and Distribution Services. Omni hereby engages AMCO to perform certain warehousing and distribution services as more fully described in Section 2(a) (the "Warehouse Services") for Omni and its products (the "Products") and all administrative functions associated with the warehousing and distribution of the Products as more fully described in Section 3(a) (the "Administrative Services", and together with the Warehouse Services, collectively, the "Services"). 2. Warehouse Services and Duties. (a) Wu rehouse Services. AMCO shall provide the following Warehouse Services: (1) receiving of inbound Products; (ii) loading and unloading of inbound and outbound Products; (iii) storage of the Products; (iv) facilitating the pick-up of purchased Products by customers; (v) preparation of bills of lading; (vi) facilitating all Store transfers; (vii) organizing and facilitating the timely delivery and shipment of the Products; (viii) creating the pallets for shipment; and 10/12/2007 13:03 12013341105 OMNI FITNESS PAGE 03 (ix) all other related warehouse activities and such other services agreed to by the parties from time to time. (b) Delivery of Inbound Products. All Products delivered to the Warehouses (as defined Section 4(a)) on behalf of Omni shall be delivered at the expense of Omni. AMCO shall promptly provide Omni with confirmation of receipt of each inbound shipment and shall provide Omni with the original vendor packing slips contained in each such shipment. (c) Delivery and Shipment of Outbound Products. No Products shall be shipped or delivered by AMCO except upon receipt by AMCO of written instructions from Omni AMCO shall process all shipments within twenty-four (24) hours after AMCO's receipt of such instructions. All shipments shall be made via the carrier identified in such instructions or via UPS using Omni's account number. All outbound shipments shall be at Omni's or Omni's customer's expense. (d) Notice of Doss. AMCO shall promptly notify Omni of any damage or injury to, or loss of, howsoever caused, any Products stored in the Warehouses or handled by AMCO. (e) Records. AMCO shall maintain complete and accurate books and records, recording all inbound and outbound shipments, including an accurate count of all shipments of the Products in and out of the Warehouses. Upon request, Omni shall have the right to examine all of the books and records maintained by AMCO in connection with this Agreement. AMCO will keep all related records for a maximum of three (3) years Storage. In the Warehouses (as defined in Section 4(a)), AMCO shall store all Products in an orderly fashion to minimize the square footage of warehouse space used by Omni. 3. Administrative and-Other Services and Duties. (a) Administrative Pad Other Services. AMCO shall provide the following Administrative Services: 0) coordinating and processing of Store transfers; (ii) coordinating inbound and outbound deliveries and shipments and taking appropriate steps to minimize shipping and delivery costs; (iii) managing of all shipments to ensure that appropriate steps are being taken to ensure the accuracy of each shipment and that each shipment is being delivered to the carriers in a timely manner; (iv) assisting Omni with inventory control, including, but not limited to, entering all inbound and outbound deliveries and shipments and Store transfers into Omni's inventory control system; (v) communicating with customers and scheduling customer pick-ups, deliveries and installations; (vi) communicating with each Store to verify current inventory levels and/or inventory needs and notifying each Store regarding the timing of all deliveries; -2- 10/12/2007 •13:03 12013341105 OMNI FITNESS PAGE 04 (vii) communicating with Omni regarding the current inventory levels; (viii) coordinating deliveries and shipments to individual store locations and that the products are organized in the order of the individual Store drop offs, whenever possible; and (ix) all other related administrative services and such other services as agreed to by the parties from time to time. (x) AMCO will coordinate with Omni on the specific store transfer delivery schedule; (xi) goods delivered for store transfers will be brought to the front or back door on pallets and counted by the store employee(s). If the store employee cannot count the merchandise within fifteen (15) minutes of arrival, the ANCO driver will leave and AMCO will not be responsible or liable in any way for any potential shortages received by the store. (xii) all stores shall be responsible for exchanging pallets with AMCO on store transfers, or AMCO will charge Busy Body $5.50 per pallet for the pallets not exchanged. (b) Account Rebre9e0tative, AIvICO shall appoint an account representative (the "Account Representative,% satisfactory to Omni, to manage the Administrative Services and oversee the Warehouse Services. Omni shall have the right, upon reasonable notice, to request the removal of any Account Representative whom Omni, on a reasonable basis, has deemed to be unsatisfactory. (c) Store Communication aad other Auties The Account Representative shall (i) communicate with each Store on a regular and ongoing basis, (ii) ensure all Store transfers are promptly delivered or shipped and are in accordance with Omni's instructious and its procedures governing Store transfers in effect from time to time, and (iii) perform such other services to facilitate the warehousing and distribution needs of Omni as agreed to by the parties from time to time. 4. Warehouses. (a} Warehouse Locations. The warehouse space for the Products to be handled and stored for distribution in. the New Jersey, New York, penusylvania, Delaware, Connecticut, New Hampshire and Rhode Island markets shall be located at either 60 Oxford Dr., Moonachie, NJ 07074 ("New Jersey Warehouse") or 78 Turnpike Road, Westborough, MA 01581 (the "Massachusetts Warehouse"). Concurrent with the execution of this Agreement, AMCO will execute and deliver to Omni the Sublease. The Now Jersey and Massachusetts. (b) Malutenanee. AMCO shall maintain the Warehouses in a good and orderly condition and shall be responsible for all costs and expenses associated with the maintenance and operation of the warehouses. (c) Access. Omni shall have ;full across to the Warehouses during normal business hours and at such other times upon reasonable notice to AMCO and shall have the right to examine, inspect, inventory and count all or any of the Products. OmnVs customers -3- OMNI FITNESS PAGE 05 10/1212eer7 •13:03 12013341105 shall have access to the Warehouses during normal business hours for customer pick ups. (d) Personnel and Eaulpmeant, AMCO shall furnish for the Warehouses all personnel, materials, equipment, supplies and other accessories necessary to perform the Services. 5. Qwnership. Title and exclusive ownership of the Products stored in the Warehouses and/or in the possession and control of AMCO shall at all times remain with Omni. AMCO agrees not to pledge, hypothecate or otherwise use the Products as collateral in any credit or financing arrangement. AMCO further agrees to promptly take all steps to discharge aay lion, encumbrance or charge on, pledge of, or security interest that may be taken in or to the Products. Title and exclusive ownership of the business property in the Seattle Warehouse shall transfer to AMCO, excluding the copy machine and the phone system. 6. Pricing. a) Storage will be billed at $27,000 per month, with an offsetting payment for sublease rent to Otani equal to $27,000, b) Warehouse related expenses (utilities, garbage, alarm, etc.) will be billed to Otani at a rate of $10,000 per month. Omni will work with Amco to reduce the existing costs as quickly as possible. c) The fees for the Administrative Services performed by AMCO shall be as follows: a. From Jan 1- April 30,2005: $58,000 per month b. From May 1, 2005 on, $28,000 per month. c. The Administrative Services fees shall be subject to an annual increase equal to three percent (3%) to account for inflation. d) Store transfer charges will be charged based on the distance and weights of the shipments as defined on the schedule listed on Exhibit B. a. Otani will support and communicate with the stores that in the near future Amco will only be required to drop pallets at the store, as opposed to putting the store transfer freight away in the store stockroom, as was done historically. e) All warehouse supplies used on behalf of Omni will be billed at cost + 20%, f) Other special services will be billed at an hourly rate of $20.00/hr. g) To the extent AMCO delivers and/or installs any Products for Omni's customers, AMCO shall bill such customers on a C.O.D. "basis for such delivery and/or installation services performed by AMCO. AMCO acknowledges that Omni shall bear no risk of nonpayment by such customers for any delivery and/or installation services perfumed by AMCO. h) For all customer deliveries where the product fails out of box, Amco will ascertain whether a service call can fix the product or if we need to swap the product for a new unit. If Amco has to go back to repair or swap the piece, Amco will charge Otani for the extra delivery trip. i) All other services performed by AMCO which do not constitute Warehouse Services or Administrative Services shall be at such rates as are mutually agreed to by the parties. 7. Fayment Terms. AMCO shall invoice Omni on a monthly basis for the Services performed by AMCO for the preceding month. Omni shall pay such invoices within fourteen (14) days from the date of each such invoice. 8. Redresenttations and Warranties. Each party represents and warrants to the other party as follows: (a) Authorization. It has full capacity and has taken all necessary actions in connection with the execution of this Agreement and to effect the transactions provided for herein. -4- OMNI'FITNESS PAGE 06 10112i•2007 13:03 12013341105 This Agreement has been duly executed and delivered by, and is a legal and binding obligation of, it and is enforceable in accordance with its terms. (b) NT-on-contravention. The execution, delivery and consummation of this Agreement does not conflict with or result in, a breach of the terms and conditions of, accelerate any provision of or constitute a default under, any contract, note or agreement material to the transactions contemplated by the Agreement to which it is or may be a party. 9. Cotaaliauce with Laws. AMCO shall comply with all applicable laws, ordinances, rules and regulations of federal, state and local governmental authorities and entities governing the performance of the Services, including, but not limited to, health and safety laws, employment laws, and environmental laws. 10. usurance. During the term of this Agreement, AMCO shall maintain at its expense a liability insurance policy acceptable to Orinni, including, without limitation, coverage for mysterious disappearance and employee infidelity. Such policy shall include general liability coverage of at least Two Million Dollars ($2,000,000), employer liability coverage of at least Five Hundred Thousand Dollars ($500,000) and statutory worker's compensation coverage. The termination of this Agreement by either party shall not affect the insurance coverage for losses occurring during the term of this Agreement. Omni shall be named as an additional insured in such policy. An original of such policy of insurance, or a certificate thereof, shall be delivered to Omni promptly upon execution of this Agreement. Such. policy of insurance shall provide for thirty (30) days written notice to Omni prior to its cancellation. 11. LiabW . AMCO shall be liable to Omni for damage or injury to, or loss of the Products stored or handled by AMCO and caused by AMCO's failure to exercise such care in regard to the Products as ii reasonably careful person would exercise under like circumstances. 12. Term and Termination., The Term of this Agreement shall commence on the Effective Date and continue through December 31, 2008. This Agreement may be terminated as follows: (a) Immediately by either party upon the other party's failure to cure a breach or default under this Agreement within thirty (30) days of written notice of such breach or default from the other party. (b) The Terns shall be extended for consecutive one (1) year Renewal Term(s) if notice to terminate is not received within ninety (90) days prior to the end of the Term or Renewal Tern. 13. Duties Vnon Textmination. Upon the termination of this Agreement for any reason: (a) Omni shall pay in full all outstanding amounts due up to the effective date of termination; (b) AMCO shall promptly ship the Products located in the California Warehouse in accordance with Omnfs written instructions; (c) The Assignment shall terminate and Omni shall indemnify AMCO for any ongoing liabilities incurred by AMCO under the Assignment up to the date of termination and AMCO shall immediately vacate and deliver possession of the Tukwila Warehouse in good working condition to Omni; and (d) The terms and provisions of Sections 7, 11, 13, 14, 16, 17, 19 and 20 shall survive the termination of this Agreement for any reason. -5- 10/12/2007. 13:03 12013341105 OMNI FITNESS PAGE 07 14. Warran AMCO wan-ants that the Services to be provided pursuant to this Agreement will be performed in a professional manner by qualified, competent personnel and in accordance with generally accepted industry standards applicable to the Services. 15. Assi?wment. AMCO may assign this Agreement or any of its duties or obligations hereunder without any consent of Omni in connection with the sale of all or substantially all of AMCO's stock or assets. Omni may assign this Agreement and its rights and duties hereunder after providing notice, but without any consent from AMCO to a third party provided such third party expressly assumes iuo writing OmnPs duties hereunder if such assignment is in connection with the sale of all or substantially all of Omni's stock or assets, its merger or consolidation or recapitalization. Notwithstanding the foregoing, in no event shall Omni be released from any obligations or duties hereunder upon such assignment. 16. ConifidentialEach party acknowledges that it will acquire information and knowledge respecting the confidential affairs of the other party and its affiliates in various phases of the other party's business. Each party agrees to keep secret and retain in the strictest confidence all confidential matters of the other party and its affiliates, including without limitation product designs, product information (whether patented or unpatented), manufacturing processes, pricing policies, corporate strategies, customer lists and all other business affairs of the other party and its affiliates learned by it from the other party or its affiliates (collectively, the "Confidential Information") and not to disclose any such Confidential Information to anyone, whether during or after the term of this Agreement, except in the course and to the extent necessary to perform the obligations under this Agreement. The transmittal of such Confidential Information is and shall be upon the express condition that the Confidential Information is to be used solely to effectuate this Agreement; and the receiving party shall not use, publish, or disclose said Confidential Information, in whole or in pat% for any purpose other than that stated herein. Notwithstanding the foregoing, the above restrictions on disclosure and use shall not apply to any information which the party can show by written evidence, was known to it at the time of receipt, or which may be obtained from third parties who are not, to the receiving party's knowledge, bound by a confidentiality agreement to the disclosing party, or which is in the public domain, or which' may be independently developed without use of the Confidential Information. Each party shall immediately cease using and deliver promptly to the other party or destroy upon termination of this Agreement, or at any time the other party may so request, all memoranda, notes, records, and documents (and all copies thereon including those embodied in electronic media) relating to the Confidential Information which such party may then possess or have under its control 17. Iniumetive Relief. The parties agree that a breach of the confidentiality covenant set forth in, Section 16 may cause irreparable damage to the nonbreaching party, the extent of which may be difficult to ascertain, and that the award of damages may not be adequate relief. Therefore, the parties agree that, in the event of a breach or a threatened breach of the confidentiality covenant, the nonbreaching party may institute an action to compel the specific performance of the confidentiality covenant; the parties agree not to assert adequacy of money damages as a defense and agree that such remedy shall be cumulative, not exclusive, and in addition to any other available remedies. 18. Wedeadent Contractor Status. AMCO at all times shall be an independent contractor in performing its duties under this Agreement and not an employee, agent, servant, partner or joint venturer of Omni, and any employees, agents or servants employed by AMCO shall be subject solely to the control, supervision, and authority of AMCO. AMCO shall not have authority to act on behalf of Omni and shall not represent to third parties that it is an employee, agent, servant or joint venturer of Omni. Omni shall not be required to deduct, and shall not provide for deduction or payment, from amounts due AMCO under this Agreement, or on behalf of employees, agents or servants of AMCO, for social security, withholding tax, federal, state, county, and city payroll tax, federal or state unemployment deposits, or any other similar taxes. 19. Indemnification. Each party hereby agrees to defend, indemnify and hold harmless the other patty against and in respect of- -6- OMNI FITNESS PAGE 08 1g/1212097. 13:03 12013341105 (a) Any and all losses and darnages resulting from, relating or incident to, or arising out of any misrepresentation or breach by such party of any warrant, covenant or agreement made or contained in this Agreement; and (b) Any and all actions, suits, proceedings, claims, demands, judgments, costs and expenses (including reasonable attorney's fees) incident to the foregoing. 20. Limitation of Liability. EACH PARTY ACKNOWLEDGES AND AGREES THAT TW OTHER PARTY SHALL NOT BE LIABLE FOR ANY 1NDMECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OF THE OTHER PARTY AND/OR PUNITIVE DAMAGES ASSERTED BY THE OTHER PARTY. 21. 1!'fiscellancoua. (a) Applicable Law; SeverabiGty. The existence, validity, construction and operational effect of this Agreement, and the rights and obligations hereunder of each of the parties, shall be governed and determined in accordance with the laws of the State of California. Any provision of this Agreement which may be prohibited by law or otherwise held invalid shall be ineffective only to the extent of such prohibition or invalidity and shall not invalidate or otherwise render ineffective any of the remaining provisions of this Agreement. (b) Venue. Any action, claim, suit or proceeding arising under this Agreement, whether based on federal or state statutory or common law, including, but not limited to, any and all disputes relating to, arising out of or in connection with the interpretation, performance or the nonperformance of this Agreement and any and all disputes arising out of or in connection with transactions in any way related to this Agreement (including the termination of this Agreement), shall be litigated before the United States District Court for the Southwest District of California. The parties consent to the in pcrsonam jurisdiction of such courts for the purposes of any such litigation, and waive, fully and completely, any right to dismiss and/or transfer any action pursuant to 28 U.S.C. Section 1404 or 1406 (or any successor statutes) or the doctrine of forum non conveniens or otherwise. Mn the event the United States District Court in which the action is filed does not have subject matter jurisdiction of said matter, then such matters shall be litigated before the appropriate. state court of competent jurisdiction located in Los Angeles County, California, -arid the patties consent to the personal jurisdiction of such courts for the purpose of such litigation, and waive, fully and completely, any right to dismiss and/or transfer such action from such state courts, whether based on the doctrine of forum non conveniens or otherwise. (c) Entire Aereernent. This Agreement represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior negotiations, discussions and undertakings between such parties. This Agreement cannot be amended, supplemented or changed orally, except by an agreement in writing that makes specific reference to this Agreement and that is signed by the party against whom enforcement of such amendment, supplement or modification is sought. (d) Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and this Agreement shall become offective when one or more counterparts have been signed by each of the parties hereto. -7- 10/12/,2907, 13:03 12013341105 OMNI FITNESS PAGE 09 (e) eadin s. The descriptive headings of the several sections and subsections of this Agreement are inserted for convenience only and do not constitute part of this Agreement. (f) Waiver. Any waiver of a right under this Agreement must be in writing. Any waiver of a particular default shall constitute a waiver of such default only and not of any other default by the nonwaiving party and any waiver of a specific right or remedy under this Agreement shall constitute a waiver of such right or remedy only and not of any other right or remedy of the waiving party. (g) Further Agarances. Consistent with the. terms and conditions hereof, each party hereto shall execute and deliver such instruments, certificates and other documents and take such other actions as any other party hereto may reasonably require in order to carry out this Agreement and the transactions contemplated hereby. (h) Gender. Wherever the context so requires, the use of words herein in the masculine, feminine or neuter gender shall be construed to include all of such genders. (i) Notlce. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand or two (2) business days after it is mailed by certified first class mail, return receipt requested, postage prepaid to the addresses set forth below the signature of each party or hereafter provided. Either party may, from time to time, by written notice to the other party, designate a different address, which shall be substituted for the one specified above for such party. IN WITNESS VMEREOF, the parties hereto have executed this Agreement as of the day and year first set forth above. 1UN 011 Omni Fitness Acquisition Corp., a Delaware corporation AMCO: Ameo Distribution Services, Inc., a California corporation By: Its: Address: 60 Oxford Dr. Moonachie, NJ 07074 By: Its: Address: M10 S. Banning R13 A. Carson. CA 90745 -8- N ? C:ti7 1`i T _ -? `Y .:- . G3 ? Ez7 ORIGINAL ANGINO & ROVNER, P.C. Lisa M. B. Woodburn Attorney ID# : 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) Lany E. Sheriff and Teresa M. Sheriff E-mail: LWOODBURWANGINO-ROVNE&COM LARRY E. SHERIFF and TERESA M. IN THE COURT OF COMMON PLEAS SHERIFF, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 07--it*6- Sill3 V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION T/DB/A LIFE FITNESS, CIVIL ACTION JURY TRIAL DEMANDED Defendants PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT, HANCOCK PARK ASSOCIATES AND OMNI FITNESS ACQUISITION CORPORATION 25. - 33. These averments state conclusions of law to which no response is required. In the event a response is deemed required, these averments are hereby denied. 34. This averment states a mixed question of fact and law to which no response is required. In the event a response is deemed required, it is hereby denied Plaintiffs' injuries and/or damages were caused by the acts or omissions of the persons other than Answering Defendant and therefore there is not liability on the part of Answering Defendant. To the contrary, Answering Defendant is responsible for Plaintiffs' injuries. 35. This averment states a conclusion of law to which no response is required. In the event a response is deemed required, it is hereby denied the accident was caused by abuse, misuse or non-intended abnormal use of the product after it left possession and control of Answering Defendant. It is further denied any such abuse, misuse or abnormal use of the product was unforeseeable by Answering Defendants. To the contrary, Plaintiff was using the gym equipment for its intended purpose when the incident which is the subject matter of this case occurred. 36. This averment is denied due to the fact that after reasonable investigation, Answering Plaintiffs are without sufficient information or knowledge to form belief as to the truth or falsity of such allegation. Therefore, proof of the same is demanded at the time of trial. 37. This averment states a conclusion of law to which no response is required. In the event a response is deemed required, it is hereby denied the accident was caused by abuse, misuse or non-intended abnormal use of the product after it left possession and control of Answering Defendant. It is further denied any such abuse, misuse or abnormal use of the product was unforeseeable by Answering Defendants. To the contrary, Plaintiff was using the gym equipment for its intended purpose when the incident which is the subject matter of this case occurred. 38. This averment is denied due to the fact that after reasonable investigation, Answering Plaintiffs are without sufficient information or knowledge to form belief as to the truth or falsity of such allegation. Therefore, proof of the same is demanded at the time of trial. 376456 39.-45. These averments are denied due to the fact that after reasonable investigation, Answering Plaintiffs are without sufficient information or knowledge to form belief as to the truth or falsity of such allegation. Therefore, proof of the same is demanded at the time of trial. 46. This averment states a mixed question of fact and law to which no response is required. In the event a response is deemed required, it is hereby denied Answering Defendant did not distribute the product in question. 47. This averment is denied due to the fact that after reasonable investigation, Answering Plaintiffs are without sufficient information or knowledge to form belief as to the truth or falsity of such allegation. Therefore, proof of the same is demanded at the time of trial. 48. This averment states a conclusion of law to which no response is required. In the event a response is deemed required, it is hereby denied the product in question and/or its component parts may have been modified and/or substantial changes made to the product in question by persons other than Answering Plaintiffs. Date: -l//-3/09 Respectfully submitted, A GINO & ROVNER, P.C. Lisa M. oodburn, Esquire I.D. No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiffs 376456 ATTORNEY AFFIDAVIT I, Lisa M. B. Woodburn, Esquire, state that I am counsel for Plaintiffs, that I am authorized to make this Verification on behalf of said Plaintiffs, and have read the foregoing and do hereby declare and affirm that the facts set forth in the foregoing are correctly derived from the discovery record. I understand that this Verification is made relating to unworn falsification to authorities. subje, to the penalties of 28 U.S.C. §1746, B. Woodburn, Esquire Sworn to and subscribed to before me on this 1-7> ` day of February, 2008 COMMONWEALTH F PENN VA !A NOTARIAL SEAL chic TINE a GALLAGHEK NOW PUBLIC SUSQUEHANNA TINE, DAUPHIN M W COMMISSION EXPIRES FEB. 16, 2009 376456 CERTIFICATE OF SERVICE I, Lauren Arnold, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT, HANCOCK PARK ASSOCIATES AND OMNI FITNESS ACQUISITION CORPORATION on the following via postage prepaid, first class United States mail, addressed as follows: Edward J. Cermanski, Esquire 401 Penn Street, Suite 100 Reading, PA 19601 Attorney for Defendants Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment and Hancock Park Associates Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Brunswick Corporation tldlbla Life Fitness Date: a? Lauren Arnold M k "al- 376456 N ?} ri - - ' Z ?11S t ?t R ?;i .? i e„?) ?Yi » '"4..,:' §` ' r w '? 7 aZ C.?' ..?. r ORIGINAL ANGINO & ROVNER, P.C. Lisa M.B. Woodburn Attorney ID# : 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-56I0 Attorneys for Plaintiff(s) E-mail: LWOODBURWANGINO•ROVNE&COM LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION T/DB/A LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL ACTION JURY TRIAL DEMANDED STIPULATION All parties through their undersigned attorneys stipulate, agree and consent to the following: 1. Plaintiffs filed a Complaint in the Cumberland County Court of Common Pleas on October 3, 2007. 2. Edward Cermanski, Esquire has entered his appearance for Hancock Park Associates and Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment. 3. Donald Carmelite, Esquire has entered his appearance for Brunswick Corporation t/d/b/a Life Fitness. 4. In paragraph number 5, Plaintiffs indicate "Life Fitness Para CM3005 Cable Gym." This is an error and should read, "Life Fitness Cable Gym, model #CM3-105, serial #090509006549." 5. All parties are agreeable to this change without the need for Plaintiffs to file an Amended Complaint. Date ANGINO & ROVNER, P.C. Lisa M. . Woodburn, Esquire I.D. No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiffs D11 ? O8 371265 2 371265 LAW OFFICES OF RALPH F. TOUCH 7 ire 2a Law Offices of Ralph F. Touch 401 Penn Street, Suite 100 Reading, PA 19601 (610) 320-4780 Counsel for Omni Fitness Acquisition Corp. t/d/b/a Omni Fitness and Hancock Park Associates 4 THOMAS, THOMAS & HAFER C. Kent Price, Esquire Thomas, Thomas & Hafer 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7100 Counsel for Amco Distribution 371265 5 so MARSHAL UNNEHEY, WARNER, vz(fqjol Donald L. Car?Tie to Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Counsel for Brunswick Corporation t/d/b/a Life Fitness 371265 CERTIFICATE OF SERVICE I, Lauren M. Arnold, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of this Stipulation upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edward J. Cermanski, Esquire 401 Perm Street, Suite 100 Reading, PA 19601 Attorney for Defendant Omni Fitness Acquisition Corp. and Hancock Park Associates Donald L. Carmelite Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorneys for Defendant, Brunswick Corporation t/d/b/a Life Fitness C. Kent Price, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 Attorneys for Additional Defendant, Amco Distribution Dated: M. Arnold ?' & aill- 371265 6 ?' ?? C -n ? -z't ?? .._- -c? i? ? ? f'- ?. '_ .? . y _.'. .. LA W OFFICES OF RALPH F. TOUCH By: Edward J. Cermanski, Esquire Attorney I.D. No. 56278 401 Penn Street, Suite 100 Reading, PA 19601 Tel. 610-320-4663, Fax 610-320-4767 Attorney for Defendant, Omni Fitness Acquisition Corporation And Hancock Park Associates IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Larry E. Sheriff and Teresa M. Sheriff, Plaintiffs CIVIL DIVISION NO. 2007-5843 V. Hancock Park Associates, Omni Fitness Acqusition Corportation, Brunswick Corporation t/d/b/a Life Fitness Defendants PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the original signed verification of Omni Fitness Acqusition Corportation for the verification of counsel filed with the Defendant, Omni Fitness Acquisition Corporation's Answer to Plaintiffs' Complaint with New Matter and New Matter Crossclaim. L Cermanski, Esquire 107300103 107300103 VERIFICATION for Omni Fitness Acqusition Corportation, hereby verify that the statements made in the foregoing DEFENDANT, OMNI FITNESS ACQUISITION CORPORATION'S ANSWER TO PLAINTIFFS' COMPLAINT WITH NEW MATTER AND NEW MATTER CROSSCLAIM are true and correct to the best of my personal knowledge or information and belief. To the extent that the foregoing contains averments which are inconsistent in fact, I verify that my knowledge and information is sufficient to form a belief that one or more of them is true although I am currently unable, after reasonable investigation, to ascertain which of the inconsistent averments are true. To the extent that the foregoing contains legal conclusions or opinions, I hereby state that my verification is made upon the advice of counsel, upon whom I have relied in the filing of this document. This Verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relative to unsworn falsifications to authorities. Dated: 1.3110g Omni Fitness Acqusition Corportation CERTIFICATION OF SERVICE I hereby certify that I have served a copy of the PRAECIPE TO SUBSTITUTE VERIFICAITON upor all parties, their attorneys or representatives, by first-class, United States mail postage prepaid addressed as follows: Lisa Woodburn, Esquire Angino & Rovner, P.C. 4503 N. Front St. Harrisburg, PA 17110 Attorney for Plaintiff C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (Attorney for Addl. Defendant Amco Distribution) Donald L. Carmelite, Esquire Marshall Dennehey, Warner Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (Attorney for Defendant, Brunswick Corporation t/d/b/a Life Fitness) Dated: Tuesday, March 11, 2008 Ed ar J. Cermanski Attorfiey for Defendant, Omni Fitness Acquisition Corporation And Hancock Park Associates 107300103 c?o r-r.2 r r ; ? ?? ? F ANGINO & ROVNER, P.C. Lisa M.B. Woodburn Attorney ID# : 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: LWOODBURN@ANGINO ROVNERCOM LARRY E. SHERIFF and TERESA SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQT CORPORATION T/DB/A OMNI EQUIPMENT and BRUNSWICK CORPORATION T/DB/. LIFE FITNESS, Defendants THE COURT OF COMMON PLEAS 4BERLAND COUNTY, PENNSYLVANIA . 07-5843 ACTION Y TRIAL DEMANDED PLAINTIFFS' MOTION FOR STATUS CONFERENCE AND NOW, come the Plaintiffs, by and through their attorneys, Angino & Rovner, P.C., to respectfully request this Honorable Court to schedule a Status Conference in order to establish discovery deadlines and a trial date. In support for said request, aver as follows: The Complaint in this instant product liability action was filed on or about October 3, 2007. 2. No Judge has been involved in this action. 332267 3. The parties have engaged in discovery including Interrogatories and Requests for Production of Documents. 4. Plaintiffs' counsel is Lisa M. B. Woodburn, Esquire, 4503 North Front Street, Harrisburg, Pennsylvania and telephone number is (717) 238-6791. 5. Omni Fitness Acquisition Corporation's and Hancock Park Associates' counsel is Edward J. Cermanski, Esquire, 401 Penn Street, Suite 100, Reading, Pennsylvania and telephone number is (610) 320-4780. 6. Brunswick Corporation t/d/b/a Life Ftness's counsel is Donald L. Carmelite, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, 4200 Crums Mill Road, Suite B Harrisburg, Pennsylvania and telephone number is (717) 651-3504. 7. Amco Distribution's counsel is C. Kent Price, Esquire, Thomas, Thomas & Hafer, LLP, P.O. Box 999, Harrisburg, Pennsylvania and telephone number is (717) 237-7100. 8. The need for a status conference arises due to the number of parties involved and number of potential witnesses, as well as potential conflicts. 9. Defense counsel, Carmelite and Price, have concurred with the filing of this Motion for Status Conference. Plaintiffs' Counsel has attempted to get a response of concurrence or non-concurrence from Defense counsel Cermanski through facsimile, email and voice messages, but have not received a response as of this date. WHEREFORE, Plaintiffs respectfully request Your Honorable Court to schedule a Status Conference for the purpose of establishing discovery deadlines, exchange of expert reports, and a trial date. 397149 Respectfully submitted, ANGINO & ROVNER, P.C. Date: ? 71 ?6V // 4z 4,r Lis M. 11. Woodburn, Esquire I.D. No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiff(s) 387149 CERTIFICATE OF SERVICE I, Lauren Arnold, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of Plaintiffs' Motion for Status Conference upon all counsel of record via postage prepaid first class United States mail addressed as follows: Edward J. Cermanski, Esquire 401 Penn Street, Suite 100 Reading, PA 19601 Attorney for Defendant Omni Fitness Acquisition Corporation and Hancock Park Associates Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Brunswick Corporation t/d/b/a Life Fitness C. Kent Price, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 Attorneys for Additional Defendant, Amco Distribution Dated: I ,I /Vb Lauren Arnold 387149 ° ? a C? P ' :t g j D M IPT LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED MOTION FOR ADMISSION PRO HAC VICE OF M. DAVID SHORT, ESQUIRE Defendant, Brunswick Corporation by and through its counsel Marshall, Dennehey, Warner, Coleman & Goggin and more specifically, Donald L. Carmelite, Esquire, hereby move this Honorable Court for the admission of M. David Short, Esquire, pro hac vice, to represent Defendant Brunswick Corporation in the above captioned matter and in support thereof, aver as following: 1. M. David Short, Esquire, is a member of the law firm of Kelley, Drye & Warren, LLP, 333 West Wacker Drive, Suite 2600, Chicago, Illinois 60606. 2. M. David Short, Esquire is a member in good standing of the bar of the state of Illinois and has been since 1995. He is admitted to practice before the United States District Court Northern District of Illinois (1995), Central District of Illinois (2001), Southern District of Illinois (2005), the District of Arizona (1998), and is a member in good standing in all courts in which he practices and has not been suspended or disbarred in any court. (A true and correct copy of an Affidavit executed by M. David Short, Esquire is attached hereto as Exhibit A.) 3. M. David Short, Esquire, possess a satisfactory, moral professional character required for admission, pro hac vice. (A true and correct copy of the Affidavit of Donald L. Carmelite, Esquire, a member in good standing of the bar of the Supreme Court of Pennsylvania, averring as such and moving for the admission of M. David Short, Esquire, pro hac vice, is attached hereto as Exhibit B.) 4. M. David Short, Esquire will comply with Pennsylvania Rules of Civil Procedure and the local rules of this court and agrees to be subject to the jurisdiction rules of the Supreme Court governing professional conduct. 5. Moving Defendants request that M. David Short, Esquire be admitted to the Court of Common Pleas of Cumberland County pro hac vice, so that he may participate in all aspects of the above captioned matter, with the exception of acting as attorney of record. WHEREFORE, Defendant, Brunswick Corporation, by and through their counsel, Marshall, Dennehey, Warner, Coleman & Goggin hereby move that this Honorable Court for admission of David Short, Esquire in the Court of Common Pleas of Cumberland County, pro hac vice, to represent them in this matter. DATE: 7 go 08 BY: 2 Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLE & GOGGIN DONALD L. CARMELITE, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Defendant, Brunswick Corporation t/d/b/a Life Fitness CERTIFICATE OF SERVICE I, Sarah A. Doerfler, an employee of Marshall, Dennehey, Warner, Coleman & Coggin, do hereby certify that on this day of July 2008, I served a copy of the foregoing document via First Class United States mail, postage prepaid, as follows: Lisa M. B. Woodburn, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiffs) Edward J. Cermanski, Esquire Law Offices of Ralph F. Touch 401 Penn Street Suite 100 Reading, PA 19601 (Counsel for Defendant, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment) C. Kent Price, Esquire Thomas, Thomas & Hafer 305 North Front Street Sixth Floor P.Q. Box 999 Harrisburg, PA 17108 (Counsel for AMCO Distribution) 05/407197.v I Sarah A. Doerfler 3 C,7xk)CJ A MV) S LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED AFFIDAVIT OF M. DAVID SHORT, ESQUIRE I, M. David Short, Esquire, being duly sworn according to law, depose and state the following: 1. I am a partner of the law firm Kelley, Drye & Warren, LLP, 333 West Wacker Drive, Suite 2600, Chicago, Illinois 60606. 2. I am a member in good standing of the bar of the state of Illinois and the United States District Court for the Northern District of Illinois, the Central District of Illinois, the Southern District of Illinois and the District of Arizona. 3. I certify that I possess a requisite moral and professional character required for admission to the bar of the Court of Common Pleas of Cumberland County, Pennsylvania, pro hac vice. 4. I certify that I will comply with the Pennsylvania Rules of Civil Procedure and the local rules of court and agree to be subject to the jurisdiction and rules of the Pennsylvania Supreme Court governing professional conduct. / )Z((r -/), <H*y I M. David Short, Esquire State of Illinois License No: 6 Z 3 OZ 6 7 05/407205.v 1 ?xG??b?f Q LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED AFFIDAVIT OF DONALD L. CARMELITE, ESQUIRE I, Donald L. Carmelite, Esquire being duly sworn to the law deposes and states the following: 1. I am an associate of the firm Marshall, Dennehey, Warner, Coleman & Goggin with offices at 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112. 2. I am a member in good standing of the bar of the Supreme Court of Pennsylvania. 3. I certify that M. David Short, Esquire, possess the requisite moral and professional character required for admission to the bar of the Court of Common Pleas of Cumberland County, pro hac vice. 4. I hereby move for the admission of M. David Short, Esquire for admission to the Court of Common Pleas of Cumberland County pro hac vice for the purposes of limited representation of the defendants in the above captioned matter. Donald L. Carmelite, squ 05/407199.vl 0 ? G C _W v cri I -rLL ?s rn = ? c JUL 1 X 2008 LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/DB/A OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION T/DB/A LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL ACTION JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2008, upon consideration of Plaintiffs' Motion for a Status Conference, IT IS HEREBY ORDERED AND DECREED that a Status Conference is scheduled for 1 ' (.a?GC a 2008 at UD o'clock 1-9 /m. in Courtroom #_? . BY THE COURT: ` J. DISTRIBUTION: / Lisa M. B. Woodburn Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 loodburn@angino-rovner.com yEd 7)23 8-6791 ward J. Cermanski, Esquire 401 Penn Street, Suite 100 Reading, PA 19601 (610) 320-4780 387149 h bl 7 '`x C'uc :)Hl 3Q 301ryf-i3lg 'l ?Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 dlcannelite@mdweg.com C. Kent Price, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7100 kprice@tthlaw.com coP,? „?l? 387149 LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs vs. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-5843 CIVIL JURY TRIAL DEMANDED IN RE: STATUS CONFERENCE ORDER AND NOW, this Z? ? day of July, 2008, at the request of counsel, the status conference set for August 7, 2008, is continued to Friday, September 5, 2008, at 1:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, /sa M. B. Woodburn, Esquire 4503 North Front Street Harrisburg, PA 17110 s dward J. Cermanski, Esquire 401 Penn Street, Suite 100 Reading, PA 19601 Xnald Carmelite, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 V/?C. Kent Price, Esquire P. O. Box 999 Harrisburg, PA 17108-0999 /Jot- Hess, J. i ? ' r' `,` .... t k', 1 ? t1'. ' r? t ' ?ti, l ; i{, i ?;a ' ? ? ? S F?: ? ?? ??? 1( `,;;? hk?? LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED action arising from Plaintiffs use of home gym equipment. 2. Plaintiffs claims sound in negligence and product liability. 3. On June 24, 2008, Defendant Brunswick Corporation, t/d/b/a Life Fitness (hereinafter "Brunswick") served counsel for Hancock Park Associates, Omni Fitness Acquisition Corporation, t/d/b/a Omni Fitness Equipment (hereinafter "Omni") Request for Production of Documents. (See Brunswick's Request for Production of Documents directed to Omni attached hereto as Exhibit A.) 4. Pursuant to the Pennsylvania Rules of Civil Procedure, Omni's responses to Brunswick's Request for Production of Documents were due on or about July 25, 2008. 5. Omni failed to serve any objections to Brunswick's Request for Production of Documents and as such are barred from doing so now. 6. On July 28, 2008, counsel for Brunswick sent correspondence to counsel in this matter seeking concurrence to his request for a continuance of Judge Hess' Order for a Status 1. Plaintiffs initiated this matter against Defendants from an alleged personal injury Conference. (See correspondence of Edward J. Cermanski dated July 21, 2008 to counsel attached hereto as Exhibit B.) 7. On July 22, 2008 via facsimile, the undersigned counsel informed Mr. Cermanski that Brunswick had no objection to the continuance conditional upon a timely response to Brunswick's written discovery request on July 25, 2008. (See July 22, 2008 correspondence from Donald L. Carmelite to Edward J. Cermanski, Esquire attached hereto as Exhibit C.) 8. By correspondence dated Wednesday, July 23, 2008, Mr. Cermanski notified Judge Hess that he had "received correspondence from all counsel and no one is opposed to [the] continuance." (See July 23, 2008 correspondence of Edward J. Cermanski to the Honorable Kevin Hess attached hereto as Exhibit D.) 9. By representing to the court that Brunswick did not object to Omni's request for continuance, Omni agreed to provide discovery responses by July 25, 2008, which notably, Omni failed to do. 10. David Short of Kelly, Drye & Warren, LLP is national counsel for Brunswick. Mr. Short's Motion for Admission Pro Hac Vice is pending with the court. 11. Since the inception of this case, Mr. Short has attempted to communicate with counsel for Omni via email and phone calls in an effort to pursue informal discovery in this matter. Counsel for Omni was not cooperative in the informal discovery process and now has not been cooperative concerning the formal discovery process. (See emails from David Short to Edward Cenmanski dated November 16, 2007, November 26, 2007, May 13, 2008 and June 23, 2008 attached hereto as Exhibit E.) 12. The parties have attempted to resolve this matter amicably but have been unable to do so. 13. No judge has made any ruling on this case, however, Judge Hess was assigned and did order a Status Conference for August 2008. WHEREFORE, Defendant Brunswick Corporation respectfully requests this Honorable Court grant its Motion to Compel and order Hancock Park Associates and Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment to provide full and complete responses to Brunswick's Request for Production of Documents within ten (10) days of the Court's ruling or, suffer sanctions, including attorneys fees and costs, for all efforts made by Defendant Brunswick Corporation to secure Defendant's timely responses to its Request for Production of Documents. Respectfully submitted, COLEMAN & GOGGIN DATE: t/ BY: D L. WARNER, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Defendant, Brunswick Corporation t/d/b/a Life Fitness CERTIFICATE OF SERVICE I, Sarah A. Doerfler, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this V?r? day of July 2008, 1 served a copy of the foregoing document via First Class United States mail, postage prepaid, as follows: Lisa M. B. Woodburn, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiffs) Edward J. Cermanski, Esquire Law Offices of Ralph F. Touch 401 Penn Street Suite 100 Reading, PA 19601 (Counsel for Defendant, Omni Fitness Acquisition Corporation t/dlb/a Omni Fitness Equipment) C. Kent Price, Esquire Thomas, Thomas & Hafer 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108 (Counsel for AMCO Distribution) 05/416538.0 i-garah'A. Doerfler LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs v. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED DEFENDANT BRUNSWICK CORPORATION'S FIRST SET OF REQUEST FOR ODUCTION OF DOCUMENTS DIRECTED TO HANCOCK PARK ASSOCIATES AND O ?ITION CORPORAT EQUIPMENT TO: Defendants Hancock Park Associates and Omni Fitness Acquisition Corporation, t/d/b/a Omni Fitness Equipment and their attorney of record You are hereby requested pursuant to Rule 4009 of the Pennsylvania Rules of Civil Procedure, to make available at the law offices Marshall, Dennehey, Warner, Coleman & Goggin, c/o Donald L. Carmelite, Esq., on or before thirty (30) days from the date of service hereof, for the purpose of inspecting, photographing, and/or copying, the following described and identified documents, writings and photographs. DEFINITIONS AND INSTRUCTIONS The following definitions and instructions apply to the foregoing Requests and your responses thereto: "Brunswick" means Brunswick Corporation, as well as all of its subsidiary corporations, divisions, including, without limitation, Life Fitness, affiliates, or related entities, as well as all of their present or former principals, officers, directors, agents, representatives, employees, insurers, and other persons acting or purporting to act on behalf of the foregoing entities. IL "Omni Fitness" means Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment, and/or the entity located at 4830 Carlisle Pike, Mechanicsburg, Pennsylvania, Cumberland County, Pennsylvania 17055, as well as all of its parent and subsidiary corporations, divisions, affiliates, or related entities, as well as all of their present or former principals, officers, directors, agents, representatives, employees, insurers, and other persons acting or purporting to act on behalf of the foregoing entities. III. "Hancock Park Associates" means Hancock Park Associates, and/or the entity that owns and operates Omni Fitness, as well as all of its parent and subsidiary corporations, divisions, affiliates, or related entities, as well as all of their present or former principals, officers, directors, agents, representatives, employees, insurers, and other persons acting or purporting to act on behalf of the foregoing entities. IV. "Plaintiffs" means Larry E. Sheriff and Teresa M. Sheriff and includes all agents, representatives, and other persons acting or purporting to act on behalf of Larry E. Sheriff and/or Teresa M. Sheriff. V. "Person" means any natural person, partnership, association, firm, business organization, or governmental agency or body, as well as any divisions, subdivisions, bureaus, offices, or other units thereof. VI. The "Complaint" means Plaintiffs' Complaint filed on or about October 3, 2007. VII. "Incident" means the occurrence on or about March 7, 2006, that is the subject of the Complaint. VIII. "Requests" means the Document Requests contained herein. IX. "You" and "your" refer to Plaintiffs, and include, without limitation, any and all 2 representatives, agents, and other persons or entities acting on Plaintiffs' behalf or at Plaintiffs' request, including, but not limited to, all persons who prepare answers to, collect documents responsive to, are consulted in connection with, or otherwise participate in responding to these Requests. X. The term "documents" shall be construed in its most liberal sense and means and includes, but is not limited to, all original documents, non-identical copies, and copies with marginal notations or interlineations, and includes any and all writings, recordings, reports, photographs, computer data, maps, drawings, electronic data, e-mails, film (including, without limitation, films of x-rays, MRIs, CT scans, etc.), video or audio tapes (including, without limitation, transcripts or memoranda reflecting or referring to the contents thereof), and any other items containing, reflecting, summarizing, or transmitting data or information of any kind or nature, however produced or reproduced, whatever its origin or location, and regardless of the form in which such information exists or is maintained. XI. The term "medical records" means and includes all documents and other tangible things pertaining to the diagnosis, prognosis, analysis, examination, evaluation, care, rehabilitation, or treatment of Plaintiffs' mental, physical, or emotional condition or Plaintiffs' injuries, including, but not limited to, radiographic (x-ray, MRI, CT scan, myelogram, etc.) films and reports thereof, photographs, nurses' notes, emergency room records, prescriptions, physician letters, summaries, notes, reports, admission and discharge summaries, consultations, clinical records and reports, laboratory tests and test reports, and any other note, record, or report of physical or mental examinations. XII. The terms "relating to" and "concerning" mean constituting, analyzing, consisting of, supporting, reflecting, describing, discussing, summarizing, referring to, reporting on, commenting on, inquiring about, setting forth, explaining, considering, pert aining to, mentioning, regarding, or alluding to, in whole or in part. XIII. "Cable Gyro" means the Life Fitness Para CM3005 Cable Gym referred to in Paragraph 5 of Plaintiffs' Complaint, including, without limitation, any and all of the Cable Gym's component parts and any pieces thereof. XIV. The singular form of any word includes the plural, the plural includes the singular, and masculine pronouns denote correlative feminine pronouns, wherever necessary to bring within the scope of these Requests all information which might otherwise be construed to be outside their scope. XV. If any of these Requests calls for documents or information that you claim is privileged or otherwise protected from disclosure, then state in response to each such request: a. the privilege or other protection claimed; b. the basis in fact for the privilege; and c. whether the matter claimed to be privileged or otherwise protected from disclosure is oral or written and if oral, state (i) the date of the communication, (ii) the identity of the persons who were parties to or participated in such communication, (iii) all other persons present when the communication was made, (iv) all persons to whom the communication was subsequently disclosed, and (v) a brief description of the subject matter of the communication; or, if written, state (1) the date of the communication; (ii) the identities of the author or authors (and, if different, the signer or signers); (iii) the identities of the addressee or addressees (and, if different, the recipient or recipients, including all persons who received copies) thereof, and (iv) a description of the subject matter thereof. XVI. Where any of these Requests calls seeks a document or communication that is in writing, the scope of such Request includes drafts and marked copies thereof and seeks such 4 documents and written communications within the custody, possession, or control of Plaintiffs or Plaintiffs' agents, including, but not limited to, Plaintiffs' counsel. XVII. If any of these Requests cannot be responded to or answered in full, respond to the extent possible, specifying the reasons for your inability to answer the remainder and stating whatever information, knowledge, and belief you have concerning the unanswered portion. XVIII. Each of these Requests shall be construed independently and shall not be referenced in the response to another request for the purpose of limitation. XIX. The use of a verb in any tense shall be construed as the use of the verb in all other tenses wherever necessary to bring within the scope of these Requests all documents and information which might otherwise be construed to be outside their scope. XX. The connectives "and" and "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of these Requests all documents and information which might otherwise be construed to be outside their scope. XXI. Unless otherwise provided herein, all words and phrases used herein have their ordinary meanings and shall be interpreted in their common, ordinary senses. XXII. These Requests are submitted for the purpose of discovery in this action and shall not be deemed to constitute a waiver of any objections that may be made at trial to the introduction of evidence by any party concerning subjects covered by these Requests, or as an admission of the relevance or materiality of any matter covered by these Requests XXIII. These Requests are continuing in nature. You are required to supplement your responses to these Requests in order to keep them fully accurate at all times until the trial of this action, and you are required to produce all documents responsive to these Requests that come into your possession, custody, or control, and the possession, custody, or control of all persons 5 acting or purporting to act on your behalf (including your counsel) between the time of your initial response to these Requests and the trial of this action. REQUESTS You are requested to produce the following: 1. Any and all documents relating to the sale of the subject Parabody CM3005 Home Gym. 2. Any and all documents relating to the delivery of the subject Parabody CM3005 Home Gyro. 3. Any and all documents relating to the installation of the subject Parabody CM3005 Home Gym. 4. Any and all documents relating to the service and/or maintenance of the subject Parabody CM3005 Home Gym. 5. Any and all documents relating to the repair of the subject Parabody CM3005 Home Gym. 6. Any and all documents relating to photographs that were taken of the subject Parabody CM3005 Home Gym. 7. Please produce for inspection the subject Parabody CM3005 Home Gym and/or any component parts thereof in your possession. 6 Respectfully submitted, DATE: 912#1 0" BY 7 MARSHALL, DENNEHEY, WARNER, COLE & GOGGIN DO ALD L. CARMELITE, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Defendant, Brunswick Corporation t/d/b/a Life Fitness CERTIFICATE OF SERVICE I, Sarah A. Doerfler, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this day of June 2008, I served a copy of the foregoing document via First Class United States mail, postage prepaid, as follows: Lisa M. B. Woodburn, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiffs) Edward J. Cermanski, Esquire Law Offices of Ralph F. Touch 401 Penn Street Suite 100 Reading, PA 19601 (Counsel for Defendant, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment) C. Kent Price, Esquire Thomas, Thomas & Hafer 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108 (Counsel for AMCO Distribution) Sarah A. Doerfler 8 LAW OFFICES OF RALPH F. TOUCH RA 1 PH F TOOCa EowAa» L cnmA sm, R&VMOM A. SWAN 1'SiY. P C. M m" FBAWZM a'. NoY.t. M (1966-1999) Monday, July 21, 2008 Lisa Woodburn, Esquire - 717-23 8-5610 Amino & Rovuer, P.C. 4503 N. Front St Harrisburg, PA 17110 C. Kent Price, Esquire - 717-237-7105 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Donald L. Carmelite, Esquire - 717 651 9630 Marshall Dennehey, Warner Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 RE: Sheriff V. Omni Fitness Acquisition Corp Our Legal File No.: 107300103 Claim File No.: E2394842-D6 Dear Counsel: 401 Pww SM=, Sum 100 1LUM01, PM1SYLVAM419601 1RLuHon (61o) 37,o478o, FAX (610)320-4767 A STAbT Count n OMCZ OA CNA I am in receipt of Judge Hess' Order for a status conference scheduled for Thursday, August 7, 2008. Please be advised that I am on vacation for two weeks and there is no one also from slay office that can cover this for me. Please contact me via facsimile that you are opposed/unopposed to my request for a continuance. Thank you for your courtesies to this matter. V y urs, Edward , quire Dire lal Number: 610-320-4663 EJCO=k cc: Philip Hoodak, E2394842-D6 A REGIOt MARSHALL, DENNEHEY, WARNER, COLEMAN c? GOGGIN A P R O F E S S 1 O N A L C O R P O R A T I O N www.marshafldennehey.com 4200 Crums Mill Road, Suite B - Harrisburg, PA 17112 (717) 651-3500 - Fax (717) 651-9630 DEFENSE LITIGATION LAw FIRM PENNSYLVANIA Bethlehem Doylestown Erie Harrisburg King oFPrussia Philadelphia Pittsburgh Scranton Williamsport NEW JERSEY Cherry Hill Roseland DELAWARE Wilmington Otuo Akron Direct Dial: 717-651-3504 Email: dlcarmelite@mdwcg.com July 22, 2008 BY FACSIMILE Edward J. Cermanski, Esquire Law Offices of Ralph F. Touch 401 Penn Street Suite 100 Reading, PA 19601 RE: Sheriff v. Brunswick Corporation, et al. Date of Loss: 3/7/06 Our File No.: 12151-00109.A42 Dear Ed: FLoRmA Ft. 1,auderdalc Jacksonville Orlando Tampa I am writing in follow-up to your request as to the concurrence of the continuance of the Settlement Conference currently scheduled for Thursday, August 7 before Judge Hess. Please be advised that I have no objection to this continuance conditional upon the timely response to our written discovery requests on July 25, 2008. Should you have any questions or concerns regarding the above please do not hesitate to contact me directly. Very truly yours, Donald L. Carmelite DLC/sad cc: Lisa M. B. Woodburn, Esquire (via facsimile) C. Kent Price, Esquire (via facsimile) LAW OFFICES OF RALPH F. TOUCH RALPH F. TOUCH EDWARD J. CERMANSKI JEFFREY S. LEE RAYMOND A. SWAN PHILIP C. KEIDEL FRANKLIN W. NOLL, III (1966-1999) VIA FACSIMILE 717-240-6462 & REGULAR MAIL The Honorable Kevin A. Hess Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013-3387 401 PENN STREET, SUITE 100 READING, PENNSYLVANIA 19601 TELEPHONE (610) 320-4780 FAX (610) 320-4767 A STAFF COUNSEL OFFICE OF CNA Wednesday, July 23, 2008 Re: Sheriff v. Omni Fitness Acquisition Corp Court of Common Pleas Cumberland County, PA / 2007-5843 File No.: 107300103 Dear Judge Hess: I am requesting a continuance on the above-referenced matter due to the fact that I will be on vacation the first two weeks in August and there is no coverage from my office to attend the status conference scheduled for Thursday, August 7, 2008. I have received correspondence from all counsel and no one is opposed to this continuance. Thank you for your courtesy in this matter. Respectfully submitted, Edward termanski, Esquire EJC/jmk cc: Lisa Woodburn, Esquire C. Kent Price, Esquire Donald L. Carmelite, Esquire Philip Hoodak, E2394842-D6 JUL 2 4 2008 y 12csr- 167 Sheri lrlr Page 1 of 1 Carmelite, Donald L. From: Short David [DShort@KelleyDrye.com] Sent: Friday, November 16, 2007 4:58 PM To: edward.cermanski@cna.com Cc: Carmelite, Donald L.; Luzadder, Matt Subject: Sheriff Mr. Cermanski, My name is David Short, and I, along with Don Carmelite and Matt Luzadder, represent Life Fitness, a division of Brunswick Corporation, in the Sheriff matter. Lisa Woodburn, counsel for Plaintiff, advised that her client told her that after the alleged accident, Omni Fitness had someone come to Plaintiffs house to repair or service the subject product. Lisa could not tell me whether the cable on this machine broke or detached. Does your client know? Does your client have any documents regarding the sale, delivery, installation, service and/or repair of the subject product? If so, would you please send them to me. If you would like us to send formal discovery, we will do so; however, we usually try informal discovery wit co-defendants first. Lisa also advised that her client told her that the Omni representative who came to repair or service the subject product following the alleged accident took some photographs. Would you please send us color copies of those photographs? If the subject cable did break, please advise if your client kept the broken cable so we can arrange for it to be inspected and photographed. Finally, do you know who, if anyone, represents Hancock Park Associates? If so, please advise. Thank you for your prompt attention to these requests. We look forward to working with you on this case. Dave M. David Short Kelley Drye & Warren LLP 333 W. Wacker Drive, Suite 2600 Chicago, Illinois 60606 (312) 857-7099 Fax: (312) 857-7095 dshort@kelleydrye.com 7/27/2008 FW: Sheriff Carmelite, Donald L. From: Short David [DShort@KelleyDrye.com] Sent: Monday, November 26, 2007 4:59 PM To: edward.cermanski@cna.com Cc: Luzadder, Matt; Carmelite, Donald L. Subject: FW: Sheriff Mr. Cermanski, I am following up on an e-mail I sent you on 11/16/07. 1 also left you a voice message this afternoon. Page 1 of 2 You served us with written discovery. As I stated in my e-mail below, Brunswick Corporation prefers to try informal discovery with co-defendants as opposed to issuing formal discovery amongst co-defendants, all which really serve to benefit the plaintiff and his/her counsel. In addition to the subjects set forth in my prior e-mail, I would like to discuss with you whether formal responses from Brunswick are necessary at this point. Please give me a call or respond to the e-mail below when you have a chance. Thank you, and I look forward to hearing from you. M. David Short Kelley Drye & Warren LLP 333 W. Wacker Drive, Suite 2600 Chicago, Illinois 60606 (312) 857-7099 Fax: (312) 857-7095 dshort@kelleydrye.com -----Original Message----- From: Short David Sent: Friday, November 16, 2007 3:58 PM To: 'Edward J. Cermanski (edward.cermanski@cna.com)' Cc: Donald L. Carmelite (dlcarmelite@mdwcg.com); Luzadder, Matt Subject: Sheriff Mr. Cermanski, My name is David Short, and I, along with Don Carmelite and Matt Luzadder, represent Life Fitness, a division of Brunswick Corporation, in the Sheriff matter. Lisa Woodburn, counsel for Plaintiff, advised that her client told her that after the alleged accident, Omni Fitness had someone come to Plaintiffs house to repair or service the subject product. Lisa could not tell me whether the cable on this machine broke or detached. Does your client know? Does your client have any documents regarding the sale, delivery, installation, service and/or repair of the subject product? If so, would you please send them to me. If you would like us to send formal discovery, we will do so; however, we usually try informal discovery wit co-defendants first. Lisa also advised that her client told her that the Omni representative who came to repair or service the subject product following the alleged accident took some photographs. Would you please send us color copies of those photographs? If the subject cable did break, please advise if your client kept the broken cable so we can arrange for it to be inspected and photographed. 7/27/2008 acting or purporting to act on your behalf (including your counsel) between the time of your initial response to these Requests and the trial of this action. REQUESTS You are requested to produce the following: 1. Any and all documents relating to the sale of the subject Parabody CM3005 Home Gym. 2. Any and all documents relating to the delivery of the subject Parabody CM3005 Home Gym. 3. Any and all documents relating to the installation of the subject Parabody CM3005 Home Gym. 4. Any and all documents relating to the service and/or maintenance of the subject Parabody CM3005 Home Gym. 5. Any and all documents relating to the repair of the subject Parabody CM3005 Home Gym. 6. Any and all documents relating to photographs that were taken of the subject Parabody CM3005 Home Gym. 7. Please produce for inspection the subject Parabody CM3005 Home Gym and/or any component parts thereof in your possession. 6 PW: Sheriff Page 2 of 2 Finally, do you know who, if anyone, represents Hancock Park Associates? If so, please advise. Thank you for your prompt attention to these requests. We look forward to working with you on this case. Dave M. David Short Kelley Drye & Warren LLP 333 W. Wacker Drive, Suite 2600 Chicago, Illinois 60606 (312) 857-7099 Fax: (312) 857-7095 dshort@kelleydrye.com 7/27/2008 Carmelite, Donald L. From: Short David [DShort@KelleyDrye.com] Sent: Tuesday, May 13, 2008 1:23 PM To: edward.cermanski@cna.com Cc: Carmelite, Donald L.; Luzadder, Matt Subject: RE: Sheriff Mr. Cermanski, Although I have sent you three e-mails since the inception of our involvement in this case, I have never received a response via e-mail or a telephone call. I am trying yet again to speak with you regarding this matter. Please let me know if you have time to talk. I tried to call you today but was told that you are in depositions all day. I look forward to hearing from you. Thank you, Dave M. David Short Kelley Drye & Warren LLP 333 W. Wacker Drive, Suite 2600 Chicago, Illinois 60606 (312) 857-7099 Fax: (312) 857-7095 dshort@kelleydrye.com -----Original Message----- From: Short David Sent: Tuesday, December 04, 2007 10:31 PM To: 'edward.cermanski@cna.com' Cc: 'dlcarmelite@mdwcg.com'; Luzadder, Matt Subject: Sheriff Mr. Cermanski, I have not received a response to my prior e-mails. Therefore, I will work off the assumption that you are not inclined to withdraw your discovery requests to Life Fitness. Therefore, I will proceed with responding to them. I am not sure when the requests were served as I believe you sent them directly to Brunswick. I will assume, unless I hear otherwise, that Life Fitness will have until December 14 to respond to the requests without waiving any right to object to the requests. If you disagree, please let me know immediately. By the way, has Omni filed its answer? If so, please send me or Don Carmelite of Marshall Dennehey the answer. Thanks -------------------------- Sent from my B1ackBerry Wireless Handheld (www.BlackBerry.net) Pursuant to Treasury Regulations, any U.S. federal tax advice contained in this communication, unless otherwise stated, is not intended and cannot be used for the purpose of avoiding tax-related 1 penalties. The information contained in this E-mail message is privileged, confidential, and may be protected from disclosure; please be aware that any other use, printing, copying, disclosure or dissemination of this communication may be subject to legal restriction or sanction. If you think that you have received this E-mail message in error, please reply to the sender. This E-mail message and any attachments have been scanned for viruses and are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened. However, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by Kelley Drye & Warren LLP for any loss or damage arising in any way from its use. 2 Sheriff Carmelite, Donald L. From: Short David [DShort@KelleyDrye.com] Sent: Monday, June 23, 2008 4:09 PM To: edward.cermanski@cna.com Cc: Luzadder, Matt; Carmelite, Donald L.; Woodburn, Lisa M. Subject: Sheriff Ed, Page 1 of 2 I still have not received a response from you regarding the questions I have been asking since November 2007. I have no other choice but to start the formal discovery process. Please send me a list of dates upon which you are available for deposition for dates between July 15 and July 31, 2008, for the deposition of the corporate rep or person most knowledgeable regarding the following: (1) the sale of the subject Parabody CM3005 Home Gym; (2) the delivery of the subject Parabody CM3005 Home Gym; (3) the installation of the subject Parabody CM3005 Home Gym; (4) the service of the subject Parabody CM3005 Home Gym; (5) the repair of the subject Parabody CM3005 Home Gym; and (6) the photographs that were taken of the subject Parabody CM3005 Home Gym. Lisa -- please provide dates for the same time period upon which your client is available for deposition so we can take his deposition the same date or on a consecutive date. Also please see if he wife would be available the same day or the following day for her deposition. Thanks -- let's get this case moving. Dave M. David Short Kelley Drye & Warren LLP 333 W. Wacker Drive, Suite 2600 Chicago, Illinois 60606 (312) 857-7099 Fax: (312) 857-7095 dshort@kelleydrye.com Pursuant to Treasury Regulations, any U.S. federal tax advice contained in this comm stated, is not intended and cannot be used for the purpose of avoiding tax-related p The information contained in this E-mail message is privileged, confidential, and ma please be aware that any other use, printing, copying, disclosure or dissemination o subject to legal restriction or sanction. If you think that you have received this E error, please reply to the sender. 7/27/2008 Sheriff Page 2 of 2 This 13-mail message and any attachments have been scanned for viruses and are believ other defect that might affect any computer system into which it is received and ope responsibility of the recipient to ensure that it is virus free and no responsibilit Drye & Warren LLP for any loss or damage arising in any way from its use. 7/27/2008 LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED AMENDED MOTION FOR ADMISSION PRO HAC VICE OF M. DAVID SHORT, ESOUIRE Defendant, Brunswick Corporation by and through its counsel Marshall, Dennehey, Warner, Coleman & Goggin and more specifically, Donald L. Carmelite, Esquire, hereby move this Honorable Court for the admission of M. David Short, Esquire, pro hac vice, to represent Defendant Brunswick Corporation in the above captioned matter and in support thereof, aver as following: 1. M. David Short, Esquire, is a member of the law firm of Kelley, Drye & Warren, LLP, 333 West Wacker Drive, Suite 2600, Chicago, Illinois 60606. 2. M. David Short, Esquire is a member in good standing of the bar of the state of Illinois and has been since 1995. He is admitted to practice before the United States District Court Northern District of Illinois (1995), Central District of Illinois (2001), Southern District of Illinois (2005), the District of Arizona (1998), and is a member in good standing in all courts in which he practices and has not been suspended or disbarred in any court. (A true and correct copy of an Affidavit executed by M. David Short, Esquire is attached hereto as Exhibit A.) 3. M. David Short, Esquire, possess a satisfactory, moral professional character required for admission, pro hac vice. (A true and correct copy of the Affidavit of Donald L. Carmelite, Esquire, a member in good standing of the bar of the Supreme Court of Pennsylvania, averring as such and moving for the admission of M. David Short, Esquire, pro hac vice, is attached hereto as Exhibit B.) 4. M. David Short, Esquire will comply with Pennsylvania Rules of Civil Procedure and the local rules of this court and agrees to be subject to the jurisdiction rules of the Supreme Court governing professional conduct. 5. Moving Defendants request that M. David Short, Esquire be admitted to the Court of Common Pleas of Cumberland County pro hac vice, so that he may participate in all aspects of the above captioned matter, with the exception of acting as attorney of record. 6. Lisa M. Woodburn, counsel for plaintiffs and C. Kent Price, counsel for defendant, AMCO Distribution, concur with this motion. 7. Edward Cermanski, counsel for defendant, Omni Fitness, neither concurs nor objects to this motion. 8. Judge Hess has had prior involvement with this matter. WHEREFORE, Defendant, Brunswick Corporation, by and through their counsel, Marshall, Dennehey, Warner, Coleman & Goggin hereby move that this Honorable Court for admission of David Short, Esquire in the Court of Common Pleas of Cumberland County, pro hac vice, to represent them in this matter. 2 Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATE: BY: ? ? ? v DONALD L. CARMELITE, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Defendant, Brunswick Corporation t/d/b/a Life Fitness 3 CERTIFICATE OF SERVICE I, Sarah A. Doerfler, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this day of August 2008, I served a copy of the foregoing document via First Class United States mail, postage prepaid, as follows: Lisa M. B. Woodburn, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiffs) Edward J. Cermanski, Esquire Law Offices of Ralph F. Touch 401 Penn Street Suite 100 Reading, PA 19601 (Counsel for Defendant, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment) C. Kent Price, Esquire Thomas, Thomas & Hafer 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108 (Counsel for AMCO Distribution) 05/407197.v 1 4 ?X l??bFt ? LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED AFFIDAVIT OF DONALD L. CARMELITE, ESQUIRE I, Donald L. Carmelite, Esquire being duly sworn to the law deposes and states the following: 1. I am an associate of the firm Marshall, Dennehey, Warner, Coleman & Goggin with offices at 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112. 2. I am a member in good standing of the bar of the Supreme Court of Pennsylvania. 3. I certify that M. David Short, Esquire, possess the requisite moral and professional character required for admission to the bar of the Court of Common Pleas of Cumberland County, pro hac vice. 4. I hereby move for the admission of M. David Short, Esquire for admission to the Court of Common Pleas of Cumberland County pro hac vice for the purposes of limited representation of the defendants in the above captioned matter. Donald L. Carmelite, sq 05/407199. v 1 r4 o S LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL TERM CIVIL ACTION JURY "TRIAL DEMANDED AFFIDAVIT OF M. DAVID SHORT, ESOtiIRF, I, M. David Short, Esquire, being duly sworn according to law, depose and state the following: 1. I am a partner of the law firm Kelley, Drye & Warren, LLP, 333 West Wacker Drive, Suite 2600, Chicago, Illinois 60606. 2. I am a member in good standing of the bar of the state of Illinois and the United States District Court for the Northern District of Illinois, the Central District of Illinois, the Southern District of Illinois and the District of Arizona. 3. I certify that I possess a requisite moral and professional character required for admission to the bar of the Court of Common Pleas of Cumberland County, Pennsylvania, pro hac vice. 4. I certify that I will comply with the Pennsylvania Rules of Civil Procedure and the local rules of court and agree to be subject to the jurisdiction and rules of the Pennsylvania Supreme Court governing professional conduct. 7 ? ? (- 7)" ?' H M. David Short, Esquire State of Illinois License No: MOW 3 OZ 6 7 05/407205.v I 3 t 4"'? .., ?? ?4 •,-.{ .» - 1 r- ?::a t.? i : -_ { ?'? 'z7 ,_ -? i n.) •-4 LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs vs. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-5843 CIVIL JURY TRIAL DEMANDED IN RE: MOTION TO COMPEL OF DEFENDANT BRUNSWICK CORPORATION ORDER AND NOW, this S-' day of August, 2008, a brief argument on the within motion to compel is set for Friday, September 5, 2008, at 2:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, isa M. B. Woodburn, Esquire 4503 North Front Street Harrisburg, PA 17110 ward J. Cermanski, Esquire 401 Penn Street, Suite 100 Reading, PA 19601 Ronald Carmelite, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Kent Price, Esquire P. O. Box 999 Harrisburg, PA 17108-0999 'e Wr ' i F? a? n ( , 10% ORDER AND NOW this *7day of ? ' Ar , 2008, upon consideration of 61 JUL 162008 LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs v. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED Defendant Brunswick Corporation's Motion for Admission of M. David Short, Pro Hac Vice, it is hereby ORDERED and DECREED that M. David Short, Esquire is admitted to the Court of Common Pleas of Cumberland County, Pennsylvania for purposes of appearing as counsel in this action. ull . ?-Il z3l ? • Distribution List: Lisa M. B. Woodburn, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs Edward J. Cermanski, Esquire Law Offices of Ralph F. Touch 401 Penn Street Suite 100 Reading, PA 19601 Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment C. Kent Price, Esquire Thomas, Thomas & Hafer 305 North Front Street, 6t' Floor P.O. Box 999 Harrisburg, PA 17108 Attorneys for AMCO Distribution Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorneys for Brunswick Corporation LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED MOTION FOR ADMISSION PRO HAC VICE OF MATTHEW C. LUZZADER Defendant, Brunswick Corporation, by and through its counsel, Marshall, Dennehey, Warner, Coleman & Goggin, and more specifically, Donald L. Carmelite, Esquire, hereby moves this Honorable Court for the admission of Matthew C. Luzzader, Esquire, pro hac vice, to represent defendant, Brunswick Corporation in the above-captioned matter and in support thereof, avers as follows: 1. Matthew C. Luzaader, Esquire, is an associate in the law firm of Kelley Drye & Warren, LLP, 333 West Wacker Drive, Suite 2600, Chicago, Illinois 60606. 2. Matthew C. Luzaader, Esquire, is a member in good standing of the bars of Illinois and Florida since 2004 and 2005, respectively. He is admitted to practice before the United States Court of Appeals for the 7`h Circuit (2006) and is a solicitor of England & Wales (2008), and is a member in good standing in all courts in which he practices and has not been suspended or disbarred in any court. (A true and correct copy of an Affidavit executed by Matthew C. Luzzader, Esquire, is attached hereto as Exhibit "A".) Matthew C. Luzzader, Esquire, possess satisfactory moral professional character required for admissions pro hac vice. (A true and correct copy of the Affidavit of Donald L. Carmelite, Esquire, a member in good standing of the bar of the Supreme Court of Pennsylvania, averring as such and moving for the admissions of Matthew C. Luzzader, Esquire, pro hac vice, is attached hereto as Exhibit "B"). 4. Matthew C. Luzzader, Esquire, will comply with the Pennsylvania Rules of Civil Procedure and the local rules of this court and agrees to be subject to the jurisdiction rules of the Supreme Court governing professional conduct. 5. Moving defendant request that Matthew C. Luzzader, Esquire, be admitted to the Court of Common Pleas of Cumberland County pro hac vice so that he may participate in all aspects of the above-captioned matter, with the exception of acting as attorney of record. 6. Lisa M. Woodburn, Esquire, counsel for plaintiff and C: Kent Price, Esquire, counsel for defendant, AMCO Distribution, concur with this motion. 7. Edward J. Cermanski, Esquire neither concurs or objects to this motion. 8. Judge Hess has prior involvement with this matter. WHEREFORE, Defendant, Brunswick Corporation, by and through their counsel, Marshall, Dennehey, Warner, Coleman & Goggin hereby move that this Honorable Court for admission of Matthew C. Luzzader, Esquire in the Court of Common Pleas of Cumberland County, pro hac vice, to represent them in this matter. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, GOGGIN BY: COLEM LD L. CARMELITE, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Defendant, Brunswick Corporation tl&b/a Life Fitness CERTIFICATE OF SERVICE I, Sarah A. Doerfler, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this day of August 2008, I served a copy of the foregoing document via First Class United States mail, postage prepaid, as follows: Lisa M. B. Woodburn, Esquire Edward J. Cermanski, Esquire Angino & Rovner, P.C. Law Offices of Ralph F. Touch 4503 North Front Street 401 Penn Street Harrisburg, PA 17110 Suite 100 (Counsel for Plaintiffs) Reading, PA 19601 (Counsel for Defendant, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment) C. Kent Price, Esquire Thomas, Thomas & Hafer 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108 (Counsel or "CO Distribution) Sarah A. Doerfler 0 5/4 1 5 722.v1 LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED AFFIDAVIT OF MATTHEW C. LUZADDER, ESQUIRE I, Matthew C. Luzadder, Esquire, being duly sworn according to law, depose and state the following: 1. I am an associate of the law firm Kelley, Drye & Warren LLP, 333 West Wacker Drive, Suite 2600, Chicago, Illinois 60606. 2. I am a member in good standing of the bars of the states of Illinois and Florida and as a Solicitor of England & Wales. 3. I certify that I possess a requisite moral and professional character required for admission to the bar of the Court of Common Pleas of Cumberland County, Pennsylvania, pro hac vice. 4. I certify that I will comply with the Pennsylvania Rules of Civil Procedure and the local rules of court and agree to be subject to the jurisdiction and rules of the Pennsylvania Supreme Court governing professional conduct. CH01/LUZAM/233226.1 Dated: August 11, 2008 Matthew C. Lqzadder, Esquire State of Illinois License No.: 6283424 State of Florida License No.: 0011286 Solicitors Reg. Auth. No.: 468681 SUBSCRIBED and SWORN to and Before me this 11 th day of August, 2008. Notary Public Ga2 CH01/LUZAW233226.1 2 LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED AFFIDAVIT OF DONALD L. CARMELITE, ESQUIRE I, Donald L. Carmelite, Esquire being duly sworn to the law deposes and states the following: I am an associate of the firm Marshall, Dennehey, Warner, Coleman & Goggin with offices at 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112. 2. I am a member in good standing of the bar of the Supreme Court of Pennsylvania. 3. I certify that Matthew C. Lazzader, Esquire, possess the requisite moral and professional character required for admission to the bar of the Court of Common Pleas of Cumberland County, pro hac vice. 4. I hereby move for the admission of Matthew C. Lazzader, Esquire for admission to the Court of Common Pleas of Cumberland County pro hac vice for the purposes of limited representation of the defendants in the above captioned matter. Donald L. Carmelite, Esquire 05/415724.v I 6,; rt2? -_s7j ' <;? csa c z ? E AUG 2 Z zoos LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5843 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED ORDER AND NOW this 2 7' day of 2008, upon consideration of Defendant Brunswick Corporation's Motion for Admission of Matthew C. Lazzader, Pro Hac Vice, it is hereby ORDERED and DECREED that Matthew C. Lazzader, Esquire is admitted to the Court of Common Pleas of Cumberland County, Pennsylvania for purposes of appearing as counsel in this action. 05/4 1 5 72 5.v1 c?a tla U C, J ?- r N t-3 Distribution List: Lisa M. B. Woodburn, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs Edward J. Cermanski, Esquire Law Offices of Ralph F. Touch 401 Penn Street Suite 100 Reading, PA 19601 Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Equipment C. Kent Price, Esquire Thomas, Thomas & Hafer 305 North Front Street, 6 h Floor P.O. Box 999 Harrisburg, PA 17108 Attorneys for "CO Distribution Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorneys for Brunswick Corporation LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiff V HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION t/d/b/a OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-5843 CIVIL TERM JURY TRIAL DEMANDED IN RE: STATUS CONFERENCE ORDER OF COURT AND NOW, this 5th day of September, 2008, this matter having been called for a status conference, on agreement of the parties, it is ordered and directed: 1. Discovery in this case with the exception of expert reports shall be completed on or before the close of business on March 30, 2009. 2. Plaintiffs' expert reports as to both liability and damages shall be forthcoming on or before April 30, 2009. 3. Defendants' expert reports are due in this case on or before May 30, 2009. 4. Any and all dispositive motions shall be filed in this matter on or before May 30, 2009. 5. Counsel are authorized to list this case for any trial term after May 30, 2009. By the Court, c/ .0 O J S fa e°71 ._. NO. 07-5843 CIVIL TERM Lisa M.B. Woodburn, Esquire For Plaintiffs Edward J. Cermanski, Esquire For Hancock & Omni Donald L. Carmelite, Esquire For Brunswick C. Kent Price, Esquire For Amco Distribution :bg PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) (X) for JURY trial at the next term of civil court () for trial without a jury LARRY SHERIFF and TERESA SHERIFF, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 07-5843 V. OMNI FITNESS and LIFE FITNESS, Defendants CIVIL ACTION I JURY TRIAL DEMANDED O Assumpsit Q Trespass () Trespass (Motor Vehicle) (X) Other - Medical Malpractice The trial list will be called on June 2, 2009. Trials commence on June 29, 2009. Pre-trials will beheld on June 10, 2009 (Briefs are due 5 days before pre-trials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 314-1.) No. 07-5843 Civil Indicate the attorney who will try case for the party who files this praecipe: Lisa M.B. Woodburn, Esquire, Angino & Rovner, P.C., 4503 North Front Street, PA 17110 ., - I. Indicate trial counsel for other parties if known: Edward J. Cermanski, Esquire 401 Penn Street, Suite 100 Reading, PA 19601 C. Kent Price, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 M. David Short Kelley Drye & Warren LLP 333 W. Wacker Drive, Suite 2600 Chicago, Illinois 60606 This case is ready for trial. l Signed: Print Name: Lisa M.B. Woodburn Date: 2/20/09 Attorney for Plaintiff(s) l 00 0 ? 0 _. ANGINO & ROVNER, P.C. Lisa M. B. Woodburn Attorney ID# : 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: LWOODBURN@ANGINO•ROVNER.COM LARRY E. SHERIFF and TERESA SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITIOl` CORPORATION T/D/B/A OMNI FITNESLI EQUIPMENT and BRUNSWICK CORPORATION T/D/B/A LIFE FITNESS, Defendants V. AMCO DISTRIBUTION Additional Defendant THE COURT OF COMMON PLEAS MBERLAND COUNTY, PENNSYLVANIA . 07-5843 IL ACTION Y TRIAL DEMANDED ORDER AND NOW, this day of June 2009, the Stipulation of Counsel is approved. Defendants Hancock Park Associates, Omni Fitness Acquisition Corporation T/D/B/A Omni Fitness Equipment and Brunswick Corporation t/d/b/a Life Fitness are hereby dismissed. This case will move forward between Plaintiffs, Larry E. Sheriff and Teresa M. Sheriff, and Defendant, AMCO Distribution. 407282 ALEN YROE OF THE 2009 JLI1l 10 AM 9: 3c Yn;'Jr 6 y f . OC?a ?s t? ANGINO & ROVNER, P.C. Lisa A B. Woodburn Attorney ID# : 89397 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: LWOODBURN@ANGINaROVNER.COM LARRY E. SHERIFF and TERESA SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITIO CORPORATION T/D/B/A OMNI FITNES EQUIPMENT and BRUNSWICK CORPORATION T/D/B/ LIFE FITNESS, Defendants V. AMCO DISTRIBUTION Additional Defendant THE COURT OF COMMON PLEAS MBERLAND COUNTY, PENNSYLVANIA . 07-5843 ACTION Y TRIAL DEMANDED STIPULATION OF COUNSEL AND NOW COME Plaintiffs, Larry E. and Teresa M. Sheriff, by and through their counsel, Lisa M. B. Woodburn, Esquire, and Hancock Park Associates, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness by and through their counsel, Edward J. Cermanski, Esquire, Brunswick Corporation T/D/B/A Life Fitness, by and through their counsel, Matt Luzzadder, Esquire, and AMCO Distribution, by and through their counsel, C. Kent Price, and Stipulate as follows: 407282 I . Counsel executing this stipulation hereby represent and warrant they are authorized to do so by their respective clients. 2. Plaintiffs, Larry E. and Teresa M. Sheriff, along with, Defendants Hancock Park Associates t/d/b/a Life Fitness, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness, and AMCO Corporation agree to the dismissal of Defendant Brunswick Corporation t/d/b/a Life Fitness and Defendant Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness. 3. All parties understand and agree Plaintiffs intend to fully pursue the remaining negligent assembly claim against Additional Defendant AMCO Corporation, as set forth in the Joinder Complaint attached hereto as Exhibit A. 4. Plaintiffs, Larry E. and Teresa M. Sheriff, intend to only move forward with their negligent assembly claim as set for in their Complaint at Count I, initially against Omni and then by Joinder against AMCO Distribution. 5. The parties agree, through the course of discovery, it was established AMCO delivered and assembled the Cable Gym in Plaintiffs' home. 6. This Stipulation may be executed in counterparts and shall be considered effective when signed by counsel, even though signed on separate signature pages and may be filed of record. Facsimile or photocopy reproduction of signatures shall have the effect of original signatures. 407282 IN WITNESS WHEREOF, the parties, by their counsel, have caused this Stipulation to be executed and intend to be legally bound thereby. Date: v///` Respectfully submitted, ANGIN & R VNER, P.C. L' Woodburn, Esquire I.D. No. 89397 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiffs 407282 FILED O r,GIE OF THE F O-1- :-'1110TARY 2009 JUH 10 Alm g: 1 t'C Respectfully submitted, Law Offices of Ralph F. Touch 6-- ? CL---,, Edward . Cermanski, Esquire Law Offices of Ralph F. Touch 401 Penn Street, Suite 100 Reading, PA 19601 Counsel for Hancock Park Associates, Omni Fitness Acquisition Corporation t/d/b/a Omni Fitness Date: 407282 Respectfully submitted, Thomas, Thomas & Hafer C. Kent Price, Esquire 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 Counsel for AMCO Distribution Date: 6 1051:Zvocy 407282 Jun-08-09 15:19 From-M UG 717-651-9630 T-740 PA07/011 F-152 Date: ? ? -2?r ? Oct Respectfully submitted, Kell D & n, LLP Ave, Ma Kevv Luzadder, Esquire 333 W. Wacker Drive, Suite 2600 Chicago, Illinois 60606 Counsel for Brunswick Corporation t/d/b/a Life Fitness 407292 CERTIFICATE OF SERVICE I, Amyra Wagner, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of the STIPULATION upon all counsel of record as follows: Edward J. Cermanski, Esquire Law Offices of Ralph F. Touch 401 Penn Street, Suite 100 Reading, PA 19601 via hand delivery Matthew Luzadder, Esquire M. David Short, Esquire Kelley Drye & Warren LLP 333 W. Wacker Drive, Suite 2600 Chicago, Illinois 60606 via U.S. mail C. Kent Price, Esquire Thomas, Thomas & Hafer 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 via hand delivery Date: ? l 407282 A _. 41 F #1 LARRY E. SHERIFF and TERESA M. SHERIFF, Plaintiffs V. HANCOCK PARK ASSOCIATES, OMNI FITNESS ACQUISITION CORPORATION T/D/B/A OMNI FITNESS EQUIPMENT and BRUNSWICK CORPORATION T/D/B/A LIFE FITNESS,: Defendants V. AMCO DISTRIBUTION, Additional Defendants IN THE COURT OF COMMON P,LtEA QOFO CUMBERLAND COUNTY, PENN :F_7 VP%IA-n J ;?_ C_ fir -1 ,; c_ d?T y? CIVIL ACTION - LAW = 1 NO. 07-5843 CIVIL TERM PRETRIAL CONFERENCE A pretrial conference was held in the chambers of Judge Oler in the above-captioned case on Wednesday, June 10, 2009. Present on behalf of the Plaintiffs was Lisa M.B. Woodburn, Esquire. Present on behalf of the Additional Defendant AMCO Distribution was C. Kent Price, Esquire. It is noted that the original Defendants in the case have all been dismissed from the action. This is a negligence action for personal injury arising out of an alleged malfunction of a piece of gym equipment assembled by persons engaged by Additional Defendant AMCO Distribution. Plaintiff, Teresa M. Sheriff, is suing for loss of consortium, and the person allegedly injured is her husband, Plaintiff Larry E. Sheriff. This will be a jury trial in which each side, pursuant to an agreement of counsel, will have four peremptory challenges for a total of eight. The estimated duration of trial is two days. Counsel are in agreement that the original Defendants are no longer playing a part in this case and that no reference on the verdict slip should be made with respect to the original 4IN I Defendants. Furthermore, by agreement, the Additional Defendant should be referred to on the verdict slip as the Defendant for purposes of simplifying the case for the jury. To the extent that any depositions are to be shown or read to the jury at trial and contain objections requiring rulings by the trial court, counsel are directed to submit a copy of the affected deposition to the Court at least five days prior to commencement of trial with the areas of objection being pursued highlighted and with brief memoranda in support of their respective positions on the objections. With respect to settlement, it does appear to the Court that there is a reasonable chance of settlement in this case. By the Court, Lisa M. B. Woodburn, Esquire 4503 North Front Street Harrisburg, PA 17110-1708 For the Plaintiffs C. Kent Price, Esquire 305 North Front Street X21` P.O. Box 999, w69 (7101 For Defendant AMCO Edward J. Cermanski, Esquire 401 Penn Street, STE 1000 Reading, PA 19601 (courtesy copy) Donald L. Carmelite, Esquire 4200 Crums Mill Road, STE B Harrisburg, PA 17112 (courtesy copy) Court Admin Prothonotary pcb LARRY E. SHERIFF and TERESA M SHERIFF, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW : NO. 07-5843 HANCOCK PARK ASSOCIATES, OMNI : FITNESS ACQUISITION CORPORATION: t/d/b/a OMNI FITNESS EQUIPMENT, BRUNSWICK CORPORATION t/d/b/a LIFE FITNESS, Defendants V. AMCO DISTRIBUTION, Additional Defendant : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please mark the docket in the above-captioned matter as settled and discontinued with prejudice. ANGINO & ROVNER, P.C. Lisdt,M. B. Woodburn, Esquire 4503 North Front Street Harrisburg, PA 17110-1708 ATTORNEYS FOR PLAINTIFFS 705976.1 CERTIFICATE OF SERVICE I, Amyra Wagner, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of the PRAECIPE TO DISCONTINUE upon all counsel of record as follows: Edward J. Cermanski, Esquire Matthew Luzadder Esquire Law Offices of Ralph F. Touch , M. David Short Esquire 401 Penn Street, Suite 100 , Kelley Drye & Warren LLP Reading, PA 19601 333 W. Wacker :Drive, Suite 2600 C. Kent Price, Esquire Chicago, Illinois 60606 Thomas, Thomas & Hafer 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 Date: ? 24l© `1 407282 211G9