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HomeMy WebLinkAbout07-7601 PAGE 1 REPORT : ZDRDOCT First Judicial District RUN DATE 11/27/07 USER ID: BTP CIVIL DOCKET REPORT RUN TIME 04:50 PM CASE ID 070701518 01- 1100( (...1 v t 1.? ------------------- CASE NUMBER -------------------- CASE CAPTION ----------------------------------------- 070701518 ERIE INSURANCE GROUP VS SERMATECH INTERNATIONAL IN FILING DATE COURT LOCATION JURY 11-JUL-2007 JE CH J CASE TYPE: SUBROGATION ACTION STATUS: TRANSFER TO OTHER JURISDICTION Seq # Assoc Expn Date Type ID Party Name / Address & Phone No. 1 APLF A71318 MUNGER, MICHAEL S 4 CENTURY PARKWAY SUITE 300 BLUE BELL PA 19422 (610)862-6533 (610)862-6501 - FAX 2 1 PLF @5824507 ERIE INSURANCE GROUP 4901 LOUISE DR MECHANICSBURG PA 17055 3 5 DFT @5824508 SERMATECH INTERNATIONAL INC 1566 MEDICAL DR 3RD SUITE 300 POTTSTOWN PA 19464 4 TL J280 MANFREDI, WILLIAM J. 510 CITY HALL PHILADELPHIA PA 19107 (215)686-4216 5 ADFT A66529 TOOMEY, C SCOTT CAMPBELL CAMPBELL EDWARDS CONROY PC 690 LEE RD SUITE 300 WAYNE PA 19087 (610)964-1900 (610)964-1981 - FAX Filing Date / Time Docket Entry 11-JUL-07 09:57:59 COMMENCEMENT CIVIL ACTION JURY 11-JUL-07 09:57:59 SHERIFF'S SURCHARGE 1 DEFT Date Entered 17-JUL-07 MUNGER, MICHAEL S 17-JUL-07 MUNGER, MICHAEL S L -.6. REPORT ZDRDOCT First Judicial District PAGE 2 RUN DATE 11/27/07 USER ID: BTP CIVIL DOCKET REPORT RUN TIME 04:50 PM CASE ID 070701518 Filing Da te / Time Docket Entry Date Entered 11-JUL-07 09:57:59 COMPLAINT FILED NOTICE GIVEN 17-JUL-07 MUNGER, MICHAEL S COMPLAINT WITH NOTICE TO DEFEND WITHIN TWENTY (20) DAYS AFTER SERVICE IN ACCORDANCE WITH RULE 1018.1 FILED. 11-JUL-07 09:57:59 WAITING TO LIST CASE MGMT CONF 17-JUL-07 11-JUL-07 09:57:59 JURY TRIAL PERFECTED 17-JUL-07 11-JUL-07 15:17:18 ACTIVE CASE 11-JUL-07 25-JUL-07 12:32:25 AFFIDAVIT OF SERVICE FILED OF COMPLAINT BY PERSONAL SERVICE UPON 30-JUL-07 DEFENDANT SERMATECH INTERNATIONAL INC ON 7-20-07. 09-AUG-07 11:25:00 ENTRY OF APPEAR/JURY DEMAND 10-AUG-07 ENTRY OF APPEARANCE OF C SCOTT TOOMEY TOOMEY, C SCOTT FILED ON BEHALF OF DFT SERMATECH INTERNATIONAL INC. 09-AUG-07 11:25:01 JURY TRIAL PERFECTED 10-AUG-07 TOOMEY, C SCOTT 09-AUG-07 11:25:02 PRELIMINARY OBJECTIONS FILED 10-AUG-07 PRELIMINARY OBJECTIONS TO PLAINTIFF(S) COMPLAIINTEFILEDSCOTT BY DEFENDANT SERMATECH INTERNATIONAL INC. 12-SEP-07 10:01:02 LISTED FOR CASE MGMT CONF 12-SEP-07 14-SEP-07 00:01:33 NOTICE GIVEN 14-SEP-07 17-SEP-07 15:06:40 MOTION TO DETERMINE P 0 FILED 17-SEP-07 SERMATECH INTERNATIONAL INC, 68-07091068 RESPONSE DATE 10-9-07. 11-OCT-07 14:15:37 MOTION ASSIGNED 11-OCT-07 68-07091068 MOTION TO DETERMINE PRELIMINARY OBJECTIONS ASSIGNED TO JUDGE MANFREDI ON 10-12-07. 18-OCT-07 15:40:11 TRANSFER TO OTHER JURISDICTION 18-OCT-07 MANFREDI, WILLIAM J. 68-07091068 IT IS ORDERED THE DEFENDANT'S UNOPPOSED PRELIMINARY OBJECTIONS ARE SUSTAINED. THIS MATTER IS HEREBY TRANSFERRED TO THE PENNSYLVANIA COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY. ...BY THE COURT; MANFREDI, J. 10-16-07 18-OCT-07 15:40:12 NOTICE GIVEN UNDER RULE 236 18-OCT-07 REPORT : ZDRDOCT First Judicial District USER ID: BTP CIVIL DOCKET REPORT CASE ID 070701518 PAGE 3 RUN DATE 11/27/07 RUN TIME 04:50 PM Date Entered OF COUNTY 27-NOV-07 TOOMEY, C SCOTT PRAECIPE TO TRANSFER THE ABOVE CAPTIONED MATTER TO CUMBERLAND COUNTY COURT FILED. BTP Filing Date / Time Docket Entry 27-NOV-07 14:36:00 PRAECIPE/TRNSFER OUT * * * End of Docket * * * •" ' C) C= OD r' 1. ryl w `/v/ O ,am 1 ,rn Z:- CAMPBELL CAMPBELL EDWARDS & CONROY; P ?C: ,,,r?' n By: C. Scott Toomey, Esquire &hey--for Defendant Attorney I.D. No.: 66529 9 7ALA NO V 2 erwtech International Inc. The Chesterbrook Corporate Center ??1177 2:36 690 Lee Road, Suite 300 3 T Wayne, PA 19087 (610) 964-1900 ERIE INSURANCE GROUP, a/s/o . ADVANCED COATING TECHNOLOGY, INC.: PHILA. CCP V. July Term, 2007 SERMATECH INTERNATIONAL No. 001518 INCORPORATED PRAECIPE TO TRANSFER TO THE PROTHONOTARY: Kindly transfer the file in the above captioned matter to the Prothonotary for the Pennsylvania Court of Common Pleas, Civil Division for Cumberland County pursuant to the attached Order of the Court dated October 16, 2007 (a true and correct copy attached hereto as Exhibit "A"). Campbell Campbell Edwards & Conroy, P.C. By: C "" C C. Scott T Attorney I .:! W am ?? H [IS T •• Q .. ? S M C? 77 co 3 hJ i!d Yp A W 1-4 ER CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the foregoing PRAECIPE TO TRANSFER was served on the 27th day of November, 2007, via first class mail to the following: Michael S. Munger, Esquire Nelson Levine deLuca & Horst Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 (2-2'-'WC C. Scott Toomey, Esquire A ERIE INSURANCE GROUP, a/s/o ADVANCED COATING TECHNOLOGY, INC. : V. SERMATECH INTERNATIONAL INCORPORATED July Term, 2007 No. 001518 09JLOGS ORDER / f v l C. 7 2007, upon consideration of the AND NOW, this day of .1 Unopposed Motion of Defendant Sermatech International, Inc. to Determine Preliminary Objections, and any response thereto, it is hereby ORDERED and DECREED that the Preliminary Objections are SUSTAINED. This matter is hereby transferred to the Pennsylvania Court of Common Pleas for Cumberland County. EOSE BY THE COURT: r J. kS9 tP\? (y.,.f fe c. ?.?Sa S i t ? r A • Y IN THE COURT OF COMMON PLEAS PHILADELPHA COUNTY, PENNSYLVANIA ERIE INSURANCE GROUP, a/s/o ADVANCED COATING TECHNOLOGY, INC. : V. SERMATECH INTERNATIONAL INCORPORATED July Term, 2007 No. 001518 091068 ORDER AND NOW, this / day of c , NO RESPONSE 00f) OCT 18 2003 , 2007, upon consideration of the Unopposed Motion of Defendant Sermatech International, Inc. to Determine Preliminary Objections, and any response thereto, it is hereby ORDERED and DECREED that the Preliminary Objections are SUSTAINED. This matter is hereby transferred to the Pennsylvania Court of Common Pleas for Cumberland County. BY THE COURT: J. cG )rr? ?t'rr? O(Jf X007 TGFPA U-- 1.? e AY MRWAF10 ! JURYFEEND 6ourt of Common Pleas of Philadelphia County Fot;PrnB> y We ONy PoCke Trial Division +PWY Civil Cover Sheet PLAINTIFF'S NAME Erie Insurance Group, a/s/o Advanced Coating Technology PLAINTIFF'S ADDRESS 4901 Louise Drive Mechanicsburg, PA 17055 PLAINTIFF'S NAME PLAINTIFF'S ADDRESS PLAINTIFF'S NAME PLAINTIFF'S ADDRESS TOTAL NUMBER OF PLAINTIFFS I TOTAL NO. OF DEFENDANTS 2 1 AMOUNT IN CONTROVERSY COURT PROGRAMS ? $50,000.00 or less ? Arbitration ?? More than $50,000.00 ?? Jury ? Non-Jury ? Other: _ CASE TYPE AND CODE (SEE INSTRUCTIONS) 1G STATUTORY BASIS FOR CAUSE OF ACTION (SEE INSTRUCTIONS) DEFENDANTSNAME Sermatech International Incorporated DEFENDANT'S ADDRESS 1566 Medical Drive, 3rd Floor, Suite 300 Pottstown, PA 19464 DEFENDANT'S NAME DEFENDANT'S ADDRESS DEFENDANTSNAME DEFENDANTS ADDRESS COMMENCEMENT OF ACTION Q Complaint ? Petition Action ? Notice of Appeal ? Writ of Summons ? Transfer From Other Jurisdictions ? ? Mass Tort S ? Commerce ? Settlement avings Action ? Minor Court Appeal ? Minors E Petition ? Statutory Appeals ? W/D/Survival RELATED PENDING CASES (LIST BY CASE CAPTION AND DOCKET NUMBER) IS CASE SUBJECT TO COORDINATION ORDER? Yes No None ? ? ? ? TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Plaintiff/Petitioner/Appellant: Papers may be served at the address set forth below. NAME OF PLAINTIFF'SIPETITIONER'SIAPPELLANT'S ATTORNEY ADDRESS (SEE INSTRUCTIONS) Michael S. Munger, Esquire Nelson Levine deLuca & Horst, Four Sentry Parkway, Suite 300, PHONE NUMBER FAX NUMBER Blue Bell, PA 19422 (610) 862-6533 (610) 862-6501 SUPREME COURT IDENTIFICATION NO. E-MAIL ADDRESS 71318 mmunger@nldhiaw.com SIGNATUR DATE j ,? /J July 9, 2007 JURY FEE PAID IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION ERIE INSURANCE GROUP, a/so ADVANCED COATING TECHNOLOGY, INC. 4901 LOUISE DRIVE MECHANICSBURG, PA 17055 Plaintiff V. SERMATECH INTERNATIONAL INCORPORATED 1566 MEDICAL DRIVE 3" FLOOR, SUITE 300 POTTSTOWN, PA 19464 JULY 2007 No. 001518 JURY TRIAL DEMANDED THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES HEARING IS NOT REQUIRED Defendant NOTICE TO DEFEND NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after the complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. PHILADELPHIA BAR ASSOCIATION Lawyer Referral and Information Service 1101 Market Street, 11th Floor Philadelphia, Pennsylvania 19107 (215) 238-6300 001518 AVISO Le han demandado a usted en la cone. Si usted quiere defenderse de estas demandas expuestas en las pdginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificaci6n. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomar6 medidas y puede continuar la demanda en contra suya sin previo aviso o notificaci6n. Adem6s, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisioner de esta demands. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. ASOCIACION DE LICENCIADOS DE FILADELFIA Servicio De Referencia E Informaci6n Legal 1101 Market Street, 11th Floor Filadelfia, Pennsylvania 19107 (215) 238-6300 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION ERIE INSURANCE GROUP, -a/so ADVANCED COATING TECHNOLOGY, INC. 4901 LOUISE DRIVE MECHANICSBURG, PA 17055 Plaintiff V. SERMATECH INTERNATIONAL INCORPORATED 1566 MEDICAL DRIVE 3RD FLOOR, SUITE 300 POTTSTOWN, PA 19464 Defendant , No. JULY 2007 001518 JURY TRIAL DEMANDED THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES HEARING IS NOT REQUIRED COMPLAINT - CIVIL ACTION Plaintiff, Erie Insurance Group, a/s/o Advanced Coating Technology, Inc., (collectively "Plaintiffs"), by and through its undersigned counsel, Nelson Levine deLuca & Horst, LLC, brings this Complaint against defendant and, in support thereof, avers as follows: 1. Plaintiff, Erie Insurance Group ("Erie"), is an insurer licensed to do business in the State of Pennsylvania, with its principal place of business located at 4901 Louise Drive, Mechanicsburg, Pennsylvania. 2. Plaintiff, Advanced Coating Technology, Inc., ("Advanced Coating") is a Pennsylvania business corporation, with its principal place of business located at 327 West Allen Lane, Mechanicsburg, Pennsylvania (hereinafter "subject property"). Plaintiff's business, at all times relevant, involves powder coating metal parts for other businesses. 3. At all relevant times, Erie insured Advanced Coating against property losses pursuant to a policy in full force and effect on the date of the loss stated below. 4. Defendant, Sermatech International Incorporated, upon information and belief, is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its corporate headquarters located at 14566 Medial Drive, P Floor, Suite 300, Pottstown, Pennsylvania. Defendant, at all times relevant, is the developer of protective coatings which are applied to equipment and other metals to help its resistance to corrosion, erosion, fouling and high temperatures. 5. On March 30, 2006, a fire erupted at the subject property in a paint booth from the powder coating paint residue located therein. The paint residue was the coating known as SermeTel 853 (hereinafter "the product"). 6. Plaintiffs fire suppression system in the paint booth did go off, but failed to extinguish the fire. 7. Plaintiffs fire suppression system contained dry chemical as its extinguishing media as defined in defendant's Material Safety Data Sheet for the product as well as the labels on the paint cans. A copy of the Material Safety Data Sheet for the product is attached hereto as Exhibit "A". 8. Plaintiff relied upon defendant's Material Safety Data Sheet for the product, as well as the labels on the paint cans, when determining the extinguishing media needed in its paint booth. 9. As a direct and proximate result of plaintiff's inability to extinguish the fire with the extinguishing media used in accordance with defendant's Material Safety Data Sheet for the product and the labels on the paint cans, Plaintiff suffered damages to their real and personal property in an amount in excess of $50,000.00, as further and more fully described below. COUNTI NEGLIGENCE 10. Plaintiff incorporates herein by reference paragraphs 1 through 9 as though the same were fully set forth at length. 11. The aforementioned damages were the direct and proximate result of the negligence and carelessness of the Defendant, through their employees, agents, technicians, and/or servants, more specifically described as follows: a. Failing to exercise reasonable care in the following manner: i. failing to properly determine that the extinguishing media of dry chemical would fail to put out a fire which contained the ingredient of aluminum metal powder; ii. failing to adequately warn plaintiff and other of the dangers and hazards associated with utilizing the wrong type of fire suppression system in connection with defendant's product; iii. failing to warn plaintiff and others of the incorrect fire suppression system designation on the warning labels and MSDS sheets associated with defendant's product. 12. As a result of the negligence of defendant, Plaintiff suffered damages to its real and personal property in an amount in excess of $50,000.00. WHEREFORE, Plaintiff demands judgment in its favor and against defendant in an amount in excess of $50,000.00, plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT II - STRICT LIABILITY 13. Plaintiffs incorporate herein by reference paragraphs 1 through 12, as though the same were fully set forth at length herein. 14. At all times material hereto, the defendant was engaged in the business of developing, selling, and/or distributing protective coatings to be applied to metal to resist corrosion. 15. The aforementioned protective coating, known as SermeTel 853, was developed, sold and/or distributed by the defendant with inadequate warnings and/or instructions concerning the extinguishing media to be used which was unreasonably dangerous to Plaintiffs at the time of sale to the Plaintiffs. 16. Upon information and belief, the Defendants or one or all of them expected that the above described product would reach the consumer without substantial change in the condition in which it was imported, distributed and/or sold, and the aforementioned did reach the Plaintiffs without a substantial change in the condition in which they were sold. 17. The aforementioned defects consisted of a. Design defects; b. Manufacturing defects; C. Failure to warn of the aforementioned defect; and d. Failure to properly instruct as to the appropriate operational procedures for safe use of the product. 18. As a result of these defective conditions, and/or the liability producing conduct on the part of the defendant, plaintiff sustained and incurred damage to its real and personal property in an amount in excess of $50,000.00. 19. For these reasons, the defendant is strictly liable to Plaintiff for its damages under § 402A of Restatement (2d) of Torts, the Restatement (3d) of Torts, and/or the applicable case law of the Commonwealth of Pennsylvania. NELSON LEVINE deLUCA & HORST, LLC By: [ichael 5. unger, Esquire ttorneys f Plaintiff VERIFICATION I, Francis Guillemette, hereby state that I am a duly authorized representative of Erie Insurance Group, the real party in interest, and that the facts contained in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to penalties of 18 Pa.C_S. § 4904 relating to unworn falsification to authorities. Dated: Francis Guillemette L'4A .. ? w > cti AE: ? ca CA: c , 4 0 a w v4 4 O tle ot, 15• Gh 11 wv 1 ! 0r Looz £S ?n C.7 -•i iiZ c ? --+ ?;a Y? 'yY a' l':.? n. ??ii w• -?-I C? t. J ':? ? 7 tN ^:i t5 .^1^ ,? ,? can i-_i IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION ERIE INSURANCE GROUP, a/so ADVANCED COATING TECHNOLOGY, INC. Plaintiff V. SERMATECH INTERNATIONAL INCORPORATED Defendant July 2007, No. 001518 JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE I, Jeff Nugent of T & J Subpoena Services, being duly sworn according to law depose and say that I am a competent adult, and that on 3'j`11?2-0,- 2007, at o'clock I personally served ?as?-e 60obn at Sermatech International Incorporated, at 1566 Medical Drive, 3rd Floor, r Suite 300, Pottstown, PA 19464, with a true and correct copy of the Complaint filed in the above matter Sworn to and subscribed Before me this -1" day of,'? / , 2007 Notary Public Je g rnl VON NOTARIAL SEAL BARBARA J. PIWS, Nobly PL#* WMpsin Twp•, Mw4pywy Cow* My C0Mnft*n E r:- ,s M1ay 75.200a CAMPBELL CAMPBELL EDWARDS & CONROY, P.C. By: C. Scott Toomey, Esquire Attorney I.D. No.: 66529 The Chesterbrook Corporate Center 690 Lee Road, Suite 300 Wayne, PA 19087 (610) 964-1900 Attorneys for Defendant Sermatech International Inc. ERIE INSURANCE GROUP, a/s/o ADVANCED COATING TECHNOLOGY, INC.: PHILA. CCP V. July Term, 2007 SERMATECH INTERNATIONAL No. 001518 INCORPORATED PRELIMINARY OBJECTIONS OF DEFENDANT SERMATECH INTERNATIONAL, INC. TO PLAINTIFF'S COMPLAINT Defendant Sermatech International, Inc. ("Sermatech"), by and through its counsel Campbell Campbell Edwards & Conroy, P.C., hereby asserts Preliminary Objections to Plaintiff's Complaint pursuant to Pa. R. Civ. P. 1028 and in support thereof avers as follows: 1. Plaintiff Erie Insurance Group ("Erie") initiated this product liability property damage subrogation action by means of a Complaint filed on or about July 11, 2007. A true and correct copy of the Complaint is attached hereto and marked as Exhibit "A". Service was perfected on Sermatech on July 20, 2007. 2. This case arises out of a fire that occurred on the premises of Erie's insured, Advanced Coating Technology, Inc. ("ACT") in Mechanicsburg, Cumberland County, Pennsylvania on or about March 30, 2006. The fire allegedly started in a paint booth in ACT's plant as a result of a product called SermeTel 853, which was allegedly developed and supplied by Sermatech. ACT's fire suppression system, which contained dry chemical as its extinguishing media, activated but failed to extinguish the fire. See Exhibit "A". 3. The Complaint alleges that the SermeTel 853 was defective because it lacked sufficient warnings regarding the proper fire suppression system to extinguish a fire involving SermeTel 853. The Complaint also asserts a product liability cause of action sounding in negligence for the alleged failure to warn. See Exhibit "A". 4. The Complaint contains no averments that would support venue for this case in Philadelphia County. To the contrary, the Complaint avers that Sermatech's corporate headquarters are located in Pottstown, Montgomery County, Pennsylvania. See Exhibit "A", para. 4. 5. Pursuant to Pa. R. Civ. P. 2179(a), an action against a corporation may be brought in and only in: 1) the county where the corporation's registered office or principal place of business is located; 2) a county where the corporation regularly conducts business; 3) the county where the cause of action arose; 4) a county where the transaction or occurrence took place out of which the cause of action arose; or 5) a county where the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property. 6. As Sennatech's principal place of business is located in Montgomery County and the fire occurred in Cumberland County, venue could be proper in Philadelphia County in this case only under 2179(a)(2) and would be proper only if Sermatech regularly conducts business there. 7. To determine if a corporation "regularly conducts business" under Rule 2179(a), Pennsylvania courts analyze both the quantity and quality of the corporation's contacts. "Quality of acts" means those directly furthering or essential to, corporate objects. Quantity means those r acts which are so continuous and sufficient that they are general or habitual. See Kisak v. Wheeling Park Commission and Oglebay, 898 A. 2d 1083, 1086 (Pa. Super. 2006). 8. Under these tests, Sermatech does not regularly conduct business in Philadelphia County. Venue of this case is, therefore, not proper in Philadelphia County under Pa. R. Civ. P. 2179(a). As a result Pa. R. Civ. P. 1028 requires dismissal or transfer of the case. 9. Venue for this case would be proper under Pa. R. Civ. P. 2179 in Cumberland County. Specifically, the fire at the ACT premises occurred in Mechanicsburg, Cumberland County. Venue would be proper, then, under Rule 2179(a)(3). WHEREFORE, Defendant Sermatech International, Inc. respectfully requests that venue of this case be transferred to the Pennsylvania Court of Common Pleas for Cumberland County. Campbell Campbell Edwards Conroy, P.C. By: C. Scott Toomey Attorney for Defendant Sermatech International Inc. Date: August 8, 2007 VERIFICATION I, C. Scott Toomey, Esquire, hereby declare that I am an attorney of law in the Commonwealth of Pennsylvania; that as such, I represent Defendant Sermatech International, Inc. in the above captioned case; that as such I am authorized to make this verification on its behalf; that the facts set forth in the foregoing Preliminary Objections of Defendant Sermatech International, Inc. to Plaintiff's Complaint are true to the best of my knowledge, information, and belief, and that I make this verification subject to the penalties of 18 Pa. C.S. §4904 pertaining to false statements to authorities. .D Dated: August ° , 2007 C. Cott Toome CERTIFICATE OF SERVICE I, C. Scott Toomey, Esquire, hereby state that a true and correct copy of the within Preliminary Objections of Defendant Sermatech International, Inc. to Plaintiff's Complaint was served via United States First Class Mail, this 8`" day of August, 2007, upon the following: Michael S. Munger, Esquire Nelson Levine deLuca & Horst Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 C. Scott T , f ? I ?,, ? A--- Court of Common Pleas of P'biladelphia Trial Division Civil Cover Sheet 'L FLA*ffWSNAME Erie Insurance Group, aNo Advanced Costing Technology F(A(NTWM ACORM 4901 Louise Drive Mechanicsburg, PA 17055 PUUNTIFFS ADDRESS KmWnWS ADDRESS TOTAL NUMBER OF PLABTTr" TOTAL No. OF DEFENDANTS 2 1 AMOUNT W CONTROVERSY COURT PROGRAMS ? sso o M a Im ? ATbW d- n More dm s9 wD oo o j--y ? Odor. CASE TYPE AND CODE (SEE WSTRUCTIONS) 1G STATUTORY BASIS FOR CAUSE OF ACTION (SEE RISTRUCTX)NS) DEFW DAICMWAME Sannatech international Incorporated D ANTSAOORESS 1566 Medical Orive, 3b Floor, Suite 300 ?-Pottstown, PA 19464 CERNDANTS. caMBrENCEMUarr of AcnoN c-pw-t ? Pd;tion watim ? Native arw?.r Q ? Petition w/D/sBTY;T.I ----- 15 CASE SlIUM TO RELATED FENOWS CASES (UST BY CASE CAPTION AND DOCKET NUMSERI 0001WINA710N ORD6t7 Yu No None ? ? ? ? ? ? TO THE PROTHONOTARY Kindly enter my appearance on behalf of PlaintifVPetitioner/Appellant: Papers may be served at the address set forth below. NAME OF FLABnWWFIETITNINEIrBIAPPELLANT3 ATTORNEY ADDRESS (SEE 1NSTRUCTKMI Michael S. Munger. Esquire Nelson Levine deLuca & Horst, Four Sentry Parkway. Suite 300. PNONENWER FAX NUMBER Blue Bell, PA 19422 (610)862-$533 (610)862-6501 SUPREME COURT IDENTIFK ATION NO. E•MAK. ADDRESS rr)mungw aw.com 71318 r DATE s1oNA July 9, 2007 •jUWFEEPO IN THE COURT OF COMMON PLEAS OF PIMADELPE IA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL Dlvislox p41518 ERIE INSURANCE GROUP, also ADVANCED COATING TECHNOLOGY, INC. 4901 LOUISE DRIVE MECHANICSBURG, PA 17055 Plaintiff V. SERMATEcK INTERNATIONAL INCORPORATED 1566 MEDICAL DRIVE 3RD FLOOR, SUITE 300 POTTSTOWN, PA 19464 No. JMY20QM7 JURY TRIAL DEMANDED THIS LS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES HEARING IS NOT REQUIRED Defendant NOTICE TO DEFEND NOTICE You have been sued m court. If you wish to deftd against the claims set forth m the following pages, you must take action within twenty (m) days alter the complaint and notice are served, by erring a writtar appearance personally or by attorney and Sling in writing with the court your defenses or objections to the claims set forth against you. You are warted that if you fail to do so the cage may proceed wil6out you and a judgment may be entered against you by the court without further notice for any money claimed is the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. PHILADELPHIA BAR ASSOCIATION Lawyer Referral and Information Service 1101 Market Street, I Ith Floor phitadelph* Pe msylvania 19107 (215) 238-6300 001518 AV1SO Le han de mandsdo a noted en la cont. Si uded quieret dobadase de estas dcnmdm etsPuWw at Ins piginao siguiertes. ustod gene vdme (20) dial de platy al px* de lo feche de la eianaoda y h notificaei6e. Hate falter mentor urn comparCam a=" 0 ert pawns o coo un abogado y enmBar a la cute en faun a scrita sus deform o sus objeaones a Ins deonndss an contra de su persona Sea avisado que si voted no se defiende, Ice cone tomari modidas y puode continuar la dcmanda en contra suya sin pravio aviso o notificaoibe. Adams, Is come puetde daddir a favor die etdmmdm* a y requi P demanda. ustetd cm*a con todas his provisiamt perft dieao o sus propiedades u Was daecbm impormrules Pact ust?ed. LLEVE ESTA DEMANDA A UN ABOGADO INKMIATAMENTE. Sl NO T1ENE ABOGADO O SI NO T04 E EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUFNfRA F.SCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASiSTENCIA LEGAL ASOCIACi6N DE LICENmws DE Fn ADELFIA Sexvicio De Referenda E btforneacft legal 1101 Market Street, l lth Floor Filowtia, Pennsylvania 19107 (215) 23&6300 JWFEEpAM IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION ERIE INSURANCE GROUP, 9/80 ADVANCED COATING TECHNOLOGY, INC. 4901 LOUISE DRIVE MECHANICSBURG, PA 17055 Plaintiff V. JULY=7 Oft No. JURY TRIAL DEMANDED THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES HEARING IS NOT REQUIRED SERMATECH INTERNATIONAL INCORPORATED 1566 MEDICAL DRIVE 3RD FLOOR, SUITE 300 POTTSTOWN, PA 19464 Defendant COMPLAINT - CIVIL ACTION Plaintiff, Erie Insurance Croup, a/s/o Advanced Coating Technology, Inc., (collectively "Plaintiffs"), by and through its undersigned counsel, Nelson Levine deLuca & Horst, LLC, brings this complaint against defendant and, in support thereof avers as follows: 1. Plaintiff, Erie Insurance Group ("Erie"), is an insurer licensed to do business in the State of Pennsylvania, with its principal place of business located at 4901 Louise Drive, Mechanicsburg, Pennsylvania. 2. Plaintiff, Advanced Coating Technology, Inc., ("Advanced Coating") is a Pennsylvania business corporation, with its principal place of business located at 327 West Allen Lane, Mechanicsburg, Pennsylvania (hereinafter "subject property"). Plaintiffs business, at all times relevant, involves powder coating metal parts for other businesses. 3. At all relevant times, Erie insured Advanced Coating against property losses pursuant to a policy in full force and effect on the date of the loss stated below. 4. Defendant, Sermatech International incorporated, upon information and belief, is a Corp-ration orgOrdzed and existing under the laws of the Commonwealth of Pennsylvania, with its corporate headquarters located at 14566 Medial Drive, 3`d Floor, Suite 300, Pottstown, Pennsylvania. Defendant, at all times relevant, is the developer of protective coatings which are applied to equipment and other metals to help its resistance to corrosion, erosion, fouling and high temperatures. 5. On March 30, 2006, a fire erupted at the subject property in a Paint booth from the powder coating paint residue located therein. The paint residue was the coating known as SermeTel 853 (hereinafter "the product"). 6. Plaintiffs fire suppression system in the paint booth did go off, but failed to extinguish the fire. 7. Plaintiffs fire suppression system contained dry chemical as its extinguishing media as defined in defendant's Material Safety Data Sheet for the product as well as the labels on the paint cans. A copy of the Material Safety Data Sheet for the product is attached hereto as Exhibit "A". 8. Plaintiff relied upon defendant's Material Safety Data Sheet for the product, as well as the labels on the paint cans, when determining the extinguishing media needed in its paint booth. 9. As a direct and proximate result of plaintiffs inability to extinguish the fire with the extinguishing media used in accordance with defendant's Material Safety Data Sheet for the product and the labels on the paint cans, Plaintiff suffered damages to their real and personal property in an amount in excess of $50,000.00, as further and more fully described below. COUNTI NEGLIGENCE 10. Plaintiff incorporates herein by reference paragraphs 1 through 9 as though the same were fully set forth at length. 11. The aforementioned damages were the direct and proximate result of the negligence and carelessness of the Defendant, through their employees, agents, technicians, and/or servants, more specifically described as follows: a. Failing to exercise reasonable care in the following manner. i. failing to properly determine that the extinguishing media of dry chemical would fail to put out a fire which contained the ingredient of aluminum metal powder; ii. failing to adequately warn plaintiff and other of the dangers and hazards associated with utilizing the wrong type of fire suppression system in connection with defendant's product; failing to warn plaintiff and othesheets rs of the incorrect fire suppression with system designation on the warning labels defendant's product. 12. As a result of the negligence of defendant, Plaintiff suffered damages to its real and personal property in an amount in excess of $50,000.00. WHEREFORE, Plaintiff demands judgment in its favor and against defendant in an amount in excess of $50,000.00, plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. CQUNT iI - STRICT LIABILITY rate herein by reference paragraphs 1 through 12, as though the B. Plaintiffs incorpo same were fully set forth at length herein. 14. At all times material hereto, the defendant was engaged in the business of developing, selling, and/or distributing protective coatings to be applied to metal to resist corrosion. 15. The aforementioned protective coating, known as SermeTel 953, was developed, sold and/or distributed by the defendant with inadequate warnings and/or instructions concerning the extinguishing media to be used which was unreasonably dangerous to plaintiffs at the time of sale to the Plaintiffs. 16. Upon information and belief, the Defendants or one or all of them expected that the above described product would reach the consumer without substantial change in the condition in which it was imported, distributed and/or sold, and the aforementioned did reach the Plaintiffs without a substantial change in the condition in which they were sold. 17. The aforementioned defects consisted of. a. Design defects; b. Manufacturing defects; c. Failure to warn of the aforementioned defect; and d. Failure to properly instruct as to the appropriate operational procedures for safe use of the product. 18. As a result of these defective conditions, and/or the liability producing conduct on the part of the defendant, plaintiff sustained and incurred damage to its real and personal property in an amount in excess of $50,000.00. 19. For these reasons, the defendant is strictly liable to Plaintiff for its damages under § 402A of Restatement (2d) of Torts, the Restatement (3d) of Torts, and/or the applicable case law of the Commonwealth of Pennsylvania. NELSON LEVINE deLUCA & HORST, LLC By: 7! l , :,Esquire, ttnrn f Platiff )MUMCATION I, Francis (3u U=cttc, hereby state that I am a duly xudLO izcd rpresemfive of Brie Yn wmc soup, the rest party m interest, and that the facts contained m the foregoing Complaint are true and correct to the best of my knowledge, infornaahou and belief. The undersigned undexstends that the staterncnts thcrein are made subject to penalties of 18 Pa-C.S. § 4904 relating to unsworn f&Lsjf=tOu to authorities. Francis Guiucnlc a Dated: CAMPBELL CAMPBELL EDWARDS & CONROY, P.C. By: C. Scott Toomey, Esquire Attorney I.D. No.: 66529 The Chesterbrook Corporate Center 690 Lee Road, Suite 300 Wayne, PA 19087 Attorney for Defendant, (610) 964-1900 Sermatech International Incorporated ERIE INSURANCE GROUP, a/s/o ADVANCED COATING TECHNOLOGY, INC.: PHILADELPHIA COUNTY aP V. July Term, 2007 ? SERMATECH INTERNATIONAL No. 001518 INCORPORATED ENTRY OF APPEARANCE TO THE PROTHONOTARY: b^ Kindly enter my appearance as counsel on behalf of defendant, Sermatech International Incorporated, in the above-captioned matter. Campbell Campbell Edwards onroy, P.C. By: C. Cott Toomey, Esquire Attorne or Defendant Sermatech International Incorporated Date: August 8, 2007 o fli 8 c+ al I- a) rJ in • ` FILED PR OTHY AUG 1 0 2007 ®s @y41" CERTIFICATE OF SERVICE I, C. Scott Toomey, Esquire, hereby state that a true and correct copy of the within Entry of Appearance was served via United States First Class Mail, this S`" day of August, 2007, upon the following: Michael S. Munger, Esquire Nelson Levine deLuca & Horst Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 0 ADELPHIA COURT OF COMMON PLEAS 4-'TITION/MOTION COVER SHEET -DC,?0-6 FOR COURT USE ONLY [Status SSIGNED TO JUDGE: ANSWER/RESPONSE DATE: o riot send Judge courtesy copy of Petition/Motion/Answer esponse. may be obtained online at http://Courts.phila.gov Erie Insurance Group, a/s/o Advanced Coating Technology, Inc. Sermatech tntematinal, Inc. vs. INDICATE NATURE OF DOCUMENT FILED: ? Petition (Attach Rule to Show Cause) Q Motion ? Answer to Petition ? Response to Motion CONTROL NUMBER: 09106$ (RESPONDING PARTIES MUST INCLUDE THIS NUMBER ON ALL FILINGS) July Month No. 001518 Name of Filing Party: Sermatech Internatinal, Inc. (Check one) ? Plaintiff ? Defendant (Check one) ? Movant ? Respondent Has another petition/motion been decided in this case? ? Yes Q No Is another petition/motion pending? ? Yes Q No If the answer to either question is yes, you must identify the judge(s): TYPE OF PETITION/MOTION (see list on reverse siq&) PETITION/MOTION CODE {see list on reverse side) Motion to Determine Preliminary Objections DPROB ANSWER/RESPONSE FILED TO (Please insert the title of the corresponding petitionlmotion to which you are responding): 1. CASE PROGRAM II. PARTIES (required for proof of service) Is this case in the (answer all questions): (Name, address and telephone number of all counsel of record and unrepresented parties. Attach a stamped addressed envelope for each A. COMMERCE PROGRAM attorney of record and unrepresented party.) Name of Jutlicial Team Leader: Michael S. Munger, Esquire Applicable Petition/Motion Deadline: Nelson Levine deLuca & Horst Has deadline been previously extended by the Court'? ? Yes ? No Four Sentry Parkway, Suite 300 B. DAY FORWARD/MAJOR JURY PROGRAM - Year Blue Bell, PA 19422 Name of Judicial Team Leader: WiIliamJ.Manfredi 610-862-6533 Applicable Petition/Motion Deadline: None Has deadline been previously extended by the Court? C. Scott Toomey, Esquire ? Yes p No Campbell Campbell Edwards & Conroy C. NON JURY PROGRAM 690 Lee Road, Suite 300 Date Listed: Wayne, PA 19087 D. ARBITRATION PROGRAM 610-964-1900 Arbitration Date: ARBITR TION E PPEA PRO A . A A L GR M Date Listed: F. OTHER PROGRAM: Date Listed: _ III. OTHER By filing this document and signing below, the moving party certifies that this motion, petition, answer or response along with all documents filed, will be served upon all counsel and unrepresented parties as required by rules of Court (see PA. R.C.P. 206.6, Note to 208.2(a), and 440). Furthermore, moving part verifies that the answers made herein are true and correct and understands that sanctions may be imposed for inaccurate or incomplete ans Jeflzav 13-d7 C. Scott Toomey, Esqiore #66529 (Date) (Print Name) (Attorney I.D. No.) The Petition, Motion and Answer or Response, if any, will be forwarded to the Court after the A nswer/Response Date. No extension of the Answer/Response Date will be granted even if the parties so stipulate. Term. 2007 Year 30-10618 •'/ . CAMPBELL CAMPBELL EDWARDS & CONROY, P.C. By: C. Scott Toomey, Esquire Attorney I.D. No.: 66529 The Chesterbrook Corporate Center 690 Lee Road, Suite 300 Wayne, PA 19087 Attorney for Defendant, (610) 964-1900 Sermatech International Incorporated ERIE INSURANCE GROJP, a/s/o ADVANCED COATING TECHNOLOGY, INC.: PHILADELPHIA COUNTY CCP V. SERMATECH INTERNATIONAL INCORPORATED July Term, 2007 No. 001518 UNOPPOSED MOTION OF DEFENDANT, SERMATECH INTERNATIONAL, INC. PURSUANT TO RULE *1028(c) TO DETERMINE PRELIMINARY OBJECTIONS Defendant, Sermatech International, Inc. ("Sermatech"), by and through its counsel, Campbell Campbell Edwards & Conroy, P.C., hereby moves pursuant to Philadelphia Civil Rule *1028(c) to determine the Preliminary Objections filed against Plaintiffs' Complaint. A copy of the time-stamped Preliminary Objections is attached hereto as Exhibit "A" and is incorporated as though fully set forth herein. In support of this Motion, Sermatech avers as follows: 1. Plaintiff Erie Insurance Group ("Erie") initiated this product liability property damage subrogation action by means of a Complaint filed on or about July 11, 2007. A true and correct copy of the Complaint is attached hereto as Exhibit "B". Preliminary Objections were timely filed. See Exhibit A. Plaintiff has not amended the Complaint since the filing of the Preliminary Objections and does not oppose transfer of the case. 2. Sermatech filed its Preliminary Objections because venue for this action is improper pursuant to PA. R. Civ. P. 2179(a). Pursuant to that provision, an action against a corporation may be brought in and only in: 1) the county where the corporation's registered office or principle place of business is located; 2) a county where the corporation regularly conducts business; 3) the county where the cause of action arose; 4) county where the transaction or occurrence took place out of which the cause of action arose; or 5) county where the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property. Under none of these provisions is venue for this action proper in Philadelphia County. 3. Sermatech's principle place of business is located in Pottstown, Montgomery County. See Affidavit of Stephen Keane attached hereto and marked as Exhibit "C". The fire out of which this property damage subrogation action arose took place in Mechanicsburg, Cumberland County, Pennsylvania. See Exhibit B. Accordingly, venue could be proper in Philadelphia only if Sermatech regularly conducts business in Philadelphia County, as defined by Rule 2179(a)(2). 4. To determine if a corporation "regularly conducts business" for purposes of Rule 2179(a)(2), Pennsylvania courts analyze both the quantity and quality of the corporation's contacts. "Quality of acts" means those directly furthering or essential to, corporate objects. "Quantity" means those acts which are so continuous and sufficient that they are general or habitual. See Kisak v Wheeling Park Commission and Oglebay, 898 A2d 1083, 1086 (Pa. Super. 2006). Sermatech does not regularly conduct business in Philadelphia County. See Exhibit C. Venue of this case is, therefore, not proper in Philadelphia County under Rule 2179(a). As a result, Pa. R. Civ. P. 1028 requires dismissal or transfer of this case. 5. Venue for this case would be proper under Pa. R. Civ. P. 2179 in Cumberland County. Specifically, the fire out of which this lawsuit arose occurred in Mechanicsburg, Cumberland County. See Exhibit B. Plaintiff does not oppose transfer of this case to Cumberland County on this basis. WHEREFORE, Defendant Sermatech International, Inc. respectfully requests entry of an Order transferring this case to the Pennsylvania Court of Common Pleas for Cumberland County. Respectfully submitted, Campbell Campbell Edwards & Conroy, P.C. By: - C. Scott Toomey, Esquire Attorney o endant Sermatech International Inc. Date: September 13, 2007 VERIFICATION I, C. Scott Toomey, Esquire, hereby declare that I am an attorney of law in the Commonwealth of Pennsylvania; that as such, I represent Defendant Sermatech International, Inc. in the above captioned case; that as such I am authorized to make this verification on its behalf; that the facts set forth in the foregoing Unopposed Motion Of Defendant, Sermatech International, Inc. Pursuant To Rule *1028(c) To Determine Preliminary Objections are true to the best of my knowledge, information, and belief, and that I make this verification subject to the penalties of 18 Pa. C.S. §4904 pertaining to false statements to authorities. Dated: September 13, 2007 CERTIFICATE OF SERVICE I, C. Scott Toomey, Esquire, hereby state that a true and correct copy of the within Unopposed Motion Of Defendant, Sermatech International, Inc. Pursuant To Rule *1028(c) To Determine Preliminary Objections was served via United States First Class Mail, this 13`x' day of September, 2007, upon the following: Michael S. Munger, Esquire Nelson Levine deLuca & Horst Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 CAMPBELL CAMPBELL EDWARDS & CONROY, P.C. By: C. Scott Toomey, Esquire Attorney I.D. No.: 66529 The Chesterbrook Corporate Center 690 Lee Road, Suite 300 Wayne, PA 19087 Attorney for Defendant, (610) 964-1900 Sermatech International Incorporated ERIE INSURANCE GROJP, a/s/o ADVANCED COATING TECHNOLOGY, INC.: PHILADELPHIA COUNTY CCP V. July Term, 2007 SERMATECH INTERNATIONAL No. 001518 INCORPORATED MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION OF DEFENDANT, SERMATECH INTERNATIONAL, INC. PURSUANT TO RULE *1028(c) TO DETERMINE PRELIMINARY OBJECTIONS I. MATTER BEFORE THE COURT By this Motion to Determine Preliminary Objections, Defendant Sermatech International, Inc. ("Sermatech") brings before the Court for determination its Preliminary Objections to Plaintiff's Complaint. Sermatech respectfully objects to Plaintiff's Complaint pursuant to Pa. R. Civ. P. 1028(a)(1) because: 1) the fire out of which this lawsuit arose did not occur in Philadelphia County; 2) no part of any transaction relating to the fire occurred in Philadelphia County; and 3) Sermatech does not regularly conduct business in Philadelphia County. Accordingly, Sermatech requests transfer of this case to the Pennsylvania Court of Common Pleas of Cumberland County. Plaintiff does not oppose this Motion. II. STATEMENT OF QUESTIONS INVOLVED 1. Whether venue of this lawsuit should be transferred to the Pennsylvania Court of Common Pleas of Cumberland County because venue in Philadelphia County is improper pursuant to Pa. R. Civ. P. 1028(a)(1) Pa. R. Civ. P. and 2179(a). SUGGESTED RESPONSE: Yes. III. STATEMENT OF OPERATIVE FACTS Plaintiff Erie Insurance Group ("Erie") initiated this product liability property damage subrogation action by means of a Complaint filed on or about July 11, 2007. See Exhibit B. Sermatech timely filed Preliminary Objections. See Exhibit A. Since the filing of the Preliminary Objections, the Complaint has not been amended. Plaintiff does not oppose this Motion. This case arises out of a fire that occurred on the premises of Erie's insured, Advanced Coating Technology, Inc. ("ACT") in Mechanicsburg, Cumberland County, Pennsylvania on or about March 30, 2006. See Exhibit B. The fire allegedly started in a paint booth in ACT's plant as a result of a product called SermeTel 853, which was allegedly developed and supplied by Sermatech. See Exhibit B. Sermatech does manufacture and sell and has sold SermeTel 853 to ACT. No part of those transactions has involved Philadelphia County. In 2006, Sermatech had gross revenues of $98,000,000. See Exhibit C. In 2006, Sermatech anticipates gross revenues of $120,000,000. Sermatech has made virtually no sales to customers located in Philadelphia County. The scope of any such sales would be irregular, sporadic, not continuous and not sufficient to be considered general or habitual. See Exhibit C. IV. ARGUMENT A. Venue for this matter is improper under Rule 1028(a)(1) and 2179(a) Pursuant to Pa. R. Civ. P. 2179(a), an action against a corporation may be brought in and only in: 1) the county where the corporation's registered office or principle place of business is located; 2) a county where the corporation regularly conducts business; 3) the county where the cause of action arose; 4) county where the transaction or occurrence took place out of which the cause of action arose; or 5) county where the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property. Under none of these provisions is venue for this action proper in Philadelphia County. Sermatech's principle place of business is located in Pottstown, Montgomery County, Pennsylvania. See Exhibit "C". The fire out of which this lawsuit arose occurred in Mechanicsburg, Cumberland County, Pennsylvania. See Exhibit B. Accordingly, venue could be proper for this lawsuit in Philadelphia County only under Rule 2179(a)(2) and, only if Sermatech regularly conducts business in Philadelphia County. To determine if a corporation "regularly conducts business" under Rule 2179(a), Pennsylvania courts analyze both the quantity and quality of the corporation's contacts. "Quality of Acts" means those directly furthering or essential to, corporate objects. "Quantity" means those acts which are so continuous and sufficient that they are general or habitual. See Kisak v. Wheeling Park Commission and O lebav, 898 A2d 1083, 1086 (Pa. Super. 2006). Under these tests, Sermatech does not regularly conduct business in Philadelphia County. See Exhibit C. Accordingly, Pa. R. Civ. P. 1028 requires dismissal or transfer of the case. Plaintiff does not oppose transfer of this case to Cumberland County on this basis. Venue for this case would be proper under Rule 2179 in Cumberland County. Specifically, the fire at the ACT premises occurred in Mechanicsburg, Cumberland County. Venue would, then, be proper under Rule 2179(a)(3). Plaintiff does not oppose transfer to Cumberland County on this basis. V. REQUESTED RELIEF For the foregoing reasons, Defendant Sermatech International, Inc. respectfully requests that the Court sustain its Preliminary Objections and enter an Order transferring venue of this case to the Court of Common Pleas for Cumberland County. Respectfully submitted, Campbell Campbell Edwarrls_8-Conroy, P.C. By: C. Scott T Attorney for De en an Sermatech International Inc. Date: September 13, 2007 CAMPBELL CAMPBELL EDWARDS & CONROY, P.C. By: C. Scott Toomey, Esquire Attorney I.D. No.: 66529 The Chesterbrook Corporate Center 690 Lee Road, Suite 300 Wayne, PA 19087 (610) 964-1900 Attorneys for Defendant Sermatech International Inc. g5esS WG ©g IN, ERIE INSURANCE GROUP, a/s/o ADVANCED COATINQJECHNOLOGY, INC.: PHILA. CCP V. July Term, 2007 SERMATECH INTERNATIONAL No. 001518 INCORPORATED PRELIMINARY OBJECTIONS OF DEFENDANT SERMATECH INTERNATIONAL, INC. TO PLAINTIFF'S COMPLAINT Defendant Sermatech International, Inc. ("Sermatech"), by and through its counsel Campbell Campbell Edwards & Conroy, P.C., hereby asserts Preliminary Objections to Plaintiff s Complaint pursuant to Pa. R. Civ. P. 1028 and in support thereof avers as follows: 1. Plaintiff Erie Insurance Group ("Erie") initiated this product liability property damage subrogation action by means of a Complaint filed on or about July 11, 2007. A true and correct copy of the Complaint is attached hereto and marked as Exhibit "A". Service was perfected on Sermatech on July 20, 2007. 2. This case arises out of a fire that occurred on the premises of Erie's insured, Advanced Coating Technology, Inc. ("ACT") in Mechanicsburg, Cumberland County, Pennsylvania on or about March 30, 2006. The fire allegedly started in a paint booth in ACT's plant as a result of a product called SermeTel 853, which was allegedly developed and supplied by Sermatech. ACT's fire suppression system, which contained dry chemical as its extinguishing media, activated but failed to extinguish the fire. See Exhibit "A". 3. The Complaint alleges that the SermeTel 853 was defective because it lacked sufficient warnings regarding the proper fire suppression system to extinguish a fire involving SermeTel 853. The Complaint also asserts a product liability cause of action sounding in negligence for the alleged failure to warn. See Exhibit "A". 4. The Complaint contains no averments that would support venue for this case in Philadelphia County. To the contrary, the Complaint avers that Sermatech's corporate headquarters are located in Pottstown, Montgomery County, Pennsylvania. See Exhibit "A", para. 4. 5. Pursuant to Pa. R. Civ. P. 2179(a), an action against a corporation may be brought in and only in: 1) the county where the corporation's registered office or principal place of business is located; 2) a county where the corporation regularly conducts business; 3) the county where the cause of action arose; 4) a county where the transaction or occurrence took place out of which the cause of action arose; or 5) a county where the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property. 6. As Sermatech's principal place of business is located in Montgomery County and the fire occurred in Cumberland County, venue could be proper in Philadelphia County in this case only under 2179(a)(2) and would be proper only if Sermatech regularly conducts business there. 7. To determine if a corporation "regularly conducts business" under Rule 2179(a), Pennsylvania courts analyze both the quantity and quality of the corporation's contacts. "Quality of acts" means those directly furthering or essential to, corporate objects. Quantity means those acts which are so continuous and sufficient that they are general or habitual. See Kisak v. Wheeling Park Commission and Oglebay, 898 A. 2d 1083, 1086 (Pa. Super. 2006). 8. Under these tests, Sermatech does not regularly conduct business in Philadelphia County. Venue of this case is, therefore, not proper in Philadelphia County under Pa. R. Civ. P. 2179(a). As a result Pa. R. Civ. P. 1028 requires dismissal or transfer of the case. 9. Venue for this case would be proper under Pa. R. Civ. P. 2179 in Cumberland County. Specifically, the fire at the ACT premises occurred in Mechanicsburg, Cumberland County. Venue would be proper, then, under Rule 2179(x)(3). WHEREFORE, Defendant Sermatech International, Inc. respectfully requests that venue of this case be transferred to the Pennsylvania Court of Common Pleas for Cumberland County. Campbell Campbell Edward By: Y, P.C. Date: August 8, 2007 Attorney for Defendant Sermatech International Inc. VERIFICATION I, C. Scott Toomey, Esquire, hereby declare that I am an attorney of law in the Commonwealth of Pennsylvania; that as such, I represent Defendant Sermatech International, Inc. in the above captioned case; that as such I am authorized to make this verification on its behalf; that the facts set forth in the foregoing Preliminary Objections of Defendant Sermatech International, Inc. to Plaintiff's Complaint are true to the best of my knowledge, information, and belief, and that I make this verification subject to the penalties of 18 Pa. C.S. §4904 pertaining to false statements to authorities. .D Dated_ August 0 , 2007 C. colt Too me CERTIFICATE OF SERVICE I, C. Scott Toomey, Esquire, hereby state that a true and correct copy of the within Preliminary Objections of Defendant Sermatech International, Inc. to Plaintiffs Complaint was served via United States First Class Mail, this 8th day of August, 2007, upon the following: Michael S. Munger, Esquire Nelson Levine deLuca & Horst Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 C. Scott T , Court of Common Pleas of Philad clphia G y, EN Trial. Division Civil Cover Sheet PLARRIFFSNAME Erie Insurance Group, aWo Advanced Costing Technology DEFINOWPSNAME Sermalech tntertmtiorral Incorporated PLA*ffW"ADDRESS 4901 Louise Drive o ANTsAa ss ISM Medical Drive, 3rd Floor, Suite 300 Meduntcsburg. PA 17055 Pottstown, PA 19464 PIAMrT1FP7 NAME DEYfNDANTSNALtE MAHMFS ADDRESS DEPEUDAWMADDRESS PLAMRIFF'S NAME DEFENDANTS?uLtE PLAINT(FP'S ADDRESS DEFENDANTS ADDRESS TDTAL MUM OF PLAWMWX TOTAL NO. OF DEFENDAWS COASORICEMENT OP A=DN 2 , a ca vwm ? Petition Action ? Nne=crApped ? WM ? Timrc From OtherJs = AMOUNT Rd CONTROVERSY COURT PROGRAM ? sw ooDm or im ? Arbiaation ? M= Tort ? Caccom ? seufemmt Q Mae d- saaw oo l] Jm7 ? s.Yiw Action ? Minor con" Appal ? WW= ? N -J-y ? Petition ? r An.* In W/D/S m".l CASE TYPE AND CODE (SEE UISTRUCTMM 1G STATUTORY MOM FOR CAUSE OF ACTION (SEA MSTRUCT10NSi RELATED PE OOM CASES (LIST SY CASE CAPTNIM AND DOCID:T NUMBER{ K GCSE SUBJECT TO COORDMT10N ORDERT Yee No lone ? ? ? ? ? ? TO THE PROTHONOTARY: Kindly enter my appearance on behalf of PlaintiWatitionedAppeliant: Papers may be served at the address set forth below. NAMS OF P ASffWF'SRWW9*A9Fr8/APPELLANT'S ATTORNEY ADDRESS (SEE MtSTRUCnONSi Affidhad S. Mungr. Esquire Nelson Levine deLuca & Horst, Four Sentry Parkway. Suite 300, PNOMMUNISER FAX NUMBER Blue Bell, PA 19422 (S1o) 862-8633 (610) 862-6501 SUPREME COURT K EWnFICATION NO. E-MAR. ADDRESS 71318 mrriungerGoldNaw corn SIGNATU ' DATE July 9, 2007 i p /i VOYFEEND IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION ERIE INSURANCE GROUP, also ADVANCED COATING TECHNOLOGY, INC. 4941 LOUISE DRIVE MECHANICSBURG, PA 17055 Plaintiff v. SERMATECH INTERNATIONAL INCORPORATED 1566 MEDICAL DRIVE 3a0 FLOOR, SUITE 304 POTTSTOWN, PA 19464 o?Yj.B .)No. ' JURY TRIAL DEMANDED THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES HEARING IS NOT REQUIRED Defendant NOTICE TO DEFEND NO'1'1cE You have been sued in court if you wish to delirtd agabst the claims set Thum in the following Pam you moo trice action within twenty (20) drys aftr the complaint wad notice are saved, by easaing a writsen appearance PasanaUy Or by WOraey and filing in writing with the court your defauses or objewoas to the daims so ft6 aginst you. You sre warned that if you fail to do so tlee case may proceed wWmx t you and a judpcemt may be entered against you by the cart wabout farther notice ft any money cb mcd m the comphint or for any other chine or relief regmdcd by tht plidutiff. You may lose money or property or other rights importam to you_ YOU SHOUID TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, 00 TO OR TELEPHONE THE OFFICE SET FORTH BEWW TO FWD OUT WHERE YOU CAN GET LEGAL HELP. PEN ADELPHIA BAR ASSOCIATION Lawyer Referral and Information Service 1101 Mtukat Str et, I Ith Floor Phfladeiph%, Pemrsylvenh 19107 (215)238-000 +001.518 AVISO Le ban damsndado a usied en la come. Si uded grime ddandaso de estas d=anft vqm star en Ins piglues sipieeues, u sted bone vemte (20) dias dt phoD d pattir do I& fodm de la demaoda y Is notilicaei6m. 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ASOCIAC16N DE UCENCLOOS DE FR ADELFIA Servicio Do Rel awK is B Infamscibn Legal 1101 Market Street, l Ilk Floor FRaddSs, Pennsylvania 19107 (2l5) 13&6300 M FEEPAtD IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION EERIE INSURANCE GROUP, also ADVANCED COATING TECHNOLOGY, INC. 4901 LOUISE DRIVE MECHANICSBURG, PA 17055 PLeintiff V. %PJLY20p'T 0"518 No. JURY TRIAL DEMANDED THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES HEARING IS NOT REQUIRED SERMATECH INTERNATIONAL INCORPORATED 1566 MEDICAL DRIVE 3RD FLOOR, SUITE 300 POTTSTOWN, PA 19464 Defendant COMPLAINT - CIVIL ACTION PlaintK Erie Insurance Group, a/s/o Advanced Coating Technology, Inc., (collectively "Plaintiffs"), by and through its undersigned counsel, Nelson Levine deLuca & Horst, LLC, brings this Complaint against defendant and, in support thereof, avers as follows: I. Plaintiff, Erie Insurance Group ("Erie', is an insurer licensed to do business in the State of Pennsylvania, with its principal place of business located at 4901 Louise Drive, Mechanicsburg, Pennsylvania. 2. Plaintiff, Advanced Coating Technology, Inc., ("Advanced Coating") is a Pennsylvania business corporation, with its principal place of business located at 327 West Allen Lane, Mechanicsburg, Pennsylvania (hereinafter "subject property'). Plaintiffs business, at all times relevant, involves powder coating metal parts for other businesses. 3. At all relevant times, Erie insured Advanced Coating against property losses pursuant to a policy in full force and effect on the date of the loss stated below. 4. Defendant, Sermatech International incorporated, upon information and belief, is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its corporate headquarters located at 14566 Medial Drive, 3`d Floor, Suite 300, Pottstown, Pennsylvania. Defendant, at all times relevant, is the developer of protective coatings which are applied to equipment and other metals to help its resistance to corrosion, erosion, fouling and high temperatures. 5. On March 30, 2006, a fire erupted at the subject property in a paint booth from the powder coating paint residue located therein. The paint residue was the coating known as SermeTel 853 (hereinafter "the product"). 6. Plaintiffs fire suppression system in the paint booth did go off, but failed to extinguish the fire. 7. Plaintiffs fire suppression system contained dry chemical as its extinguishing media as defined in defendant's Material Safety Data Sheet for the product as well as the labels on the paint cans. A copy of the Material Safety Data Sheet for the product is attached hereto as Exhibit "A". 8. Plaintiff relied upon defendant's Material Safety Data Sheet for the product, as well as the Iabels on the paint cans, when determining the extinguishing media needed in its paint booth. 9. As a direct and proximate result of plaintiffs inability to extiaguish the fire with the extinguishing media used in accordance with defendant's Material Safety Data Sheet for the product and the labels on the paint cans, Plaintiff suffered damages to their real and personal. property in an amount in excess of $50,000.00, as further and more fully described below. COUNT I NEGUGENCE 10. Plaintiff incorporates herein by reference paragraphs 1 through 9 as though the same were fully set forth at length. 11. The aforementioned damages were the direct and proximate result of the negligence and carelessness of the Defendant, through their employees, agents, technicians, and/or servants, more specifically described as follows: a. Failing to exercise reasonable care in the following manner. L failing to properly determine that the extinguishing media of dry chemical would fail to put out a fire which contained the ingredient of aluminum metal powder; ii. failing to adequately warn plaintiff and other of the dangers and hazards associated with utilizing the wrong type of fire suppression system in connection with defendant's product; iii. failing to warn plaintiff and others of the incorrect fire suppression system designation on the warning labels and MSDS sheets associated with defendant's product. 12. As a result of the negligence of defendant, Plaintiff suffered damages to its teal and personal property in an amount in excess of $50,000.00. WHEREFORE, Plaintiff demands judgment in its favor and against defendant in an amount in excess of $50,000.00, plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. CQIM H - STRICT l jAAH-Xff 13. Plaintiffs incorporate herein by reference paragraphs 1 through 12, as though the same were fully set forth at length herein 14. At all times material hereto, the defendant was engaged in the business of developing, selling, and/or distributing protective coatings to be applied to metal to resist corrosion. 15. The aforementioned protective coating, known as SermeTel 853, was developed, sold and/or distributed by the defendant with inadequate warnings and/or instructions concerning the extinguishing media to be used which was unreasonably dangerous to Plaintiffs at the time of sale to the Plaintiffs. 16. Upon information and belief, the Defendants or one or all of them expected that the above described product would reach the consumer without substantial change in the condition in which it was imported, distributed and/or sold, and the aforementioned did reach the Plaintiffs without a substantial change in the condition in which they were sold. 17. The aforementioned defects consisted of. a. Design defects; b. Manufacturing defects; c. Failure to warn of the aforementioned defect; and d. Failure to properly instruct as to the appropriate operational procedures for safe use of the product. 18. As a result of these defective conditions, and/or the liability producing conduct on the part of the defendant, plaintiff sustained and incurred damage to its real and personal property in an amount in excess of $50,000.00. 19. For these reasons, the defendant is strictly liable to Plaintiff for its damages under 402A of Restatement (2d) of Torts, the Restatement (3d) of Torts, and/or the applicable case law of the Commonwealth of Pennsylvania. NELSON LEVINE deLUCA & HORST, LLC By: 7 1 er, Esquixe ttnm a f Plaintiff YER?F`ICATIQN I, Francis GuMe motto, hereby state that I an a duty authorized repressamfive of Brie 1wma ea Group, the real party m irate mt, and dW the facts conmined m the foregoing Complaint arc true and correct to the best of my knowledge, information and be>liet The undersigned timderstands that the statements therein are made subject to penalties of 18 Pa.C.S. § 4904 relating to unsworn falsi &-ation to authmities. Dated_ r Francis Guillem+cbtc ERIE INSURANCE GROJP, a/s/o ADVANCED COATING TECHNOLOGY, INC.: PHILADELPHIA COUNTY CCP V. July Term, 2007 SERMATECH INTERNATIONAL No. 001518 INCORPORATED AFFIDAVIT I, Stephen Keane, being over the age of 18 and competent to make this Affidavit, do hereby swear and aver as follows: 1. I am the Vice President and Chief Financial Officer for Sermatech International, Inc. ("Sermatech"). I am authorized to make this Affidavit on behalf of Sermatech. 2. Sermatech manufactures and sells industrial powder coatings for use in the manufacture of, among other things, airline and automotive parts. Sermatech's corporate headquarters and principle place of business is located in Pottstown, Montgomery County, Pennsylvania. 3. I have been informed that the above-captioned product liability property damage subrogation action was brought by Plaintiff, Erie Insurance Group ("Erie") and arises out of a fire that occurred on the premises of Erie's insured, Advanced Coating Technology, Inc. ("ACT"), which is located in Mechanicsburg, Cumberland County, Pennsylvania on or about March 30, 2006. The fire allegedly started in a paint booth in ACT's plant as a result of a product called SermeTel 853. Sermatech manufactures and sells SermeTe1853 and has sold the product to ACT. No part of any sales of SermeTel 853 to ACT has taken part in Philadelphia County. 1 4. In 2006, Sermatech had gross revenues of $ 0 D00 . In 2007, Sermatech anticipates gross revenues of $ l,Z -10.0, o 0V . Virtually none of those revenues arises from customers located in Philadelphia County. Sermatech does not engage in continuous, general or habitual business in Philadelphia County. Rather, Sermatech's business contacts are sporadic, irregular and miniscule, if any. Simply, Sermatech does not regularly conduct business in Philadelphia County. 5. The statements contained in this Affidavit are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of perjury and to the penalties relating to unworn falsification to authorities. Date: © r` 07 ke, 6 , STEP N KEANE Vice President & Chief Financial Officer Sermatech International, Inc. Sworn to and subscribed before me this /17t day of , 2007. )Otary Publi COMMONWEALTH OF PENNSYLVANIA Notarial Seal Judith R. Christman, Notary Pubic Lower Pottsgrove Twp., Montgomery County My Commission Expires Oct. 27,2W9 Member, Pennsylvania Association of Notaries 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ERIE INS GROUP Vs. • NO. 077601 SERMATECH INT'L INC . CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite',to service of a subpoena(s) for documents and things pursuant.to Rule 4009.22 C SCOTT TOOMEY, ESQUIRE certifies that: 1. A Notice of Intent to Serve the Subpoena(s) with a copy of the su?poena(s) attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena(s) is sought to be served, 2. A copyl,of the Notice of Intent, including the proposed subpoena(s) is attached to this certificate, 3. No objection to the subpoena(s) has been received, and 4. The subpoena(s) which will be served is identical to the subpoena(s) which is attached to the Notice of Intent to Serve the Subpoena(s). Date: 04/09/08 File ? C SCOTT TOOMEY, ESQUIRE 690 LEE RD SUITE 300 WAYNE, PA 19087 610-964-1900 ATTORNEY FOR DEFENDANT INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA PA 19135 (215) 335-3581 By: Dorota Wrzos I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ERIE INS GROUP Vs. SERMATECH INT'L INC No.'077601 TO: MICHAEL MUNGERo ESQ (PLAINTIFF) DEFENDA the-one(s) att from the date the undersigne made the subDo Date: 03/19/08 Z OF INTENT TO SERVE A SUBPOENA TO PRODUCE AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 T intends to serve a subpoena(s) identical to ched to this notice. You have twenty (20) days isted below in which to file of record and serve upon an objection to the subpoena. If no objection is ?na may be served. Enc (s) : Copy f subpoena(s) Counsel return card File #: M350390 C SCOTT TOOMEY, ESQUIRE 690 LEE RD SUITE 300 WAYNE, PA 19087 ATTORNEY FOR DEFENDANT INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA, PA 19135 (215) 335-3581 By: Dorota Wrzos a"CNWMTH OF PENNSYLVANIA OOUNTY OF CU 63EEUA M ERIE INS GR UP Vs. File No. SERMATECH IliT I L INC 077601 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISOOVERY PURSUANT TO RULE 4009.22 COLONEL JEF REY MILLER, 1800 ELMERTON AVE, HARRISBURG PA 17110 T0: ATTV- PA ST TE POLICE/CINDY * (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the fo11owing documents SEE n s- at MEDICAL REPRODUCTIONS,(AWess?940 DISSTON ST., PHILA., PA You may deliver mail legible copies of the documents or produce things requested t,y this subpoena, iz er with the certificate of ccnpliance, to the party making thi_ request at the addre s listed above. You have the right to seek in advance the reasonable cost of preparing the ies or producing the things sought. If you fail to p oduce the documents or things required by this subpoena within twenty (20) days after its service, the party serving thin subpoena may seek a court orde;- campelling you to campy with it. THIS SUBPOENA WAS I NAME : ADDRESS: TELEPHONE: SUPREME OOURT ID ATTORNEY FOR: AT THE REQUEST OF THE FOLLOWING PERSON: SCOTT TOOMEY, ESQ PA -1-9-H7 215-335-3212 DEFENDANT BY THE COURT: M350390-01 Prot tary/ 1 Division DATE : Seal of the oo? t Deputy (Eff. 7/97) ADDEND UM TO SUBPOENA ERIE INS GROUP Vs. SERMATECH INT'L CUSTODIAN OF **SEE ATTACHED No. 077601 FOR : COLONEL JEFFREY MILLER ** PERTAINING TO: NAME : THREE ALARM FIRE ADDRESS:' S SAN : IXXXXX CERTIFIED PH WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. RECORD CUSTODIAN - COMPLETE AND RETURN [ ] RECORDS ARE ATTACHED HERETO. I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. [ ] NO DOCUMENT has been made been located ( ) RECORDS ( ) X-RAYS Date CUMBERLAND M350390-01 'AVAILABLE.I hereby certify that a thorough search and that no record of the following documents have (CHECK THE APPROPRIATE BOX): ( ) PATIENT BILLING ( ) RECORDS / XRAYS have been destroyed Authorize signature or COLONEL JEFFREY MILLER * *? * SIGN AND RETURN THIS PAGE * * * ADDENDUM PA STATE FIRE MARSHALL'S INVESTIGATION REPORT FROM 3/30/06 ONLY: ANY AND AL RECORDS AND PHOTOGRAPHS INCLUDING BUT NOT LIMITED TO HE FIRE MARSHALL'S OFFICIAL REPORT, INVESTIGATION FILE, INVESTI GATION REPORT, CALCULATIONS, SIMULATIONS, INCIDENT REPORTS, 8X 0 ORIGINAL PRINT PHOTOGRAPHS OR DISC OF PHOTOGRAP S, SUPPLEMENTAL REPORTS, ACCIDENT RECONSTRUCTION REPORTS, WI SS STATEMENTS, NOTES, MEMORANDA, VIDEOTAPES AND ANY OTHER OCUMENTATION IN CONNECTION WITH THE THREE ALARM FIRE THAT T OK PLACE ON MARCH 30, 2006 AT ADVANCED COATING TECHNOLOG , INC., 327 ALLEN LANE, MECHANICSBURG, PA; INCIDENT NO.: H02-1559 97 ERIE INS Vs. SERMATECH OF PENNSYLVANIA 077601 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISOOVERY PURSUANT TO RULE 4009.22 UPPER ALLEN TO: L=?J • MATO FIRE CO, 104 GETTYSBURG PK, MECHANICSBURG PA 17055 COUNTY OF C AND File No. 'L INC (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following is SEE nc : ATTACIM.0 ADDENDUM at MEDICAL LEGAL REPRODUCTIONS( 6ss)940 DISSTON ST., PHILA., You may deliver mail legible copies of the documents or produce things requested b? this subpoena, toget er with the certificate of compliance, to the party making thi request at the addre s listed above. You have the right to seek in advance the rea7,onablc- cost of preparing the ies or producing the things sought. If you fail to p oduce the documents or things required by this subpoena within twenty (20) days after its service, the party serving thin subpoena may seek a court ordei- cxmipe i l i ng you to comply with it. THIS SUBPOENA WAS I NAME : ADDRESS: TELEPHONE: WAYNE, 19087 SUPREME COURT ID # 215-335-3212 ATTORNEY FOR: DEFENDANT BY TFE COURT: M350390-02 Prot tary/C1 l Division DATE : tr Seal of the Cou t Deputy AT THE REQUEST OF THE FOLLOWING PERSON: SCOTT TOOMEY, ESQ (Eff• 1/97) ADDENDUM TO SUBPOENA ERIE INS GROUP Vs. SERMATECH INT'L CUSTODIAN OF RE **SEE ATTACHED PERTAINING TO: No. 077601 FOR : UPPER ALLEN TWP FIRE CO * NAME: THREE ADDRESS: SSAN: XXXXX CERTIFIED PH ALARM FIRE WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. RECORD CUSTODIAN - COMPLETE AND RETURN [ ] RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. [ ] NO DOCUMENT,' has been made been located ( ) RECORDS ( ) X-RAYS Date CUMBERLAND M350390-02 'AVAILABLE.I hereby certify that a thorough search and that no record of the following documents have (CHECK THE APPROPRIATE BOX): ( ) PATIENT BILLING ( ) RECORDS / XRAYS have been destroyed Authorized signature or UPPER ALLEN TWP FIRE CO *' * SIGN AND RETURN THIS PAGE * * * ADDENDUM UPPER ALLEN TOWNSHIP FIRE CO FIRE REPORT FROM 3/30/06 ONLY: ANY AND AL RECORDS AND PHOTOGRAPHS INCLUDING BUT NOT LIMITED TO I HE FIRE REPORT, INVESTIGATION FILE, INVESTIGATION REPORT, CAL ULATIONS, SIMULATIONS, INCIDENT REPORTS, 8X10 ORIGINAL PR NT PHOTOGRAPHS OR DISC OF PHOTOGRAPHS, SUPPLEMENT REPORTS, ACCIDENT RECONSTRUCTION REPORTS, WITNESS STA MENTS, NOTES, MEMORANDA, VIDEOTAPES AND ANY OTHER DOCU MENTATION IN CONNECTION WITH THE THREE ALARM FIRE THAT TOOK P LACE ON MARCH 30, 2006 AT ADVANCED COATING TECHNOLOGY , INC., 327 ALLEN LANE, MECHANICSBURG, PA; INCIDENT NO.: H02-15594 97 ERIE INS Vs. SERMATECH CU44141EALTH OF PENNSYLVANIA COUIM OF JP File No. 1'L INC , 077601 SUBPOENA TO PRODUCE DOCUMENTS OR THIWIS FOR DISCOVERY PURSUANT TO RULE 4009.22 HAMPDEN TO : n rrru . r, -HIP VOL FIRE, 295 S SPORTING HILL RD, MECHANICSBURG PA 170 IAN OF RECORDS (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 at MEDICAL REPRODUCTIONS( 4ss4)940 DISSTON ST., PHILA., You may deliver or mail legible copies of the documents or produce things requested b? this subpoena, together with the certificate of carrpliance, to the party making thi 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 service, the party serving thin, subpoena may seek a court ordei- co pe11ing you to =ly with it. THIS SUBPOENA WAS I D AT THE REQUEST OF THE FOLLOWING PERSON: NAME: SCOTT TOOMEY, ESQ ADDRESS: _ ^v LEE RD_ WAYNE, PA 1908 TELEPHONE: 7 SUPREME OOURT ID # 215-335-3212 ATTORNEY FOR: DEFENDANT BY THE COURT: M350390-03 elf a a ?? Prot tary/C1 Ci• i 1 Division DATE: Seal of the rt _ Deputy (Eff. 7/97) ADDENDUM TO SUBPOENA ERIE INS GROUP Vs. SERMATECH INT'L CUSTODIAN OF RECO **SEE ATTACHED AD PERTAINING TO: NAME: ADDRESS: SSAN: CERTIFIED No. 077601 FOR : HAWDEN TOWNSHIP VOL FIRE * E ALARM FIRE WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RECO D CUSTODIAN - COMPLETE AND RETURN [ ] RECORDS ARE TTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. [ ] NO DOCUMENT: has been made been located ( ) RECORDS ( ) X-RAYS Date CUMBERLAND M350390-03 AVAILABLE.I hereby certify that a thorough search and that no record of the following documents have (CHECK THE APPROPRIATE BOX): ( ) PATIENT BILLING RECORDS / XRAYS have been destroyed Authorized signature or HAMPDEN TOWNSHIP VOL FIRE * # * SIGN AND RETURN THIS PAGE * * * ADDENDUM HAMPDEN TO' FIRE REPORT ANY AND ALI LIMITED TO T REPORT, CALF ORIGINAL PR] SUPPLEMENT. WITNESS STA OTHER DOCU THAT TOOK P TECHNOLOG` NO.: H02-1559 VOLUNTEER FIRE CO 3/30/06 ONLY: RECORDS AND PHOTOGRAPHS INCLUDING BUT NOT IE FIRE REPORT, INVESTIGATION FILE, INVESTIGATION ULATIONS, SIMULATIONS, INCIDENT REPORTS, 8XI0 ? T PHOTOGRAPHS OR DISC OF PHOTOGRAPHS, ?L REPORTS, ACCIDENT RECONSTRUCTION REPORTS, 'EMENTS, NOTES, MEMORANDA, VIDEOTAPES AND ANY 4ENTATION IN CONNECTION WITH THE THREE ALARM FIRE ,ACE ON MARCH 30, 2006 AT ADVANCED COATING , INC., 327 ALLEN LANE, MECHANICSBURG, PA; INCIDENT CAMPBELL CAMPBELL EDWARDS & CONROY, P.C. By: C. Scott Toomey, Esquire To: Plaintiff: Attorney I.D. No.: 66529 You are hereby notified to file a written response to Chesterbrook Corporate Center the enclosed Answer to Complaint Together with 690 Lee Road, Suite 300 New Matter within twenty (20) days from service Wayne, PA 19087 he or a judgm t=W'1;4 ?ed against you. (610) 964-1900 ' Attorney for Defendant, Sermatech International, Incorporated Atto or Defendant ERIE INSURANCE GROUP, a/s/o ADVANCED: COATING TECHNOLOGY, INC. : CUMBERLAND COUNTY : COURT OF COMMON PLEAS V. No. 07-7601 SERMATECH INTERNATIONAL, INCORPORATED JURY TRIAL DEMANDED ANSWER OF DEFENDANT SERMATECH INTERNATIONAL INC., TO PLAINTIFF'S COMPLAINT TOGETHER WITH NEW MATTER Defendant, Sermatech International, Inc. ("Sermatech"), by and through its attorneys, Campbell Campbell Edwards & Conroy, P.C., hereby responds to Plaintiff's Complaint as follows: 1. Denied. After reasonable investigation, Sermatech lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in this paragraph of the Complaint and, therefore, denies same and demands strict proof thereof at trial. 2. Denied. After reasonable investigation, Sermatech lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in this paragraph of the Complaint and, therefore, denies same and demands strict proof thereof at trial. 3. Denied. After reasonable investigation, Sermatech lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in this paragraph of the Complaint and, therefore, denies same and demands strict proof thereof at trial. 4. Admitted and denied. Sermatech admits that it is a corporation organized under the laws of the Commonwealth of Pennsylvania with a principal place of business located at 14566 Medical Drive, Pottstown, PA. Sermatech also admits that, among other things, its business includes developing various protective coatings. The remaining allegations of this paragraph are denied and strict proof thereof is demanded at trial. 5. Denied. After reasonable investigation, Sermatech lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in this paragraph of the Complaint. Sermatech, therefore, denies the allegations and demands strict proof thereof at trial. 6. Denied. After reasonable investigation, Sermatech lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in this paragraph of the Complaint. Sermatech, therefore, denies the allegations and demands strict proof thereof at trial. 7. Admitted and denied. Sermatech admits Material Safety Data Sheets for various products are created as necessary. No such Material Safety Data Sheet was attached to the copy of the Complaint served on Sermatech as claimed in this paragraph of the Complaint. As to the nature of the fire suppression system in the Advanced Coating Technology premises, after reasonable investigation, Sermatech lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations and, therefore, denies same and demands strict proof thereof at trial. 8. Denied. After reasonable investigation, Sermatech lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in this paragraph of the Complaint. Sermatech, therefore, denies the allegations and demands strict proof thereof at trial. 9. Denied. After reasonable investigation, Sermatech lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in this paragraph of the Complaint. Sermatech, therefore, denies the allegations and demands strict proof thereof at trial. By way of further response, Sermatech denies any and all liability on any theory or facts set forth in the Complaint. Sermatech further denies that any act or failure to act on its part resulted in Plaintiff's alleged damages. Sermatech demands strict proof of the allegations at trial. COUNTI 10. Sermatech hereby incorporates by reference its responses to paragraphs 1 through 9 of Plaintiff's Complaint as though fully set forth herein at length. 11. Denied. Sermatech specifically denies that it was negligent and/or careless in any fashion relevant to the allegations contained in Plaintiff's Complaint. Sermatech further denies that any act or failure to act on its part resulted in Plaintiff's alleged damages. Sermatech demands strict proof of the allegations at trial. 12. Denied. Sermatech specifically denies that it was negligent in any fashion relevant to the allegations contained in Plaintiff's Complaint. Sermatech further denies that any act or failure to act on its part resulted in Plaintiff's alleged damages. As to the nature and scope of the alleged damages, after reasonable investigation, Sermatech lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in this paragraph of the Complaint.. Sermatech demands strict proof of the allegations at trial. WHEREFORE, Defendant, Sermatech International, Inc., respectfully requests judgment in its favor and against the Plaintiff together with costs and attorneys' fees. COUNT II 13. Sermatech hereby incorporates by reference its responses to paragraphs 1 through 13 of Plaintiff's Complaint as though fully set forth herein at length. 14. Admitted and denied. Sermatech admits that its businesses include, in part, the development, distribution and sale of various protective coating materials. Sermatech denies the remaining allegations of this paragraph of the Complaint and demands strict proof thereof at trial. 15. Denied. It is denied that SermeTel 853 was previously mentioned in the Complaint. Sermatech further denies that SermeTel 853 was developed, sold and/or distributed with inadequate warnings and denies that SermeTel 853 was unreasonably dangerous in any fashion relevant to the allegations contained in the Complaint. Sermatech demands strict proof of these allegations at trial. 16. Denied. The allegations of this paragraph of the Complaint contain legal conclusions to which no response is required. To the extent a response is required, the allegations are denied and strict proof thereof is demanded at trial. 17. Denied. Sermatech specifically denies that any defect relevant to the allegations contained in Plaintiff's Complaint existed. Sermatech demands strict proof of these allegations at trial. 18. Denied. Sermatech specifically denies that any defective condition and/or liability producing conduct existed in any fashion relevant to the allegations contained in Plaintiff's Complaint. Sermatech further specifically denies that any act or failure to act on its part resulted in Plaintiff's alleged damages. Sermatech demands strict proof of these allegations at trial. 19. Denied. Sermatech specifically denies that it is liable to Plaintiff under any theory set forth in the Complaint. Sermatech demands strict proof of these allegations at trial. WHEREFORE, Defendant, Sermatech International, Inc., respectfully requests judgment in its favor and against the Plaintiff together with costs and attorneys' fees. NEW MATTER 20. Plaintiff's Complaint fails to set forth a claim upon which relief can be granted. 21. The allegations contained in Plaintiff's Complaint are barred by the applicable Statute of Limitations. 22. Sermatech performed each and every duty, if any, owed to the Plaintiff. 23. The subject incident and alleged damage were caused solely by the negligence and/or liability producing conduct of individuals and/or entities other than Sermatech. 24. Any act or failure to act on the part of Sermatech was neither a substantial nor a causative factor of the subject incident and claimed damages. 25. If Sermatech supplied, sold or distributed the material referred to in Plaintiff's Complaint, the subject incident and claimed damages were not caused by any condition existing in the material at the time that it left the possession or control of Sermatech. 26. If Sermatech supplied, sold or distributed the material referred to in Plaintiff's Complaint, the material may have undergone a substantial change or modification subsequent to the time it left the possession and control of Sermatech. 27. The acts or omissions of individuals or entities beyond the control of Sermatech constituted intervening, superseding causes of the alleged incident and claimed damages. 28. The material may have been misused after it left the possession of Sermatech, if it did. 29. Plaintiff's claims may be barred by doctrine of spoliation of evidence. 30. Plaintiff's claims are barred by the economic loss doctrine. 31. The Plaintiff's insured failed to heed the warnings provided and/or failed to act in a reasonably prudent manner under the circumstances. 32. The Plaintiff's insured failed to mitigate its damages. 33. Plaintiff and its insured were sophisticated users to which no liability extends. 34. The Restatement (20) of Torts §402A provides no basis for recovery in this case. WHEREFORE, Defendant, Sermatech International, Incorporated, respectfully requests judgement in its favor and against Plaintiff, together with costs and attorneys' fees. CAMPBELL CAMPBELL EDWARDS & CONROY, P.C. By: Attorney for Sermatech Z Dated: , 2008 VERIFICATION I, I e-v J EUx!°t$leing duly sworn according to law, hereby state that I am authorized to take this Verification on behalf of Sermatech International, Inc. I hereby verify that the statements contained within the Answer to Plaintiffs Complaint with New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to penalties to 18 Pa. C.S.A. Section 4904 relating to unworn falsification to authorities. 4 n ;' %- )> Vvly - I- - LJ2 J-) vN,-rii -0 -r-1, , w4wv?(, I -, 4- CERTIFICATE OF SERVICE I, C. Scott Toomey, Esquire, the undersigned, hereby certify that a true and correct copy of the ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER was served on 00,plp ? , 2008, via United States first class mail, postage prepaid and addressed as follows: Michael S. Munger, Esquire Nelson Levine deLuca & Horst Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 Attorney for Plaintiff By: k.,. Scott i oomey, hsquire Attorney for Defendant, Sermatech Internatianaf-i Dated: 0c;6 ki- -? '2008 &1 Aft ERIE INSURANCE GROUP, a/so ADVANCED COATING TECHNOLOGY, INC. Plaintiff V. SERMATECH INTERNATIONAL, INCORPORATED Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No.-Q&d i 0 -7- 7C! 41 JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT Plaintiff, by and through its undersigned counsel, herein responds to the New Matter of Defendant, Sermatech International Incorporated, as follows: 20-34. In accordance with Pa.R.Civ.P. 1029(c), all averments of the aforementioned Defendant are denied as conclusions of law, or as irrelevancies inappropriately raised as New Matter. Alternatively, if any of Defendant's New Matter averments are deemed not to be conclusions of law or irrelevancies, in accordance with Pa.R.Civ.P. 1029(e), the answering party is, after reasonable investigation, without knowledge or information to form a belief as to the truth of the Defendant's averments, and thus said averments are deemed denied. WHEREFORE, Plaintiff seeks judgment in their favor and against Defendant, Sermatech International, Incorporated as set forth and requested in Plaintiff s Complaint. NELSON LEVINE de LUCA & HORST, LLC BY: MICHAEL S. MUNGER, QUIRE ATTORNEY FOR PLAINTIFF Dated: October 22, 2008 r i ERIE INSURANCE GROUP, also ADVANCED COATING TECHNOLOGY, INC. Plaintiff V. SERMATECH INTERNATIONAL, INCORPORATED Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 00-7601 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Michael S. Munger, Esquire, hereby certify that a true and correct copy of the Reply to New Matter was served on October 22, 2008, upon counsel listed below by United States Mail, postage prepaid. C. Scott Toomey, Esquire Campbell, Campbell, Edwards & Conroy, P.C. Chesterbrook Corporate Center 690 Lee Road, Suite 300 Wayne, PA 19087 NELSON LEVINE de LUCA & HORST, LLC BY: MICHAEL S. MUNGE SQUIRE Dated: October 22, 2008 ATTORNEY FOR PLAINTIFF 10 9t Cc, 40 NELSON LEVINE de LUCA & HORST, LLC BY: MICHAEL S. MUNGER, ESQUIRE IDENTIFICATION NO.: 71318 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5133 ATTORNEYS FOR PLAINTIFF ERIE INSURANCE GROUP A/S/O COURT OF COMMON PLEAS ADVANCED COATING TECHNOLOGY, CUMBERLAND COUNR Q INC. ,?? Plaintiff(s) CIVIL ACTION NO: #?? v. -<> w SERMATECH INTERNATIONAL < -p INCORPORATED s Defendant PLAINTIFF'S MOTION REQUESTING A RULE 212.3 CONFERENCE Co -n z M rom ca , -+o ca-? z G ?.> :tea Plaintiff, Erie Insurance Group a/s/o Advanced Coating Technology, Inc., hereby requests that this Court schedule a conference, pursuant to Pa.R.C.P. 212.3, to establish discovery deadlines. In support hereof, Plaintiffs state as follows: This case involves a fire that occurred on March 30, 2006 at Advanced Coating Technology, Inc. located at 327 West Allen Lane, Mechanicsburg, Pennsylvania. 2. The fire caused extensive smoke, water and fire damage to Plaintiff's business. 3. In an effort to provide incentive to all parties to complete discovery in this case in a more timely and efficient manner, it is respectively requested that a conference be scheduled with the Court so that definitive discovery deadlines may be established. matter. 4. Plaintiff respectfully requests that Court schedule a Rule 212.3 conference in this WHEREFORE, it is respectfully requested that this Honorable Court schedule all parties in this matter for a Rule 212.3 Scheduling Conference to take place at the convenience of the Court. NELSON LEVINE de LUCA & HORST, LLC BY: 1' '? S. ? MICHAEL S. MUNGER, ESQUIRE ATTORNEYS FOR PLAINTIFF Dated: April 11, 2011 ff- NELSON LEVINE de LUCA & HORST, LLC BY: MICHAEL S. MUNGER, ESQUIRE IDENTIFICATION NO.: 71318 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5133 ATTORNEYS FOR PLAINTIFF ERIE INSURANCE GROUP A/S/O COURT OF COMMON PLEAS ADVANCED COATING TECHNOLOGY, CUMBERLAND COUNTY INC. V. Plaintiff(s) SERMATECH INTERNATIONAL INCORPORATED Defendant CIVIL ACTION NO: 077601 CERTIFICATE OF SERVICE I, Michael S. Munger, Esquire, hereby certify that a true and correct copy of Plaintiff's Motion Requesting a Rule 212.3 Conference was served on April 11, 2011, upon counsel listed below by United States Mail, postage prepaid. Meaghann C. Hayes, Esquire Campbell Campbell Edwards & Conroy, P.C. 690 Lee Road, Suite 300 Wayne, PA 19087 NELSON LEVINE de LUCA & HORST, LLC BY:1.cc.l?.vZ s-d' MICHAEL S. MUNGER, ESQUIRE ATTORNEY FOR PLAINTIFF Dated: April 11, 2011 ' s NELSON LEVINE de LUCA & HORST, LLC BY: MICHAEL S. MUNGER, ESQUIRE IDENTIFICATION NO.: 71318 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5133 ERIE INSURANCE GROUP A/S/O ADVANCED COATING TECHNOLOGY, INC. Plaintiff(s) V. SERMATECH INTERNATIONAL INCORPORATED Defendant ATTORNEYS FOR PLAINTIFF -°m rrt r--y rr? ..,. COURT OF COMMON PS ? --{ -?' CUMBERLAND COUN N II; CIVIL ACTION NO: 077 --0 C n > . PLAINTIFF'S AMENDED MOTION REQUESTING A RULE 212.3 CONFERENCE Plaintiff, Erie Insurance Group a/s/o Advanced Coating Technology, Inc., hereby requests that this Court schedule a conference, pursuant to Pa.R.C.P. 212.3, to establish discovery deadlines. In support hereof, Plaintiffs state as follows: 1. This case involves a fire that occurred on March 30, 2006 at Advanced Coating Technology, Inc. located at 327 West Allen Lane, Mechanicsburg, Pennsylvania. 2. The fire caused extensive smoke, water and fire damage to Plaintiff's business. 3. In an effort to provide incentive to all parties to complete discovery in this case in a more timely and efficient manner, it is respectively requested that a conference be scheduled with the Court so that definitive discovery deadlines may be established. 4. A Judge has not ruled upon any other issue in the same or related matter. 5. Concurrence with opposing counsel has been sought, but no agreement has been reached. 6. Plaintiff respectfully requests that Court schedule a Rule 212.3 conference in this matter. WHEREFORE, it is respectfully requested that this Honorable Court schedule all parties in this matter for a Rule 212.3 Scheduling Conference to take place at the convenience of the Court. NELSON LEVINE de LUCA & HORST, LLC BY: S , MICHAEL S. MUNGER, ESQUIRE ATTORNEYS FOR PLAINTIFF Dated: April 29, 2011 NELSON LEVINE de LUCA & HORST, LLC ATTORNEYS FOR PLAINTIFF BY: MICHAEL S. MUNGER, ESQUIRE IDENTIFICATION NO.: 71318 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5133 ERIE INSURANCE GROUP A/S/O COURT OF COMMON PLEAS ADVANCED COATING TECHNOLOGY, CUMBERLAND COUNTY INC. Plaintiff(s) CIVIL ACTION NO: 077601 V. SERMATECH INTERNATIONAL INCORPORATED Defendant CERTIFICATE OF SERVICE I, Michael S. Munger, Esquire, hereby certify that a true and correct copy of Plaintiff's Amended Motion Requesting a Rule 212.3 Conference was served on April 29, 2011, upon counsel listed below by United States Mail, postage prepaid. Meaghann C. Hayes, Esquire Campbell Campbell Edwards & Conroy, P.C. 690 Lee Road, Suite 300 Wayne, PA 19087 NELSON LEVINE de LUCA & HORST, LLC BY: MICHAEL S. MUNGER, ESQUIRE ATTORNEY FOR PLAINTIFF Dated: April 29, 2011 3 NELSON LEVINE de LUCA & HORST, LLC BY: MICHAEL S. MUNGER, ESQUIRE IDENTIFICATION NO.: 71318 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5133 ERIE INSURANCE GROUP A/S/O ADVANCED COATING TECHNOLOGY, INC. Plaintiff(s) V. SERMATECH INTERNATIONAL INCORPORATED Defendant ATTORNEYS FOR PLAINPFF } c r6w r6w ? ' c r L IM ? -? C) jo COURT OF COMMON PS CUMBERLAND COUNT' CIVIL ACTION NO: 077601 O-) -.77601 ORDER AND NOW, this day of / ' ` , 2011, upon consideration of the within Motion, IT IS HEREBY ORDERED, that a Scheduling Conference in the above-captioned matter is scheduled for 2011 at o' clock A am/?6 in the Cumberland Coty myC A. /? kAsy?W ou ous e, risle, BY THE RT: J. M 9hana 0 Hayes, ?- ; le? Al ysso? Ser rao Cop+e? / 0?? NELSON LEVINE de LUCA & HORST, LLC BY: MICHAEL S. MUNGER, ESQUIRE IDENTIFICATION NO.: 71318 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5133 ERIE INSURANCE GROUP A/S/O ADVANCED COATING TECHNOLOGY, INC. Plaintiff(s) V. SERMATECH INTERNATIONAL INCORPORATED Defendant ATTORNEYS FOR PLAINTIFF COURT OF COMMON PLEAS CUMBERLAND COUNT.,Y c cz:CIVIL ACTION NO: 60f: z? PROPOSED JOINT SCHEDULING ORDER -yam The undersigned counsel hereby agree and request this Honorable Court to enter an order setting the deadlines in a Scheduling Order as follows: 1. Discovery shall be concluded by September 7, 2011. 2. Plaintiff's expert reports shall be disclosed no later than October 7, 2011. 3. Defense expert reports shall be disclosed no later than November 7, 2011. 4. Dispositive Motions must be filed on or before December 7, 2011. 5. A pre-trial conference will be scheduled any time after December 7, 2011. ,a Respectfully submitte4j, Michael S. Munger, Esquire Attorney for Plaintiff Nelson, Levine, de Luca &i Horst 518 Township Line Rd, Suite 300 Blue Bell, PA 19422 r' William J. Conroy. Esquire r`± William A. Rubert, Esquire Meaghann C. Hayes, Esquire Attorneys for Defendant Campbell Campbell Edwards & Conroy, P.C. 690 Lee Road, Suite 300 Wayne. PA 19087 NELSON LEVINE de LUCA & HORST, LLC BY: MICHAEL S. MUNGER, ESQUIRE IDENTIFICATION NO.: 71318 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5133 ERIE INSURANCE GROUP A/S/O ADVANCED COATING TECHNOLOGY, INC. ATTORNEYS FOR PLAINTIFF COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff(s) CIVIL ACTION NO: 077601 .-, V. _.; SERMATECH INTERNATIONAL rn ' '"= INCORPORATED Defendant ..<> r-X co c ' W And now this following schedule: c-, PROPOSED JOINT SCHEDULING ORDER r'_ rTj 17th day of August 2011, all parties are directed to complyr wi h thz' 1. Discovery shall be concluded by September 7, 2011. 2. Plaintiff's expert reports shall be disclosed no later than October 7, 2011. 3. Defense expert reports shall be disclosed no later than November 7, 2011. 4. Dispositive Motions must be filed on or before December 7, 2011. 5. A pre-trial conference will be scheduled any time after December 7, 2011. DONE and ORDERED this/ / "aay of August 2011: HONORABLE EDWARD E. GUIDO M?Chae? Mu r Pop A? N [L NELSON • LEVINE • de LUCA & HORST Alyssa Serrao d H A LIMITED LIABILITY COMPANY Direct: 215.358.5073 ATTORNEYS AT LAW Secretary aserrao(a),nldhlaw com PHILADELPHIA CHERRY HILL COLUMBUS NEW YORK DENVER LONDON August 17, 2011 The Honorable Edward E. Guido Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013 Re: Erie Insurance Group a/s/o Advanced Coating Technology v Sermatech International, Inc. Civil Case No: 07-7601 Dear Judge Guido: www.nldhiaw.com 518 Township Line Road Suite 300 Blue Bell, PA 19422 Phone: 215.358.5100 Fax: 215.358.5101 As a supplement to the previously served Proposed Joint Scheduling Order, enclosed please find a properly formatted Proposed Order for the Courts consideration. Should you have any questions or concerns, please feel free to contact me. Thank you. Very truly yours, NELSON LEVINE de LUCA & HORST, LLC Alyssa ?Serrao O-' ?zj-i-k u-0 /as Encl CAMPBELL CAMPBELL EDWARDS & CONROY, P.C. By: William J. Conroy, Esquire Christopher G. Mavros, Esquire Meaghann C. Porth, Esquire Attorney I.D. No.'s: 36433/90343/307629 690 Lee Road, Suite 300 Wayne, PA 19087 Attorneys for Defendant, (610) 964-1900 Sermatech International Incorporated ERIE INSURANCE GROUP, a/s/o ADVANCED COATING TECHNOLOGY, INC. : V. SERMATECH INTERNATIONAL INCORPORATED CUMBERLAND COUNTI P wv rn r ci = M No. 07-7601 r? ? N `- c`s ' DEFENDANT SERMATECH INTERNATIONAL, INC.'S MOTION FOR SUMMARY JUDGMENT Defendant, Sermatech International, Inc. ("Sermatech"), by and through its undersigned counsel, Campbell Campbell Edwards & Conroy, P.C., hereby moves for summary judgment to dismiss Plaintiff, Erie Insurance group a/s/o Advanced Coating Technology, Inc.'s ("Plaintiff') causes of action, in their entirety, with prejudice, and in support states as follows: I. STATEMENT OF FACTS 1. This matter involves a fire that occurred on March 30, 2006 at a property owned by Advanced Coating Technology ("ACT") located at 327 West Allen Lane, Mechanicsburg, Pennsylvania. A copy of Plaintiff's Complaint is attached as Exhibit "A." 2. Erie insured ACT at the time of the fire, made various payments to it as a result of the fire, and in this suit it is demanding reimbursement for those payments. ACT itself is not seeking recovery of any uninsured losses, or losses in excess of available coverage. 1 The Subject Facility and Area of the Accident 3. ACT is a business that applies various coatings to materials, including Harley- Davidson motorcycle exhaust components. See paragraph 2 of Exhibit "A." 4. Sermatech supplied ACT with protective coatings that ACT applied to the Harley- Davidson motorcycle exhaust components. "Sermatel 853" and "Sermatel 842" were among those protective coatings supplied by Sermatech to ACT. 5. The various coatings, including Sermatel 842 and 853, were applied in two designated booths, Booth IA and 1B, located in a paint room at ACT's facility. A copy of the relevant portions of the deposition testimony of Joseph Turri, President and CEO of ACT, pps. 67, line 9, - 68, line 20, are attached as Exhibit "B." 6. Booth IA was used to apply Sermatel 853 while Booth 1B was used to apply Sermatel 842. See p. 67, lines 9 - 21, of Exhibit "B." 7. Both Booths were also used to apply a variety of other coatings not supplied by Sermatech. For example, Booth IA was used to apply Aervoe Acrylic shortly before the accident. See p. 68, lines 4 - 20, of Exhibit "B." 8. There was another area called the, "Other Paint" area, where epoxies, enamels and urethane paints were applied. Joseph Turri admitted it was possible that Sermatel 853 was applied in the "Other Paint" area periodically prior to the accident. See p. 69, line 24 - p. 70, line 7, and p. 88, lines 17 - 19, of Exhibit "B." 9. Booth IA, I B and the "Other Paint" area were equipped with separate, stand alone fire suppression systems. These systems were not interconnected. Each system was installed to suppress fires that occurred within the confines of the booth. See p. 86, line 8 - 87, line 4, and p. 88, lines 4 - 8, of Exhibit "B." 2 10. There were painted lines around Booths IA and 1B, which signified that no smoking or working with electrical equipment was permitted within the painted lines, to guard against the risk of fire. The relevant portions of the deposition testimony of Guy Griffiths, employee of ACT, page 52, lines 2 - 12, are attached as Exhibit "C." See also relevant portions of the deposition testimony of Carl Lybrand, painter for ACT, pps. 31, line 21 - 32, line 24, attached as Exhibit "D." 11. The accumulation of the various coatings in each booth from overspray was cleaned on an intermittent basis. Occasionally, the walls of each booth were peeled and the filters replaced. There was also fire resistant paper on the floors of each booth that was replaced approximately every two to three days. See pps. 38, lines 4 - 19, p. 40, line 24, of Exhibit "D." 12. Carl Lybrand would change the filters of each booth when the paint would start coming back at him from the filter, indicating to him that it was blocked. See page 39, line 25 - p. 40, line 17 of Exhibit "D." 13. There were ventilation stacks for each booth that also had to be cleaned from an accumulation of overspray from the coatings. These stacks were usually cleaned only when they were clogged enough to stop the fans from running. See page 57, line 2 - p. 58, line 1, of Exhibit "D." 14. Carl Lybrand cleaned the stacks approximately three times in ten years, but could not recall how long it had been since they had been cleaned prior to the accident. See id. 15. Carl Lybrand also testified that acrylic was sprayed on the control boxes in Booth 1 A "within a week" of the accident. In fact, a five gallon container of acrylic was in Booth 1 A at the time of the accident. See pps. 73, line 11 - p. 74, line 9, of Exhibit "D." 3 16. As such, there were accumulations of overspray of various coatings in each booth, on the walls, floors, filters and ventilation stacks, at the time of the accident. There was also a container of acrylic in Booth IA at that time. 17. In fact, coating overspray was actually leaving the paint booth parameters prior to the accident. See pps. 54, line 21 - p. 55, line 6, of Exhibit "C." Day of the Accident 18. At the time of the accident, Guy Griffiths, a mechanic for ACT, was in the process of installing sheet metal "wings" to contain the overspray that was leaving the paint booth parameters. See p. 55, lines 7 - 19 of Exhibit "C." 19. Griffiths did not perform any work to prepare the booths for the installation of the wings. See page 61, lines 2 - 9, of Exhibit "C." 20. During installation of the first wing, Griffiths realized that the bottom lip of the paint booth was interfering with the wing placement. See page 62, lines 6 - 17, of Exhibit "C." 21. Griffiths decided to use an electric grinder to notch out the wing to fix the interference issue. See page 67, lines 9 - 24, of Exhibit "C." 22. Griffiths did not clean or otherwise prepare the area where he was going to install the wing. See page 75, lines 17 - 20, of Exhibit C." 23. As Griffiths was using the grinder, he saw a spark fly, hit the side of the booth, then fall into a channel outside of Booth IA. See pps. 73, line 21 - 74, line 15, of Exhibit "C." 24. Griffiths then saw an ignition that ran both ways along the channel outside Booth IA and, eventually, to the filters inside the booth. See pps. 74, lines 4 - 15, and p. 87, lines 6 - 23 of Exhibit "C." 4 25. Griffiths testified he believes the fire travelled from the channel into the paint booth from a small opening in a corner by the conveyor. See pps. 87, line 24 - 89, line 21, of Exhibit "C." 26. Griffiths grabbed a fire extinguisher and proceeded to the front of the booth, at which point the fire had already consumed 20 inches vertical and to the right of the filter material. The filter material was located on the back wall of the booth. See page 90, lines 4 - 16, of Exhibit "C." 27. Griffiths testified that the fire jumped quickly from the channel to the filter area and that it was fast moving. See page 91, lines 4 - 6, of Exhibit "C." 28. Griffiths then applied the contents of the extinguisher on the fire, but testified that the fast moving nature of the fire probably made it impossible to catch it even if it was outside the booth. See pages 87, lines 15 - 23, of Exhibit "C." 29. Griffiths was unable to put out the fire with the extinguisher, at which point the fire spread to Booth 1 B through a conveyor system and to the filters in that booth. 30. The suppression systems for both booths activated, but were also unsuccessful in extinguishing the fire, which was burning both outside and inside the booths. 31. Plaintiff alleges the subject fire caused damages for which it now seeks relief from Defendant. 32. Plaintiff is not entitled to relief from Defendant as a matter of law for the reasons set forth below. 5 II. LEGAL ARGUMENT A. Strict Liability Claim 33. Pennsylvania currently follows the Restatement 2d (Torts) § 402A in assessing a plaintiff's strict liability claims. See Webb v. Zern, 220 A.2d 853, 854 (Pa. 1966). 34. In all products liability cases under Pennsylvania law, the plaintiff must prove: (1) the existence of a defect in the product that was present at the time the product left the control of the manufacturer; and (2) that the defect caused the plaintiffs injuries. Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 899 (Pa. 1975); Davis v. Berwind Corp., 690 A.2d 186, 190 (Pa. 1997). 35. Significantly, there is no evidence of record that a design or manufacturing defect of Sermatel 853 caused the subject fire. Rather, Plaintiffs' allegations are limited to failure to warn. 36. Even if Plaintiffs were able to refer to evidence of record that Defendant's product was defective in design or manufacture, Plaintiffs' strict liability claim in its entirety cannot survive, pursuant to the Pennsylvania Supreme Court's decision in Pennsylvania Dept. of General Svcs. v. United States Mineral Products Co., 898 A.2d 590 (Pa. 2006) ("General Services"), which held that "there is no strict liability in Pennsylvania relative to non-intended uses even where foreseeable by a manufacturer." Id. at 600-01. 37. Plaintiffs' claim here-that Sermatel 853 is defective in the event of a foreseeable but non-intended fire of this nature-is a claim that Sermatech should not only have foreseen this fire, caused by the unintended and code-violating actions of its employee(s), but should have designed, tested, and manufactured Sermatel 853 against it, as well. 6 38. The Pennsylvania Supreme Court, however, has held that accidents, such as fires, are not "intended uses" and that a claim asserting that a product behaved in an unsafe manner during an accident can only be brought in negligence, and not strict liability. See General Services, 898 A.2d at 601. Under this standard, Plaintiffs' strict liability claim in this case cannot proceed. 39. In 2006, the Pennsylvania Supreme Court, in General Services, expressly defined the term "intended use" to exclude fires-and any other "outside cause or instigator"-because they are not an intended use of a building product. 898 A.2d 590, 601-02. 40. "[T]he general rule is that there is no strict liability in Pennsylvania relative to non-intended uses even where foreseeable by a manufacturer. The Court has also construed the intended use criterion strictly, holding that foreseeable misuse of a product will not support a strict liability claim." See id. (emphasis added). 41. In this case, the foreseeable but unintended use that Plaintiffs allege is the fire. Plaintiffs' theory is that Sermatech should have anticipated the possibility of sparks from a grinder causing a fire and designed and tested its product to withstand such foreseeable conduct. Even if it can be considered foreseeable, this is exactly the foreseeable situation outside the product's intended use that the Pennsylvania Supreme Court specifically rejected in a 402A strict liability claim. See id. 42. Plaintiffs strict liability claims would not leave them without remedy, as the Pennsylvania Supreme Court has pointed out, even instructed, that allegations against a product manufacturer such as the allegations in this case should not be grounded in strict liability, but rather in negligence. See Phillips v. Cricket Li hg ters, 576 Pa. 644, 656-58 (Pa. 2003). 7 43. As a matter of law, Defendant is entitled to summary judgment on Plaintiff s strict liability claim based on the above fatal deficiencies. 1. Failure to Warn 44. Even if Plaintiffs strict liability claim is allowed to stand, Defendant is still entitled to judgment as a matter of law. 45. Plaintiffs only allegation in strict liability on which it has offered evidence of record in support is Sermatech's alleged failure to warn of the fire characteristics of Sermatel 853. 46. In claims involving an alleged failure-to-warn defect, the plaintiff must first show that the hazardous condition of the product was a factual cause of the injury, and then that the absence or inadequacy of warnings addressing that condition was the legal cause of the injury. See Moroney v. General Motors Corp., 850 A.2d 629, 633-34 (Pa. Super. 2004). 47. In the context of inadequate warnings, proximate cause demands that there must be credible evidence that the accident would not have occurred had the additional warning proposed by the plaintiff been provided. See Sherk v. Daisy-Heddon, 450 A.2d 615, 619 (Pa. 1982). 48. Hindsight, proof of injury alone, or proof of an injury plus a defect are insufficient to establish liability. See id. 49. Courts have recognized the proximate cause requirement and routinely grant judgment in favor of a manufacturer where the plaintiff fails to prove that an additional warning would have made a difference. See, e.g., Conti v. Ford Motor Co., 743 F.2d 195 (3d. Cir. 1984) (defendant was entitled to judgment as a matter of law where plaintiffs failed to prove that the existence of any additional warning would have prevented accident); Powell v. J.T. Pose, 8 766 F.2d 131 (3d Cir. 1985) (reversing jury verdict for plaintiff where the district court should have decided as a matter of law that the presence of a warning would not have altered the plaintiffs conduct); Overpeck v. Chicago Pneumatic Tool Co., 823 F.2d 751, 755-56 (3d Cir. 1987) (affirming entry of judgment notwithstanding the verdict for manufacturer, where in the absence of "any direct evidence offered by appellants to support a finding that a warning would have changed [plaintiffs] behavior, and given the reasonable inferences to be drawn from [plaintiff's] testimony, we cannot conclude that sufficient evidence existed to support a jury finding for appellants on the issue of causation"); Sherk, 450 A.2d 615 (affirming judgment as a matter of law for manufacturer where the evidence precluded a finding that allegedly inadequate warnings proximately caused plaintiff s injury). 50. In this case, Plaintiff alleges that Defendant is strictly liable for providing inadequate warnings or instructions concerning the extinguishing media to be used if a fire occurs with Defendant's product. See paragraph 15 of Exhibit "A." 51. Specifically, Plaintiff alleges that Defendant should have provided warnings of a possible metal fire hazard and should have listed a Class D suppressant as an extinguishing media. 52. Plaintiff cannot establish, however, that the fire would have been prevented if Defendant recommended the use of a Class D suppressant. 53. The fire investigation report by the Pennsylvania State Police concluded that the fire originated outside the paint booths. The report did not specify what substance or substances ignited the spark. A copy of the fire investigation report is attached as Exhibit "E." 9 54. Furthermore, Plaintiffs cause and origin expert, Gerald Kufta, did not conclude what substance or substances ignited the spark. A copy of Kufta's report is attached as Exhibit «F ,9 55. There is no evidence of record that establishes the fire was caused or involved any of Defendant's product. 56. As such, Plaintiff cannot establish that any of Defendant's product caused or contributed to the fire, especially when ACT used a variety of other coatings and products in the area where the fire originated. 57. Moreover, the fire did not start in the booth. Even if Sermatech had recommended a Type D suppressant for the suppression system within the booth, the fire would have started and continued to burn outside of, and thereafter traveled into, the booth. 58. Nor would a different warning have changed the spread of the fire into the booth and building. Class D fire suppressants are manual only; they are not available in an automatic suppressant system. Plaintiffs liability expert, Thomas Euson, notes that Class D suppressants are approved and effective on horizontal surfaces only (emphasis added). 59. According to Griffiths, the fire spread quickly and almost explosively once it reached the interior of the booth. 60. In fact, by the time Griffiths grabbed a fire extinguisher and proceeded to the front of the booth, the fire had already consumed 20 inches vertical and to the right of the filter material. The filter material was located on the back wall of the booth. See page 90 of Exhibit "C" (emphasis added). 61. Given Griffiths' description of the spread of the fire, no fire extinguisher would have made a significant difference. 10 62. Specifically, a Class D extinguisher would not have been effective in suppressing the fire, as Plaintiff admits such a suppressant is only effective in horizontal surfaces and by the time Griffiths was in a position to utilize a fire extinguisher, the fire was already vertical and spreading quickly given the amount of buildup ACT allowed to occur. 63. Moreover, Plaintiff has not submitted any testing or evidence of record that establishes what suppressants are effective in extinguishing fires involving Sermatel 853. 64. As such, Plaintiff cannot establish that a Class A, B or C suppressant would have been insufficient to extinguish a fire caused by Sermatel 853. Plaintiff may argue that the subject fire supports their contention that an A, B, or C suppressant was unsuccessful, but Plaintiff cannot establish if Sermatel 853 caused the fire or the extent of its involvement. Further, hindsight, proof of injury alone, or proof of an injury plus a defect are insufficient to establish liability. See Sherk, 450 A.2d at 619. 65. Finally, Plaintiff is a specialized industry consumer. A manufacturer does not owe a duty to warn of basic operations in an industry to a skilled professional in that industry. See Mackowick, 575 A.2d at 102-03 ("[t]he duty to adequately warn does not require the manufacturer to educate a neophyte in the principles of the product") 66. Accordingly, ACT did not need Sermatech to more specifically describe the combustibility of 853 post-application in order to put in place a hot work permit system - NFPA standards and OSHA standards already required that. 67. Defendant is permitted to presume, as a matter of law, that a specialized industrial consumer like ACT will follow applicable industry standards codes, and does not need to be instructed to follow those codes, nor instructed on what those codes state. See Mackowick, 575 A.2d at 103 (granting summary judgment because a warning of live electricity was not necessary 11 to warn a licensed electrician because a "manufacturer should be able to presume mastery of basic operations by ... skilled professionals in an industry, and should not owe a duty to warn or instruct" on those operations) (quoting Ross v. Jgybird Automation, Inc., 432 N.W.2d 374, 377 (Mich. App. 1988)). 68. As a matter of law, Defendant is entitled to summary judgment because Plaintiff cannot satisfy the requisite elements of its strict liability failure to warn claim against Sermatech. B. Negligence Claim 69. Although Plaintiff's cause of action is properly grounded in negligence rather than strict liability, its claim is still fatally deficient as a matter of law. 70. The task of determining the existence of a duty for purposes of assigning liability in a negligence action is for the court, not the jury. See Stephens v. Paris Cleaners, Inc., 885 A.2d 59 (Pa. Super. 2005), citing Kenner v. Kappa Alpha Psi Fraternity, Inc., 808 A.2d 178, 182 (Pa. Super. 2002). 71. In determining the existence of a duty, the Court should examine the following factors: "(1) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution." See Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (2000). 72. Accordingly, in a products liability suit based on negligence, Plaintiff must establish that the manufacturer owed a duty to Plaintiff; the manufacturer breached that duty; and such breach was the proximate cause of the alleged injuries. 73. In this case, Plaintiff cannot establish that Defendant breached any duty of care or even that any alleged breached caused its damages. 12 74. Plaintiff alleges that Defendant breached a duty of care to Plaintiff by failing to warn Plaintiff that a Class D suppressant was necessary to extinguish a fire involving its product. 75. Plaintiff, however, has not proffered any evidence of record that Defendant's product, Sermatel 853, caused the fire. 76. Plaintiff has also failed to proffer any evidence that a fire involving Defendant's product could not be extinguished with a Class A, B or C suppressant. 77. Plaintiff may argue that the subject accident is proof alone that a Class A, B, or C suppressant is insufficient to extinguish a fire involving Defendant's product, but Plaintiff is simply unable to establish the extent of, if any, involvement that Sermatel 853 had in the subject fire. 78. Plaintiffs failure to proffer any such evidence in this case is especially glaring, particularly when there were a number of other products used in and around the paint booths that were known to be flammable. 79. Furthermore, Plaintiff has failed to submit any testing results or other evidence that establish the effectiveness of a Class A, B, or C suppressant on a fire involving Defendant's product. 80. Moreover, Plaintiff has failed to submit any testing results or other evidence that establishes a Class D suppressant would have extinguished or had an effect on the fire. 81. Plaintiff has failed to rule out that the other materials and chemicals used within the facility could only be extinguished with a Class D suppressant. 82. In fact, Plaintiff fails to establish whether a Class D suppressant would have made any difference whatsoever. 83. Plaintiff also failed to rule out other reasons the suppression systems were 13 ineffective in extinguishing the fire, such as the possibility the systems were defective, or that the origination of the fire outside of the booth made it impossible for the system to extinguish because the system was only designed to suppress fires originating within the booth. 84. As such, Plaintiff's negligence claim fails as a matter of law because it does not proffer any evidence that Defendant's product was the material that caused the fire or rendered the fire suppression systems ineffective. 85. Plaintiff has categorically failed to distinguish how Defendant's product was responsible for the fire or rendering the suppressant systems ineffective. 86. As a matter of law, Plaintiff cannot satisfy the breach element of its negligence claim because of the above deficiencies. 87. As for causation, Plaintiff is simply unable to establish that even if Defendant provided a warning to use a Class D suppressant, that the subject fire would not have occurred. 88. In addition to the above, Plaintiff cannot establish that a Class D suppressant would have been effective in extinguishing the fire. 89. The fire started outside of the paint booth and spread explosively and quickly. The suppression systems were designed to extinguish fires that occurred within the paint booth. 90. A Class D suppressant is only available as a manual extinguisher and is effective on horizontal surfaces only. Griffiths admits, however, that by the time he reached the fire with a manual extinguisher, the fire was already vast and had reached significant vertical dimensions. See page 90 of Exhibit "C." 91. As mentioned above, Plaintiff cannot establish that Defendant's product caused the fire or even the specific involvement of Defendant's product in the subject fire. 92. Plaintiffs failure to establish the causation element of negligence further 14 demonstrates that its claims should be dismissed as a matter of law. C. Summary Judgment Standard 93. The standard for summary judgment in Pennsylvania is set forth in Pennsylvania Rule of Civil Procedure 1035.2, which states, in pertinent part: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law: (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after completion of discovery relevant to the Motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. See Pa. R. Civ. P. 1035.2. 94. As stated by the Pennsylvania Superior Court in Godlewski v. Pars Mfg. Co., It is clear that if the defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his or her cause of action. 406 Pa. Super. 425, 432 (Pa. Super. 1991). 95. As such, summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Godlewski, 408 Pa. Super. at 430. 96. Pennsylvania Rule of Civil Procedure 1035.3 provides that in responding to a Motion for Summary Judgment: 15 The adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response ... identifying: (1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion ..., or (2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced. See Pa. R. Civ. P. 1035.3(a)(1) and (2). 97. To allow the plaintiff to avoid summary judgment where they have absolutely no evidence "to support an issue on which they bear the burden of proof runs contrary to the spirit of Rule 1035." See Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996). 98. In this case, discovery is complete and Plaintiff has failed to establish elements necessary to sustain its cause of action as a matter of law. Accordingly, Defendant seeks the entry of summary judgment against Plaintiff to dismiss the cause of action in its entirety. WHEREFORE, Defendant, Sermatech International, Inc., respectfully requests this respectfully requests that this Honorable Court grant summary judgment in its favor and dismiss any and all claims against it, with prejudice. A proposed form of Order is attached. Respectfully submitted, Camp BY: Dated: April 27, 2012 & Conroy, P.C. Christopher G. Mavros, Esquire Meaghann C. Porth, Esquire 690 Lee Road, Suite 300 Wayne, PA 19087 (610) 964-1900 Attorneys for Defendant, Sermatech International Incorporated 16 CERTIFICATE OF SERVICE I, Christopher G. Mavros, Esquire, hereby state that I have caused a true and correct copy of the attached Motion for Summary Judgment and Praecipe for Listing Case for Argument and accompanying documents, on behalf of Defendant, Sermatech International, Inc. to be served by regular, first class mail, postage prepaid, upon the following persons this 27th day of April, 2012: Michael S. Munger, Esquire Nelson Levine deLuca & Horst 518 Township Line Road, Suite 300 Blue Bell, PA 19422 CAMPBELL CAMPBELL EDWAW& CONROY, P.C. BY: I/ L '11? C istopher G. Mavros, Esquire A orney for Defendant, Sermatech International Incorporated . ik I\ tl, .10WEEPAIQ IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION ERIE INSURANCE GROUP, 9/so ADVANCED COATING TECHNOLOGY, INC. 4901 LOUISE DRIVE MECHANICSBURG, PA 17055 Plaintiff V. SERMATECH INTERNATIONAL INCORPORATED 1566 MEDICAL DRIVE 3RD FLOOR, SUITE 300 POTTSTOWN, PA 19464 NOTICE TO DEFEND 001518 AVISO Le ban demandedo a usled an la torso. Si usbd quiae dofWarse de aft damendas a tpoestas an ha pighm siguietaes, usted dame veirae (20) din de plszo al pardr de Is fiche de Is daeanda y in nodficsci6n. Haoe Na hassaw una compsmucis ewft o as parsons o oon tm obogado y enhegar a la come an form esc to m deA i o sae objeciaun a In drams an contra de an panara. Sea avisedo que si ustod no se deltemde, la cone tomarl modidn y lumb continuer la demanda an contra soya sin previo aviso o ndifleeoidn. Adomis, In cone peedc deoidir a fatw del demandaoss y regaiore quo ustod cumpla ow todas las provisiam de am de nsda. Usted puede pa+der dinem o sus propiededes o otros daechos imporwkes pars usted. NOTICE You have been sued in court. If you wish to defend aping the claims set ftm in the following pages, you must WA action within twenty (20) days amber the oomphdot and notice are saved, by armoring a wrifta appearance personally or by attomey and tiling in writing with the cart your dahses or objections to the claims set Rdh against you. You are warned that if you &N to do so the ease racy proceed withod you and a judpxM may be entered against you by the nowt without fisher notice for any money claimed in the complaint or lbr any other claim or relief requested by the plabrim You may lose money or pro" or other rights Important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, 00 TO OR TELEPHONE THE OFFICE SST FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. PHILADELPHIA BAR ASSOCIATION Lawyer Retard and Information Service 1101 Marloet Street, I lth Floor Philadelphia, Peansylvenie 19107 (215)238-6300 001518 No. %fty=7 JURY TRIAL DEMANDED THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES HEARING IS NOT REQUIRED LLEVE ESTA DEMANDA A UN ABOGADO INNMATAMEN7E. SI NO TIENE ABOGADO O SI NO TMNE EL DINERO SUFICIE M DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEPONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA10 PARA AVERIGUAR DONDE SE PUEDE CONSEOUIR ASiSTENCIA LEGAL ASOCIAC16N DE LICENCIADOS DE PILADELFIA Savicio De Refacnicia E hdbnnacM Loge) 1101 Marlm Street, 11th Floor FiladdPra, Pennsylvania 19107 (215)138-6300 MYFEEPAtO IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION ERIE INSURANCE GROUP, also ADVANCED COATING TECHNOLOGY, INC. 4901 LOUISE DRIVE MECHANICSBURG, PA 17055 Plaintiff V. SERMATECH INTERNATIONAL INCORPORATED 1566 MEDICAL DRIVE 3AD FLOOR, sum 300 POTTSTOWN, PA 19464 Defendant JULY =7 'No. oasis JURY TRIAL DEMANDED THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES HEARING IS NOT REQUIRED COMPLAINT - CIVIL ACTION Plaintiff, Erie Insurance Group, a/s/o Advanced Coating Technology, Inc., (collectively "Plaintiffs"), by and through its undersigned counsel, Nelson Levine deLuca & Horst, LLC, brings this Complaint against defendant and, in support thereof, avers as follows: 1. Plaintiff Erie Insurance Group ("Erie'), is an insurer licensed to do business in the State of Pennsylvania, with its principal place of business located at 4901 Louise Drive, Mechanicsburg, Pennsylvania. 2. Plaintiff, Advanced Coating Technology, Inc., ("Advanced Coating") is a Pennsylvania business corporation, with its principal place of business located at 327 West Allen Lane, Mechanicsburg, Pennsylvania (hereinafter "subject property'l. Plaintiffs business, at all times relevant, involves powder coating metal parts for other businesses. At all relevant times, Erie insured Advanced Coating against property losses pursuant to a policy in full force and effect on the date of the loss stated below. 4. Defendant, Sermatech International incorporated, upon information and belief; is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its corporate headquarters located at 14566 Medial Drive, P Floor, Suite 300, Pottstown, Pennsylvania. Defendant, at all times relevant, is the developer of protective coatings which are applied to equipment and other metals to help its resistance to corrosion, erosion, fouling and high temperatures. 5. On March 30, 2006, a fire erupted at the subject property in a paint booth from the powder coating paint residue located therein. The paint residue was the coating known as SermeTel 853 (hereinafter "the product'). 6. Plaintiffs fire suppression system in the paint booth did go off, but failed to extinguish the fire. 7. Plaintiffs fire suppression system contained dry chemical as its extinguishing media as defined in defendant's Material Safety Data Sheet for the product as well as the labels on the paint cans. A copy of the Material Safety Data Sheet for the product is attached hereto as Exhibit "A". 8. Plaintiff relied upon defendant's Material Safety Data Sheet for the product, as well as the labels on the paint cans, when determining the extinguishing media needed in its paint booth. 9. As a direct and proximate result of plaintiffs inability to extinguish the fire with the extinguishing media used in accordance with defendant's Material Safety Data Sheet for the product and the labels on the paint cans, Plaintiff suffered damages to their real and personal. property in an amount in excess of $50,000.00, as further and more fully described below. COUNTI NEGLIGENCE 10. Plaintiff incorporates herein by reference paragraphs 1 through 9 as though the same were fully set forth at length 11. The aforementioned damages were the direct and proximate result of the negligence and carelessness of the Defendant, through their employees, agents, technicians, and/or servants, more specifically described as follows: a. Failing to exercise reasonable care in the following manner: i. failing to properly determine that the extinguishing media of dry chemical would fail to put out a fire which contained the ingredient of aluminum metal powder, ii. failing to adequately warn plaintiff and other of the dangers and hazards associated with utilizing the wrong type of fire suppression system in connection with defendant's product; iii. failing to warn plaintiff and others of the incorrect fire suppression system designation on the warning labels and MSDS sheets associated with defendant's product. 12. As a result of the negligence of defendant, Plaintiff suffered damages to its real and personal property in an amount in excess of $50,000.00. WHEREFORE, Plaintiff demands judgment in its favor and against defendant in an amount in excess of $50,000.00, plus interest, costs of suit, delay damages, and such other relief as the Court deems appropriate under the circumstances. COUNT II - STRICT LL4LB ff 13. Plaintiffs incorporate herein by reference paragraphs 1 through 12, as though the same were fully set forth at length herein. 14. At all times material hereto, the defendant was engaged in the business of developing, selling, and/or distributing protective coatings to be applied to metal to resist corrosion. 15. The aforementioned protective coating, known as SermeTei 853, was developed, sold and/or distributed by the defendant with inadequate warnings and/or instructions concerning the extinguishing media to be used which was unreasonably dangerous to Plaintiffs at the time of sale to the Plaintiffs. 16. Upon information and belief, the Defendants or one or all of them expected that the above described product would reach the consumer without substantial change in the condition in which it was imported, distributed and/or sold, and the aforementioned did reach the Plaintiffs without a substantial change in the condition in which they were sold. 17. The aforementioned defects consisted of. a. Design defects; b. Manufacturing defects; c. - Failure to warn of the aforementioned defect; and d. Failure to properly instruct as to the appropriate operational procedures for safe use of the product. 18. As a result of these defective conditions, and/or the liability producing conduct on the part of the defendant, plaintiff sustained and incurred damage to its real and personal property in an amount in excess of $50,000.00. 19. For these reasons, the defendant is strictly liable to Plaintiff for its damages under § 402A of Restatement (2d) of Torts, the Restatement (3d) of Torts, and/or the applicable case law of the Commonwealth of Pennsylvania. NELSON LEVINE deLUCA & IKORST, LLC By: rttorn"evs l . A nger, Esquire f ' Plaintiff jTMMr=kTION I, Ra=* (3mllemietw, hereby state that I mm a duly authorized repnxwtative of Brie bmu mce Croup, the real party m interest, and that dw facts contained in the foregoing Complaint are true and correct to the best of my knowledge, informatiion and bolieL The undersigned tmderstaaids that the statements therein are made subject to penalties of I$ Pa-C.S. § 4904 relating to unswom Palsiftatioia to authoritios. d- K Francis Cruillemcue Dated: ?? ERIE INSURANCE GROUP, a/s/o ADVANCED COATING TECHNOLOGY, INC., v. SERMATECH INTERNATIONAL INCORPORATED DEPOSITION OF: TAKEN BY: : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY, PENNSYLVANIA No. 07-7601 JOSEPH A. TURRI Defendant BEFORE: Tracy L. Dominico Court Reporter, Notary Public DATE: August 10, 2009, 10:00 a.m. PLACE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 APPEARANCES: NELSON, LEVINE de LUCA & HORST BY: MICHAEL S. MUNGER, ESQUIRE FOR - PLAINTIFF CAMPBELL, CAMPBELL, EDWARDS & CONROY BY: C. SCOTT TOOMEY, ESQUIRE FOR - DEFENDANT Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 67 1 area so that I can then, again, ask you to walk me 2 through how the product moves in that area and what 3 happens within that area? 4 MR. TOOMEY: Why don't we mark this as 5 Exhibit 6. 6 (Turri Exhibit No. 6 was marked for 7 identification.) 8 BY MR. TOOMEY : 9 Q. Using Exhibit 6, can you walk me through how 10 the product is processed within the, quote, SermeTel, 11 close quote, area that you've previously identified 12 for us? 13 A. Shortly before the date of the fire, we had 14 installed what I'll mark as booth 1A, although I'm not 15 certain that's what we referred to these booths as of 16 the time of the fire in 2006. we primarily applied 17 the 853 coating in this booth, the 842 topcoat in this 18 second booth. 19 Q. In booth 1B? 20 A. Correct, although both coatings were at 21 times sprayed in both booths. 22 Q. Okay. To relate what we have in Turri 6 to 23 the shaded areas you've marked in Turri 5, which of 24 those would be 1A, and which of those would be 1B? 25 Q. Okay. Once the parts -- are we talking Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 6 8 1 1 about any parts other than exhaust systems? 2 A. The SermeTel coatings are reserved for 3 exhaust system components. 4 Q. Was there any other kind of coating that was 5 applied i n the room that you've identified as a 6 SermeTel rooms on Exhibit 5? 7 A. Yes. 8 Q. What other coatings were applied within that 9 space? 10 A. We know that in the time immediately or 11 shortly before the fire, we had applied a clear coat 12 to a limi ted number of parts in what I've shown as 13 booth 1A. 14 Q. And that's a clear coat acrylic? 15 A. Yes. 16 Q. The Aervoe Acrylic? 17 A. Yes. 18 Q. To what kinds of products was that clear 19 coat acry lic? 20 A. A thin aluminum housing. 21 Q. How long before the fire was the last time 22 that that material was used within booth 1A? 23 A. I don't know. I don't recall. 24 Q. Are we talking a matter of hours? Days? 25 Weeks? Can you estimate at all? Gwendolyn Parker and Associates, Inc. 214-747-8007 Y Page 6 9 1 1 A. I'll estimate weeks. 2 Q. And was applying the clear-coated acrylic to 3 that product, was that a regular part of ACT's 4 business? 5 A. No. It was a short-term set quantity 6 project. 7 Q. Was the acrylic ever applied in the area of 8 Turri 5 that you've identified as, quote, other paint 9 close quote? 10 A. Yes. 11 Q. Would it have ever been applied in the 12 U-shaped conveyor that's in the southern portion of 13 the building? 14 A. No. As a liquid paint, it could not be 15 applied in the other line which you've asked about as 16 a powder coating booth. 17 Q. Was SermeTel ever applied in the U-shaped 18 conveyor in the southern portion of the building? 19 A. No. 20 Q. So the only place SermeTel 853 or 842 would 21 have applied would have been with the area that you've 22 blocked out and called the SermeTel area? 23 A. Yes. 24 Q. In the other paint area, what kinds of 25 materials were applied? Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 70 1 A. In the area that I've marked as other paint, 2 we typically would apply epoxies, enamels, urethane 3 paints. 4 Q. Would those typically all have been applied 5 within the six months or so prior to the fire of March 6 30, 2006? 7 A. Yes. 8 Q. Where does the conveyor line that you've 9 drawn on the loop on Turri 6, where does that begin 10 and where does it end? 11 A. Because it is a closed-loop conveyor, 12 there's truly no beginning and end. The direction of 13 travel I believe was clockwise. What I've just 14 sketched as two vertical lines were two doorways. 15 Q. Okay. 16 A. Those doorways were the area that we would 17 load now-coated parts onto steel oven trucks that were 18 then moved in and out of what I've shown as a 19 batch-curing oven. 20 Q. So the end of the process, whether it was 21 the 853 coat or the 842 coat, would be the door next 22 to which you have the picture of the oven cart? 23 A. Yes. 24 Q. Okay. Was there ever a time where product 25 would receive coating in both booth lA and booth 1B? Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 86 1 business? 2 A. Possibly. That was -- I would have to check 3 dates. I only recently, in 2000 and something like 4 4 or 5 or 6 became a computer-aged person. 5 Q. Do you still use or have the computer that 6 you would have used at home during the 2006 timeframe? 7 A. Yes. 8 Q. I'm going to ask you, and I'll try to be 9 specific, to take a look at that computer and see 10 whether there might be any records that pertain to the 11 issues of this lawsuit, particularly the issues that 12 are set out in the deposition notice. 13 But I'll follow up and try to be more 14 specific for you. So after booth lA was installed, 15 there was a fire suppression system that protected it, 16 correct? 17 A. Correct. 18 Q. There was a separate fire suppression system 19 that protected booth 1B? 20 A. Correct. 21 Q. Was that also a stand-alone system? Or did 22 that connect to a system elsewhere in the plant? 23 A. A stand-alone system. 24 Q. Other than those two stand-alone systems 25 that protected booth lA and booth 1B, was there any Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 87 1 fire suppression system within the 20,000 square-foot 2 portion of the ACT premises? 3 A. Yes, another stand-alone system for what 4 I've shown as other paint. 5 Q. On Turri Exhibit No. 5? 6 A. Correct. And I'm not certain of the dates, 7 but a system that protects our storage building. 8 Q. Okay. 9 A. I'm not certain of the date of this when 10 this was installed before or after March 30th of 2006. 11 Q. That's with regard to the storage building? 12 A. Yes. 13 MR. N=GER: Just for a point of 14 clarification, you're talking about fire suppression 15 systems as opposed to extinguishers? 16 MR. TOOMEY: That's correct. 17 BY MR. TOOMEY: 18 Q. And you responded to systems, correct? 19 A. Yeah. I'm hoping that you don't tax my 20 memory by asking about individual fire extinguishers. 21 Q. Where would all the fun be if I didn't do 22 that? No. I'm just kidding. what kind of system 23 protected area designated as, quote, other paint, 24 close quote, on Turri 5? 25 A. Dry chemical. Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 88 1 Q. Was that also, I assume, a stand-alone 2 system? 3 A. Yes. 4 Q. And none of these three stand-alone systems, 5 the ones that protected booth 1A, booth 1B, quote, 6 other paint, close quote, area were interconnected at 7 all, correct? 8 A. Correct, not interconnected. 9 Q. When was the fire suppression system that 10 protected the, quote, other paint, close quote, area 11 as of March 30, 2006, when was that one installed? 12 A. I don't recall. It could have been as early 13 as '91. 14 Q. Do you know who provided that system? 15 A. I don't remember. But we would have some 16 records that indicate who installed them. 17 Q. Was SermeTel 853 ever applied in the area 18 designated as quote, other paint, close quote? 19 A. Possible, but not routinely. 20 Q. Okay. 21 A. If there was maintenance going on here, 22 there could have been a moment where we sprayed it. 23 But none that I remember. (Indicating.) 24 Q. What type of dry chemical suppressant was 25 used in the system for booth 1A? Gwendolyn Parker and Associates, Inc. 214-747-8007 ?? \? Page 1 ERIE INSURANCE GROUP, a/s/o ADVANCED COATING TECHNOLOGY : CUMBERLAND COUNTY COURT OF COMMON PLEAS V. : SERMATECH INTERNATIONAL No. 07-7601 INCORPORATED : DEPOSITION OF: GUY N. GRIFFITHS TAKEN BY: Defendant BEFORE: Amy R. Fritz, R.P.R. Notary Public DATE: September 18, 20091 9:45 a.m. PLACE: Comfort Suites Downtown Carlisle Ten South Hanover Street Carlisle, Pennsylvania APPEARANCES: NELSON, LEVINE DeLUCA & HORST BY: MICHAEL S. MUNGER, ESQUIRE FOR - PLAINTIFF CAMPBELL, CAMPBELL, EDWARDS & CONROY, P.C. BY: C. SCOTT TOOMEY, ESQUIRE FOR - DEFENDANT Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 52 1 sides. 2 Q. And were the rules for activities within 3 that area around paint booth lA the same as they were 4 for the area around paint booth 1B? 5 A. Yes. 6 Q. And that is no smoking and no electrical 7 activity? 8 A. That's correct. 9 Q. And is it your understanding that those 10 rules around paint booth lA were in place to guard 11 against the risk of fire? 12 A. Correct. 13 Q. Did anyone at ACT, to your knowledge, ever 14 discuss what might cause a fire of the liquid 15 Sermatech product that was going to be applied in 16 booth 1A? 17 A. No. 18 Q. How about of the liquid Sermatech products 19 that were applied anywhere within the plant? 20 A. No. 21 Q. How about with respect to those products in 22 the event residue dried, any discussion about a risk 23 of fire or what might cause a fire with respect to 24 this? 25 A. Not to my knowledge, no. Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 54 1 Q. How did you learn what your job would be 2 there at ACT? 3 A. I was hired as a mechanic to maintain the 4 equipment in the building and take care of the whole 5 place. That was my understanding. 6 Q. And you didn't really need any more 7 specific description or instruction regarding your job 8 duties? 9 A. I wouldn't think so. 10 Q. Fair enough. Let's move to the events 11 surrounding the fire then. And just as you lead up to 12 the fire, after the installation of booth lA up until 13 the day the fire occurred, were there any problems 14 with the operation of the booth, to your knowledge? 15 A. Just overspray. That was the only concern, 16 I believe. 17 Q. What was the concern with regard to 18 overspray? 19 A. That we needed to modify the booth with 20 wings to prevent the overspray. 21 Q. Where was the -- what was the issue? Was 22 the overspray leaving the paint booth parameters? 23 A. Yeah. There was a little bit more -- there 24 wasn't enough air volume to pull it, to overspray back 25 in the sides. Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 55 1 Q. Did that problem exist with booth 1B, to 2 your knowledge? 3 A. Yes. 4 Q. And were there modifications made to booth 5 1B to account for that problem? 6 A. Yes. 7 Q. What were the modifications to booth 1B 8 that accounted for that problem? 9 A. Wings. 10 Q. When you say wings, could you describe what 11 the wings were? 12 A. Basically pieces of sheet metal put at a 13 90-degree angle to the opening sides. 14 Q. So you have an opening where the conveyer 15 goes in? 16 A. Correct. 17 Q. And these wings were installed at 90 18 degrees -- 19 A. In line with the conveyer, yes. 20 Q. Was there any consideration given, to your 21 knowledge, when booth lA was being designed or 22 developed to increasing the airflow in order to 23 prevent this overspray problem? 24 A. I can't say it was an airflow problem. I 25 said that, 1 -1. . norm but I can't say for sure it was an airflow Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 61 1 for me to do to it. 2 Q. Did you do any work to get the booth ready 3 for the installation of the wings before the day of 4 the fire? 5 A. No. 6 Q. Did you do any work to the piece of metal 7 that, or pieces of metal that were going to make up 8 the wings before the day of the fire? 9 A. No. 10 Q. Let's talk about the day of the fire then. 11 Was production going on on the day of the fire? 12 A. No. Well -- 13 Q. Was there any production work going on 14 anywhere in the plant? 15 A. Not when I was working on the booth, no. 16 Q. And was there a reason there was no 17 production work going on at the time you were working 18 on the booth? 19 A. Because I come in early and before their 20 normal start-up time. 21 Q. And do you remember about what time you 22 arrived at work that day? 23 A. I'd say 5:00, 4:30. I can't be sure. 24 Q. was the fabrication of these wings the 25 first job you did that day? Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 62 1 A. Yes. 2 Q. Had any work been done to prepare the area 3 around or within booth lA for the installation of 4 these wings before you started that day? 5 A. No. 6 Q. Tell me what you did then after you got to 7 work and started on this particular job. 8 A. Basically I went and grabbed the materials 9 that I needed, went to paint booth 1, went to put the, 10 mount the side panel on the booth. And when I it realized it had a -- there was interference with the 12 bottoms lip of the paint booth. 13 Q. Interference, I'm sorry, with what? 14 A. The bottoms lip of the paint booth. 15 Q. And then you took some action to try to 16 eliminate that interference? 17 A. Right. 18 Q. Before you start talking about that, let's 19 go back and let's walk through a couple things. What 20 material was it that you grabbed that you were going 21 to use with respect to the installation? 22 A. The wings. 23 Q. And what were the wings made out of; what 24 size, etcetera? 25 A. They were 16-gauge sheet metal, 24 by 81 I Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Where was the interference with the bottom lip of the booth? A. 2 inches out from the bottom corner of the wing. Q. So if we're looking at this picture, would the area where the interference occurred be hidden behind the rectangular piece there? A. Yes. Q. And what was the interference? What was it on the booth or on the floor area that caused the interference? A. Return edge of the sheet metal framing. Q. And what did you -- how did you try to deal with this interference? A. I was going to notch out the wing. Q. And how were you going to do that? A. With a cutoff wheel on a grinder. Q. How far did you get in that process before the fire started? A. I notched one end of the plate. Q. And how many ends of the plate were you going to have to notch in order to get it to fit or get past the interference? A. Just one. Q. And had you finished using the grinder to Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 73 1 Q. If you look at Exhibit 2 right there, might 2 be a little line, does that look like it might be a 3 notch? 4 A. I had it marked with magic marker, so I 5 don't know if it's a notch, you know, the actual 6 physical notch, or the magic marker. 7 Q. Is that in about the right area? 8 A. That's the right area. 9 Q. And what we're looking at for the record is 10 Exhibit 2. And if you're looking at the photograph, it it would be the top left-hand corner area of the 12 rectangular wing? 13 A. Correct. 14 Q. Okay. So what you were actually doing 15 cutting that notch, you were about 7 and a half to 8 16 feet from the opening to the -- 17 A. The length of the metal, yes. 18 Q. Length of the metal from the opening to the 19 booth? 20 A. Right. 21 Q. Okay. Tell me what happened. 22 A. I cut the notch, a little spark flew 23 across, hit the side of the booth, fell into that 24 little return that I described to you, this part here. 25 Q. Indicating the portion of the channel that Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 74 1 rested against the floor, that 2-inch portion of the 2 channel? 3 A. That is correct. 4 Q. Okay. 5 A. And as soon as that little spark dropped 6 into that channel, there was an extremely bright 7 ignition, almost like flash powder, the size of about 8 a softball. 9 And then it raced -- after the initial 10 puff, it just, like a fuse, just ran right along the 11 channel. And I turned around, grabbed the fire 12 extinguisher which I had there, pulled the pin, pulled 13 the hose out, stepped around to the front of the 14 booth. And by that time, it was starting to go across 15 the filters, the fire. 16 Q. Had you noticed whether there was any 17 material in the channel before you started your work? 18 A. No. 19 Q. You did not notice? 20 A. None. I didn't see anything. 21 Q. Did you know what the dried SermeTel 22 residue looked like? 23 A. Joist a gray dust. 24 Q. Distinct or different from any other gray 25 dust that might have been on the floors of the plant? Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 75 1 A. It's a gray, greenish dust is what it looks 2 like. Depends on the moisture content what color it 3 is most of the time. 4 Q. And if it's moist, what color is it? 5 A. It's a little more green color. 6 Q. And if it's more dried? 7 A. Then it's a little more gray colored, I 8 guess. 9 Q. What was the color of the exterior of the 10 paint booth? 11 A. Silver. 12 Q. And painted silver or just -- 13 A. Galvanized. 14 Q. And how about the channel, the 2 by 2 by 15 3/8ths-inch channel? 16 A. Galvanized. 17 Q. Did you do anything to clean or prepare the 18 area around where you were going to install the wings 19 before you started this process? 20 A. No. 21 Q. When you were working on the, on grinding 22 that notch, were you within the painted area around 23 the booth? 24 A. No. 25 Q. Did you make it a point to stay outside of Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 87 1 couldn't go any more to the front because there was 2 that little -- 3 Q. Because you're at the corner of the paint 4 booth? 5 A. Yeah. It just went that way. 6 Q. So trying to run both ways but it then 7 reached the corner of the paint booth and couldn't go 8 any further to the front? 9 A. Yeah. I mean, that's what it looked like, 10 but I was grabbing for the fire extinguisher at the 11 time. 12 Q. Fair enough. And then it also ran in the 13 other direction back towards the cinder block wall? 14 A. Correct. 15 Q. And you grab the fire extinguisher and 16 applied its contents to the fire? 17 A. Correct. 18 Q. At the point you dumped the fire 19 extinguisher, was the fire still contained to the 20 channel? 21 A. No. It was inside the booth at that time. 22 It was that fast-moving; it would be probably 23 impossible to even catch it if it was on the outside. 24 Q. How did the fire travel from the channel 25 into the conveyer, if you know? Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 8 8 1 1 A. It's an opening here right -- see this up 2 here? It's the same opening at the bottom. 3 Q. So other than the 2 by 2 by 3-inch 4 channel -- 5 A. It ends. There's nothing there to block 6 it, basically. 7 Q. So the 2 by 2 by 3/8th-inch channel also 8 ends at the conveyer opening, or does that run and 9 then there's nothing else above it? 10 A. It just ends right there, that side of this it panel. 12 Q. So if we -- and I don't have a picture that 13 doesn't have this thing in it. There might be one 14 somewhere. I'm not sure if we need it. 15 So that 2 by 2 by 3/8th-inch channel that 16 we're discussing, did that run from the front corner 17 of the booth to the conveyer opening and then stop? 18 A. Yes. 19 Q. And then would a similar channel have 20 picked up on the other side of the conveyer opening 21 and then run to the corner of the wall of the paint 22 booth closest to the cinder block wall? 23 A. Yes. 24 Q. And where the 2 by 2 by 3/8th-inch channel 25 ended, was there any piece that formed a closing piece Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 89 1 to the channel? 2 A. Yeah, but I can't say how tight. There 3 might have been a gap in the bottom of it; I don't 4 know. The panel wall was there, the panel break wall, 5 the same little edge like this was down there like 6 that, and there was another one that sits in there. 7 Q. I think I got it, but let me see if I 8 understand it then and then we can describe it. So 9 you have the lip on the bottoms? 10 A. Yeah. The panel sits like that, and the 11 lip sits like that, and it sits down in it. But 12 they're not, you know, real tight tolerances. 13 Q. Okay. So at this corner where the opening 14 for the conveyer was, there would have been a 2 by 2 15 by 3/8th channel running down the vertical side of the 16 panel, correct? 17 A. Correct. 18 Q. And that would have been fit into the 2 by 19 2 by 3/8th-inch channel that ran along the floor along 20 the short side of the rectangular panel? 21 A. Correct. 22 Q. And what you're saying is you're not sure 23 how tight the tolerances were at the corner formed 24 between the vertical 2 by 2 by 3/8th-inch channel and 25 the 2 by 2 by 3/8th channel -- Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 90 1 A. Correct. 2 Q. -- that ran along the floor? 3 A. It did get through there somehow. 4 Q. Fair enough. Did you see it actually 5 escape the channel? 6 A. No. I turned around, got the fire 7 extinguisher, went to the front of the booth. And by 8 the time I got to the front of the booth, it was 9 already, it had already consumed or was consuming 10 probably 20 inches vertical and 20 inches to the right 11 of the filter material. it was already just, like, 12 moving up across the filter material. 13 Q. In what wall of the paint booth was the 14 filter material located? 15 A. The back wall. This would be the front. 16 It would be, like, right across here. 17 Q. So it would be back on the edge of -- 18 A. Well, there's more -- go ahead. 19 Q. -- back towards the edge of the paint 20 booth, and was it near the cinder block wall? 21 A. Well, there's, like, a double wall. 22 There's a rear wall, and then there's a filter wall. 23 And it would be the filter wall that was being 24 consumed at the time. 25 Q. Fair enough. But that would be, runs Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 91 1 1 towards the cinder block wall side of the paint booth 2 as opposed to the rest of the plant side? 3 A. Correct. 4 Q. So as far as you could tell, it jumped 5 quickly f rom the channel to the filter area? 6 A. Extremely quickly, yes. 7 Q. Was there any fire that escaped and was 8 going on on the floor area outside of that? 9 A. Not at all. It just... 10 Q. Okay. Now, based on what you saw and on 11 your experience as a firefighter and maybe what you 12 know from since the fire, do you have an understanding 13 as to what the material was that ignited? 14 A. I'm sure it's -- well, now since my -- it 15 has to be the aluminum that was in the coating. I 16 mean, I've done experiments since the fire. 17 Q. With the product? 18 A. Yes. 19 Q. Tell me about those. 20 A. It's pretty highly flammable stuff under 21 the right conditions. 22 Q. And what conditions were there that you 23 tested it under? 24 A. When it's dry. It doesn't even have to be 25 in the powered form either. Gwendolyn Parker and Associates, Inc. 214-747-8007 ?/ r ' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE GROUP, a/s/0 ADVANCED COATING TECHNOLOGY, INC., , PLAINTIFFS VS SERMATECH INTERNATIONAL, INCORPORATED, DEFENDANT NO. 07-7601 DEPOSITION OF: CARL LYBRAND TAKEN BY: DEFENDANT BEFORE: TERESA K. BEAR, REPORTER NOTARY PUBLIC DATE: DECEMBER 4, 2009, 10:10 A.M. PLACE: COMFORT SUITES 10 SOUTH HANOVER STREET CARLISLE, PENNSYLVANIA ORIGINAL Thomas G. Oakes Associates 1-877-625-3777 www.TGOakes.com 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Carl Lybrand - December 4, 2009 31 1 both the base coat and the top coat being applied in 2 the same booth? 3 A In the same booth but not at the same 4 time, but within that day, yes, it had been. 5 Q okay, and I'm just talking in general. 6 A Yes. 7 Q I'm not -- that's not the specific -- 8 A oh, okay. 9 Q -- time, but in general that booth would be used for both the base coat and the top coat? 1 A Yes. Q Okay. were there any other kinds of coatings or materials that were applied in that booth? A Yes, but not very often. Q okay. And what other kinds of materials would be applied on the occasions when there would be? A I don't know what the name of the paint would be, but we painted medical -- these long tweezers for medical with a clear coating. I'm not sure what it was called. Q Okay. Now, what were the -- you had mentioned there was a rule about no smoking in the facility. were there specific rules relating to things you could or couldn't do within the 5ermeTel room? Thomas G. Oakes Associates 1-877-625-3777 www.TGOakes.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Carl Lybrand - December 4, 2009 A Yes, the no snaking was an obvious. Any kind of flames in that room was -- you could not have in there, no power tools or anything, unless the machines were tagged out/locked out and the booths were off. other than that, that's basically it. Q And how were you instructed on all these rules? A i was told by the foremen. And i believe there was signs about the smoking and tag out/lock out signs. Q okay. And signs what, on the outside of the room or somewhere else? A They were inside the room. Q okay. And were you told why there were rules about no smoking, no flames, no power tools in the room? A Yes. Q And what was the reason? A Because the SermeTel could catch on fire. Q So that's something that you knew about in the time that you were applying it? A Yes. Q That that was a possibility? A Yes. Q Even before the fire? 32 Thomas G. Oakes Associates 1-877-625-3777 www.TGOakes.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Carl Lybrand - December 4, 2009 Q okay. And what's a whole line? A It was -- I believe it was 140 parts, but I'm not positive. Q okay. Now, who was responsible for maintenance and cleanup within the SermeTel room? A The cleanup would be me and the maintenance would have been the maintenance man. Q Okay. And what sort of cleanup was -- well, let's talk about within the booth itself. who did maintenance and cleanup within the booth itself? A I would do the cleanup, which would be just -- if once -- we had a paint -- the paint that we would apply to the walls of the booths that you could peel off after so long. And once the wails would get built up with SermeTel, I would peel the paint off and repaint them. Filters were changed basically weekly. Q And would you do that also? A Yes. That's basically all the cleaning I would do. Q okay. How would you -- how did you, you know, get trained on how to do -- how to peel the coating off and how to change the filters, that kind of thing? A Joe Turri basically taught me. Q okay. 38 Thomas G. Oakes Associates 1-877-625-3777 www.TGOakes.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Carl Lybrand - December 4, 2009 39 A I would also clean the stack for the booths that goes up and out of the building. I would have to get in there every once in a while and spray that out. Q okay. All right, and Joe Turri basically showed you all these things? A Yes. Q Okay. And what were you taught in terms of how often to peel the coating off the walls? A It was to my discretion. Q Okay. And how long typically would it be? A Depending on when I would get a chance, it could be two, three months. Q Okay. And in that time period you'd be applying coating pretty much daily? A Yes. Q Okay. And how were you taught about when to change th e filters? A I was told with -- two weeks, but I would change them actually before that, within a week, a week and a h alf. And it depended a lot on the amount of base coat that we would spray. The base coat seemed to fi lm up more than the top coat. Q okay. so how would you decide, you know, Thomas G. Oakes Associates 1-877-625-3777 www.TGOakes.com Carl Lybrand - December 4, 2009 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it's probably about time for me to change the filters? A I would go by if the paint was back -- coming back at me. It should never come back at me. As soon as it starts coming back at me, I would change the filters, or if they start getting -- during the summer they get really sticky and sometimes they'll just fall right out so you have to change them. Q Okay. And the -- they would get sticky or they'd get -- you'd need to change them because there was overspray that was getting caught by the filters? A Really it wasn't that they were bad, it's just that they'd get really sticky and they just won't stay hanging in the thing and they'd just fall out. Q okay, I see. A And once they fall out, they would not go back up in. Q Okay. A But they might have actually not been that bad. Q Okay. But what was getting -- what the filters were doing, if I understand correctly, is they were catching overspray from the paint operation? A Yes. Q Okay. would you record when you would Thomas G. Oakes Associates 1-877-625-3777 www.TGOakes.com 1 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Carl Lybrand - December 4, 2009 57 1 A Yes. 2 Q How would you know when it was time to 3 clean out the stack? 4 A well, sometimes the fan would stick and 5 you had to go up and spray it out. And other times it 6 would just -- Joe would just have me do it. 7 Q So no regular sort of system even the way 8 there was for changing filters and that kind of thing? 9 A No, not at all. 0 Q Not like every six months you'd do this or something like that? A No. Q okay. can you estimate for me how many times a year you would clean out the stack in the way that you just told us about? A I only ever cleaned it maybe three times my whole 10 years there. Q okay. And were any of those times because the fan had actually gotten clogged enough that it had stopped? A Yes. Q How many of those three times? A Probably twice. Q when before the fire was the last time you had cleaned the stack? Thomas G. Oakes Associates 1-877-625-3777 www.TGOakes.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Carl Lybrand - December 4, 2009 A I have no idea. Q Okay, all right. You had mentioned that in addition to openings -- having wider openings for the conveyor to come through that there were also wings -- A Yes. Q -- on the booth. whose idea was it to put those on? A I believe it was Joe Turri, Jr.'s and the maintenance guys. Q okay. And who was the maintenance guy in the time right before the fire? A Guy. Q Guy Griffiths? A Yes. Q And did you -- were you part of any discussions about putting on the wings? A No. Q How did you find out that they were going to put wings on? A I helped him put them on. Q okay. what was the reason for the wings in your understanding? A I have no idea. I honestly have no clue. Q okay. well, we've had some testimony 58 Thomas G. Oakes Associates 1-877-625-3777 www.TGOakes.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Carl Lybrand - December 4, 2009 A Yes. Q with this closer one can you tell -- does that help you tell whether it's top coat, base coat or something completely different? A That appears to be base coat. Q okay. we've also got this picture which I'll mark as 5. (Photograph produced and marked as Lybrand Exhibit No. 5.) BY MR. TOOMEY: Q And you'll see this one has a five-gallon container of what appears to be clear acrylic. A Yes. Q Do you have any idea why that was in the SermeTel room? A That was used to paint the engine -- not the engine, the control boxes that we were doing in that room too. Q okay. And was that in the same time frame as the fire? A Yes. Q okay. And did you spray the acrylic on those control boxes? A Yes. Q Did you do that like the day before the 73 Thomas G. Oakes Associates 1-877-625-3777 www.TGOakes.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Carl Lybrand - December 4, 2009 fire? A I don't believe it was the day before, but it might have been within a week. Q okay. And was there still more of that job to do? A Yes. Q okay. Is that why the acrylic was still there? A Yes. Q were you planning on spraying acrylic on the day the fire happened? A I'm not very sure. I don't know if they had an order or not. Q Okay. But in any event, you thought there might be work to do using the acrylic and that's why it was still in the room? A Yes. Q okay. were you ever instructed as to whether spraying acrylic in the same booth that you were spraying SermeTel might be a problem? A No. Q okay. Did you ever read the MSDS for the acrylic? A No. Q okay. who gave you the job to spray 74 Thomas G. Oakes Associates 1-877-625-3777 www.TGOakes.com ??? ? INCIDENT ? NON-TRAFFIC DEATH ? HOMICIDE INVESTIGATION ? ACCIDENTAL REPORT ® OTHER AGENCY REPORT INVESTIGATION REPORT REPORT PSP JURISDICTION SP 5-141 (5J-2044) 1. ORI I STATION 2. INCIDENT NO. / PENNSYLVANIA STATE POLICE I PAPSP 1000 Carlisle H2-1559497 V FIRE INVESTIGATION REPORTIWORKSHEET i 3. ORIGINICAUSE ONLY FOR INVESTIGATION STATUS 4. CLASSIFICATION CLEARED NOT CLEARED Mechanicsburg Borough Police Department ( I ? BY ARREST ? INVESTIGATION CONTINUED ? INCENDIARY ACCIDENTAL j ? EXPLOSION ? UNDETERMINED _ _ _____ _ EXCEPTIONALLY IWESTIGATION TEAMINATEp '?:I S. STATUTEISECTKNI NO.lUCR ? ?? 6. LOCATION ?_ ZDNE I SC 1501 999 327 West Alien Street 99 7. CIT rrWF!BORO - j CODE 9. COUNTY MOE ; Mechanicsbur Borou h 404 Cumberland 21 9. DATE OCCURRED DAY 1 TIME 10. TYPE OF ALARM 11. DATE OF ALARM I DAY TIME 03/30106 THU aoprox0730 1 Building Fire f 03!30106 THU approxQ730 12. DISCOVERED BY ADDRESS , TELEPHONE NO. Occupants - _ ? { 13. RESPONDING FIRE DEPARTMENT OFFICER IN CHARGE TE 11 27, 28, 37, 35, 30, 19, 31, 25 and others Chief 27 Joel WARNER 717 773-0161 1 IC INVESTIGATION REQUESTED BY AGENCY ! TELEPHONE NO. ?7 I Chief WARNER Citizens Fire Rescue 27 - j 15. DATE REQUESTED j TIME 18. DATE INV, NOTIFIED j TIME 1T. DATE INV. ARRIVED TIME 03/30/06 1000 03/30/06 1000 ( 03/30/06 1130 j 1 19. NAME ADDRESS TELEPHONE NO. ( Advanced Coating Technology 327 West Allen Street, Mechanicsburg, PA 17055 717-979-5181 o W 19? OOB j AGE 20. RACE-ETHISFX j 21. EMPLOYER OR SCHOOL N i E 22. INSURANCE CARRIER POLICY NO. EFFECTIVE DATE AMOUNT R Erie Q260470122H & Q380450220H 02/04/06 $1,373,000.00 23. MORTGAGFJLOAN INSTITUTION ADDRESS ?- AMOUNT 1 unk O ' 24. NAME (SAME AS OWNER ®) ADDRESS TELEPHONE NO. i V ' 25. DOB AGE 129. RACE-ETH/SEX I 27. EMPLOYER OR SCHOOL t P !A 2E. INSURANCE CARRIER POLICY NO. EFFECTIVE DATE I AMOUNT T V 29. YEAR 1 MAKE MODEL TYPE I REGISTRATION-STATE ! VIN NO. E ! PA H 30. REPORTED STOLEN 31. REPORTED TT7 (AGENCY) DATE REPORTED I TIMEI TIME RE---- POR OTEOTE I ? YES ? NO C 1 L 32. INVESTIGATING OFFICER (IF STOLEN) 33. INCIDENT NO. ' 34. EVIDENCE OF STRIPPINGIDAMAGE I E ?. 35. POINT OF ORIGIN 38. IGNITION FACTOR I TYPE, MAKE, MODEL QF APPLK:ABLE) j Near paint booth Sparks from gnnder + 37. GENERAL CONDITIONS TEMPERATURE WIND DIRECTION WIND SPEED Clear, Warm TI E OF FIRE 50's none 3S. PROPERTY VALUE DAMAGE j 39. PROPERTY USE 140. NO. INJURED NO. KILLED STRUCTURE 1,373,000. STRUCTURE 1,000,000. Parts Coating Facility li t 0 OCCUPANTS Q ? CONTENTS 1,000,000. CONTENTS 750,000. I` II( 0 FIREFIGHTER Q j TOTAL 1.373,000. TOTAL 1,750,000. ! 1 OTHER 0 41. TYPE CONSTRUCTION 42. NO. OF STORIES DIMENSIONS 13. TYPE HEAT Cement block ( i LENGTH WIDTH I unk 1 1. 44, UTILITIES i 44. ELECTRICAL SERVICE SUPPLIER _ 4d. PHOTOS TAKEN ®YES ? NO PHOTOS RETAINED AT ® ELECTRIC ? CIL ? FUSE ? GAS ? cTI1ER MM PP&L 16 VAMP ® BREAKER + j BY Tpr. RUGH PSP Carlisle V/. LLGR MCDJNIaC DCIYI 40. tY1utH{a LVlLEG TED PROPERTY NO. m YES ? mo ? VES NO BV i 49. SIGNATURE 50. ASSISTED BY E ?1. PRINT NAME OF f. - TIGATO BADGE NO. 52 S INITIALS d BADGE NO. 53. PAGE NO. Tpr. Michael R. R GH 7049 i 01 DEPARTMENT HEADQUARTERS c?? sr r•ou^i tryn) REPORT TYPE -""""'"'? "`" l ? INCIDENT 03!30!06 THU H2-1559497 PENNSYLVANIA STATE POLICE CONTINUAT ®OTHER Fire Report TIME(S) OF INCIDENT JUVENILE I DOMESTIC VIOLENCE ION SHEET ® SUPPLEMENTAL INVESTIGATION REPORT approx. 0730hrS ? ? ? ATTACHMENTS: MISSING PERSON CHECKUST DISP.: ? CLEARED BY ARREST ? UNFOUNDED ? EXCEPTIONALLY CLEARED- DATE ? FELONY CRIMES AGAINST THE PERSON ? STATEMENT FORM(S) A DEATH OF ACTOR D VICTIM REFUSED TO COOPERATE I ® VCTMNMTNESSASSISTANCEGUDERECEIPT ? RIGHTS WARNING AND WAVER I B i] PROSECUTION DECLINED E ? JUVENILEMO CUSTODY + PROPERTY RECORD M OTHER C ? EXTRADITION DENIED N ? NOTAPPLICABLE ? MULTIPLE CLEAR-uP 5 NARRATIVE REASON FOR INVESTIGATION- I was requested by Chief WARNER to conduct a fire investigation. SCENE DESCRIPTION: The scene of this fire was a large commercial structure located in downtown Mechanicsburg along the railroad tracks. SCENE EXAMINATION: The exterior walls were still standing. Most of the roof was gone over the main structure. The roof trusses had collapsed over the paint booth area. There was little fire damage at floor level in the area where GRIFFITHS had been working. I examined the piece of metal that he had been cutting. The metal was marked to be cut but only an inch had been cut. The grinder was still lying on the floor and it was still plugged in. There were burn marks on the paint booth flange where he alleges the initial fire began. The interior of both paint booths were heavily damaged all the way down to floor level. It is reasonable to believe that the sparks from the grinding would have landed by the paint booth based on the position of the metal and the way he was operating the grinder. All damage that was viewed is consistent with the statements for GRIFFITHS and WEAVER. INVESTIGATION / DETAILS: Business owner Jo TURRI Jr, 717-979-5181, JoeturrilrAmi,com. Maintenance Supervisor Guy Newton GRIFFITHS, 201 Lake Meade Drive, East Berlin, PA 17316, 717-259-0623, DOB 02/08152. GRIFFITHS told me that he was using a hand grinder to cut out a piece of metal to fit around a flange. He had a fire extinguisher standing by just in case. When he started grinding sparks flew onto the outside lip of the paint booth and ignited some "dust". It burned white. By the time he grabbed the extinguisher he saw the fire travel around the edge and into the paint booth. The fire then flashed across the booth floor and the filters. The extinguishing system activated and knocked the fire down. Once the system stopped it reignited and traveled to the second booth where the same thing happened. The fire then traveled out of the booth and through some wall filters. It then lapped up into a void space above the paint booths. He used about 6 fire extinguishers to attempt to stop the flames. He claims that the flames spread across the two booths in about 45 seconds. He is a veteran of the Lake Meade Fire Department where he served at Deputy Chief. Employee Lawrence E. (mio) WEAVER Jr., 322 West Allen street, Mechanicsburg, PA 17055, DOB 06/06/63. WEAVER said he heard aloud pop like an electrical circuit and saw fire in the paint booth. He got an extinguisher but the flames were too intense so he left the building. The business opened at 0700hrs. He said that there was a roof fire about 7 years prior at the facility. Chief 28, Darrell HENCH said he entered the structure right behind the first attack crew. Smoke was about three feet off the floor at that time. He soon felt high heat on his neck and left the structure. The firefighters were evacuated shortly thereafter and a master stream attack was initiated. I responded to the scene at about 0830hrs and photographed the scene. i returned at 1130hrs at the request of Chief WARNER to conduct an investigation. S. OFFICER'S NAMEiSIGNATURE 444 49 0.;z _ BADGE NO. 7. INVEST. RECM. 9. SUPV. tNITJBADGE NO. 9. CONCUR ! 10. PAGE Tor. Michael R. RUGH `/ / 7049 ' ? CONT. 2 TERM. I INONCONCUR 02 SP 7.0051 (3.96) REPORT TYPE j H2-1559497 ? PENNSYLVANIA STATE POLICE [I INCIDENT TIME431 OF INCIDENT i JUVENILE i DOMESTIC VIOLENCE CONTINUATION SHEET ® ® OTHER Fire Report 1 SUPPLEMENTAL INVESTIGATION REPORT ? i ? ? ATTACHMENTS: ? MSSING PERSON CHECKLIST DISP.: ? CLEARED BY ARREST ? UNFOUNDED [3 EXCEPTIONALLY CLEARED- DATE _0 El ? FELONY CRIMES AGAINST THE PERSON C] STATEMENT FORM(S) A DEATH OF ACTOR D VICTIM REFUSED TO COOPERATE ? VICTIMMNTNESSASSISTANCEGUK)ERECEIPT ? RIGHTS WARNING AND WAIVER 8 [1 PROSECUTION DECLINED E 1:3 JUVENILFJNO CUSTODY C ? EXTRADITION DENIED N ? NOT APPLICABLE ? MULTIPLE CLEAR-UP I PAPSP1000 Carlisle 04113/06 Accidental Origin Fire ____ ; Advanced oating ec no ogles INVESTIGATION I DETAILS (continued) On 04/11/06 1 received a call from Officer William DEMMY of the Mechanicsburg Police Department regarding a phone call he received from one Carol STARK of 1707 Wyndham Rd., Camp Hill, PA 17011. 717-761-2399.She report seeing "suspicious activity' at the factory an the evening before the fire at about 1915hrs. She viewed the garage doors open and a man was "slumped" over the wheel of a dark colored vehicle. (copy of Mechanicsburg Police Report is attached) 1 contacted Joe TURRI Jr. About the report. He advised that the second shift usually works until 1930 or 2000hrs and it would not be unusual for the bay doors to be open on a nice day. One of his employees on the second shift does drive a dark colored SUV but he cannot speculate about the allegation that someone was "slumped" over the wheel. CONCLUSIONS: Based on the scene examination and information to date, it is my opinion that this fire was accidental in nature and originated in the area of the paint booths, caused by the careless use of a die grinder. MISCELLAN/OUS: News release was submitted by the local Police and Fire Departments. Fire Data Collection Report was submitted in accordance with established procedures. A copy of this report was forwarded to the Mechanicsburg Police Department. \? KUFTA ASSOCIATES, LTD. FIRE/EXPLOSION INVESTIGATIONS wwwAnfla8reiivesdgationmom TELEPHONE (717) 792.0764 4070 WEST MARKET STREET, YORK, PA 1740E FACSIMILE (717) 792.4041 February 15, 2012 Michael S. Munger, Esquire Nelson, Levine, de Luca & Horst 518 Township Line Road Suite 300 Blue Bell, PA 19422 RE: Insured: Advanced Coating Loss Location: 327 West Allen Street, Mechanicsburg, Pennsylvania Date of Loss: March 30, 2006 Erie Insurance Claim Number: 010170857514 Our File Number: 06-6138-GK Dear Mr. Munger: As per your request, this correspondence is being submitted in reference to the above-captioned case. Prior to the preparation of this report, the following documents were received and reviewed: 1. Deposition of Bryan Ruth dated November 17, 2010 2. Deposition of Francis Guillemette dated September 19, 2011 3. Deposition of Gerald Goodling dated September 19, 2011 4. Deposition of Guy Griffiths dated September 18, 2009 5. Deposition of Joseph A. Turri dated August 10, 2009 6. Deposition of Kevin Eddinger dated September 1, 2009 7. Deposition of Pennsylvania State Police Fire Marshal Trooper Michael Rugh dated September 18, 2009 Michael S. Munger, Esquire February 15, 2012 Page Two RE: Advanced Coating 8. Fire Investigation Report filed by Trooper Michael Rugh under Incident H2- 1559497 9. Deposition of Randy Himes dated November 17, 2010 10. Material Safety Data Sheets from Sermatech International, Inc. for Sermatech 853, Material Safety Data Sheets for Sermatech Material 842, Part 1 and Part 2 11. File Materials of Kufta Associates 12. Photographs taken by Kufta Associates SYNOPSIS OF INVESTIGATION On March 30, 2006, this agency was contacted by representatives of the Erie Insurance Group who requested that we proceed to the Advanced Coating structure at 327 West Allen Street in Mechanicsburg, Pennsylvania. A fire had erupted in that structure at 7:30 a.m. that morning. We were advised that Mr. Gerald Goodling would be the adjuster handling the claim. Acting on that request, this investigator traveled to Mechanicsburg, Pennsyl- vania on March 31, 2006, where I met with representatives from Erie Insurance, as well as the owners of Advanced Coating Technologies and public officials. All of these individuals authorized this investigator to enter, examine and document the scene. Our initial scene examination consisted of conducting interviews and photo- graphing the building in the suspected area of origin. After completion of the interviews with the Pennsylvania State Police Fire Marshal and witnesses, it was learned that the fire originated in the vicinity of a paint spray booth where Mr. Guy Griffiths was performing a metal cutting operation. Mr. Griffiths advised this investigator, as well as the State Police Fire Marshal, that during the process of cutting a section of sheet metal with an electric grinder, sparks produced by the grinding operation came in contact with the side of a paint spray booth. The sparks then ignited a powdery residue of overspray from the spray booth. Mr. Griffiths stated the fire escalated very rapidly and the extinguishing system in the spray booth, as well as numerous Michael S. Munger, Esquire February 15, 2012 Page Three RE: Advanced Coating fire extinguishers used by him, were useless in suppression. According to Mr. Griffiths, the fire spread rapidly to a second paint booth and then throughout the building, destroying the structure and its contents. As a result of our initial investigation, several individuals and entities were placed on notice including manufacturers of the spray booth, installers of the suppression system inside the spray booth, the company that maintained the suppression system inside the spray booth, and the company that produced the materials being sprayed in the spray booth. Notification of these individuals was performed by the law firm of Nelson, Levine, de Luca & Horst. Subsequently on April 21, 2006, this investigator returned to the loss site, along with a host of other individuals and experts, to continue the investigation and to further document the scene. All participants were then given the opportunity to document the scene and the remaining evidence. During the course of that scene examination, numerous articles were requested to be retained by various entities and experts who were present. This investigator again returned to the loss site on May 1, 2006, and removed the materials that were requested to be retained. These materials were transported to our York facility where they are being stored as evidence. A list of the materials/ evidence taken at that time is attached to this report for informational purposes. POINT OF ORIGIN Our initial examination of the structure on March 31, 2006, disclosed that it had been severely damaged, with the interior almost completely destroyed as a result of the fire. The roof over the building had been consumed, and during the process of burning, had collapsed into the structure which caused secondary burning throughout (refer to Photographs #8 through #12). Based on information received from the individual who was present at the time of ignition, this investigator examined the area surrounding the paint spray booths located along the north wall in the northeast quadrant of the structure. It was noted that both paint spray booths located in this area were devastated as a result of the fire (refer to Photographs #16 through #26). It was further noted that both paint spray booths were serviced by a fire suppression system. The system had activated during the propagation of the fire, but the system did not suppress the fire in either of the paint booths. Michael S. Munger, Esquire February 15, 2012 Page Four RE: Advanced Coating The area of origin was then examined by this investigator in the company of Mr. Griffiths who furnished information regarding his actions and observations at the time of the fire. The grinder was still in place in the area of origin. The power cord was plugged into an extension cord and the extension cord was plugged into a duplex receptacle (refer to Photograph #32). The piece of sheet metal that was being cut with the grinder was also located in the area. An examination of the sheet metal disclosed a small cut in the metal where the grinding/ cutting was being performed (refer to Photographs #33 and #34). According to information received from Mr. Griffiths, the fire originated in a trough located on the exterior wall of the westernmost paint spray booth adjacent to where he was performing the grinding (refer to Photographs #31 and #35). Based on information furnished to this investigator during the initial investiga- tion, coupled with the sworn testimony of Mr. Griffiths in his deposition dated September 18, 2009, it is the considered opinion of this investigator that the fire did in fact originate as Mr. Griffiths reported. During the course of the investigation, the suppression system for the spray booths was examined. It was determined that the system fired in the spray booths but did not suppress the blaze. This was confirmed by Mr. Griffiths in his sworn deposition. The suppression systems, sprinkler heads and the piping for booths have been removed and were transported to our secure evidence facility in York, Pennsylvania, where they are presently being stored. During the course of the investigation, two one-gallon plastic bottles of material were uncovered underneath the metal table in the room that housed the incident spray booths. These containers were also retained by this investigator and are being stored in our secure evidence facility in York, Pennsylvania (refer to Photograph #37). The electric DeWalt grinder being used by Mr. Griffiths was left at the area of origin after our initial examination on March 31, 2006. Upon our return on April 21, 2006 along with other experts and interested parties, the grinder had been removed from the structure and has not been located since (refer to Photographs #47 and #48). Michael S. Munger, Esquire February 15, 2012 Page Five RE: Advanced Coating POLICEIPUBLIC INVESTIGATION An investigation into the origin and cause of the incident was conducted by Pennsylvania State Police Fire Marshal Trooper Michael Rugh of the Carlisle Barracks. This investigator spoke with Trooper Rugh regarding the investigation. He confirmed the statements given by Mr. Griffiths with regard to the cause of the fire and the area of origin. Trooper Rugh stated he has classified the fire as accidental in nature, caused as a result of sparks igniting combustible material in the vicinity of the spray booth (refer to Pennsylvania State Police Fire Marshal Report H2-1559497). CONCLUSION Upon completion of the investigation, it is the considered opinion of this investi- gator that the fire was accidental in nature and origin. Based on the information obtained and the evidence observed at the scene, it is this investigator's opinion, within a reasonable degree of fire science certainty, that the fire originated as a result of sparks produced by the grinding machine which was operated by Mr. Griffiths on the morning of the fire. The sparks produced during the grinding projected to the west side of the westernmost paint spray booth in the room. These sparks then ignited combustible material on the exterior of the booth. 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V ea It h . 4, F N Q F? h A ph C Q U O rA H PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) Kindly list the within matter for the next Argument Court. ------------------------ -------------------- CAPTION OF CASE c= (entire caption must be stated in fill) -?3 fs Erie Insurance Group a/s/o Advanced Coating Technology, Inc. vs N vs. C `! O 7- 7?0/ a: s Sermatech International Incorporated ?? rN3 No. ?- :e Te54 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Michael S. Munger, Nelson Levine deLuca & Horst (Name and Address) 518 Township Line Road, Suite 300, Blue Bell, PA 19422 (b) for defendants: William J. Conroy, Christopher G. Mavros, Meaghann C. Porth, Campbell Campbell Edwards & Conroy, P.C. (Name and Address) 690 Lee Road, Wayne, PA 19087 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Date: April 27, 2012 Defendant, Sermatech International Incorporated Attorney for C?l ---f x--r; rn? rr' --f --c INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. ( Y? /?- 4 * pP,- Q-T"7'-I' Ma wry 4? 3G 7y INIr- ? 75! ass ?; • f?l ?n5 Print y ro nu Print PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) Kindly list the within matter for the next Argument Court. ------------- --------- ------------------- CAPTION OF CASE C (entire caption must be stated in full) 33b Erie Insurance Group a/s/o Advanced Coating Technology, Inc.- vs. O 7- 7?p/ Xc Sermatech International Incorporated No. Tej 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Michael S. Munger, Nelson Levine deLuca & Horst (Name and Address) 518 Township Line Road, Suite 300, Blue Bell, PA 19422 (b) for defendants: William J. Conroy, Christopher G. Mavros, Meaghann C. Porth, Campbell Campbell Edwards & Conroy, P.C. (Name and Address) 690 Lee Road, Wayne, PA 19087 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Date: April 27, 2012 Defendant, Sermatech International Incorporated Attorney for 4..u --f r?z -- c x >' INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. C?ra fig. 7s_. per a f1'1 a Vf,?5 4' 34- 7 y (.h ',c L Print you ame omr CAMPBELL CAMPBELL EDWARDS & CONROY, P.C. By: William J. Conroy, Esquire Meaghann C. Hayes, Esquire Christopher G. Mavros, Esquire Attorney I.D. No.'s: 36433/307629/90343 The Chesterbrook Corporate Center 690 Lee Road, Suite 300 Wayne, PA 19087 (610) 964-1900 ERIE INSURANCE GROUP, a/s/o ADVANCED COATING TECHNOLOGY, INC. V. SERMATECH INTERNATIONAL INCORPORATED Attorneys for Defendant Sermatech International 7ti CD ?.- CUMBERLAND COUNTY COURT OF COMMON PLEAS No. 07-7601 WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of Defendant, Sermatech International, with regard to the above-captioned matter. CAMPBELL CAMPBELL EDWARDS & CONROY, P.C. /1JJ r DATED: BY: ~?d'??i `` C William A. Rubert, Esquire r" CERTIFICATE OF SERVICE I, Christopher G. Mavros, Esquire, hereby certify that I caused a true and correct copy of the foregoing Withdrawal of Appearance to be served on the 26`h day of April, 2012 via United States first-class mail, postage prepaid, upon the following persons: Michael S. Munger, Esquire Nelson Levine deLuca & Horst 518 Township Line Road, Suite 300 Blue Bell, PA 19422 Sean Summers, Esquire BARLEY SYNDER LLC 100 East Market Street York, PA 17405 CAM#BEI,L CAMPBELL EDWARDS & CONROY P.C. By: Christopher lS?Mav?6s, Esquire CAMPBELL CAMPBELL EDWARDS & CONROY, P.C. By: William J. Conroy, Esquire Meaghann C. Hayes, Esquire J. Christopher G. Mavros, Esquire 3i Attorney I.D. No.'s: 36433/307629/90343 690 Lee Road, Suite 300 01Y 1 Wayne, PA 19087 Attorneys for Defendant, (610) 964-1900 Sermatech International Incorporated ERIE INSURANCE GROUP, a/s/o ADVANCED COATING TECHNOLOGY, INC.: CUMBERLAND COUNTY CCP V. SERMATECH INTERNATIONAL No. 07-7601 INCORPORATED . ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Christopher G. Mavros, Esquire as counsel on behalf of defendant, Sermatech International Incorporated, in the above-captioned matter. CAMPBELL By: , P.C. William J. Conroy, Esquire Meaghann C. Hayes, Esquire Christopher G. Mavros, Esquire Attorneys for Defendant, Sermatech International Incorporated Date: April 26, 2012 CERTIFICATE OF SERVICE I, Christopher G. Mavros, Esquire, hereby state that I have caused a true and correct copy of the attached Entry of Appearance, on behalf of Defendant, Sermatech International, Inc. to be served by regular, first class mail, postage prepaid, upon the following persons this 26`h day of April, 2012: Michael S. Munger, Esquire Nelson Levine deLuca & Horst 518 Township Line Road, Suite 300 Blue Bell, PA 19422 Sean E. Summers, Esquire Barley Snyder LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 CAMPBELL A B E ARDS & CONROY, P.C. BY: Christ her G. Mavros, Esquire Attorne for Defendant, Sermatech International Incorporated NELSON EEVINE de LUCA & HORST, LLC BY: MIC14AEL S. MUNGER, ESQUIRE IDENTIFICATION NO.: 71318 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-51133 ERIE INSURANCE GROUP A/S/O ADVANCED COATING TECHNOLOGY, INC. Plaintiff(s) V. SERMATECH INTERNATIONAL INCORPORATED Defendant ATTORNEYS FOR PLAINTIFF COURT OF COMMON PI !A' CUMBERLAND COUNT? = .- CIVIL ACTION NO: 077 , PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Plaintiff, Erie Insurance Group a/s/o/ Advanced Coating Technology, Inc., by an through its undersigned counsel, Nelson Levin de Luca & Hamilton, hereby presents its response to Defendant, Sermatech International Inc.'s, Motion for Summary Judgment, as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted 5. Admitted. 6. Admitted. 7. Admitted in part, denied in part. It is admitted only that both booths were used to apply the Sermatel products and Aervoe Acrylic. The remaining averments contained in this paragraph are specifically denied. 8. Admitted. I AI 9. Admitted. 10. Denied, in part. Testimony of Carl Lybrand specifically notes that the limitations on the activities within the booth were relaxed where there was a tag-out/lock-out procedure in place. See Exhibit "A ", Lybrand Deposition 32:1-5. 11. Admitted. 12. Denied as stated. Mr. Lybrand specifically notes that the filters were changed weekly to biweekly. See Exhibit "A ", Lybrand Deposition 39:10-24. 13. Admitted. 14. Admitted 15. Admitted. 16. Denied. Inasmuch as Defendant makes no reference to testimony offered, it is impossible for Plaintiff to admit the averments contained herein. The primary product used in the booth was Sermatel 853. Lybrand Deposition. 17. Admitted. 18. Admitted. 19„ Admitted. By way of further explanation, Mr. Griffiths was not inside the booth when he was grinding and made a point to stay out of the booth. See Exhibit "B", Griffiths Deposition 75:21. 20. Admitted. 21. Admitted. 22. Admitted. 23. Admitted. 24. Admitted. 25. Admitted. 26. Admitted. 27. Admitted. 28. Admitted. 29 Admitted. 30. Admitted. 31. Admitted. 32. Denied, as a conclusion of law to which no responsive pleading is required. 33. Denied, as a conclusion of law to which no responsive pleading is required. 34. Admitted. 35 Denied as stated. It is admitted that Plaintiff's strict liability claims are limited to allegations related to failure to warn. Pennsylvania law, however, recognizes strict liability for failure to warn. Walton v. Avco Corp., 530 Pa. 568, 576, 610 A. 2d 454, 458 (1992), Phillips v. A- Best Products Co., 542 Pa. 124, 131, 665 A. 2d 1167, 1170 (1995). 36. Denied. On the contrary, Plaintiff alleges that the Defendant's warnings were defective in that they failed to contain appropriate information about the metallic nature of the product, the significant fire risk associated with the product which all arises from a failure to warn of the proper extinguishing media to be used. There is no allegation that the product was subjected to a non-intended use. Rather, the product was being used as intended, but the alleged defect in warning caused the fire, and its significant spread. See Report of Thomas G. Euson, March 9, 2009, "Sermatech failed to warn their customer, ACT, that their material had a higher fire potential..." 37. Denied. See Response #36. t 38. Denied. On the contrary, the Sermatel product was used as intended. Defendant's argument in this context is a mischaracterization of the law. In Pennsylvania Dept. of General Services v. U.S. Mineral Products Co., the Plaintiff's property was subjected to a fire, which consumed the insulation present in the building and manufactured by the Defendant. The burning of that insulation resulted in the presence of harmful chemicals in the air. It was not alleged that the insulation caused or exacerbated the fire. Here, Plaintiff has alleged that the product caused and exacerbated the fire. The Plaintiff is seeking recovery for the fire, not for a secondary side effect of the fire resulting from the paint, as was the case in General Services. Thus, unlike General Services, the product's "use" is not its burning. In fact, the paint use was what the manufacturer intended. The Defendant's characterization of this holding would eliminate strict liability in all products liability cases where a fire results. This cannot be the court's intent. As such, the standard established by General Services is not appropriate in the instant action. 39. Denied, see answer 38. 40. Denied, see answer 38. 41 Denied, see answer 38. 42. Admitted in part, denied in part. It is admitted only that the Pennsylvania Supreme Court has acknowledged that claims such as those alleged here can sound in negligence. However, it is specifically denied that these claims do not sound in Strict Liability as well. 43. Denied, as a conclusion of law to which no responsive pleading is required. 44. Denied, as a conclusion of law to which no responsive pleading is required. 45 Admitted. S I 46. Admitted. 47, Denied. Defendant mischaracterizes the law. Sherk v. Daisy-Heddon. 498 Pa. 594, 602, 450 A.2d 615, 619 (1982) holds that "[p]roving that an accident happened, or the existence of an opportunity for it to happen in the manner alleged, is entirely insufficient to establish negligence. Plaintiff must go further and show not only Defendant's negligence, but that the injuries complained of were the result of such negligence." The Defendant's reading of this standard reverses, and thus mischaracterizes it. Plaintiff must only show their injury resulted from the negligent failure to warn, not that the absence of said failure would have prevented the injury. By way of further response, Guy Griffiths specifically testified that: A. Yes, I was trying to find out information about the coatings. Q. And in your review of the cans, labels and warnings and also the MSDS sheets, did you find any information or warnings regarding Type D fire risks? A. None whatsoever. (Emphasis added). Q. Had you been aware that the Sermatel 853 potentially had a Type D fire risk, how would your activities on the day of the fire have changed? A. Would have been totally different. Q. Describe how? A. I wouldn't have been using anything with any heat source, or any type of flammable or spark causing agent anywhere near that area. See Exhibit "B ", Griffiths Deposition 132:1-16 48. Admitted. 49. Admitted. 50. Denied as stated. The complaint specifically describes the defective warnings at Paragraph 17: . 7 17. The aforementioned defects consisted of: a. Design Defects; b. Manufacturing Defects; C. Failure to warn of the aforementioned defect; and d. Failure to properly instruct as to the appropriate operational procedures for safe use of the product. (emphasis added) 51. Admitted. 52. Denied. On the contrary, Guy Griffiths specifically testified that: A. Yes, I was trying to find out information about the coatings. Q. And in your review of the cans, labels and warnings and also the MSDS sheets, did you find any information or warnings regarding Type D fire risks? A. None whatsoever. (Emphasis added). Q. Had you been aware that the Sermatel 853 potentially had a Type D fire risk, how would your activities on the day of the fire have changed? A. Would have been totally different. Q. Describe how? A. I wouldn't have been using anything with any heat source, or any type of flammable or spark causing agent anywhere near that area. See Exhibit "B ". Griffiths Deposition 132:1-16 53. Admitted in part, denied in part. It is admitted only that the Pennsylvania State Police report does not specify the first ignited combustibles. However, attached hereto as Exhibit "C" is the Supplemental Expert Report of Thomas G. Euson, dated May 16, 2012, in which he opines specifically, "the only reasonable conclusion to be drawn is that the spark from the grinding wheel ignited the aluminum powder in the Sermatel 853 overspray." Further, the testimony of Guy Griffiths clearly indicates that the fire was of a metallic nature and other witnesses have testified that the only product used at or near the paint booth was Sermatel 853. 54. Admitted in part, denied in part. It is admitted only that Mr. Kufta does not opine as to the first ignited combustible. However, attached hereto as Exhibit "C" is the Supplemental Expert Report of Thomas G. Euson, dated May 16, 2012, in which he opines specifically, "the only reasonable conclusion to be drawn is that the spark from the grinding wheel ignited the aluminum powder in the Sermatel 853 overspray." Further, the testimony of Guy Griffiths clearly indicates that the fire was of a metallic nature and other witnesses have testified that the only product used at or near the paint booth was Sermatel 853. 55. Denied. See #53. 56. Denied. See #53. 57. Admitted in part, denied in part. It is admitted only that the fire started outside the booth. By way of further answer, there would have been no fire as Mr. Griffiths has testified that he would never have been grinding had adequate warnings been provided. See Exhibit "B ", Griffiths Deposition 132:1-16 58. Admitted. 59. Admitted. 60. Admitted. 61. Admitted. Any claims related to the effectiveness of Class D media on this fire are withdrawn. However, had proper warnings been given Mr. Griffiths would not have been grinding in the area and the fire would not have occurred. See Exhibit "B ", Griffiths Deposition 132:1-16. 62. See #61. , 63. Denied. On the contrary, see the Expert Report of Thomas Euson, dated December 9, 2009, attached hereto as Exhibit "D", in which he specifically opines regarding appropriate suppression media for products such as Sermatel 853. 64. Denied. Attached hereto as Exhibit "C" is the Supplemental Expert Report of Thomas G. Euson, dated May 16, 2012, in which he opines specifically, "the only reasonable conclusion to be drawn is that the spark from the grinding wheel ignited the aluminum powder in the Sermatel 853 overspray." Further, the testimony of Guy Griffiths clearly indicates that the fire was of a metallic nature and other witnesses have testified that the only product used at or near the paint booth was Sermatel 853. 65. Denied. Defendant mischaracterizes the holding in Mackowick. The full quote from Mackowick v. Westinghouse Elec. Corp. is: "The duty to adequately warn does not require the manufacturer to educate a neophyte in the principles of the product. A warning of inherent dangers is sufficient if it adequately notifies the intended user of the unobvious dangers inherent in the product." 525 Pa. 52, 56, 575 A.2d 100, 102 (1990) (emphasis original). The Expert Report of Thomas G. Euson notes that the flammability of dried Sermetel 853 is not obvious, calling it "counter intuitive, even for experienced finishers." p. 3. 66. Denied. On the contrary, Mr. Euson clearly points out that "Sermatech failed to warn their customer, ACT, that their material had a higher fire potential in the dried overspray than in the container as purchased. This is counter to the experience of most finishers and should have been. communicated to ACT." See Exhibit "D ", Euson Report at p. 10. 67. Denied. On the contrary, as Mr. Euson opines in his report of December 9, 2009, that Sermatech "did not acknowledge any fire potential of their product." He goes on to describe the unique characteristics of the Sermatel 853 which material "had a higher fire potential in the • . r dried overspray than in the container as purchased. This is counter to the experience of most finishers and should have been communicated to ACT." See Exhibit "D", Euson Report at p. 10. The Mackowick case merely holds that "[a] seller or manufacturer should be able to presume mastery of basic operations by experts or skilled professionals in an industry, and should not owe a duty to warn or instruct such persons on how to perform basic operations in their industry. "(Emphasis added). The allegations related to failure to warn involve very sophisticated chemical analysis of the products far greater than the basic operations in an industry. 68. Denied. See #67. 69. Denied, as a conclusion of law to which no responsive pleading is required. 70. Admitted. 71. Admitted. 72. Admitted. 73. Denied, as a conclusion of law to which no responsive pleading is required. 74. Denied as stated. Specifically, Plaintiff alleges that Defendant: a. Fail[ed] to use reasonable care in the following manner: i. failing to properly determine that the extinguishing media of dry chemical would fail to put out a fire which contained the ingredient of aluminum metal powder; ii. failing to adequately warn plaintiff and others of the dangers and hazards associated with utilizing the wrong type of fire suppression system in connection with defendant's product; iii. failing to warn plaintiff and others of the incorrect fire suppression system designation on the warning labels and MSDS sheets associated with defendant's product. Plaintiffs Complaint, Paragraph 11. 75. Denied. See Supplemental Expert Report of Thomas G. Euson, dated May 12, 2012 wherein Mr. Euson opines that the first ignited combustible was Sermatel 853. 76. Admitted. Any claims related to the effectiveness of various classes of suppression media on this fire are withdrawn. However, had proper warnings been provided, Mr. Griffiths would not have been grinding in the area and the fire would not have occurred. See Exhibit "B Griffiths Deposition 132:1-16 77. See Plaintiff s Response #76. 78. Denied. On the contrary, this was not merely a fire related to combustible material but rather, a metallic fire as noted in the Expert Reports of Thomas Euson. The only combustible supporting such a fire as that described by Guy Griffiths was Sennatel 853. In fact, Mr. Euson, in his Supplemental Report, specifically identifies the first ignited combustible as Sermate1853. 79. See Plaintiff s Response #76. 80. See Plaintiffs Response #76. 81. Denied. By way of further explanation, the deposition testimony establishes that Sermatel 853, 843 and Aervoe Acrylic were the only three chemicals being used in the booth involved in the fire. Aervoe Acrylic is an organic, solvent based chemical. Both the Expert Report of Thomas G. Euson (see Exhibit "D" attached hereto) and the Material Safety Data Sheet for Aervoe Acrylic (see Exhibit "E" attached hereto) establish that this chemical is extinguished by dry chemical fire extinguishers. The fire suppressant systems in the booths where the fire originated were dry chemical suppressants. (See Exhibit "F", Turri Deposition, 87:22 - 89.2). Also see the Supplemental Expert Report of Thomas Euson wherein he opines that Sermatel 853 was first ignited combustible. 82. See Plaintiff's Response #76. 83. See Plaintiff's Response #76. 84. Denied. See Supplemental Expert Report of Thomas G. Euson, dated May 12, 2012 wherein Mr. Euson opines that the first ignited combustible was Sermatel 853. 85. Denied. See Supplemental Expert Report of Thomas G. Euson, dated May 12, 2012 wherein Mr. Euson opines that the first ignited combustible was Sermatel 853. 86. Denied. On the contrary, Plaintiff's experts have opined that Defendant failed to properly warn of the dangers associated with the metallic nature of the product. Guy Griffiths has testified that had appropriate descriptions of the nature of the product, along with appropriate suppression media, been in place, the fire would never have started because Mr. Griffiths would never have been grinding in the area of the paint booth. See Exhibit "B ", Griffiths Deposition, 132:10. 87. Denied. On the contrary, had proper warnings been given, Guy Griffiths would never have been grinding in the area of the paint booth, and the fire would never have occurred. See Exhibit "B ", Griffiths Deposition, 132:10. 88. See Plaintiff's Response #76. 89. Admitted. 90. See Plaintiff's Response #76. 91. Denied. See Supplemental Expert Report of Thomas G. Euson, dated May 12, 2012 wherein Mr. Euson opines that the first ignited combustible was Sermatel 853. 92. Denied, as a conclusion of law to which no responsive pleading is required. 93. Admitted. 94. Admitted. 95. Admitted. 96. Admitted. 97. Denied, as a conclusion of law to which no responsive pleading is required. 98. Denied. On the contrary, Plaintiff has, through discovery and expert analysis, established that this fire was directly caused by the Sermatel 853 and more specifically, by Defendant's failure to warn of the combustible metallic nature of the product. NELSON LEVINE DE LUCA & HORST By: MICHAEL . MUNGER, ESQUIRE ATTORNEY FOR PLAINTIFFS Dated: Max 29, 2012 L i ?? 1 1 2 3 4 5 6 7 S 9 1C 13 12 1: 1E 1. 17 1.! 21 2: 2. 2 2 2 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE GROUP, a/s/o ADVANCED COATING TECHNOLOGY, INC., PLAINTIFFS . VS NO. 07-7601 SERMATECH INTERNATIONAL, . INCORPORATED, DEFENDANT . DEPOSITION OF: CARL LYBRAND >I L 3 4 5 TAKEN BY: DEFENDANT BEFORE: TERESA K. BEAR, REPORTER NOTARY PUBLIC DATE: DECEMBER 4, 2009, 10:10 A.M. PLACE: COMFORT SUITES 10 SOUTH HANOVER STREET CARLISLE, PENNSYLVANIA Thomas G. Oakes Associates 1-877-625-3777 www.TGOakes.com Carl Lybrand - December 4, 2009 > f 3 a 1 Z 3 4 5 A Yes, the no smoking was an obvious. Any kind of flames in that room was -- you could not have in there, no power tools or anything, unless the machines were tagged out/locked out and the booths were off. Other than that, that's basically it. Q And how were you instructed on all these rules? A i was told by the foremen. And i believe there was si gns about the smoking and tag out/lock out signs. Q Okay. And signs what, on the outside of the room or somewhere else? A They were inside the room. Q okay. And were you told why there were rules about no smoking, no flames, no power tools in the room? A Yes. Q And what was the reason? A Because the SermeTel could catch on fire. Q so that's something that you knew about in the time that you were applying it? A Yes. Q That that was a possibility? A Yes. Q Even before the fire? 32 Thomas G. Oakes Associates 1-877-625-3777 www.TGOakes.com 7 Carl Lybrand - December 4, 2009 iI 7 3 a 1 Z 3 4 5 A I would also clean the stack for the booths that goes up and out of the building. I would have to get in there every once in a while and spray that out. Q okay. All right, and Joe Turri basically showed you all these things? A Yes. Q okay. And what were you taught in terms of how often to peel the coating off the walls? A It was to my discretion. Q okay. And how long typically would it be? A Depending on when I would get a chance, it could be two, three months. Q Okay. And in that time period you'd be applying coating pretty much daily? A Yes. Q Okay. And how were you taught about when to change the filters? A I was told with -- two weeks, but I would change them actually before that, within a week, a week and a half. And it depended a lot on the amount of base coat that we would spray. The base coat seemed to film up more than the top coat. Q okay. So how would you decide, you know, 39 Thomas G. Oakes Associates 1-877-625-3777 www.TGOakes.com ?r ?. Page 1 1 ?7. ERIE INSURANCE GROUP, a/s/o ADVANCED COATING TECHNOLOGY CUMBERLAND COUNTY COURT OF COMMON PLEAS V. SERMATECH INTERNATIONAL No. 07-7601 INCORPORATED DEPOSITION OF: GUY N. GRIFFITHS TAKEN BY: Defendant BEFORE: Array R. Fritz, R.P.R. Notary Public DATE: September 18, 2009, 9:45 a.m. PLACE: Comfort Suites Downtown Carlisle Ten South Hanover Street Carlisle, Pennsylvania APPEARANCES: NELSON, LEVINE DeLUCA & HORST BY: MICHAEL S. MUNGER, ESQUIRE FOR - PLAINTIFF CAMPBELL, CAMPBELL, EDWARDS & CONROY, P.C. BY: C. SCOTT TOOMEY, ESQUIRE FOR DEFENDANT Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 75 1 A. It's a gray, greenish dust is what it looks t 2 like. Depends on the moisture content what color it 3 is most of the time. 4 Q. And if it.'s moist, what color is it? 5 A. It's a little more green color. 6 Q. And if it's more dried? 7 A. Then it's a little more gray colored, I 8 guess. 9 Q. What was the color of the exterior of the 10 paint booth? 11 A. Silver. 12 Q. And painted silver or just -- 13 A. Galvanized. i" 14 Q. And how.about the channel, the 2 by 2 by 15 3/8ths-inch channel? 16 A. Galvanized. 17 Q. Did you do anything to clean or prepare the 18 area around where you were going to install the wings 19 before you started this process? 20 A. No. 21. Q. When you were working on the, on grinding 22 that notch, were you within the painted area around 23 the booth? 24 A. No. 25 Q. Did you make it a point to stay outside of Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 132 1 A. Yes. I was trying to find out information 2 about the coatings. 3 Q. And in your review.of the cans, labels and 4 warnings and also the MSDS sheets, did you find any 5 information or warnings regarding Type D fire risks? 6 A. None whatsoever. 7 Q. Had you been aware that the SermeTel 853 8 potentially had a Type D fire risk, how would your 9 activities on the day of the fire have changed? 10 A. Would have been totally different. 11 Q. Describe how. 12 A. I wouldn't have been using anything with 13 any heat source or any type of flammable or 14 spark-causing agent anywhere near that area. 15 Q. And why not? 16 A. Because it's nasty stuff. 17 MR. MUNGER. That's all I have. 18 MR. TOOMEY : Let me follow up. 19 EXAMINATION 20 BY MR. TOOMEY : 21 Q. Were you aware that aluminum powder could 22 result in a Class D type fire? 23 A. In a powdered form, yes. 24 Q. Were you aware that aluminum powder was an 25 ingredient in 853? Gwendolyn Parker and Associates, Inc. 214-747-8007 ?, i/ ?? ? Report Advanced Coating Technologies, Inc. Fire on March 30, 2006 December 9, 2009 Addendum May 16, 2012 T44s'.44 G. Eti•too• 20136 %w t C R"ot U", W 47024 Ham: ?6S-6y?-106 f?: ?6s-6y?-2173 Cpl: S13-M-1113 Purpose The purpose of this addendum is to state the cause of the fire based on the characteristics of the SermaTel 853 and the observations by Mr. Guy Griffiths the morning of the fire. Background The following is listed as background to support the conclusion below: • The SermaTel 853 is a water based, inorganic, coating material that incorporated aluminum powder for corrosion protection when painted on steel substrate. • Unlike most common "paints", this material becomes more flammable as it dries. As it dries, the water used as the carrier for the resin and aluminum evaporates leaving the aluminum powder exposed. • The morning the fire occurred, the booth had not been used. The overspray was therefore dry. o On page 75 of Guy Griffiths' deposition, he stated that the color of the overspray and the color difference when "wet' and "dry". • Metal fires burn very hot, with a "white" flame and white smoke. • Organic materials, specifically common organic resin based paints, burn with an orange flame and (heavy black smoke. This fire type was not observed. • On page 74 of Guy Griffiths' deposition, he stated that after the spark dropped into the channel... "there was an extremely bright ignition, almost like flash powder..." Later, he stated that ..."it just, like a fuse, ran right along the channel." • On page 84 of Guy Griffiths' deposition, he described the fire as "very bright, almost like a flash bulb Would go off." • Later in the deposition, he stated that he discharged 3 10 lb. ABC fire extinguishers into the fire and the automatic fire extinguishing system (ABC) also discharged. He stated that the fire "laughed at me". o ABC agent will not extinguish a metal fire. • Later, Mr. Griffiths stated that he experimented with igniting the dried SermaTel 853 with a propane torch and got the same type fire he saw in the booth. He also reported that when repairing a broken rack by welding, the dried coating "...took off like a sparkler..." Conclusion On the basis, of the characteristics of the SermaTel 853 (that the aluminum powder used in the inorganic coating is exposed in the dried film), the fact that this was the material being applied in Booth 1A, the fact that the overspray was dry, the observed metal fire characteristic of a bright flash type fire and the fact that the ABC fire extinguishers and ABC automatic fire extinguishing system had no effect on the fire, the only reasonable conclusion to be drawn is that the spark from the grinding wheel ignited the aluminum powder in the SermaTel 853 overspray. The opinions expressed in this report are mine and within the bounds of reasonable scientific accuracy, subject to change if additional material becomes available. Thomas G. Ewson ?? Report Advanced Coating Technologies, Inc. Fire on March 30, 2006 December 9, 2009 20936 Plane, Road, Yarzze/ A* 47024 ?9&new 765-698-9306 gaa: 765-698-297? ??• 593-535-9993 c?-r»,aiG.• ?uadst? 3??nco??a?a.?etl catrL Purpose This report covers the review of the depositions of Kevin Eddinger, Sermatech International, dated September 1, 2009, along with a review of the material safety data sheet on a Sermatech coating material - SermaT01 853, issue date of September 16, 2003 as they relate to the fire that occurred at Advanced Coat Technologies, Inc. (ACT) on March 30, 2006. The main focus of this report is to examine the fire characteristics of the SermeTel 853 as it relates to the warnings provided by Sermatech International on the product's MSDS. Other document examined in preparation of this report: • Report of William J, Vigilante, Jr., Ph. D., dated November 20, 2009 • Report of Ronald D. Schaible, CIH, CSP, dated November 20, 2009 • Deposition of Guy Griffiths, ACT, dated 18, 2009 • Aluminum Association's "Recommendations for Storage and Handling of Aluminum Powders and Pastes" • NrPA 484, Standard for Combustible Metals, 2009 Coating Material - SermeTel 853 The coating material involved in the fire is SermeTel 853. From the MSDS, this material is composed of the following: • Water soluble Chromium VI compounds (as CrO3) <5% • Chromium III compounds (as Cr(OH)3) <1% • Acidic Phosphates (as H3PO4) 10-20% • Aluminum metal powder 30-50% • Amorphous Silicon Dioxide <11% This type of coating material is used primarily as a corrosion protection primer (with or without a topcoat) for steel surfaces. The Chromium VI and III compounds form an inorganic open lattice structure to bind the aluminum, but allowing the aluminum to have intimate contact with the substrate ( in this case the steel surface) and the other particles of aluminum powder. In this way, the aluminum can act as the sacrificial material and protect the steel from corrosion. These materials are commonly used for marine and industrial applications for corrosion protection of steel surfaces. Most applications also include a topcoat(s) to provide further protection and extend the life of the coating. These types of coating materials differ significantly from the more common types of paint which primarily use organic resins. Organic resin materials form a thin, continuous film over the surface of the substrate and encapsulate any pigment or filler. Because of this encapsulation, when these materials are used in conjunction with aluminum or zinc metal powder, they do not allow good metal-to-metal contact (electron transfer) and their effectiveness for corrosion protection is greatly reduced. The MSDS for the SermeTel 853 lists no organic compounds. Fire Characteristics For purposes of this report, we will review the fire characteristics of 3 types of coating materials. This will give an overview as to the importance of the MSDS in properly describing the safety aspects of the use of this coating material. Also, for the purpose of this discussion, we will assume that the 3 coating materials are being applied by a spray gun in a spraybooth, as was the SermeTel 853 at ACT. • Organic resin coating materials, solvent borne: These materials have historically been the most commonly used industrial "paints". They are generally composed of organic resins dissolved or diluted in solvents, coupled with pigments for color and other fillers. The fire characteristic for an individual material is generally considered to be the "flash point". This is the temperature at which the solvent in the material will ignite when a small flame is passed over it. Standard ASTM test methods are used for the testing. If the flash point is under 104°F, it is considered to be "flammable". If the flash point is 100°F or greater, the material is considered to be "combustible". It is very important to note that the flash point applies only to the material in the container and at rest. When these materials are applied by spray, typically by a spray gun using air to propel and atomize the material, the listed flash point becomes a moot point. In a finely atomized state, these materials will ignite far below their flash point. This is when they are easiest to ignite and have the highest fire hazard. A very large percentage of industrial applications are done in a spraybooth that is designed to contain the overspray (that material that "missed" the parts) and to exhaust the solvent vapors. The overspray that is immediately captured in the booth and on the filters still contains a fairly high degree of the original solvent. This overspray will generally have the same flash point as the original material. However, as the solvents begin to evaporate, with the most volatile (and lowest flash point) evaporating first, the flash point gradually rises. Later, with most of the solvent having evaporated, only the resin, pigment and fillers remain. At this point, the residue is considered "combustible" and is generally fairly difficult to ignite. • Organic resin coating materials, water borne: These materials are being more widely used in lieu of solvent borne materials due their lower air pollution. They are generally composed of organic resins dissolved or diluted in water, coupled with pigments for color and other fillers. These materials commonly also contain some amount of "co-solvent", such as alcohols to aid in the dissolution of the resins. Because the use of co-solvents is so common, these materials generally have a measureable flash point, sometimes into the flammable range. Like the solvent borne materials, these materials are at their highest fire risk when being sprayed. Evan materials with no co-solvent can be ignited when atomized. The organic resins and even some of the pigments and fillers can be ignited under these conditions. light after the overspray has been deposited in the booth and on the filters, the residue is fairly difficult to ignite while wet. The water will prevent them from igniting except under severe circumstances. As the overspray dries, the residue becomes combustible much like the dried solvent borne paints. It is combustible, but difficult to ignite. Inorganic resin coating materials, water borne: These materials are most often used to provide a lattice type binder to hold aluminum or zinc metal powder to a steel substrate. In the form in which they are applied, they contain inorganic materials that, upon curing, will form an insoluble crystalline lattice structure. They may contain some reactive materials that will help the crystalline formation. Usually, the only other major component is the metal powder. The SearmeTel 853 material falls into this category. From a fire risk stand point, these materials differ significantly from materials compounded with organic resins. They have no flash point when in the container. When atomized, they generally have very low fire risk. The water in the compound normally will prevent a fire even when deliberate attempts are made to ignite it. Immediately after the overspray has been deposited in the booth and on the filters, there is virtually no risk of fire. The water content again will prevent ignition. However, after this material dries, it is almost 95% metal powder. The crystalline lattice binder comprises very little of the mass of the overspray and the nature of the binder is to leave the metal exposed. Please note that after this material dries some water will still be present. This is the "water of hydration" that is part of the crystallization structure of the lattice. This water (as molecular H2O) becomes part of the crystalline structure and will not be in a form that can be considered "free water". When these materials are cured at elevated temperatures, this water of hydration is driven off leaving an insoluble binder. When in the dried or cures state, these type materials are of their highest fire potential. It is exactly the opposite of conventional coating materials. This is counter intuitive, even for experienced finishers. This is why proper warnings on the Serme Tel 853 data sheet, labels and the MSDS would have been so critical. Fire Extiroguishing Agents There is a critical distinction that needs to be made with regard to fire extinguishing agents, specifically between "dry chemical" and "dry powder" and "sand. Dry Chemical: This is a powdered compound, usually a blend of chemicals that are active fire fighting agents. They are generally based on 1 of 3 chemicals: o monoammonium phosphate ((NH4)H2PO4), commonly referred to as ABC agent o sodium bicarbonate (NaHCOA commonly referred to as BC agent o potassium bicarbonate (KHCOA commonly referred to as BC agent The letters identifying the agents refer to the type of hazard for which they are appropriate. o "A" is Class A and refers to ordinary combustible hazards such as wood, paper, dried paint residue, etc. o "B" is Class B and refers to flammable and combustible liquid hazards, such a gasoline, solvents, paints, oil, etc. o "C" is Class C and refers to electrical hazards Metal fires are so hot that they decompose the dry chemical agents quickly and render them ineffective. Products of decomposition can increase the intensity of the fire. All of these compounds are expelled under pressure. This pressure can also cause the aluminum powder to become suspended and create an explosion. Dry chemical agents are specifically disallowed by NFPA 484 and are not just ineffective on metal fires, they have the potential of making the fire more intense. The Serme Te1853 MSDS improperly lists this as an extinguishing media. Dry powder: These agents are essentially inerting agents. They operate by blocking oxygen from getting to the fire. They have been called "glorified dirt", but are primarily composed of very finely ground sand, silicon dioxide (802). They are compounded with crusting agents that help form a crust over their surface to further help block oxygen from reaching the fire. These agents are Class D agents and are recommended only for metal fires. There is a restriction on their use. They are approved and effective on horizontal surfaces only. Dry powder agent should not be confused with common "sand". Common sand is too course to be an effective agent for metal fires. The relatively large particles do not effectively block the oxygen and it has no additives that will form a crust over the surface. Commercially available dry powder materials are extreme fine by comparison. Metal fires will not decompose silicon dioxide. The Serme Tel 853 MSDS improperly lists "sand" as an extinguishing media. • Carbon Dioxide (COA: Carbon dioxide extinguishes a fire by 2 methods. The first, and most important, is by displacing the oxygen and smothering the fire. The second is by cooling the surrounding area.. C02 is applied as a gas. As it is a gas, it is subject to fairly rapid dissipation and must extinguish a fire rapidly to avoid reflash. C02 is listed as a Class B and Class C extinguishing agent. CD2 is not listed as a suitable agent for Class D (metal) fires. Having said this, there are some in the fire protection industry that feel carbon dioxide could be an effective agent, but we could not find a representative application or recommendation. There is no industry standard to support this. The Serme Tot 853 MSDS improperly lists carbon dioxide as an extinguishing media on the basis of manufacturers' literature and recommendations and NFPA 484. Deposition of Kevin Eddinger The following are comments on portions of Kevin Eddinger's deposition. The number format below follows the deposition format where the first number is the page and the second number is the line. 1. 53, 4: In response to the change in SermeTel 853 that occurs when baked or cured, KE responds that is converts to an insoluble chromate phosphate material. a. Comment: This is consistent with the information on their MSDS and other materials of this type. 53, 11: In response to changes in the product after spraying but before curing, KE responds that it will be in a semi-dried state but will still exist as SermeTel 853, a slurry of aluminum metal powder in an acid phosphate solution. a. Comment: This is partially true. The degree of change is dictated by the amount of water present during the drying stage. Freshly applied overspray will have almost the same water content as the material as sprayed, but this changes over time. 3. 53, 22: In response to the question of changing flammability or combustibility properties in the ouerspray condition, KE responds "I don't believe so." a. Comment: This is clearly not the case. As the "free water", that water that was used primarily as a vehicle to carry the chromate and phosphate compounds and the aluminum powder, evaporates, the dried material has virtually the same properties as the cured material. This leaves a deposit that is 95% aluminum powder. 4. 57, 4: In response to a question about communicating the hazards associated with the aluminum powder, KE states "I would say no, because in the formulation of SermeTel 853, the final product doesn't contain that aluminum metal powder, that reactive aluminum powder, any longer." a. Comment: Chromate materials are used to passivate aluminum surfaces. However, this is a very thin film that is produced on the aluminum under the best of conditions (such a deliberate passivation using commercially available materials and after have put the aluminum through a severe cleaning and deoxidation process). This film is designed to provide a measure of protection from oxidation under normal atmospheric conditions. Some similar products are used to prepare aluminum surfaces for painting. This film, if produced at all under the conditions of the SermeTel 853 formulation, would do nothing to change its fire characteristics. This comment also does not make sense in terms of the use of the product. If the aluminum is truly passivated, it would no longer function as a sacrificial agent in protection of the steel substrate. 5. 57, 16: In response to the question as to the potential hazard being different because of the way it was combined with the other ingredients, KE response was "Yes." a. Comment: Same as above. This response makes no sense. 6. 513,1: In response to the question as to any concerns that the aluminum metal powder in the SermeTel 853 might end up as overspray, KE responds that "....The aluminum metal powder is not, strictly speaking, aluminum metal powder any longer." a. Comment: If not, what is it? Some of the aluminum metal powder might react with the phosphates (as H3P04). H3P04 is phosphoric acid and might react with some of the aluminum powder. But the ratios listed in the MSDS would leave the vast amount of aluminum powder as aluminum powder. The comment makes no sense. 61, 20: In response as to the question about carbon dioxide being an appropriate extinguishing media for the SermeTel 853, KE's response was vague - depending on the use situation and the fire situation. a. Comment: Since KE is not experienced in fire fighting media and the commercially available products, he should have relied on various manufacturers' recommendations. He did not explain the use and fire situations. The follow-up question (61, 22) asks what uses. Again the answer is so vague as to render the question unanswered. It is apparent that KE does not know in what uses and situations it would be appropriate. He would not find a manufacturer that would recommend carbon dioxide for this application. 8. 62, 5: When asked if carbon dioxide alone would be sufficient for an extinguishing media for a fire originating from overspray, KE's response was "I would think not." a. Comment: If not for the overspray, when would it have been appropriate? As stated in the MSDS, the SermeTel 853 has no flash point. So the use of any extinguishing media would not have seemed necessary for the material in the original container. 9. 62, 10 through 63, 13: In response to the questions about the appropriateness of the various agents and under what conditions, KE never offered any specifics. a. Comment: All his answers were very vague. His answer at 62, 21 about sand not being appropriate for industrial spray application was "strange". His product, SermeTel 853, is used only in industrial applications, yet it is listed in their MSDS. KE was clearly out of his element in discussing fire protection as none of his responses make any sense. 10. 63, 24: In response to the question of it being appropriate to use all 3 extinguishing agent together, KE's response was "I believe it could be." a. Comment: This is extremely contrary to good fire protection practice. The selection of the proper agent is done by careful hazard analysis. Generally, one agent will emerge as the proper agent due to the fuel, application, open or closed area, potential personnel contact, residue, reaction byproducts, cost effectiveness, etc. Often the use of 2 agents will have a negative effect on one another. There are many applications where anyone of a number of agents could be used, but the analysis listed above applies and one would be chosen, not 2 or 3. Again, KE's comments betray a poor understanding of fire protection in general and specifically to the SermeTel 853. KE seems to recant these comments in his response (65, 22) to the questions about the UK classification system for hazardous communication. He acknowledges that that extinguishing media is "or" not "and". 11. 68, 1 through 69, 9: In response to questions about the difference in potential hazards of the overspray and the material as it leaves the Sermatech's facility, KE focused exclusively on the "dust or just particulate airborne material" (68, 5) and not on the overspray itself. a. Comment: The freshly sprayed overspray will result in a semi-aqueous slurry on the booth walls and filters. In this condition, it presents a very low fire hazard. There may be a small amount of dust from the material that was sprayed and dried prior to hitting the booth walls or filters. As for particulate airborne material, this material is too heavy to remain in suspension more than a few seconds after spraying is stopped. KE's responses seem to indicate a complete misunderstanding as to what happens to the overspray over time. It dries out and becomes very hazardous. Nothing in their MSDS nor in KE's responses to the questions indicates a knowledge of this, even after the fire. 12. 69, 19: In response to the question about properly communicating the hazard in the overspray condition, KE said "yes" by reporting that it contained aluminum metal powder. a. Comment: This response "assumes' that the end user (ACT and Guy Griffiths) would have had enough prior knowledge of these materials to know that. It "assumes" that the user (ACT and Guy Griffiths) would recognize the different characteristics between a common industrial paint (organic resin based) and the SermeTel 853 (inorganic resin based). The MSDS states the material has no flash point, lower flammable limit or upper flammable limit, so the end user (ACT and Guy Griffiths) would not have had reason to believe that there was any fire hazard. 13. 72, 10: In response to the question about the Aluminum Association's recommendations for the safe handling of aluminum powders and pastes as it would apply to the overspray state, KE's response was "No, I don't think so." 72, 14: The follow-up question was "And why not?" KE's response was he did not believe that the 853 was a reactive aluminum metal powder in that state. 73, 14: In response to a question about avoiding friction sparks, KE's answer again was that in that state (overspray) it is no longer an aluminum powder. 75, 13: In response to the question that if he thought the Aluminum Association's Safety Principles for Handling Aluminum Powder, Rule 11, No.2 would not apply to the 853, KE replied "That's correct." a. Comment: The aluminum metal powder used in the formulation didn't change state. KE never offers any explanation as to the chemical process he believes took place during or immediately after the mixing of the raw materials to change the chemical state of the aluminum powder or into what it was changed. KE's responses to these questions indicate a complete misunderstanding of the product and its properties. The responses indicate a belief that the aluminum metal powder mixed with the other raw materials somehow is transformed into a state where it will not burn and is no longer a fire hazard. Nothing is further from the truth. 14. 83„ 10 through 83, 21: In response to the question of testing the properties of the 853 in the semi- aqueous state (overspray), KE said "Not SermeTel 853, no." When asked "why not?", his answer was that there was a test involving another in "that family of products, the aluminum metal family." a. Comment: It seems that Sermetech not only didn't test this product, but relied on test data from one other product that contained aluminum metal powder. Without knowledge of the product or the test method, it is impossible to judge to value of this data. 15. 84, 1: In response to questions about the overspray staying in a semi-aqueous state, KE responded that there is always "free water" and then "mechanical water" that is associated with the chromate phosphate binder and isn't released until it is cured. a. Comment: KE seems to be drawing a distinction between "free water" and "mechanical water'. This would be consistent with these type resins. The "free water" is the left over water that forms the carrier in order to have the material at a consistency to spray. It seems that the "mechanical water" to which he refers is the water of hydration that is trapped in the crystalline lattice. From his description of this process, it appears that the water of hydration is driven off during the curing process, leaving an insoluble ceramic type resin. From this, one could conclude that until the material is cured, it remains water soluble. From a fire hazard standpoint, it doesn't matter. It is the "free water" that reduces the overspray's fire potential. This would gradually change as this water evaporated. The amount of water of hydration would not change the fire potential. The completely dried overspray would look and feel the same as the cured version. 16. 84, 24: In response to the question as to whether the amount of water that remains in the 853 would make a difference in the potential hazard associated with the product, KE replied "I don't think so." a. Comment: In essence, KE is saying that very dry overspray would have the same fire potential as freshly deposited overspray that is still "wet". This makes no sense. The fire potential increases as more of the aluminum metal powder is exposed in the binder through-the drying process. 17. 85, 4: In response to the follow-up question above (84,22), would the hazard change if completely dried, KE's response was again no because when the 853 is formulated and manufactured they are passivating the aluminum metal powder. a. Comment: This goes back to previous comments. Slight surface passivation, even if it occurs, would have no effect on the ability of the aluminum metal powder to burn. Aluminum naturally forms a protective aluminum oxide layer immediately upon contact with air. This oxide does not protect aluminum powder from burning either. 18. 815,12: In response to the follow-up question that his meaning of passivation means "that the hazardous components of the aluminum powder in its isolated state are eliminated during the manufacturing process?", KE's reply was "Yes." a. KE is saying basically that the product has no fire potential. If that is the case, why were any fire fighting instructions, including the warning not to use water, listed on the MSDS? If there was no fire potential, they should have stated so. 18. 85 20: In response to the question about the distinction between "dry chemical" and "dry poVv er", KE responded that he did not "there" (assuming on the MSDS). a. Comment: While he does now, that is a critical mistake that was made at the time of the preparation of the MSDS and improperly guided ACT to have the wrong fire extinguishers and automatic fire protection system installed. It was reasonable for ACT and its employees to follow the guidance provided by Sermatech. 20. 86 12: KE answers "No." to the question of a risk of metal fires with 853 a. Comment: Clearly there was or ACT would not have had a fire. And if there was no risk, see 18.a above. 21. 86j 15: KE responded to the question about a risk of a metal fire with 853 in its use and state as overspray that "No, I don't think so. In an extreme fire situation, could you additionally create a fire hazard? That might be possible." a. Comment: There appears to be a bit of a contradiction on this response. What does he mean by "extreme fire situation"? and could "create a fire hazard"? He now seems to be indicating that the overspray "could" be a fire hazard. Summary The following is a summary of my comments and opinions. It is based on the information provided to me and my review of that information. Sermatech does not understand the fire potential of their product SermeTel 853. o There were repeated comments about the passivation of the aluminum metal powder during the formulating and manufacturing process that rendered it non-reactive. o There was no distinction about the fire potential in overspray, regardless of the water content. o Throughout the deposition, Sermatech did not acknowledge any fire potential of their product. • By', not recognizing the fire potential of their product, Sermatech did not pay close attention to critical warnings that should have been on their MSDS. • Sermatech failed to warn their customer, ACT, that their material had a higher fire potential in the dried overspray condition than in the container as purchased. This is counter to the experience of most finishers have with conventional paints and should have been communicated to ACT. • Se'rmatech recommended the use "dry chemical" thereby improperly advising their customer, ACT, of the correct fire extinguishing agent to use. Sermatech recommended the use "sand" thereby improperly advising their customer, ACT, of the correct fire extinguishing agent to use. } • Sermatech recommended the use "carbon dioxide" thereby improperly advising their customer, ACT, of the correct fire extinguishing agent to use. • Sermatech did not list "dry powder" as the correct fire extinguishing agent to use thereby denying their customer, ACT, of the information necessary to have the proper agent on hand. • Sermatech wrongly "assumed" that the warning that their product contained aluminum powder and "DO NOT USE WATER BASED EXTINGUISHING AGENTS." was sufficient to warn ACT of any dangers associated with the use of materials containing aluminum metal powder. • Sermetech was inconsistent in warning against the use of water based extinguishing agents while advising the use of agents that were not suitable for metal fires. • Sermatech prepared the MSDS with inadequate knowledge of the fire protection standards, general practice and manufacturers' recommendations. 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Dominico Court Reporter, Notary Public DATE: August 10, 2009, 10:00 a.m. PLACE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 APPEARANCES: NELSON, LEVINE de LUCA & HORST BY: MICHAEL S. MUNGER, ESQUIRE FOR - PLAINTIFF CAMPBELL, CAMPBELL, EDWARDS & CONROY BY: C. SCOTT TOOMEY, ESQUIRE FOR - DEFENDANT COO p?7 Gwendolyn Parker and Associates, Inc. 214-747-8007 Page 87 1 fire suppression system within the 20,000 square-foot 2 portion of the ACT premises? 3 A. Yes, another stand-alone system for what 4 I've shown as other paint. 5 Q. On Turri Exhibit No. 5? 6 A. Correct. And I'm not certain of the dates, 7 bult a system that protects our storage building. 8 Q. Okay. 9 A. I'm not certain of the date of this when 10 this was installed before or after March 30th of 2006. 11 Q. That's with regard to the storage building? 12 A. Yes 13 MR. MUNGER: Just for a point of 14 clarification, you're talking about fire suppression 15 systems as opposed to extinguishers? 16 MR. TOOMEY: That's correct. 17 BY MR. TOOMEY : 18 Q, And you responded to systems, correct? 19 A. Yeah. I'm hoping that you don't tax my 20 memory by asking about individual fire extinguishers. 21 Q. Where mould all the fun be if I didn't do 22 that? No. I'm just kidding. What kind of system 23 protected area designated as, quote,,other paint, 24 close quote, on Turri 5? 25 A. Dry chemical. Gwendolyn Parker and Associates, Inc. 214-747-8007 k Page 8 8 1 i 1 Q. Was that also, I assume, a stand-alone 2 system? 3 A. Yes. 4 Q. And none of these three stand-alone systems, 5 the ones that protected booth 1A, booth 1B, quote, 6 other paint, close quote, area were interconnected at 7 all, correct? 8 A. Correct, not interconnected. 9 Q. When was the fire suppression system that 10 protected the, quote, other paint, close quote, area 11 as of March 30, 2006, when was that one installed? 12 A. I don't recall. It could have been as early 13 as ' 91. 14 Q. Do you know.who provided that system? 15 A. I don't remember. But we would have some 16 records that indicate who installed them. 17 Q. Was SermeTel 853 ever applied in the area 18 designated as quote, other paint, close quote? 19 A. Possible, but not routinely. 20 Q . Okay. 21 A. If there was maintenance going on here, 22 there co uld have been a moment where we sprayed it. 23 But none that I remember. (Indicating.) 24 Q. What type of dry chemical suppressant was 25 used in the system for booth 1A? Gwendolyn Parker and Associates, Inc. 214-747-8007 h 4 1 Page 89 A. I'm not that familiar with the makeup of the 2 dry chemical agent. 3 Q• Okay. How about for booth 1B? Do you know 4 what the chemical agent was? 5 A. I do not. 6 Q. How about for the system that protected the, 7 quote, other paint, close quote area? 8 A. I do not know. 9 Q. Was there any other sprinkler system or fire 10 suppressant system that protected any part of the 11 20400 square-foot portion of the ACT facility other, 12 than the ones that we've talked about so far? 13 A. No; except for numbers of portable or 14 handheld fire extinguishers. 15 Q. Let me ask you then about those, and I will 16 try not to ask you about specific extinguishers. But 17 were there extinguishers that were supplied and 18 designated for use within the SermeTel area of the 19 planet? 20 A. Supplied by? 21 Q. By ACT. 22 A. We located hand or portable fire 23 extinguishers throughout the plant using the ABC dry 24 chemical-type of extinguisher. 25 {1. Q• Okay. And were there any policies or Gwendolyn Parker and Associates, Inc. 214-747-8007 J a410.' 1 NELSON LEVINE de LUCA & HORST, LLC BY: MICHAEL S. MUNGER, ESQUIRE IDENTIFICATION NO.: 71318 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5133 ERIE II` ADVAN INC. V. 4,NCE GROUP A/S/O COATING TECHNOLOGY, Plaintiff(s) SERMATEICH INTERNATIONAL INCORPORATED Defendant ATTORNEYS FOR PLAINTIFF COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 077601 CERTIFICATE OF SERVICE I, Michael S. Munger, Esquire, do hereby certify that service of a true and correct copy of the Plaintiff's Response to Defendant Sermatech International Incorporated's Motion for Summary Judgment was sent to the below listed counsel on May 29, 2012 via mail and addressed as follows: Christopher Mavros, Esquire Campbell Campbell Edwards & Conroy, P.C. 690 Lee Road Suite 300 Wayne, PA 19087 NELSON LEVINE DE LUCA & HORST By: MIC AEL S. UNGER, ESQUI ATTORNEY FOR PLAINTIFFS Dated: May 29, 2012 NELSON LEVINE de LUCA & HAMILTON, LLC BY: MICHAEL S. MUNGER, ESQUIRE IDENTIFICATION NO.: 71318 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5133 ERIE INSURANCE GROUP A/S/O ADVANCED COATING TECHNOLOGY, INC. Plaintiff(s) V. SERMATECH INTERNATIONAL INCORPORATED Defendant ATTORNEYS FOR PLAINTIFF COURT OF COMMON PLS CUMBERLAND COUNTY CIVIL ACTION NO: 077601 PRAECIPE TO FILE AND ATTACH PLAINTIFF'S SUPPLMENETAL REPORT OF THOMAS EUSON TO THE PROTHONOTARY: Kindly file of record and attach to Plaintiffs' Response to Defendant's Motion for Summary Judgment the enclosed Supplemental Report of Thomas Euson dated May 16, 2012. NELSON LEVINE DE LUCA & HORST By: ?- M MICHAEL S. MUNGER, ESQUI ATTORNEY FOR PLAINTIFFS Dated: June 1, 2012 NELSON LEVINE de LUCA & HORST, LLC BY: MICHAEL S. MUNGER, ESQUIRE IDENTIFICATION NO.: 71318 518 TOWNSHIP LINE ROAD, SUITE 300 ATTORNEYS FOR PLAINTIFF BLUE BELL, PA 19422 (215) 358-5133 ERIE INSURANCE GROUP A/S/O ADVANCED COATING TECHNOLOGY, INC. Plaintiff(s) V. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 077601 SERMATECH INTERNATIONAL INCORPORATED Defendant CERTIFICATE OF SERVICE I, Michael S. Munger, Esquire, do hereby certify that service of a true and correct copy of the Praecipe to File and Attached Plaintiff's Supplemental Report of Thomas Euson was sent to the below listed counsel on June 1, 2012 via mail and addressed as follows: Christopher Mavros, Esquire Campbell Campbell Edwards & Conroy, P.C. 690 Lee Road Suite 300 Wayne, PA 19087 NELSON LEVINE DE LUCA & HORST By: MICHAEL S. MUNGER, ESQ RE ATTORNEY FOR PLAINTIFFS Dated: June 1, 2012 Report Advanced Coating Technologies, Inc. Fire on March 30, 2006 December 9, 2009 Addendum May 16, 2012 T40144 G. &.$Oil 20136 Sze C" Raoa U", W 47024 Ham: 76S-619-1306 f?: 76S-6y?-2173 Coll; S13-M-1113 Purpose The purpose of this addendum is to state the cause of the fire based on the characteristics of the SermaTel 853 and the observations by Mr. Guy Griffiths the morning of the fire. Background The following is listed as background to support the conclusion below: • The SermaTel 853 is a water based, inorganic, coating material that incorporated aluminum powder for corrosion protection when painted on steel substrate. • Unlike most common "paints", this material becomes more flammable as it dries. As it dries, the water used as the carrier for the resin and aluminum evaporates leaving the aluminum powder exposed. • The morning the fire occurred, the booth had not been used. The overspray was therefore dry. o On page 75 of Guy Griffiths' deposition, he stated that the color of the overspray and the color difference when "wet" and "dry". • Metal fires burn very hot, with a "white" flame and white smoke. • Organic materials, specifically common organic resin based paints, burn with an orange flame and heavy black smoke. This fire type was not observed. • On page 74 of Guy Griffiths' deposition, he stated that after the spark dropped into the channel... "there was an extremely bright ignition, almost like flash powder..." Later, he stated that ..."it just, like a fuse, ran right along the channel." • On page 84 of Guy Griffiths' deposition, he described the fire as "very bright, almost like a flash bulb would go off." • Later in the deposition, he stated that he discharged 3 10 lb. ABC fire extinguishers into the fire and the automatic fire extinguishing system (ABC) also discharged. He stated that the fire "laughed at me". o ABC agent will not extinguish a metal fire. • Later, Mr. Griffiths stated that he experimented with igniting the dried SermaTel 853 with a propane torch and got the same type fire he saw in the booth. He also reported that when repairing a broken rack by welding, the dried coating "...took off like a sparkler..." Conclusion On the basis of the characteristics of the SermaTel 853 (that the aluminum powder used in the inorganic coating is exposed in the dried film), the fact that this was the material being applied in Booth 1A, the fact that the overspray was dry, the observed metal fire characteristic of a bright flash type fire and the fact that the ABC fire extinguishers and ABC automatic fire extinguishing system had no effect on the fire, the only reasonable conclusion to be drawn is that the spark from the grinding wheel ignited the aluminum powder in the SermaTel 853 overspray. The opinions expressed in this report are mine and within the bounds of reasonable scientific accuracy, subject to change if additional material becomes available. Thomas G. Euson ERIE INSURANCE GROUP, a/s/o ADVANCED COATING TECHNOLOGY, INC., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SERMATECH INTERNATIONAL INCORPORTATED, DEFENDANT NO. 07-7601 CIVIL RE: DEFENDANT'S MOITON FOR SUMMARY JUDGMENT BEFORE GUIDO, J. AND EBERT, J. ORDER OF COURT AND NOW, this 4th day of June, 2012, upon consideration of Defendant's Motion for Summary Judgment, the briefs filed by the parties, and after oral argument, IT IS HEREBY ORDERED AND DIRECTED that the Defendant's Motion for Summary Judgment is DENIED. /Michael S. Munger, Esquire Attorney for Plaintiff 61' William J. Conroy, Esquire Christopher G. Mavros, Esquire Meaghann C. Proth, Esquire Attorneys for Defendant bas ma3ed Lef S?l By the Court, _ G r -:a 8 < '. _- mss M. L. Ebert, Jr., -, J "