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HomeMy WebLinkAbout03-6220Kessler, Cohen, & Roth A Professional Corporation By: STEWART L. COHEN, ESQUIRE J. B. DILSHEIMER, ESQUIRE Identification Nos.: 25448; 66614 1705 Two Penn Center Plaza Philadelphia, PA 19102 (215) 567-3500 JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER, H/W 448 S. Market Street S. Williamsport, PA 17702 V. ALL AMERICAN PLAZAS, INC. 1181 Harrisburg Pike Carlisle, PA 17013 and INTERSTATE SCALES 2431 Locust Creek Drive Evansville, IN 47720 ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY , TERM 2003 No. c 3 - PRAECIPE TO ISSUE WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly issue a Writ of Summons in the above-captioned matter. KESSLER, COHEN, & ROTH BY: STE IT . COHEN, ESQUIRE J.F. DILSHEIMER, ESQUIRE Attorneys for Plaintiff O (J tri Q' C Z? O W r.? rn n 1V w N .'?? T1 Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER, H/W 448 S. MARKET STREET S. WILLIAMSPORT, PA 17702 Court of Common Pleas Plaintiff Vs. No. 03-6220 CIVIL TERM In CivilAction-Law ALL AMERICAN PLAZAS, INC. 1181 HARRISBURG PIKE CARLISLE, PA 17013 vs. INTERSTATE SCALES 2431 LOCUST CREEK DRIVE EVANSVILLE, IN 47720 Defendant To ALL AMERICAN PLAZAS, INC. AND INTERSTATE SCALES, You are hereby notified that JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER, the Plaintiff has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) CURTIS R. LONG Prothonotary Date DECEMBER 1, 2003 `By 1/x a,,., _ ?. 1r"4cx(__? Deputy Attorney: Name: STEWART L. COHEN, ESQUIRE Address: KESSLER COHEN & ROTH 1705 TWO PENN CENTER PLAZA PHILADELPHIA, PA 19102 Attorney for: Plaintiff Telephone: 215-567-3500 Supreme Court ID No. 25448 SHERIFF'S RETURN - REGULAR CASE NO: 2003-06220 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DUNKLEBERGER JOHN ET AL VS ALL AMERICAN PLAZAS INC GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon ALL AMERICAN PLAZAS INC the DEFENDANT , at 1840:00 HOURS, on the 12th day of December , 2003 at 7044 CARLISLE PIKE CARLISLE, PA 17013 by handing to RICHARD MCGUIRE, SUPERVISOR a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 7.59 Affidavit .00 Surcharge 10.00 .00 35.59 Sworn and Subscribed to before me this day of ? ?v? A.D. rot o tary So Answers: R. Thomas Kline 12/15/2003 KESSLER COHEN ROTH By.->? Deputy S iff JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER, h/w, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES, Defendants NO. 03-6220 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Enter the appearance of Edward E. Knauss, IV, Esquire, on behalf of Defendant, All American Plazas, Inc. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. ByZ Edward E. Knauss, IV, Esquire Attorney I.D. No. 19199 P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Dated: /Z" Z9-?! Attorneys for Defendant, All American Plazas, hic. 295161-1 CERTIFICATE OF SERVICE AND NOW, this Z7 day of December, 2003, I, Edward E. Knauss, IV, Esquire, of Metzger, Wickersham, Knauss & Erb, P.C., attorneys for Defendant, All American Plazas, Inc., hereby certify that I served a copy of the within Praecipe for Entry of Appearance this day by depositing the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: J. B. Dilsheimer, Esquire Kessler, Cohen & Roth 1705 Two Penn Center Plaza Philadelphia, PA 19102 Interstate Scales 2431 Locust Creek Drive Evansville, IN 47720 Edward E. Knauss, IV 195261-1 N f Q M .T' (Tt TI :Z 1_.. r.; , rS ? -ss rn n C . ? -n C: e ?? JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER, h/w, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. NO. 03-6220 CIVIL TERM ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES, Defendants JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Kindly enter a Rule on Plaintiffs to file a Complaint within twenty (20) days of service or suffer judgment of non pros. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Y Edward E. Knauss, IV, Esquire Attorney I.D. No. 19199 P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Dated: I z -z f-03 Attorneys for Defendant, All American Plazas, hic. 195193-1 CERTIFICATE OF SERVICE I, Edward E. Knauss, IV, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb, P.C., hereby certify that I served a true and exact copy of the Praecipe for Rule to File Complaint FA with reference to the foregoing action by first class mail, postage prepaid, this 'Z q day of December, 2003, on the following: J. B. Dilsheimer, Esquire Kessler, Cohen & Roth 1705 Two Penn Center Plaza Philadelphia, PA 19102 Interstate Scales 2431 Locust Creek Drive Evansville, IN 47720 dward E. Knauss, IV 295293-! r> o a r. K - ? ,.,, -„ ?,?,' o --r -o m c„ ` w v o g iC STS .. a j csi `n : ?. . -' JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER, h/w, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES, NO. 03-6220 CIVIL TERM Defendants JURY TRIAL DEMANDED RULE TO FILE COMPLAINT TO: John Dunkleberger and Connie Dunkleberger, Plaintiffs c/o J. B. Dilsheimer, Esquire Kessler, Cohen & Roth 1705 Two Penn Center Plaza Philadelphia, PA 19102 You are hereby directed to file a Complaint in the above-captioned matter within twenty (20) days of service or judgment non pros will be entered against you. Date: L [' - J n --??Q?' Prothonotary 295293-1 tx"'n4 n N a rr, fin m o o :U c u'' { -G u ti DONALD M. DESSEYN, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 ATTORNEY FOR DEFENDANT Interstate Scales JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER Plaintiffs V. ALL AMERICAN PLAZAS, INC. and INTERSTATE SCALES Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-6220 JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of the Defendant, Interstate Scales in the above- captioned matter. Date: is By: .?rl7s???G ??/r+? Donald-M sse squire Attorney for Defendant CERTIFICATE H SERVICE dI' 2003, I, Donald M. Desseyn, Esquire, AND NOW, this ?day of Attorney for Defendant, Interstate Scales, hereby certify that I served a copy of the within Praecipe for Entry of Appearance on this date by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Stewart L. Cohen, Esquire Kessler, Cohen & Roth 1705 Two Penn Center Plaza Philadelphia, PA 19102 By: 006 ?®a Donald M. sseyn, squire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 c ? o -r3 rn i' r i '-r • 1 -? CJ JJ C3i -< DONALD M. DESSEYN, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 ATTORNEY FOR DEFENDANT Interstate Scales JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER Plaintiffs V. ALL AMERICAN PLAZAS, INC. and INTERSTATE SCALES Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-6220 JURY TRIAL DEMANDED RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Issue a Rule upon Plaintiffs, John Dunkleberger and Connie Dunkleberger, husband and wife, to file their complaint against Defendant, Interstate Scales, within twenty days (20) from the date of service hereof; otherwise, judgment of non pros to be entered in accordance with Rule 1037 (a) of the Pennsylvania Rules of Civil Procedure. By Donat&? -. Dense , squire Attorney I.D. # 69179 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney for Defendant Interstate Scales AND NOW, this k day of 200 in accordance with the aforesaid Order, a Rule is issued upon Plaintiffs, John Dunkleberge and Connie Dunkleberger, husband and wife, to file their complaint against Defendant, Interstate Scales, within twenty days from the date of service hereof; otherwise, judgment of non pros to be entered in accordance with Rule 1037 (a) of the Pennsylvania Rules of Civil Procedure. d":Y,L '? - ; , Prothonotary 2 n C o N P ? O -n ?i ?i? i???,' ? ?? ? /' ? T7 ?r=''" `_ u-? aQ r-- =_ ;?, T --?..:? 1'r ?. O ??m :3 -t -? cs Ct: '.s Kessler, Cohen, & Roth A Professional Corporation By: STEWART L. COHEN, ESQUIRE J. B. DILSHEIMER, ESQUIRE Identification Nos.: 25448; 66614 1705 Two Penn Center Plaza Philadelphia, PA 19102 (215) 567-3500 JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER, H/W 448 S. Market Street S. Williamsport, PA 17702 V. ALL AMERICAN PLAZAS, INC. 1181 Harrisburg Pike Carlisle, PA 17013 and INTERSTATE 2431 Locust Evansville, SCALES Creek Drive IN 47720 JURY TRIAL DEMANDED ASSESSMENT OF DAMAGES HEARING REQUIRED ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW NO.: 03-6220 CIVIL TERM CIVIL ACTION COMPLAINT NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment maybe entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. AVISO La han demandado a usted an la code. Si usted quiere defensersa de estas demandes expuentas an Is paginas siguientes, usted tiene veinte (20) dias de plazo at partir de la focha de la demanda y to notificacidn. Hace falla asentar una comparencia escrita o an persona o con un abodago y entregar a Is corte an forma escrita sus defenses or sus objeciones a las demandes an contra de su persona. Sea evisado qua si usted no se defienda, Is corte tomara medidas y puede continuar Is domanda an contra suya sin previo aviso o notification. Ademas, Is corte puede docidir a favor del demandame y requiere qua usted compla con todas las provisiones de esta demanda. Usted puede poder dinem o sus propiedades u otros derechos YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF importances pare usled. YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT SI NO TIENE ABODAGO O SING TIENE EL DINERO WHERE YOU CAN GET LEGAL HELP. SUFICIENTE DE PAGAR TAL SERVICO, VAYA EN PERSONA 0 LLAME FOR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE CUMBERLAND COUNTY BAR SE PUEDE CONSEGUIR ASISTENCIA LEGAL. ASSOCIATION CUMBERLAND COUNTY BAR 2 LIBERTY AVENUE ASSOCIATION CARLISLE, PENNSYLVANIA 2 LIBERTY AVENUE TELEPHONE NUMBER 717-249-3166 CARLISLE, PENNSYLVANIA TEL. NUMBER 717-249-3166 COMPLAINT - CIVIL ACTION Jury Trial Demanded 1. Plaintiffs John Dunkleberger and Connie Dunkleberger, husband and wife, are adult individuals residing at 448 S. Market Street, S. Williamsport, Pennsylvania. 2. Defendant All American Plazas, Inc., is a Pennsylvania corporation, which regularly does business within the Commonwealth of Pennsylvania and Cumberland County. All American Plazas, Inc. has its principal place of business in Cumberland County formerly at 1181 Harrisburg Pike, Carlisle, Pennsylvania and most recently at 7044 Carlisle Pike, Carlisle, Pennsylvania. 3. Defendant Interstate Scales is an Indiana corporation, which regularly conducts business within the Commonwealth of Pennsylvania and Cumberland County. Interstate Scales has its principal place of business at 2431 Locust Creek Drive, Evansville, Indiana. 4. Suit was initiated against Defendants All American Plazas, Inc., and Interstate Scales by Plaintiffs John Dunkleberger and Connie Dunkleberger in the Court of Common Pleas of Cumberland County by Writ of Summons filed on December 1, 2003. 5. At all times relevant hereto, Plaintiff John Dunkleberger was employed as an eighteen-wheel truck driver for Watson Town Trucking. 6. At all times relevant hereto, Defendant All American Plazas, Inc, owned, operated, managed, designed, supervised, ran, set up, inspected and maintained several AmBest rated truck stops in Pennsylvania, including, but not limited to the Clarks Ferry All American Travel Plaza at U.S Highways 22 and 322 in Duncannon, Pennsylvania. 7. At all relevant times, Defendant Interstate Scales was in the business of manufacturing, designing, setting up, selling, delivering, distributing, inspecting, servicing, and maintaining truck weigh station scales, including, but not limited to, the one located at the above-mentioned Defendant All American Plaza, Inc.'s Clarks Ferry All American Travel Plaza. B. At all relevant times herein, the defendants acted through their officers, agents and employees, engaged in their respective businesses and acting within the course and scope of their respective offices, agencies, or employment. 9. On or around January 10, 2002 at approximately 1:30 a.m., Plaintiff John Dunkleberger, while driving a truck for Watson Town trucking, pulled into Defendant All American Plaza, Inc.'s Clarks Ferry All American Travel Plaza to weigh his truck on the Interstate Scale at the truck stop. He pulled up on the scale to use the intercom box for its intended purposes, to tell the weigh station attendant that he wanted to weigh out. 10. The intercom call box was set up too high and too far away for truck drivers, including Plaintiff John Dunkleberger, to reach readily, safely, and easily from within their truck cabs. 11. While attempting to reach and to use the call box for its intended purposes, which required Mr. Dunkleberger to get out of his truck cab, Mr. Dunkleberger fell out of his cab onto the asphalt ground. As a result, Plaintiff John Dunkleberger sustained serious and permanent personal injuries, described more fully hereinafter. 12. As a direct result of the dangerous and defective condition of weigh station and its intercom, Plaintiff John Dunkleberger has suffered and will continue to suffer for an indefinite time in the future the following: left knee anterior cruciate ligament lateral meniscal tear, left shoulder rotator cuff tear, large herniated nucleus pulposus at L4-L5 left with radiculopathy, all of which have required surgical and other medical treatments, including left knee anterior cruciate ligament reconstruction with allograft, left shoulder rotator cuff repair, lumbar laminectomy with disc excision L4-L5 left, medications, and physical therapy. He also suffered scrapes, bruises, extreme discomfort and excruciating pain, incapacitation, sleeplessness, an inability to sit for any extended period of time, insomnia, depression, moodiness, as well as various other injuries. 13. As a further result of his injuries, plaintiff John Dunkleberger was forced to expend money and incur expenses for medical diagnosis and treatment, which is continuing. He has sustained and will sustain loss of earnings and diminution of earning capacity; he has suffered and will suffer pain, discomfort, and mental anguish; he has been hampered and will be hampered in pursuing his usual duties, activities, life's pleasures, and avocations. 14. Plaintiff John Dunkleberger's aforementioned injuries were caused solely by the conduct of the defendants, jointly and/or severally, and were in no way or manner caused by any action or failure to act on the part of Mr. Dunkleberger. COUNT ONE - NEGLIGENCE PLAINTIFF JOHN DUNKLEBERGER v. ALL AMERICAN PLAZAS, INC. 15. The averments in the preceding paragraphs are incorporated herein by reference. 16. Defendant All American Plazas, Inc. had a duty to operate, manage, design, supervise, run, set up, inspect and maintain its Clarks Ferry All American Travel Plaza weigh station to insure that the intercom call box at the weigh station was readily, safely, and easily accessible to truck drivers using the weigh station. 17. Defendant All American Plazas, Inc. breached its duty to truck drivers, including the plaintiff, by negligently and carelessly operating, managing, designing, supervising, running, setting up, inspecting and maintaining its Clarks Ferry All American Travel Plaza weigh station with a dangerously defective and placed weigh station intercom call box. 18. All American Plazas, Inc.'s negligence and carelessness consists, inter alia, of the following acts and omissions: a. failing to properly set up, maintain, install the weigh station intercom box in a position that was readily, safely, and easily accessible by truck drivers using the weigh station; b. failing to properly design the set up of the weigh station intercom box; C. designing, maintaining, setting up, and installing a defective weigh station intercom box; d. owning and operating a truck stop with a defectively designed weigh station intercom box; e. failing to provide any warnings of the dangerously designed and set up weigh station intercom box; f. failing to provide any instructions or directions for safe and proper use of the improperly and unsafely placed weigh station intercom box; g. failing to take adequate measures to insure that the weigh station intercom box was free from defective and dangerous conditions; h. allowing the weigh station intercom box to remain in an unsafe and inaccessible position; i. failing to maintain proper access to the weigh station intercom; j. failing to employ personnel trained in the proper set up, maintenance, and operation of the weigh station intercom; k. failing to provide adequate space to accommodate the necessary equipment for the weigh station and the weigh station intercom; 1. failing to follow any and all applicable regulations, standards, codes, or laws applicable to the design, set up, ownership, installation, and maintenance of weigh stations and weigh station intercoms; M. failing to adhere to the applicable standards of care relating to design, set up, maintenance and installation of weigh station intercoms; n. designing, setting up, maintaining, and installing the weigh station intercom box so that it was unsafe for its intended and foreseeable use; o. failing to properly inspect and test the weigh station intercom box prior to opening the weigh station and its intercom box for use by truck drivers; p. employing improper agents, servants, and workers to design, install, and test the weigh station intercom box and the weigh station; and q. such other acts of negligence and carelessness as discovery will reveal. 19. As a direct result of the negligence and carelessness of Defendant All American Plazas, Inc., its agents, servants, and employees, jointly and/or severally with Defendant Interstate Scales, Plaintiff John Dunkleberger has sustained serious and permanent injuries and damages as set forth previously. WHEREFORE, Plaintiff John Dunkleberger demands judgment in his favor and against Defendant All American Plazas, Inc., in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. COUNT II - NEGLIGENCE PLAINTIFF JOHN DUNKLEBERGER v. INTERSTATE SCALES 20. The averments in the preceding paragraphs are incorporated herein by reference. 21. Defendant Interstate Scales had a duty to manufacture, design, set up, sell, deliver, distribute, inspect, service, and maintain its weigh stations, scales, and weigh station intercom boxes, including the weigh station and weigh station intercom at All American Plaza, Inc.'s Clarks Ferry All American Travel Plaza, in a condition that was free from dangerous defects and which was readily, safely, and easily accessible to truck drivers using the weigh station and weigh station intercom box. 22. Defendant Interstate Scales negligently and carelessly breached its aforementioned duties in manufacturing, designing, setting up, selling, delivering, distributing, inspecting, servicing, and maintaining its weigh stations, scales, and weigh station intercom boxes, including the weigh station and weigh station intercom at All American Plaza, Inc.'s Clarks Ferry All American Travel Plaza, too high and too far away for truck drivers, including Plaintiff John Dunkleberger, to reach readily, safely, and easily from their truck cabs. 23. Interstate Scales' negligence and carelessness consists, inter alia, of the following acts and omissions: a. failing to properly design, set up, maintain, install, sell, distribute, and manufacture the weigh station intercom box in a position that was readily, safely, and easily accessible by truck drivers using the weigh station; b. failing to properly design the set up and installation of the weigh station intercom box; C. manufacturing, selling, distributing, designing, maintaining, setting up, and installing a defective weigh station intercom box; d. failing to insure the safety of truck drivers using Interstate Scales' weigh station intercom box at the All American Plaza, Inc.'s Clarks Ferry All American Travel Plaza; e. failing to provide any warnings of the dangerously designed and set up weigh station intercom box; f. failing to provide any instructions or directions for safe and proper use of the improperly and unsafely placed weigh station intercom box; g. failing to take adequate measures to insure that the weigh station intercom box was free from defective and dangerous conditions; h. allowing the weigh station intercom box to remain in an unsafe and inaccessible position; i. failing to maintain proper access to the weigh station intercom; j. failing to employ personnel trained in the proper set up, maintenance, installation, design, and operation of the weigh station intercom; k. failing to provide adequate space to accommodate the necessary equipment for the weigh station and the weigh station intercom; 1. failing to follow any and all applicable regulations, standards, codes, or laws applicable to the manufacture, sale, distribution, design, set up, ownership, installation, and maintenance of weigh stations and weigh station intercoms; M. failing to adhere to the applicable standards of care relating to manufacture, sale, distribution, design, set up, maintenance and installation of weigh station intercoms; n. manufacturing, selling, distributing, designing, setting up, maintaining, and installing the weigh station intercom box so that it was unsafe for its intended and foreseeable use; o. failing to properly inspect and test the weigh station intercom box prior to opening the weigh station and its intercom box for use by truck drivers; P. employing improper agents, servants, and workers to design, manufacture, install, and test the weigh station intercom box and the weigh station; and r. such other acts of negligence and carelessness as discovery will reveal. 24. As a direct result of the negligence and carelessness of Defendant Interstate Scales, its agents, servants, and employees, jointly and/or severally with Defendant All American Plazas, Inc., Plaintiff John Dunkleberger has sustained serious and permanent injuries and damages as set forth previously. WHEREFORE, Plaintiff John Dunkleberger demands judgment in his favor and against Defendant Interstate Scales, in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. COUNT III - STRICT PRODUCTS LIABILITY PLAINTIFF JOHN DUNKLEBERGER v. DEFENDANTS ALL AMERICAN PLAZAS, INC. AND INTERSTATE SCALES 25. The averments in the preceding paragraphs are incorporated herein by reference. 26. At the time of the above-described incident, the condition of the All American Plaza, Inc.'s Clarks Ferry truck stop weigh station intercom box was exactly the same as it was at the time it was placed into the stream of commerce by Interstate Scales and/or designed by All American Plazas, Inc. and/or Interstate Scales. 27. Plaintiff John Dunkleberger used the weigh station intercom box in the usual and customary manner, and within the intended and foreseeable use of the product. 28. All American Plazas, Inc. and Interstate Scales are suppliers and/or designers of the weigh station and the weigh station intercom box, which is a product within the meaning of §402(A) of the Restatement (Second) of Torts. 29. Plaintiff John Dunkleberger's injuries were caused solely and exclusively by Defendants, jointly and/or severally, in designing, manufacturing, assembling, installing, fabricating, repairing, maintaining, supplying, selling, distributing, and delivering the weigh station intercom box at the All American Plazas, Inc.'s Clarks Ferry truck stop in a defective and unreasonably dangerous and defective condition and in failing to warn of said defective and unreasonably dangerous condition. 30. Based on the foregoing, Defendants are strictly liable to plaintiffs under the principles of the Restatement (Second) of Torts §402A. WHEREFORE, Plaintiff John Dunkleberger demands judgment in his favor and against Defendants All American Plazas, Inc., and Interstate Scales, jointly and/or severally in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. COUNT IV - BREACH OF WARRANTY PLAINTIFF JOHN DUNKLEBERGER v. DEFENDANTS ALL AMERICAN PLAZAS, INC. AND INTERSTATE SCALES 31. The averments in the preceding paragraphs are incorporated herein by reference. 32. In designing, manufacturing, assembling, installing, repairing, promoting, marketing, selling, supplying, and/or otherwise introducing the All American Plazas, Inc.'s Clarks Ferry truck stop weigh station and weigh station intercom box into the stream of commerce, the Defendants, jointly and/or severally, both expressly and impliedly warranted that the weigh station intercom box was merchantable, free from defects, and safe and suitable for the uses for which it was intended. 33. Defendants jointly and/or severally breached the aforesaid warranties, both expressed and implied, by designing, building, installing, maintaining, and selling the weigh station intercom box in a defective condition as described above and in a manner which was neither safe nor suitable for the uses for which it was intended. 34, Plaintiff John Dunkleberger is a direct and/or third-party beneficiary to the aforesaid warranties. 35. Plaintiff John Dunkleberger's losses, injuries and damages resulted directly from Defendants' joint and/or several breach of expressed and/or implied warranties of merchantability and fitness for a particular purpose. WHEREFORE, Plaintiff John Dunkleberger demands judgment in his favor and against Defendants All American Plazas, Inc. and Interstate Scales, jointly and/or severally, in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. COUNT V - LOSS OF CONSORTIUM PLAINTIFF CONNIE DUNKLEBERGER v. DEFENDANTS ALL AMERICAN PLAZAS, INC. AND INTERSTATE SCALES 36. The averments in the preceding paragraphs are incorporated herein by reference. 37. As a result of the conduct of the defendants as described herein, Plaintiff Connie Dunkleberger has been deprived of the assistance, society, companionship and consortium of the Plaintiff John Dunkleberger, all to her damage and loss, all of which may be permanent. WHEREFORE, Plaintiff Connie Dunkleberger demands judgment in her favor and against Defendants All American Plazas, Inc. and Interstate Scales in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. Respectfully submitted, KESSLER, COHEN, & ROTH r; i BY: ? STEWAft COHEN, ESQUIRE J.B.,;"DILSHEIMER, ESQUIRE Attorneys for Plaintiff Dated: February 10, 2004 VERIFICATION JOHN DUNKLEBERGER hereby states that he is the Plaintiff in the within action, that the statements made in the foregoing Complaint are true and correct to the best of his knowledge, information and belief, and acknowledges that that the statements therein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. /-as-o41 DATE J DUNKLEBERGER CERTIFICATE OF SERVICE I, J.B. Dilsheimer, hereby certify that on this 10th day of February, 2004, I served a true and correct copy of Plaintiff's Complaint upon the following via Federal Express: Edward E. Knauss, IV, Esquire Metzger Wickersham 3211 N. Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (counsel for All American Plazas, Inc.) Donald M. Desseyn, Esquire 4999 Louise Drive Mechanicsburg, PA 17055 (counsel for Interstate Scales) J. B/rDI-r,SHEIMER rJ J c" c? DONALD M. DESSEYN, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 ATTORNEY FOR DEFENDANT Interstate Scales JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. ALL AMERICAN PLAZAS, INC. CIVIL ACTION - LAW NO. 03-6220 and INTERSTATE SCALES Defendants JURY TRIAL DEMANDED PRAECIPE FOR ARGUMENT AND NOW, comes the Defendant, Interstate Scales, by and through its counsel, Donald M. Desseyn, Esquire, and respectfully requests that the Preliminary Objections of Defendant, Interstate Scales, to Plaintiffs' Complaint be listed for argument on April 21, 2004, pursuant to Cumberland County Rule of Civil Procedure 39-211. Respectfully submitted, Date: By: 01iw& Donaid/TTeseyn--,' Attorney for Defendant, Interstate Scales CERTIFICATE OF SERVICE AND NOW, this Z7' day of f? wwl , 2004, I, Donald M. Desseyn, Esquire, Attorney for Defendant, Interstate Scales, hereby certify that I served a copy of the within Praecipe for Argument on this date by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Edward E. Knauss, IV, Esquire Metzger, Wickersham, Knauss & Erb, P.C. 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 J. B. Dilsheimer, Esquire Kessler, Cohen & Roth Suite 1705 Two Penn Center Plaza Philadelphia, PA 19102 By: Donald esseyn, squire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 _T n J 10 Z3 -fr , , C7 6, DONALD M. DESSEYN, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER Plaintiffs V. ALL AMERICAN PLAZAS, INC. and INTERSTATE SCALES ATTORNEY FOR DEFENDANT Interstate Scales PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, CIVIL ACTION - LAW NO. 03-6220 JURY TRIAL DEMANDED PLAINTIFFS' COMPLAINT AND NOW, comes Defendant, Interstate Scales (hereinafter "Interstate"), by and through its Attorney, Donald M. Desseyn, Esquire, and files Preliminary Objections to the Plaintiffs' Complaint as follows: On December 1, 2003 Plaintiffs filed a Writ of Summons with the Prothonotary of the Cumberland County Court of Common Pleas. See, COPY of Writ of Summons attached hereto as Exhibit "A". 2. Defendant, Interstate, was served with the Writ of Summons on December 22, 2003. 3. A Rule to File a Complaint was issued by the Prothonotary's office on January 5, 2004. See, copy of Rule to File Complaint attached hereto as Exhibit "B". 4. Plaintiffs' counsel was served a Rule to File a Complaint via certified mail on January 8, 2004. See, copy of signed receipt attached hereto as Exhibit "C". 5. On February 10, 2004, Plaintiffs filed a Complaint. See, copy of Complaint attached hereto as Exhibit "D" and incorporated herein by reference. 6. The incident giving rise to Plaintiffs' alleged cause of action occurred on January 10, 2002. Exhibit "D" at Paragraph 9. 1. AND/OR FOR A MORE SPECIFIC PLEADING ON BEHALF OF DEFENDANT INTERSTATE SCALE 7. The averments of Paragraphs 1 through 6 of the within Preliminary Objections are incorporated herein by reference as if fully set forth at length herein. Plaintiffs' Complaint alleges at Paragraph 18, that the incident which is the basis of the subject Complaint was caused, in part, by the negligence of the Defendant, All American Plaza, hic. More specifically, Plaintiff alleges, in pertinent part, as follows: 18. All American Plazas, hic.'s negligence and carelessness consists, inter alia, of the following acts and omissions: 1. failing to follow any and all applicable regulations, standards, codes, or laws applicable to the design, set up, ownership, installation, maintenance of weigh stations and weight station intercoms; in. failing to adhere to the applicable standards of care relating to design, set up, maintenance and installation of weigh station intercoms; q. such other acts of negligence and carelessness as discovery will reveal. Exhibit "D" at paragraph 18. 2 Plaintiffs' Complaint alleges at Paragraph 23, that the incident which is the basis of the subject Complaint was caused, in part, by the negligence of Defendant, Interstate and more specifically as follows: 23. Interstate Scales' negligence and carelessness consists, inter alia, of the following acts and omissions: failing to follow any and all applicable regulations, standards, codes, or law applicable to the manufacture, sale, distribution, design, set up, ownership, installation and maintenance of weigh stations and weigh station intercoms. in. Failing to adhere to the applicable standards of care relating to manufacture, sale, distribution, design, set up, maintenance and installation of weigh station intercoms. r. such other acts of negligence and carelessness as discovery will reveal. Exhibit "D" at paragraph 23. In regards to Paragraphs 18 and 23 of Plaintiffs' Complaint, said Paragraphs consist of boilerplate allegations without any substance. Without defining the "[a]pplicable regulations, standards, codes, or laws applicable to the design, set up, ownership, installation and maintenance of weigh stations and weigh station intercoms"; and/or the "[a]pplicable standards of care relating to design, set up, maintenance and installation of weight station intercoms", Defendants are left with no meaningful opportunity to investigate and respond to said allegations. 9. In regards to the language use in Paragraphs 18 and 23 and in particular, the term "inter alia", such language infers that there were other acts of negligence that may be alleged by Plaintiff. Without defining such acts, Defendants are left with no meaningful opportunity to respond. 10. In regards to the language as set forth in Paragraphs 18 and 23 and more specifically, the terms, "other acts of negligence and carelessness as discovery will reveal," again leaves Defendants with no meaningful opportunity to investigate and respond to said allegations. 11. It is recognized in the Commonwealth of Pennsylvania that non-specific, boilerplate allegations of negligence are the proper subject of a Motion to Strike. See, Conner v. Allegheny General Hospital, 501 Pa. 306, 461 A. 2d 600, 602 (1983). WHEREFORE, Defendant Interstate Scales respectfully request that Plaintiffs' Complaint be stricken and that Plaintiffs be ordered to file a more specific pleading and to specifically delineate such acts of negligence that are being alleged against the Defendants and also delineate and set forth the applicable regulations, standards, codes or laws in their Amended Complaint. Il. LIABILITY AS BEING LEGALLY INSUFFICIENT 12. The averments of Paragraphs 1 through 11 of the within Preliminary Objections are incorporated herein by reference as if fully set forth at length herein. 13. The essence of Plaintiffs' Complaint is that Defendants were allegedly negligent in failing to properly install the subject equipment (weigh station intercom call box). Exhibit "D" at paragraphs 18 and 23. 14. At Paragraph 27 of Plaintiffs' Complaint, Plaintiff, John Dunkelberger alleges that he used the weigh station intercom box in the usual and customary manner, and within the intended and foreseeable use of the product. 15. At Paragraph 11 of Plaintiffs' Complaint, Plaintiff alleges that he was required to get out of his truck cab in order to reach the call box and fell onto the asphalt ground. Exhibit "D" at Paragraph 11. 16. At Paragraph 30 of Plaintiffs' Complaint, Plaintiff alleges that Defendants are strictly liable under the principles of the Restatement (Second) of Torts § 402(A). 17. Pennsylvania courts have recognized that where a product is used or handled abnormally, the danger created by that abnormal use is not an unreasonable danger. See, Great American Ins. Co v Raaue, 448 F. Supp. 1355, 1359 (E.D. Pa. 1978) (citing Dorsey v. Yoder Co., 331 F. Supp. 753 E.D. Pa. 1971) aff'd, 474 F. 2d 1339 (3ra Cir. 1973). 18. There is no allegation as set forth in the Complaint that would suggest that the weigh station intercom itself caused injury to the Plaintiff, on the contrary, Plaintiffs' own allegations suggest that his abnormal use of the product, e.g. exiting his truck cab and reaching for the call box resulted in his injuries. 19. Pursuant to the Restatement (Second) of Torts § 402A, comment h, states in pertinent part: "a product is not in a defective condition when it is safe for normal handling and consumption." WHEREFORE, Defendant, Interstate Scales respectfully request that Defendant's Demurrer be granted and that Count III of Plaintiffs' Complaint be dismissed. 111. DEFENDANT DEMURRERS TO PLAINTIFFS' COMPLAINT SPECIFICALLY AS TO COUNT IV - BREACH OF WARRAN' LEGALLY INSUFFICIENT 20. The averments of Paragraphs 1 through 19 of the within Preliminary Objections are incorporated herein by reference as if fully set forth at length herein. 21. In Paragraph 32 of Plaintiffs' Complaint, Plaintiffs allege, "[t]hat Defendants, jointly and/or severally, both expressly and impliedly warranted that the weigh station intercom box was merchantable, free from defects, and safe and suitable for the uses for which it was intended." 22. At Paragraph 33 of Plaintiffs' Complaint, Plaintiffs allege that, "[D]efendants jointly and/or severally breached the aforesaid warranties, both expressed and implied, by designing, building, installing, maintaining and selling the weigh station intercom box in a defective condition as described above and in a manner which was neither safe nor suitable for the uses for which it was intended." Exhibit "D" at paragraph 33. 23. At Paragraph 34, Plaintiffs allege that John Dunkleberger is a direct and/or a third- party beneficiary to the aforesaid warranties. Exhibit "D" at Paragraph 34. 24. At Paragraph 11 of Plaintiffs' Complaint, Plaintiff indicates that, "[w]hile attempting to reach and to use the call box for its intended purposes, which required Mr. Dunkleberger to get out of his truck cab, Mr. Dunkleberger fell out of his cab onto the asphalt ground." 25. Dr. Dunkleberger's use of the call box was unforeseeable in that he exited his truck cab in order to attempt to use the call box. 26. Pursuant to the Restatement of Torts (Second) § 402(A), Plaintiffs use of the call box was abnormal or unforeseeable and accordingly, there is no breach of warranty arising from strict liability. See, Great American Ins. Co., su vra. WHEREFORE, Defendant, Interstate Scales respectfully request that Defendant's Demurrer be granted and that Count N of Plaintiffs' Complaint be dismissed. Respectfully Submitted, By: > ? Donal esse n, Esqui_ re Attorney For Defendant 'ROM :INTERSTATE SCALES FRX NO. :8124218325 -ec. 22 2903 05:06PM P4 Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS JOHN DUNKLEBERGER AND CONNIE DUNIa.EBERGER, WW 448 S, MARKET STREET S. WILLIAMSPORT, PA. 17702 Court of Common Pleas Plaintiff Vs. ALL AMERICAN PLAZAS, INC. 1181 RARRISBURG PIKE CARLISLE, PA 17013 VS. INTERSTATE SCALES 2431 LOCUST CREEK DRIVE EVANSVILLE, IN 4772D Defendant No. 03-6220 CML TERM In Ctv cation-Law To ALL AMERICAN PLAZAS, INC. AND INTERSTATE SCALES, You are hereby notified that JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER, the plaintiff hen / have commenead an action in Civil Action-Law against You which you are required to defend or a defhult judgment may be entered against you. (SEAT.,) Data DECEMBER 1, 2003 CURTIS R. LONG Prothonotary Deputy -Z Attorney: Name: STEWART L. COHEN, ESQUIRE Address: J(ESsLRR, CORM & RUTS RECEIVED 1705 TWO PENN CENTER PLAZA PMLADELPHTA, PA 19102 DEC 2 2 2003 C. BROGLIN DONALD M. DESSEYN, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 ATTORNEY FOR DEFENDANT Interstate Scales JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER Plaintiffs V. ALL AMERICAN PLAZAS, INC. and INTERSTATE SCALES IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY , PENNSYLVANIA N ? O T CIVIL ACTION - LAW ? ?- +i;? r. NO. 03-6220 '; f U ti JURY TRIAL DEMANDED Defendants RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Issue a Rule upon Plaintiffs, John Dunkleberger and Connie Dunkleberger, husband and wife, to file their complaint against Defendant, Interstate Scales, within twenty days (20) from the date of service hereof; otherwise, judgment of non pros to be entered in accordance with Rule 1037 (a) of the Pennsylvania Rules of Civil Procedure. By: Donzlig'Ma5esse squire Attorney I.D. # 69179 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney for Defendant Interstate Scales AND NOW, this 44- day of ) 200 in accordance with the aforesaid Order, a Rule is issued upon Plaintiffs, John Dunkleberg and Connie Dunkleberger, husband and wife, to file their complaint against Defendant, Interstate Scales, within twenty days from the date of service hereof; otherwise, judgment of non pros to be entered in accordance with Rule 1037 (a) of the Pennsylvania Rules of Civil Procedure. Prothonotary T COPY FROM REOORD id ak %aa6i t, Pt. 2 Kessler, Cohen, & Roth A Professional Corporation By: STEWART L. COHEN, ESQUIRE J. B. DILSHEIMER, ESQUIRE Identification Nos.: 25448; 66614 1705 Two Penn Center Plaza Philadelphia, PA 19102 (215) 567-3500 JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER, H/W 448 S. Market Street S. Williamsport, PA 17702 V. ALL AMERICAN PLAZAS, INC. 1181 Harrisburg Pike Carlisle, PA 17013 and INTERSTATE SCALES 2431 Locust Creek Drive Evansville, IN 47720 JURY TRIAL DEMANDED ASSESSMENT OF DAMAGES HEARING REQUIRED ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW NO.: 03-6220 CIVIL TERM CIVIL ACTION COMPLAINT NOTICE AVISO You have been sued in court. If you wish to defend against the claims La hen demandado a usted on Is corte. Si usted quiere set forth in the following pages, you must take action within twenty (20 defensersa de estas demandes expuentas an la pagmas days after this complaint and notice are served, by enteringg a written ) focha de siguientes, to usted demands tiene y Is veinle notif (20) caci6n. dies de Hace plazo falls at partir asentar its to appearance personally or by attorney and fling in writing wlth the court Una your defenses or objections to the claims set forth cemparencia escdta o an persona o con un abodago y entregar a warned ed that that if f against you. You are Is carte an forma escdte sus defenses or sus objeciones a Ise judgment may b yyoou fail to entered agai do ainst the you case may proceed without you and a demandas an contra de su persona. Sea avisado qua si usted no for any money claimed in th e by the court without further notice se defends, Is Corte tomara medidas y puede continuar Is complaint or for any other claim or relief domanda an contra suya sin previo aviso o notificackm. Ademas, requested by the plaintiff. You may lose money or properly or other rights important to you. Is cone puede docitlir a favor del demandante y requiere que usted compla con Codas las provisioner de esle demands. Usted puede poder dinero o sus propledades u otros derechos YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF importantes Para usted. YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT SI NO TIENE ABODAGO TIENE EL DINERO WHERE YOU CAN GET LEGAL HELP O SING . SUFICIENTE DE PAGAR TAL SERVICO, VAYA EN PERSONA SEE O A LA I NCUENTRA ESCRITAABAJO PARA AVERIGUAR CONDE CUMBERLAND COUNTY BAR SE PUEDE CONSEGUIR ASISTENCIA LEGAL. ASSOCIATION CUMBERLAND COUNTY BAR 2 LIBERTY AVENUE ASSOCIATION CARLISLE, PENNSYLVANIA 2 LIBERTY AVENUE TELEPHONE NUMBER 717-249-3166 CARLISLE, PENNSYLVANIA TEL. NUMBER 717-249-3166 COMPLAINT - CIVIL ACTION Jury Trial Demanded 1. Plaintiffs John Dunkleberger and Connie Dunkleberger, husband and wife, are adult individuals residing at 448 S. Market Street, S. Williamsport, Pennsylvania. 2. Defendant All American Plazas, Inc., is a Pennsylvania corporation, which regularly does business within the Commonwealth of Pennsylvania and Cumberland County. All American Plazas, Inc. has its principal place of business in Cumberland County formerly at 1181 Harrisburg Pike, Carlisle, Pennsylvania and most recently at 7044 Carlisle Pike, Carlisle, Pennsylvania. 3. Defendant Interstate Scales is an Indiana corporation, which regularly conducts business within the Commonwealth of Pennsylvania and Cumberland County. Interstate Scales has its principal place of business at 2431 Locust Creek Drive, Evansville, Indiana. 4. Suit was initiated against Defendants All American Plazas, Inc., and Interstate Scales by Plaintiffs John Dunkleberger and Connie Dunkleberger in the Court of Common Pleas of Cumberland County by Writ of Summons filed on December 1, 2003. 5. At all times relevant hereto, Plaintiff John Dunkleberger was employed as an eighteen-wheel truck driver for Watson Town Trucking. 6. At all times relevant hereto, Defendant All American Plazas, Inc. owned, operated, managed, designed, supervised, ran, set up, inspected and maintained several AmBest rated truck stops in Pennsylvania, including, but not limited to the Clarks Ferry All American Travel Plaza at U.S Highways 22 and 322 in Duncannon, Pennsylvania. 7. At all relevant times, Defendant Interstate Scales was in the business of manufacturing, designing, setting up, selling, delivering, distributing, inspecting, servicing, and maintaining truck weigh station scales, including, but not limited to, the one located at the above-mentioned Defendant All American Plaza, Inc.'s Clarks Ferry All American Travel Plaza. 8. At all relevant times herein, the defendants acted through their officers, agents and employees, engaged in their respective businesses and acting within the course and scope of their respective offices, agencies, or employment. 9. On or around January 10, 2002 at approximately 1:30 a.m., Plaintiff John Dunkleberger, while driving a truck for Watson Town trucking, pulled into Defendant All American Plaza, Inc.'s Clarks Ferry All American Travel Plaza to weigh his truck on the Interstate Scale at the truck stop. He pulled up on the scale to use the intercom box for its intended purposes, to tell the weigh station attendant that he wanted to weigh out. 10. The intercom call box was set up too high and too far away for truck drivers, including Plaintiff John Dunkleberger, to reach readily, safely, and easily from within their truck cabs. 11. While attempting to reach and to use the call box for its intended purposes, which required Mr. Dunkleberger to get out of his truck cab, Mr. Dunkleberger fell out of his cab onto the asphalt ground. As a result, Plaintiff John Dunkleberger sustained serious and permanent personal injuries, described more fully hereinafter. 12. As a direct result of the dangerous and defective condition of weigh station and its intercom, Plaintiff John Dunkleberger has suffered and will continue to suffer for an indefinite time in the future the following: left knee anterior cruciate ligament lateral meniscal tear, left shoulder rotator cuff tear, large herniated nucleus pulposus at L4-L5 left with radiculopathy, all of which have required surgical and other medical treatments, including left knee anterior cruciate ligament reconstruction with allograft, left shoulder rotator cuff repair, lumbar laminectomy with disc excision L4-L5 left, medications, and physical therapy. He also suffered scrapes, bruises, extreme discomfort and excruciating pain, incapacitation, sleeplessness, an inability to sit for any extended period of time, insomnia, depression, moodiness, as well as various other injuries. 13. As a further result of his injuries, plaintiff John Dunkleberger was forced to expend money and incur expenses for medical diagnosis and treatment, which is continuing. He has sustained and will sustain loss of earnings and diminution of earning capacity; he has suffered and will suffer pain, discomfort, and mental anguish; he has been hampered and will be hampered in pursuing his usual duties, activities, life's pleasures, and avocations. 14. Plaintiff John Dunkleberger's aforementioned injuries were caused solely by the conduct of the defendants, jointly and/or severally, and were in no way or manner caused by any action or failure to act on the part of Mr. Dunkleberger. COUNT ONE - NEGLIGENCE PLAINTIFF JOHN DUNKLEBERGER V. ALL AMERICAN PLAZAS, INC. 15. The averments in the preceding paragraphs are incorporated herein by reference. 16. Defendant All American Plazas, Inc. had a duty to operate, manage, design, supervise, run, set up, inspect and maintain its Clarks Ferry All American Travel Plaza weigh station to insure that the intercom call box at the weigh station was readily, safely, and easily accessible to truck drivers using the weigh station. 17. Defendant All American Plazas, Inc. breached its duty to truck drivers, including the plaintiff, by negligently and carelessly operating, managing, designing, supervising, running, setting up, inspecting and maintaining its Clarks Ferry All American Travel Plaza weigh station with a dangerously defective and placed weigh station intercom call box. 18. All American Plazas, Inc.'s negligence and carelessness consists, inter alia, of the following acts and omissions: a. failing to properly set up, maintain, install the weigh station intercom box in a position that was readily, safely, and easily accessible by truck drivers using the weigh station; b. failing to properly design the set up of the weigh station intercom box; C. designing, maintaining, setting up, and installing a defective weigh station intercom box; d, owning and operating a truck stop with a defectively designed weigh station intercom box; e. failing to provide any warnings of the dangerously designed and set up weigh station intercom box; f. failing to provide any instructions or directions for safe and proper use of the improperly and unsafely placed weigh station intercom box; g. failing to take adequate measures to insure that the weigh station intercom box was free from defective and dangerous conditions; h. allowing the weigh station intercom box to remain in an unsafe and inaccessible position; i. failing to maintain proper access to the weigh station intercom; j. failing to employ personnel trained in the proper set up, maintenance, and operation of the weigh station intercom; k. failing to provide adequate space to accommodate the necessary equipment for the weigh station and the weigh station intercom; 1. failing to follow any and all applicable regulations, standards, codes, or laws applicable to the design, set up, ownership, installation, and maintenance of weigh stations and weigh station intercoms; M. failing to adhere to the applicable standards of care relating to design, set up, maintenance and installation of weigh station intercoms; n. designing, setting up, maintaining, and installing the weigh station intercom box so that it was unsafe for its intended and foreseeable use; o. failing to properly inspect and test the weigh station intercom box prior to opening the weigh station and its intercom box for use by truck drivers; P. employing improper agents, servants, and workers to design, install, and test the weigh station intercom box and the weigh station; and q. such other acts of negligence and carelessness as discovery will reveal. 19. As a direct result of the negligence and carelessness of Defendant All American Plazas, Inc., its agents, servants, and employees, jointly and/or severally with Defendant Interstate Scales, Plaintiff John Dunkleberger has sustained serious and permanent injuries and damages as set forth previously. WHEREFORE, Plaintiff John Dunkleberger demands judgment in his favor and against Defendant All American Plazas, Inc., in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. COUNT II - NEGLIGENCE PLAINTIFF JOHN DUNKLEBERGER V. INTERSTATE SCALES 20. The averments in the preceding paragraphs are incorporated herein by reference. 21. Defendant Interstate Scales had a duty to manufacture, design, set up, sell, deliver, distribute, inspect, service, and maintain its weigh stations, scales, and weigh station intercom boxes, including the weigh station and weigh station intercom at All American Plaza, Inc.'s Clarks Ferry All American Travel Plaza, in a condition that was free from dangerous defects and which was readily, safely, and easily accessible to truck drivers using the weigh station and weigh station intercom box. 22. Defendant Interstate Scales negligently and carelessly breached its aforementioned duties in manufacturing, designing, setting up, selling, delivering, distributing, inspecting, servicing, and maintaining its weigh stations, scales, and weigh station intercom boxes, including the weigh station and weigh station intercom at All American Plaza, Inc.'s Clarks Ferry All American Travel Plaza, too high and too far away for truck drivers, including Plaintiff John Dunkleberger, to reach readily, safely, and easily from their truck cabs. 23. Interstate Scales' negligence and carelessness consists, inter alia, of the following acts and omissions: a. failing to properly design, set up, maintain, install, sell, distribute, and manufacture the weigh station intercom box in a position that was readily, safely, and easily accessible by truck drivers using the weigh station; b. failing to properly design the set up and installation of the weigh station intercom box; C. manufacturing, selling, distributing, designing, maintaining, setting up, and installing a defective weigh station intercom box; d. failing to insure the safety of truck drivers using Interstate Scales' weigh station intercom box at the All American Plaza, Inc.'s Clarks Ferry All American Travel Plaza; e. failing to provide any warnings of the dangerously designed and set up weigh station intercom box; f. failing to provide any instructions or directions for safe and proper use of the improperly and unsafely placed weigh station intercom box; g. failing to take adequate measures to insure that the weigh station intercom box was free from defective and dangerous conditions; h. allowing the weigh station intercom box to remain in an unsafe and inaccessible position; i. failing to maintain proper access to the weigh station intercom; j. failing to employ personnel trained in the proper set up, maintenance, installation, design, and operation of the weigh station intercom; k. failing to provide adequate space to accommodate the necessary equipment for the weigh station and the weigh station intercom; 1. failing to follow any and all applicable regulations, standards, codes, or laws applicable to the manufacture, sale, distribution, design, set up, ownership, installation, and maintenance of weigh stations and weigh station intercoms; M. failing to adhere to the applicable standards of care relating to manufacture, sale, distribution, design, set up, maintenance and installation of weigh station intercoms; n. manufacturing, selling, distributing, designing, setting up, maintaining, and installing the weigh station intercom box so that it was unsafe for its intended and foreseeable use; o. failing to properly inspect and test the weigh station intercom box prior to opening the weigh station and its intercom box for use by truck drivers; P. employing improper agents, servants, and workers to design, manufacture, install, and test the weigh station intercom box and the weigh station; and r. such other acts of negligence and carelessness as discovery will reveal. 24. As a direct result of the negligence and carelessness of Defendant Interstate Scales, its agents, servants, and employees, jointly and/or severally with Defendant All American Plazas, Inc., Plaintiff John Dunkleberger has sustained serious and permanent injuries and damages as set forth previously. WHEREFORE, Plaintiff John Dunkleberger demands judgment in his favor and against Defendant Interstate Scales, in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. COUNT III - STRICT PRODUCTS LIABILITY PLAINTIFF JOHN DUNKLEBERGER V. DEFENDANTS ALL AMERICAN PLAZAS, INC. AND INTERSTATE SCALES 25. The averments in the preceding paragraphs are incorporated herein by reference. 26. At the time of the above-described incident, the condition of the All American Plaza, Inc.'s Clarks Ferry truck stop weigh station intercom box was exactly the same as it was at the time it was placed into the stream of commerce by Interstate Scales and/or designed by All American Plazas, Inc. and/or Interstate Scales. 27. Plaintiff John Dunkleberger used the weigh station intercom box in the usual and customary manner, and within the intended and foreseeable use of the product. 28. All American Plazas, Inc. and Interstate Scales are suppliers and/or designers of the weigh station and the weigh station intercom box, which is a product within the meaning of §402(A) of the Restatement (Second) of Torts. 29. Plaintiff John Dunkleberger's injuries were caused solely and exclusively by Defendants, jointly and/or severally, in designing, manufacturing, assembling, installing, fabricating, repairing, maintaining, supplying, selling, distributing, and delivering the weigh station intercom box at the All American Plazas, Inc.'s Clarks Ferry truck stop in a defective and unreasonably dangerous and defective condition and in failing to warn of said defective and unreasonably dangerous condition. 30. Based on the foregoing, Defendants are strictly liable to plaintiffs under the principles of the Restatement (Second) of Torts §402A. WHEREFORE, Plaintiff John Dunkleberger demands judgment in his favor and against Defendants All American Plazas, Inc., and Interstate Scales, jointly and/or severally in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. COUNT IV - BREACH OF WARRANTY PLAINTIFF JOHN DUNKLEBERGER v. DEFENDANTS ALL AMERICAN PLAZAS, INC. AND INTERSTATE SCALES 31. The averments in the preceding paragraphs are incorporated herein by reference. 32. In designing, manufacturing, assembling, installing, repairing, promoting, marketing, selling, supplying, and/or otherwise introducing the All American Plazas, Inc.'s Clarks Ferry truck stop weigh station and weigh station intercom box into the stream of commerce, the Defendants, jointly and/or severally, both expressly and impliedly warranted that the weigh station intercom box was merchantable, free from defects, and safe and suitable for the uses for which it was intended. 33. Defendants jointly and/or severally breached the aforesaid warranties, both expressed and implied, by designing, building, installing, maintaining, and selling the weigh station intercom box in a defective condition as described above and in a manner which was neither safe nor suitable for the uses for which it was intended. 34. Plaintiff John Dunkleberger is a direct and/or third-party beneficiary to the aforesaid warranties. 35. Plaintiff John Dunkleberger's losses, injuries and damages resulted directly from Defendants' joint and/or several breach of expressed and/or implied warranties of merchantability and fitness for a particular purpose. WHEREFORE, Plaintiff John Dunkleberger demands judgment in his favor and against Defendants All American Plazas, Inc. and Interstate Scales, jointly and/or severally, in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. COUNT V - LOSS OF CONSORTIUM ONNIE DUNKLEBERGER V. DEFENDANTS A PLAZAS, INC. AND INTERSTATE SCALES 36. The averments in the preceding paragraphs are incorporated herein by reference. 37. As a result of the conduct of the defendants as described herein, Plaintiff Connie Dunkleberger has been deprived of the assistance, society, companionship and consortium of the Plaintiff John Dunkleberger, all to her damage and loss, all of which may be permanent. WHEREFORE, Plaintiff Connie Dunkleberger demands judgment in her favor and against Defendants All American Plazas, Inc. and Interstate Scales in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. Respectfully submitted, KESSLER, COHEN, & ROTH e BY: Dated: February 10, 2004 STEWART/J-;l. COHEN, ESQUIRE J.B./DILSHEIMER, ESQUIRE Attorneys for Plaintiff VERIFICATION JOHN DUNKLEBERGER hereby states that he is the Plaintiff in the within action, that the statements made in the foregoing Complaint are true and correct to the best of his knowledge, information and belief, and acknowledges that that the statements therein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn. falsification to authorities. x-51 DATE J N DUNKLEBERGER CERTIFICATE OF SERVICE I, J.B. Dilsheimer, hereby certify that on this 10th day of February, 2004, I served a true and correct copy of Plaintiff's Complaint upon the following via Federal Express: Edward E. Knauss, IV, Esquire Metzger Wickersham 3211 N. Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (counsel for All American Plazas, Inc.) Donald M. Desseyn, Esquire 4999 Louise Drive Mechanicsburg, PA 17055 (counsel for Interstate Scales) 1A- ??° DIL?SHEIMER CERTIFICATE OF SERVICE AND NOW this day of -jdew,,?,eY , 2004, I, Donald M. Desseyn, Esquire, Attorney for Defendant, Interstate Scales, hereby certify that I served a copy of the within Preliminary Objections of Defendant to Plaintiffs' Complaint on this date by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Edward E. Knauss, IV, Esquire Metzger, Wickersham, Knauss & Erb, P.C. 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 J. B. Dilsheimer, Esquire Kessler, Cohen & Roth Suite 1705 Two Penn Center Plaza Philadelphia, PA 19102 By: ?Z Dona . esseyn, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 N r_? ' i s? T1 -73 Ti W < PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in fill 1) John Dunkleberger and Connie Dunkleberger, V5. All American Plazas, Inc. and Interstate Scales (Plaintiff) (Defendant) No. ni_A99n civil 19 2003 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.) : Preliminary Objections of Defendant, Interstate Scales to Plaintiffs' Complaint. 2. Identify counsel who will argue case: (a) for plaintiff: J.B. Dilsheimer, Esquire Address: 1705 Two Penn Center Plaza Philadelphia, PA 19102 (b) for defendant: Interstate Scales Address: Donald M. Desseyn, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: April 21, 2004 Dated: Attorney ant, Interstate Scales t°) N ? O r .-{ _ m Q co !__ W 4f Kessler, Cohen, & Roth A Professional Corporation By: STEWART L. COHEN, ESQUIRE J. B. DILSHEIMER, ESQUIRE Identification Nos.: 25448; 66614 1705 Two Penn Center Plaza Philadelphia, PA 19102 (215) 567-3500 JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER, H/W V. ALL AMERICAN PLAZAS, INC and INTERSTATE SCALES JURY TRIAL DEMANDED ASSESSMENT OF DAMAGES HEARING REQUIRED ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW NO.: 03-6220 CIVIL TERM O R D E R AND NOW, this day of March 2004, upon consideration of Defendant Interstate Scales' Preliminary Objections to Plaintiff's Complaint, it is hereby Ordered that upon agreement by the Plaintiffs, subparagraph 23(r) is STRICKEN from the Complaint. All remaining Preliminary Objections are OVERRULED. Defendant Interstate Scales shall answer plaintiffs' Complaint within twenty (20) days of the date of this Order. J. Kessler, Cohen, & Roth A Professional Corporation By: STEWART L. COHEN, ESQUIRE J. B. DILSHEIMER, ESQUIRE Identification Nos.: 25448; 66614 1705 Two Penn Center Plaza Philadelphia, PA 19102 (215) 567-3500 JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER, H/W V. ALL AMERICAN PLAZAS, INC and INTERSTATE SCALES JURY TRIAL DEMANDED ASSESSMENT OF DAMAGES HEARING REQUIRED ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW NO.: 03-6220 CIVIL TERM PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANT INTERSTATE SCALES' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT John Dunkleberger and Connie Dunkleberger, by and through undersigned counsel, hereby respond to Plaintiff's Preliminary Objections to the Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. By way of further response, Defendant Interstate Scales granted Plaintiff a reasonable extension of time pursuant to which to file a Complaint in response to the Rule to file a Complaint. 5. Denied as stated The Complaint was filed on February 11, 2004. 6. Admitted. 1. RESPONSE TO PRELIMINARY OBJECTION IN THE NATURE OF MOTION TO STRIKE AND/OR FOR MORE SPECIFIC PLEADING ON BEHALF OF DEFENDANT INTERSTATE SCALES 7. The responses to paragraphs 1-6 above are incorporated by reference as if fully set forth. 8. [Note: Defendant has two paragraphs numbered 8, which are nearly identical. Plaintiff addresses both paragraphs 8 in a single paragraph.] Denied as stated. The allegations in paragraph 18 (1), (m) and (q) are directed to another party, All American Plazas, Inc., who is the co-defendant of moving defendant. Accordingly, moving Defendant Interstate Scales lacks standing to file Preliminary objections to allegations against another party, Defendant All American Plazas, Inc. Those allegations are not directed to Interstate Scales. Therefore, Interstate Scales' averments regarding those allegations are hereby specifically denied. By way of further response, plaintiff denies that the quoted allegations in paragraphs 18 and 23 of plaintiff's Complaint consist of boilerplate allegations without any substance. By quoting these subparagraphs in isolation and out of context, moving Defendant ignores the rule that allegations in a Complaint must be read as a whole. When this is done, and the facts set forth in the preceding 22 paragraphs are considered, it is clear that Defendant has ample notice of the claims against it. The allegations regarding regulations, standards, codes and laws applicable to the design, set-up, ownership, installation and maintenance of the weigh station and weigh station intercom, and the allegations regarding the applicable standards of care relating to design, set-up, maintenance and installation of weigh station intercoms fairly put defendants on notice of the nature of the allegations against them. Moreover, these allegations specifically call for expert analysis, investigation and opinion by experts who are familiar, by their specialized experience, training, education and skill, with the applicable regulations, standards, codes and laws regarding the manufacture, sale, distribution, design, set-up, ownership, installation and maintenance at weigh stations and weigh station intercoms, as well as the applicable standards of care relating to manufacture, sale, design, set-up, maintenance and installation of weigh station intercoms. Pennsylvania law does not require Plaintiff to provide expert opinion in the Complaint. 9. Denied for the reasons set forth in paragraph 8. 10. Plaintiffs will agree to withdraw the allegations set forth as to Interstate Scales in paragraph 23 (r) regarding such other acts of negligence and carelessness as discovery will reveal. 11. Denied as a conclusion of law to which no response or pleading is required. Moreover, see response to paragraph 10. WHEREFORE, plaintiffs request that Defendant Interstate Scales' Preliminary Objections for a more specific statement as to paragraph 23(1) and (m) be overruled, with the exception that paragraph 23 (r) is stricken. II. PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANT INTERSTATE SCALES' DEMERS TO PLAINTIFFS' COMPLAINT AND SPECIFICALLY COUNT III STRICT PRODUCT LIABILITY 12. The averments of Plaintiffs' responses in paragraphs 1-11 are incorporated by reference as if set forth fully. 13. Denied. Plaintiffs' Complaint pleads claims sounding in negligence, strict liability and breach of warranties as pled and as set forth in Exhibit "D" to Defendant Interstate Scales' Preliminary Objections. Defendant's attempt to distill the Complaint to its "essence" ignores the separate claims and separate counts in the Complaint. 14. Admitted. 15. Admitted in part. Denied in part. It is admitted that paragraph 11 of the complaint states what paragraph 11 states. However, by way of further response, paragraph 10 of the Complaint additionally alleges that the intercom call box was set up too high and too far away for truck drivers, including plaintiff John Dunkleberger to reach readily, safely and easily from within their truck cabs. When read together, paragraphs 10 and 11 clearly indicate that plaintiff is alleging that the intercom call box was improperly, negligently, deficiently, dangerously and unreasonably installed too high for safe operation from within a truck cab. 16. Denied as stated. Paragraph 30 of Plaintiffs' Complaint states, "based on the foregoing Defendants are strictly liable to the plaintiffs under the principles of the Restatement (Second) of Torts §402(a)." 17. Denied as a conclusion of law and denied as stated. Plaintiff did not use or handle the product abnormally, and nowhere does Plaintiff allege such. Rather, as alleged in the Complaint, Defendant Interstate Scales supplied and designed a defective product for which strict liability is applicable pursuant to §402(a) of the Restatement (second) of Torts. As designed and supplied, the product was defective and unreasonably dangerous. See paragraph 29 of Plaintiffs' Complaint attached at Exhibit "D" to Defendant Interstate Scales' Preliminary Objections. Moreover, Plaintiff does not allege that he misused Defendant's product in any way, matter, shape or form. To the contrary, Plaintiffs specifically allege at paragraph 27 of the Complaint that John Dunkleberger used the product in the usual and customary intended and foreseeable manner. The defective and unreasonably dangerous design of Defendant's product, including the placement of the intercom on the scale, rendered the product deficient and dangerously defective. 18. Denied for the reasons set forth in paragraph 17. By way of further response, Plaintiff specifically alleges that the defective, deficient and unreasonably dangerous design, installation, supply and sale of this product caused Plaintiff John Dunkleberger's injuries. See paragraph 29 of Plaintiffs' Complaint attached to Defendant Interstate Scales' Preliminary Objections at Exhibit "D". 19. Denied as a conclusion of law and denied for the reasons set forth in paragraphs 17 and 18. By way of further response, it is denied that the product at issue here was safe for normal handling and consumption for the reasons already set forth. To the contrary, Plaintiffs allege at paragraph 29 of the Complaint that it was dangerous. By way of further response, Plaintiffs' Complaint sufficiently and properly pleads a claim for strict products liability under the Restatement (Second) of Torts, §402(a). WHEREFORE, Plaintiffs request that Defendants demurrer to Count III of Plaintiffs' Complaint be overruled. III. PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANT INTERSTATE SCALES' DEMUR TO PLAINTIFF'S COMPLAINT SPECIFICALLY AS TO COUNT IV FOR BREACH OF WARRANTY 20. The averments of paragraphs 1-19 of the within response in opposition are incorporated by reference as if fully set forth. 21. Denied as stated. In full, paragraph 32 of Plaintiffs' Complaint states "in designing, manufacturing, assembling, installing, repairing, promoting, marketing, selling, supplying and/or otherwise introducing the All American Plaza, Inc.'s Clarks Ferry Truck Stop weigh station and weigh station intercom box into the stream of commerce, the defendants jointly and/or severally both expressly and impliedly warranted that the weigh station intercom box was merchantable, free from defects and safe and suitable for the uses in which it was intended. 22. Admitted. 23. Admitted. 24. Admitted in part. Denied in part. It is admitted that paragraph 11 of the Complaint states what paragraph 11 states. However, by way of further response, paragraph 10 of the Complaint specifically alleges that the intercom call box was set up too high and too far away for truck drivers, including plaintiff John Dunkleberger to reach readily, safely and easily from within their truck cabs. When read together, paragraphs 10 and 11 clearly indicate that plaintiff is alleging that the intercom call box was improperly, negligently, deficiently, dangerously and unreasonably installed too high for safe operation from within a truck cab. 25. Denied. Mr. Dunkleberger's use of the call box was foreseeable. He was using the call box in its usual and customary manner. See paragraph 27 of Plaintiffs' Complaint attached to Defendant Interstate Scales' Preliminary Objections at Exhibit D. By way of further response and as set forth clearly in the Complaint, the way that this defective product was designed, sold and installed, was unreasonably dangerous in that Mr. Dunkleberger and other truck drivers were forced to get out of the cab of the trucks in order to access the weigh station intercom call box. 26. Denied for the reasons set forth in paragraphs 17, 18, 19 and 25. WHEREFORE, Plaintiffs request that Defendant Interstate Scales' Demurrer to Count Iv of Plaintiffs' Complaint be overruled. By: Respectfully submitted, KESSLER, COHEN & ROTH, P.C. ST ART L. COHEN, ESQUIRE B. DILSHEIMER, , ESQUIRE Attorneys for Plaintiffs CERTIFICATE OF SERVICE I, J.B. Dilsheimer, hereby certify that on the 17th day of March 2004, a true and correct copy of the foregoing Response of Plaintiff to Defendant Interstate Scales' Preliminary objections to Plaintiffs' Complaint was served on the following via Federal Express: Edward E. Knauss, IV, Esquire Metzger Wickersham 3211 N. Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (counsel for All American Plazas, Inc.) Donald M. Desseyn, Esquire 4999 Louise Drive Mechanicsburg, PA 17055 (counsel for Interstate Scales) LSHEIMER ii T r -rt 7 C 1 `::1 G? JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER, h/w, Plaintiffs V. ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES, Defendants TO: Interstate Scales, Defendant c/o Donald M. Desseyn, Esquire 499 Louise Drive Suite 103 Mechanicsburg, PA 17055 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 03-6220 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to Plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. METZGER, WICKERSHA.M, KNAUSS & ERB, P.C. gy ? Edward E. Knauss, IV, Esquire Attorney I.D. No. 19199 P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Dated: 3--3/ -"U Attorneys for Defendant, All American Plazas, Inc. 301442 JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER, b/w, Plaintiffs V. ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES, Defendants IN THE COURT OF COMMON PLEAS CUMBE1tLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 03-6220 CIVIL TERM JURY TRIAL DEMANDED ANSWER OF DEFENDANT, IAAT. A - . - __ I. Denied, since after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof is demanded at trial. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied, since after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof is demanded at trial. 6• It is admitted that Defendant generally owned, operated, managed, supervised, ran, set up, inspected, and maintained truck stops in general. With regard to the scales which are the subject of this case, it is admitted that All American Plazas, Inc., owned, operated, managed, supervised, and ran the scales. It is denied that the scales were designed, maintained, or inspected by Defendant. Co-Defendant, Interstate Scales, designed, maintained, and inspected the scales. 301442 7. Admitted, except that Defendant does not believe that Interstate Scales manufactures the scales. 8. Denied as a legal conclusion. Further denied as vague since Plaintiffs do not define what acts are being referred to. 9. Denied, since after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof is demanded at trial. 10. Denied. It. Denied, since after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof is demanded at trial. 12. Denied. 13. Denied, since after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof is demanded at trial. 14. Denied. COUNT ONE - NEGLIGENCE 15. The preceding paragraphs 1 through 14 are incorporated herein by reference and made a part hereof. 16. Denied as a legal conclusion. In further answer thereto, Defendant, All American Plazas, Inc., did not design, set up, inspect, or maintain the weigh station or scales, all of which was performed by Co-Defendant, Interstate Scales. In further answer thereto, the intercom call box was -2- 301442 at all times readily, safely, and easily accessible to truck drivers using the weigh station. Defendant fulfilled all duties which it had. 17• Denied as an incorrect legal conclusion. Denied that Defendant breached any duty to the Plaintiff or any others. All averments of paragraph 17 are denied as incorrect legal conclusions. 18. Denied as an incorrect legal conclusion. Denied that Defendant was negligent or careless in any respect, including in any of those respects or areas mentioned in subparagraphs (a) through (q), all of which are denied. In further answer thereto, all of the preceding paragraphs of this Answer are incorporated herein by reference and made a part hereof. 19. Denied as an incorrect legal conclusion. Denied that Defendant was negligent or careless in any respect. WHEREFORE, Defendant demands that the Complaint be dismissed and that judgment be entered in its favor with costs. COUNT II - NEGLIGENCE 20-24• These averments are against another Defendant and therefore answer is required. Insofar as an answer may be required, Defendant incorporates herein by reference and makes a part hereof all preceding paragraphs of this Answer. COUNT III - STRICT PRODUCTS LIABILITY PLAINTI JOHN L AMERICAN PI ADU ELEBERGER V. DEFENDANTS, 25. The preceding paragraphs 1 through 24 are incorporated herein by reference and made a part hereof. -3- 30/442 26• Denied. It is denied that Defendant, All American plazas Inc placed the intercom box in the stream of commerce or designed the intercom box or the truck stop weigh station. With regard to the averments against Interstate Scales, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and truth is demanded at trial. 27. Denied, since after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof is demanded at trial. 28. Denied. It is denied that Defendant, All American Plazas, Inc., is a supplier or designer of the weigh station and the weigh station intercom box. 29. Denied as an incorrect legal conclusion. Denied that the injuries were caused by any conduct of Defendant, All American Plazas , Inc. It is denied that Defendant designed, manufactured, assembled, installed, fabricated, repaired, maintained, supplied, sold, distributed, or delivered the weigh station or weigh station intercom box. It is denied that the weigh station or weigh station intercom box were in a defective or unreasonably dangerous or defective condition. It is denied that Defendant breached any duty it may have had to warn, which allegations are further denied as legal conclusions. 30. Denied. WHEREFORE, Defendant demands that the Complaint be dismissed and that judgment be entered in its favor with costs. -4- 301442 COUNT IV - BREACH OF WARRANTY PLAINTIFF, JOHN DUNKLEBERGER v. DEFENDANTS, L AMRRIr AN ur A r AV .w'- . _._ __- 31. The preceding paragraphs 1 through 30 are incorporated herein by reference and made a part hereof. 32. It is denied that Defendant, All American Plazas, Inc., designed, manufactured, assembled, installed, repaired, promoted, marketed, sold, supplied, or otherwise introduced the weigh station and intercom box into the stream of commerce. It is denied that Defendant gave any express or implied warranties that the weigh station intercom box was merchantable, free from defects, and safe and suitable for the uses for which it was intended. 33. Denied as an incorrect legal conclusion. Denied that Defendant gave or breached any warranties, either express or implied. The preceding paragraph 32 is incorporated herein by reference and made a part hereof. 34. Denied. 35. Denied. WHEREFORE, Defendant demands that the Complaint be dismissed and that judgment be entered in its favor with costs. COUNT V - LOSS OF CONSORTIUM PLAINTIFF, CONNIE DUNKLEBERGER V. DEFENDANTS, LL AMERICAN Pi.A7AC TXT! 36. The preceding paragraphs I through 35 are incorporated herein by reference and made a part hereof. 37. Denied. -5- 30/441 WHEREFORE, Defendant demands that the Complaint be dismissed and that judgment be entered in its favor with costs. NEW MATTER PURSUANT TO RULE 2252 ALL AMERICAN PLAZAS INC. v. INTERSTATE SCALES I • If there is any finding of liability on the part of All American Plazas Inc which liability is expressly denied, then Interstate Scales must be found liable to indemnify All American Plazas, Inc., since the scales and intercom box were sold, supplied, designed, constructed, and maintained by Interstate Scales. 2. Defendant files this New Matter to preserve its light for contribution or indemnity against Interstate Scales. WHEREFORE, Defendant, All American Plazas, Inc., demands that in the event it is found liable in this case, which liability is expressly denied, Defendant, Interstate Scales, must be found jointly and severally liable with it for contribution or liable over to it by way of indemnity plus costs and attorney fees. METZGER, WICKERSHA M, KNAUSS & ERB, P.C. Edward E. Knauss, IV, Esquire Attorney I.D. No. 19199 P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Dated: 3 - 30-Uy Attorneys for Defendant, All American Plazas, Inc. -6- 301442 P VERIFICATION I, LQU? ?iG) authorized representative of All American Plazas, Inc., do hereby verify that the facts set forth in the foregoing Answer of Defendant, All American Plazas, Inc., to the Complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unswom falsification to authorities. Date: *d-9 M- 301442 CERTIFICATE OF SERVICE I, Edward E. Knauss, lV, Esquire, of Metzger, Wickersham, Knauss & Erb, P.C., attorneys for Defendant, All American Plazas, Inc., hereby certify that I served the foregoing Answer of Defendant, All American Plazas, Inc., to the Complaint this .32!? day of aZ?22_, 2004, by depositing the same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed to: J. B. Dilsheimer, Esquire Kessler, Cohen & Roth Two Penn Center Plaza, Suite 1705 Philadelphia, PA 19102 Donald M. Desseyn, Esquire 499 Louise Drive, Suite 103 Mechanicsburg, PA 17055 l Edward E. Knauss, IV 301442 G Ci, C-3 : 1> .7 N C1 -K DONALD M. DESSEYN, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER Plaintiffs v. ALL AMERICAN PLAZAS, INC. and INTERSTATE SCALES Defendants ATTORNEY FOR DEFENDANT Interstate Scales IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-6220 JURY TRIAL DEMANDED ANSWER OF DEFENDANT, INTERSTATE SCALES TO NEW MATTER OF DEFENDANT, ALL AMERICAN PLAZAS, INC. AND NOW, comes Defendant, Interstate Scales, by and through its counsel, Donald M. Desseyn, Esquire, and for its Answer to the New Matter of Defendant, All American Plazas, Inc. and herby states as follows: 1. Denied. The allegations as set forth in paragraph I of Defendant's New Matter pursuant to Rule 2252 constitutes a conclusion of law to which no response is required. 2. Denied. WHEREFORE, having fully answered, Defendant, Interstate Scales respectfully requests that Defendant, All American Plazas, Inc., New Matter pursuant to Rule 2252 be dismissed and that Defendant, Interstate Scales be awarded costs and any other relief deemed appropriate by this court. By: G Donate esse esquire Attorney for Defendant Interstate Scales VERIFICATION I, Donald M. Desseyn, Esquire, counsel for Defendant, Interstate Scales herein, verify that I am authorized to execute this verification and verify that the facts set forth in the Defendant, Interstate Scales's Answer to Defendant, All American Plazas, Inc.'s New Matter Pursuant to 2252 are true and correct to the best of my knowledge, information, and belief based upon a review of the pleadings and the investigation file. This Verification is being made pursuant to Pa.R.C.P. 1024 as Defendant Interstate Scales is presently unavailable and a Verification cannot be obtained within the time allowed for filing of this pleading. Moreover, the undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Date: G1?//r 0? Name ?iYo , y6 / . Desse , Esquire ?.> ;:. ?; -. JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER, Plaintiffs V. ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-6220 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT INTERSTATE SCALES TO PLAINTIFFS' COMPLAINT BEFORE HOFFER, P.J., and OLER, J. ORDER OF COURT AND NOW, this 22°d day of April, 2004, upon consideration of the preliminary objections of Defendant Interstate Scales to Plaintiffs' complaint, and following oral argument held on April 21, 2004, it is ordered and directed as follows: 1. The preliminary objections are sustained to the extent that: a. "[I]nter alia" is stricken from paragraph 23 of Plaintiffs' complaint; b. Paragraph 23(r) is stricken from Plaintiffs' complaint; and c. Paragraph 23(1) of Plaintiffs' complaint is stricken for lack of specificity, and Plaintiffs are afforded a period of twenty days from the date of this order in which to file an amended complaint identifying the "applicable regulations, standards, codes, or laws" referred to in the paragraph. 2. The preliminary objections are otherwise denied. oa BY THE COURT, 1 E ?? lid CZ adV Wei Awl RHI Jo MftLq Stewart L. Cohen, Esq. J.B. Dilsheimer, Esq. Kessler, Cohen & Roth Suite 1705 Two Penn Center Plaza Philadelphia, PA 19102 Attorneys for Plaintiffs Edward E. Knauss, IV, Esquire 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 Attorney for Defendant All American Plazas, Inc. Donald M. Desseyn, Esq. 4999 Louise Drive Suite 103 Mechanicsburg, PA 17055 Attorney for Defendant Interstate Scales Kessler, Cohen, & Roth A Professional Corporation By: STEWART L. COHEN, ESQUIRE J. B. DILSHEIMER, ESQUIRE Identification Nos.: 25448; 66614 1705 Two Penn Center Plaza Philadelphia, PA 19102 (215) 567-3500 JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER, H/W 448 S. Market Street S. Williamsport, PA 17702 V. ALL AMERICAN PLAZAS, INC. 1181 Harrisburg Pike Carlisle, PA 17013 and INTERSTATE 2431 Locust Evansville, SCALES Creek Drive IN 47720 JURY TRIAL DEMANDED ASSESSMENT OF DAMAGES HEARING REQUIRED ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW NO.: 03-6220 CIVIL TERM FIRST AMENDED CIVIL ACTION COMPLAINT NOTICE "ISO You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a wnften 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 use 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. La han demandado a usted an Is corte. Si usted quiere defensersa de estas demandes expuentas en la paginas siguientes, usted tiene vemte (20) dies de plazo al partir de Is focha de la demands y Is notificacidn. Hace late asentar una comparencia escrita o an persona o con un abodago y entregar a la torte an forma escrita sus defenses or sus objeciones a [as demandas an contra de so persona. Sea avisado qua si usted no se defiance, la torte tomara medidas y puede continuer la domanda en contra suya sin previo aviso o notificacidn. Ademas, la wrte puede docidir a favor del demandante y requiere que usted compla con todas las provisioner de sale demands. Usted puede poder dinem o sus propiedades u otros derechos YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF m portantes para usted. YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT SI NO TIENEi ABODAGO O SING TIENE EL DINERO WHERE YOU CAN GET LEGAL HELP. SURCIENTE DE PAGAR TAIL SERVICO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTR'A ESCRITA ABAJO PARA AVERIGUAR OONDE CUMBERLAND COUNTY BAR SE PUEDE CONSEGUIR ASISTENCIA LEGAL. ASSOCIATION CUMBERLAND COUNTY BAR 2 LIBERTY AVENUE ASSOCIATION CARLISLE, PENNSYLVANIA 2 LIBERTY AVENUE TELEPHONE NUMBER 717-249-3166 CARLISLE, PENNSYLVANIA TEL. NUMBER 717-249-3166 FIRST AMENDED COMPLAINT - CIVIL ACTION Jury Trial Demanded 1. Plaintiffs John Dunkleberger and Connie Dunkleberger, husband and wife, are adult individuals residing at 448 S. Market Street, S. Williamsport, Pennsylvania. 2. Defendant All American Plazas, Inc., is a Pennsylvania corporation, which regularly does business within the Commonwealth of Pennsylvania and Cumberland County. All American Plazas, Inc. has its principal place of business in Cumberland County formerly at 1181 Harrisburg Pike, Carlisle, Pennsylvania and most recently at 7044 Carlisle Pike, Carlisle, Pennsylvania. 3. Defendant Interstate Scales is an Indiana corporation, which regularly conducts business within the Commonwealth of Pennsylvania and Cumberland County. Interstate Scales has its principal place of business at 2431 Locust Creek Drive, Evansville, Indiana. 4. Suit was initiated against Defendants All American Plazas, Inc., and Interstate Scales by Plaintiffs John Dunkleberger and Connie Dunkleberger in the Court of Common Pleas of Cumberland County by Writ of Summons filed on December 1, 2003. 2 5. At all times relevant hereto, Plaintiff John Dunkleberger was employed as a commercial motor vehicle driver for Watson Town Trucking. 6. At all times relevant hereto, Defendant All American Plazas, Inc. owned, operated, managed, designed, supervised, ran, set up, inspected and maintained several AmBest rated truck stops in Pennsylvania, including, but not limited to the Clarks Ferry All American Travel Plaza at U.S Highways 22 and 322 in Duncannon, Pennsylvania. 7. At all relevant times, Defendant Interstate Scales was in the business of manufacturing, designing, setting up, selling, delivering, distributing, inspecting, servicing, and maintaining truck weigh station scales, including, but not limited to, the one located at the above-mentioned Defendant All American Plaza, Inc.'s Clarks Ferry All American Travel Plaza. 8. At all relevant times herein, the defendants acted through their officers, agents and employees, engaged in their respective businesses and acting within the course and scope of their respective offices, agencies, or employment. 9. On or around January 10, 2002 at approximately 1:30 a.m., Plaintiff John Dunkleberger, while driving a truck for Watson Town Trucking, pulled into Defendant All 3 American Plaza, Inc.'s Clarks Ferry All American Travel Plaza to weigh his truck on the Interstate Scale at the truck stop. He pulled up on the scale to use the intercom box for its intended purposes, to tell the weigh master that he wanted to weigh out. 10. The intercom call box was set up too high and too far away for truck drivers, including Plaintiff John Dunkleberger, to reach readily, safely, and easily from within their truck cabs. 11. While attempting to reach and to use the call box for its intended purposes, which required Mr. Dunkleberger to get out of his truck cab, Mr. Dunkleberger fell out of his cab onto the asphalt pavement. As a result, Plaintiff John Dunkleberger sustained serious and permanent personal injuries, described more fully hereinafter. 12. As a direct result of the dangerous and defective condition of weigh station and its intercom, Plaintiff John Dunkleberger has suffered and will continue to suffer for an indefinite time in the future the following: left knee anterior cruciate ligament lateral meniscal tear, left shoulder rotator cuff tear, large herniated nucleus pulposus at L4-L5 left with radiculopath:y, all of which have required surgical and other medical treatments, including left knee anterior cruciate ligament 4 reconstruction with allograft, left shoulder rotator cuff repair, lumbar laminectomy with disc excision L4-L5 left, medications, and physical therapy. He also suffered scrapes, bruises, extreme discomfort and excruciating pain, incapacitation, sleeplessness, an inability to sit for any extended period of time, insomnia, depression, moodiness, as well as various other injuries. 13. As a further result of his injuries, plaintiff John Dunkleberger was forced to expend money and incur expenses for medical diagnosis and treatment, which is continuing. He has sustained and will sustain loss of earnings and diminution of earning capacity; he has suffered and will suffer pain, discomfort, and mental anguish; he has been hampered and will be hampered in pursuing his usual duties, activities, life's pleasures, and avocations. 14. Plaintiff John Dunkleberger's aforementioned injuries were caused solely by the conduct of the defendants, jointly and/or severally, and were in no way or manner caused by any action or failure to act on the part of Mr. Dunkleberger. 5 COUNT ONE - NEGLIGENCE PLAINTIFF JOHN DUNKLEBERGER V. ALL AMERICAN PLAZAS, INC. 15. The averments in the preceding paragraphs are incorporated herein by reference. 16. Defendant All American Plazas, Inc. had a duty to operate, manage, design, supervise, run, set up, inspect and maintain its Clarks Ferry All American Travel Plaza weigh station to insure that the intercom call box at the weigh station was readily, safely, and easily accessible to truck drivers using the weigh station. 17. Defendant All American Plazas, Inc. breached its duty to truck drivers, including the plaintiff, by negligently and carelessly operating, managing, designing, supervising, running, setting up, inspecting and maintaining its Clarks Ferry All American Travel Plaza weigh station with a dangerously defective and placed weigh station intercom call box. 18. All American Plazas, Inc.'s negligence and carelessness consists, inter alia, of the following acts and omissions: a. failing to properly set up, maintain, install the weigh station intercom box in a position that was readily, safely, and easily accessible by truck drivers using the weigh station; b. failing to properly design the set up of the weigh station intercom box; 6 C. designing, maintaining, setting up, and installing a defective weigh station intercom box; d. owning and operating a truck stop with a defectively designed weigh station intercom box; e. failing to provide any warnings of the dangerously designed and set up weigh station intercom box; f. failing to provide any instructions or directions for safe and proper use of the improperly and unsafely placed weigh station intercom box; g. failing to take adequate measures to insure that the weigh station intercom box was free from defective and dangerous conditions; h. allowing the weigh station intercom box to remain in an unsafe and inaccessible position; i. failing to maintain proper access to the weigh station intercom; j. failing to employ personnel trained in the proper set up, maintenance, and operation of the weigh station intercom; k. failing to provide adequate space to accommodate the necessary equipment for the weigh station and the weigh station intercom; 1. failing to follow any and all applicable regulations, standards, codes, or laws applicable to the design, set up, ownership, installation, and maintenance of weigh stations and weigh station intercoms; M. failing to adhere to the applicable standards of care relating to design, set up, maintenance and installation of weigh station intercoms; n. designing, setting up, maintaining, and installing the weigh station intercom box so that it was unsafe for its intended and foreseeable use; o. failing to properly inspect and test the weigh station intercom box prior to opening the weigh station and its intercom box for use by truck drivers; 7 P. employing improper agents, servants, and workers to design, install, and test the weigh station intercom box and the weigh station; and q. such other acts of negligence and carelessness as discovery will reveal. 19. As a direct result of the negligence and carelessness of Defendant All American :Plazas, Inc., its agents, servants, and employees, jointly and/or severally with Defendant Interstate Scales, Plaintiff John Dunkleberger has sustained serious and permanent injuries and damages as set forth previously. WHEREFORE, Plaintiff John Dunkleberger demands judgment in his favor and against Defendant All American Plazas, Inc., in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. COUNT II - NEGLIGENCE PLAINTIFF JOHN DUNKLEBERGER v. INTERSTATE SCALES 20. The averments in the preceding paragraphs are incorporated herein by reference. 21. Defendant Interstate Scales had a duty to manufacture, design, set up, sell, deliver, distribute, inspect, service, and maintain its weigh stations, scales, and weigh station intercom boxes, including the weigh station and weigh station intercom at All American Plaza, Inc.'s 8 Clarks Ferry All American Travel Plaza, in a condition that was free from dangerous defects and which was readily, safely, and easily accessible to truck drivers using the weigh station and weigh station intercom box. 22. Defendant Interstate Scales negligently and carelessly breached its aforementioned duties in manufacturing, designing, setting up, selling, delivering, distributing, inspecting, servicing, and maintaining its weigh stations, scales, and weigh station intercom boxes, including the weigh station and weigh station intercom at All American Plaza, Inc.'s Clarks Ferry All American Travel Plaza, too high and too far away for truck drivers, including Plaintiff John Dunkleberger, to reach readily, safely, and easily from their truck cabs. 23. Interstate Scales' negligence and carelessness consists of the following acts and omissions: a. failing to properly design, set up, maintain, install, sell, distribute, and manufacture the weigh station intercom box in a position that was readily, safely, and easily accessible by truck drivers using the weigh station; b. failing to properly design the set up and installation of the weigh station intercom box; C. manufacturing, selling, distributing, designing, maintaining, setting up, and installing a defective weigh station intercom box; 9 d. failing to insure the safety of truck drivers using Interstate Scales' weigh station intercom box at the All American Plaza, Inc.'s Clarks Ferry All American Travel Plaza; e. failing to provide any warnings of the dangerously designed and set up weigh station intercom box; f. failing to provide any instructions or directions for safe and proper use of the improperly and unsafely placed weigh station intercom box; g. failing to take adequate measures to insure that the weigh station intercom box was free from defective and dangerous conditions; h. allowing the weigh station intercom box to remain in an unsafe and inaccessible position; i. failing to maintain proper access to the weigh station intercom; j. failing to employ personnel trained in the proper set up, maintenance, installation, design, and operation of the weigh station intercom; k. failing to provide adequate space to accommodate the necessary equipment for the weigh station and the weigh station intercom; 1. failing to adhere to the applicable standards of care relating to manufacture, sale, distribution, design, set up, maintenance and installation of weigh station intercoms; M. manufacturing, selling, distributing, designing, setting up, maintaining, and installing the weigh station intercom box so that it was unsafe for its intended and foreseeable use; n. failing to properly inspect and test the weigh station intercom box prior to opening the weigh station and its intercom box for use by truck drivers; and o. employing improper agents, servants, and workers to design, manufacture, install, and test the weigh station intercom box and the weigh station. 10 24. As a direct result of the negligence and carelessness of Defendant Interstate Scales, its agents, servants, and employees, jointly and/or severally with Defendant All American Plazas, Inc., Plaintiff John Dunkleberger has sustained serious and permanent injuries and damages as set forth previously. WHEREFORE, Plaintiff John Dunkleberger demands judgment in his favor and against Defendant Interstate Scales, in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. COUNT III - STRICT PRODUC17S LIABILITY PLAINTIFF JOHN DUNKLEBERGER v. DEFENDANTS ALL AMERICAN PLAZAS, INC. AND INTERSTATE: SCALES 25. The averments in the precedincf paragraphs are incorporated herein by reference. 26. At the time of the above-described incident, the condition of the All American Plaza, Inc.'s Clarks Ferry truck stop weigh station intercom box was exactly the same as it was at the time it was placed into the stream of commerce by Interstate Scales and/or designed by All American Plazas, Inc. and/or Interstate Scales. 27. Plaintiff John Dunkleberger used the weigh station intercom box in the usual and customary manner, and within the intended and foreseeable use of the product. 11 28. All American Plazas, Inc. and Interstate Scales are suppliers and/or designers of the weigh station and the weigh station intercom box, which is a :product within the meaning of §402(A) of the Restatement (Second) of Torts. 29. Plaintiff John Dunkleberger's injuries were caused solely and exclusively by Defendants, jointly and/or severally, in designing, manufacturing, assembling, installing, fabricating, repairing, maintaining, supplying, selling, distributing, and delivering the weigh station intercom box at the All American Plazas,, Inc.'s Clarks Ferry truck stop in a defective and unreasonably dangerous and defective condition and in failing to warn of said defective and unreasonably dangerous condition. 30. Based on the foregoing, Defendants are strictly liable to plaintiffs under the principles of the Restatement (Second) of Torts §402A. WHEREFORE, Plaintiff John Dunkleberger demands judgment in his favor and against Defendants All American Plazas, Inc., and Interstate Scales, jointly and/or severally in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. 12 COUNT IV - BREACH OF WARRANTY PLAINTIFF JOHN DUNKLEBERGER v. DEFENDANTS ALL AMERICAN PLAZAS, INC. AND INTERSTATE SCALES 31. The averments in the preceding paragraphs are incorporated herein by reference. 32. In designing, manufacturing, assembling, installing, repairing, promoting, marketing, selling, supplying, and/or otherwise introducing the All American Plazas, Inc.'s Clarks Ferry truck stop weigh station and weigh station intercom box into the stream of commerce, the Defendants, jointly and/or severally, both expressly and impliedly warranted that the weigh station intercom box was merchantable, free from defects, and safe and suitable for the uses for which it was intended. 33. Defendants jointly and/or severally breached the aforesaid warranties, both expressed and implied, by designing, building, installing, maintaLning, and selling the weigh station intercom box in a defective condition as described above and in a manner which was neither safe nor suitable for the uses for which it was intended. 34. Plaintiff John Dunkleberger is a direct and/or third-party beneficiary to the aforesaid warranties. 35. Plaintiff John Dunkleberger's losses, injuries and damages resulted directly from Defendants' joint and/or 13 several breach of expressed and/or implied warranties of merchantability and fitness for a particular purpose. WHEREFORE, Plaintiff John Dunkleberger demands judgment in his favor and against Defendants All American Plazas, Inc. and Interstate Scales, jointly and/or severally, in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. COUNT V - LOSS OF CONSORTIUM PLAINTIFF CONNIE DUNKLEBERGER v. DEFENDANTS ALL AMERICAN PLAZAS, INC. AND INTERSTATE SCALES 36. The averments in the preceding paragraphs are incorporated herein by reference. 37. As a result of the conduct of the defendants as described herein, Plaintiff Connie Dunkleberger has been deprived of the assistance, society, companionship and consortium of the Plaintiff John Dunkleberger, all to her damage and loss, all of which may be permanent. 14 WHEREFORE, Plaintiff Connie Dunkleberger demands judgment in her favor and against Defendants All American Plazas, Inc. and Interstate Scales in an amount in excess of $50,000, plus costs, fees and such other relief as the Court deems appropriate. Respectfully submitted, BY: Dated: May 11, 2004 KESSLER, C;¢VEN, & ROTH S L. COHEN, ESQUIRE J.B. ILSHEIMER, ESQUIRE ttorneys for Plaintiff 15 VERIFICATION JOHN DUNKLEBERGER hereby states that he is the Plaintiff in the within action, that the, statements made in the foregoing Complaint are true and correct to the best of his knowledge, information and belief, and acknowledges that that the statements therein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. s-7-oy DATE CERTIFICATE OF SERVICE I, J.B. Dilsheimer, hereby certify that on the 10th day of May 2004, a true and correct copy of the foregoing First Amended Complaint was served on the following via Federal Express: Edward E. Knauss, IV, Esquire Metzger Wickersham 3211 N. Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (counsel for All American Plazas, Inc.) Donald M. Desseyn, Esquire 4999 Louise Drive Mechanicsburg, PA 17055 (counsel for Interstate Scales) n y p r ? U1 JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER, h/w, Plaintiffs V. ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-6220 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Interstate Scales, Defendant c/o Donald M. Desseyn, Esquire 499 Louise Drive, Suite 103 Mechanicsburg, PA 17055 You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By Edward . Knauss, IV, Esquire Attorney I.D. No. 1!)199 P.O. Box 5300 Dated: Z v 7 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Attorneys for Defendant, All American Plazas, Inc. 306077 JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER, h/w, Plaintiffs V. ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-6220 CIVIL TERM JURY TRIAL DEMANDED ANSWER OF DEFENDANT, ALL AMERICAN PLAZAS, INC., TO THE FIRST AMENDED COMPLAINT 1 • Denied, since after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof is demanded at trial. 2• Admitted. 3. Admitted. 4. Admitted. 5. Denied, since after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof is demanded at trial. 6. It is admitted that Defendant generally owned, operated, managed, supervised, ran, set up, inspected, and maintained truck stops in general. With regard to the scales which are the subject of this case, it is admitted that All American Plazas, Inc., owned, operated, managed, supervised, and ran the scales. It is denied that the scales were designed, maintained, or inspected by Defendant. Co-Defendant, Interstate Scales, designed, maintained, and inspected the scales. 306077 7. Admitted, except that Defendant does not believe that Interstate Scales manufactures the scales. 8. Denied as a legal conclusion. Further denied as vague since Plaintiffs do not define what acts are being referred to. 9. Denied, since after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof is demanded at trial. 10. Denied. 11. Denied, since after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof is demanded at trial. 12. Denied. 13. Denied, since after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof is demanded at trial. 14. Denied. NEGLIGENCE COUNT ONE - PLAINTIFF JOHN DUN" V DIWR- -- ALL AMERICAN PLAZAS INC. 15. The preceding paragraphs 1 through 14 are incorporated herein by reference and made a part hereof. 16. Denied as a legal conclusion. In further answer thereto, Defendant, All American Plazas, Inc., did not design, set up, inspect, or maintain the weigh station or scales, all of which was performed by Co-Defendant, Interstate Scales. In further answer thereto, the intercom call box was -2- 306077 at all times readily, safely, and easily accessible to truck drivers using the weigh station. Defendant fulfilled all duties which it had. 17. Denied as an incorrect legal conclusion. Denied that Defendant breached any duty to the Plaintiff or any others. All averments of paragraph 17 are denied as incorrect legal conclusions. 18. Denied as an incorrect legal conclusion. Denied that Defendant was negligent or careless in any respect, including in any of those respects or areas mentioned in subparagraphs (a) through (q), all of which are denied. In further answer thereto, all of the preceding paragraphs of this Answer are incorporated herein by reference and made a part hereof. 19. Denied as an mconrect legal conclusion. Denied that Defendant was negligent or careless in any respect. WHEREFORE, Defendant demands that the Complaint be dismissed and that judgment be entered in its favor with costs. COUNT II - NEGLIGENCE 20-24. These averments are against another Defendant and therefore no answer is required. Insofar as an answer may be required, Defendant incorporates herein by reference and makes a part hereof all preceding paragraphs of this Answer. COUNT III - STRICT PRODUCTS LIABILITY PLAINTIFF, JOHN DUNKLEBERGER v. DEFENDANTS, P T A A7Ae rx" . 25. The preceding paragraphs 1 through 24 are incorporated herein by reference and made a part hereof. -3- 306077 26. Denied. It is denied that Defendant, All American Plazas, Inc., placed the intercom box in the stream of commerce or designed the intercom box or the truck stop weigh station. With regard to the averments against Interstate Scales, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and truth is demanded at trial. 27. Denied, since after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof is demanded at trial. 28. Denied. It is denied that Defendant, All American Plazas, Inc., is a supplier or designer of the weigh station and the weigh station intercom box. 29. Denied as an incorrect legal conclusion. Denied that the injuries were caused by any conduct of Defendant, All American Plazas, Inc. It is denied that Defendant designed, manufactured, assembled, installed, fabricated, repaired, maintained, supplied, sold, distributed, or delivered the weigh station or weigh station intercom box. It is denied that the weigh station or weigh station intercom box were in a defective or unreasonably dangerous or defective condition. It is denied that Defendant breached any duty it may have had to wam, which allegations are further denied as legal conclusions. 30. Denied. WHEREFORE, Defendant demands that the Complaint be dismissed and that judgment be entered in its favor with costs. -4- 306077 COUNT IV - BREACH OF WARRANTY PLAINTIFF, JOHN DUNKLEBERGER v. DEFENDANTS, ,L AMF,RIrA N Ur A 7 A o rte" _- 31. The preceding paragraphs I through 30 are incorporated herein by reference and made a part hereof. 32. It is denied that Defendant, All American Plazas, Inc., designed, manufactured, assembled, installed, repaired, promoted, marketed, sold, supplied, or otherwise introduced the weigh station and intercom box into the stream of commerce. It is denied that Defendant gave any express or implied warranties that the weigh station intercom box was merchantable, free from defects, and safe and suitable for the uses for which it was intended. 33. Denied as an incorrect legal conclusion. Denied that Defendant gave or breached any warranties, either express or implied. The preceding paragraph 32 is incorporated herein by reference and made a part hereof. 34. Denied. 35. Denied. WHEREFORE, Defendant demands that the Complaint be dismissed and that judgment be entered in its favor with costs. COUNT V - LOSS OF CONSORTIUM PLAINTIFF, CONNIE DUNKLEBERGER v. DEFENDANTS, LL AMERICAN P1.A7AC iw.. ...,. _ 36. The preceding paragraphs I through 35 are incorporated herein by reference and made a part hereof. 37. Denied. -5- 306077 WHEREFORE, Defendant demands that the Complaint be dismissed and that judgment be entered in its favor with costs. NEW MATTER PURSUANT TO RULE 2252 ALL AMERICAN PLAZAS INC. v. INTERSTATE SCALES 1. If there is any finding of liability on the part of All American Plazas, Inc., which liability is expressly denied, then Interstate Scales must be found liable to indemnify All American Plazas, Inc., since the scales and intercom box were sold, supplied, designed, constructed, and maintained by Interstate Scales. 2. Defendant files this New Matter to preserve its right for contribution or indemnity against Interstate Scales. WHEREFORE, Defendant, All American Plazas, Inc., demands that in the event it is found liable in this case, which liability is expressly denied, Defendant, Interstate Scales, must be found jointly and severally liable with it for contribution or liable over to it by way of indemnity plus costs and attorney fees. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By Edward E. Krauss, IV, Esquire Attorney I.D. No. 19199 P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Dated: " L- Attorneys for Defendant, All American Plazas, Inc. -6- 306077 VERIFICATION I, ?C/1f14?1.? ?l TS7°it'-0 Authorized Representative of All American Plazas, Inc., First Amended do hereby verify that the facts set forth in the foregoing Answer to/Complaint are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unworn falsification to authorities. Name pIkovelly -I' Title Dated: June 2, 2004 299366-1 CERTIFICATE OF SERVICE I, Edward E. Knauss, IV, Esquire, of Metzger, Wickersham, Knauss & Erb, P.C., attorneys for Defendant, All American Plazas, Inc., hereby certify that I served the foregoing Answer of Defendant, All American Plazas, Inc., to the First Amended Complaint this Z day of June, 2004, by depositing the same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed to: J. B. Dilsheimer, Esquire Kessler, Cohen & Roth Two Penn Center Plaza, Suite 1705 Philadelphia, PA 19102 Donald M. Desseyn, Esquire 499 Louise Drive, Suite 103 Mechanicsburg, PA 17055 dwazd E. I' uss, IV 306077 n ? n r r ?`C N =t l c7 Kessler, Cohen, & Roth A Professional Corporation By: STEWART L. COHEN, ESQUIRE WILLIAM D. MARVIN, ESQUIRE Identification Nos.: 25448; 34265 1705 Two Penn Center Plaza Philadelphia, PA 19102 (215) 567-3500 JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER, H/W V. ALL AMERICAN PLAZAS, INC and INTERSTATE SCALES JURY TRIAL DEMANDED ASSESSMENT OF DAMAGES HEARING REQUIRED ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL :ACTION - LAW NO.: 03-6220 CIVIL TERM ENTRY OF APPEARANCE: TO THE PROTHONOTARY: Kindly enter my appearance as co-counsel, with Stewart L. Cohen, Esquire, for plaintiffs in the above-captioned matter. KESSLER, COHEN & ROTH, P.C. By: 9=:? IAM D. MARVIN, ESQUIRE Supreme Court ID: 34265 Dated: June 1, 2004 CERTIFICATE OF SERVICE I, WILLIAM D. MARVIN, hereby certify that on the lot day of June 2004, a true and correct copy of the foregoing Entry of Appearance was served on the following via U.S. first class mail, postage prepaid: Edward E. Knauss, IV, Esquire Metzger Wickersham 3211 N. Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (counsel for All American Plazas, Inc.) Donald M. Desseyn, Esquire 4999 Louise Drive Mechanicsburg, PA 17055 (counsel for Interstate Scales) WILLIAM D. MAR'VIN N ?? v l ]i 1 7 CJ F-I f'fl C7 Kessler, Cohen, & Roth A Professional Corporation By: STEWART L. COHEN, ESQUIRE J. B. DILSHEIMER, ESQUIRE Identification Nos.: 25448; 66614 1705 Two Penn Center Plaza Philadelphia, PA 19102 (215) 567-3500 JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER, H/W V. ALL AMERICAN PLAZAS, INC and INTERSTATE SCALES JURY TRIAL DEMANDED ASSESSMENT OF DAMAGES HEARING REQUIRED ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW NO.: 03-6220 CIVIL TERM WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance as co-counsel for KESSLER, C'OHEN & ROTH, P.C. By: J.B DI SH:EIMER, ESQUIRE Su rem Ccurt ID: 66614 plaintiffs in the above-captioned matter. Stewart L. Cohen, Esquire will remain as counsel for plaintiffs. Date: June 1, 2004 CERTIFICATE OF SERVICE I, J.B. Dilsheimer, hereby certify that on the 1st day of June 2004, a true and correct copy of the foregoing Withdrawal of Appearance was served on the following via U.S. first class mail, postage prepaid: Edward E. Knauss, IV, Esquire Metzger Wickersham 3211 N. Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (counsel for All American Plazas, Inc.) Donald M. Desseyn, Esquire 4999 Louise Drive Mechanicsburg, PA 17055 (counsel for Interstate Scales) J.B HEIMER c « o L I _?m w ?a c7 CD Kessler, Cohen, & Roth A Professional Corporation By: STEWART L. COHEN, ESQUIRE WILLIAM D. MARVIN, ESQUIRE Identification Nos.: 25448; 34265 1705 Two Penn Center Plaza Philadelphia, PA 19102 (215) 567-3500 ATTORNEYS FOR PLAINTIFFS JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER, H/W V. ALL AMERICAN PLAZAS, INC and INTERSTATE SCALES COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW NO.: 03-6220 CIVIL TERM PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT, INTERSTATE SCALES 38. Denied as a conclusion of law to which no response is required under the Rules of Civil Procedure. 39. Denied as a conclusion of law to which no response is required under the Rules of Civil procedure. 40. Denied. Plaintiff was not negligent in any way, 41. Denied. Plaintiff was not negligent in any way. 42. Denied as a conclusion of law, and an allegation which is so vague as to be meaningless. 43. Denied. Plaintiff was not negl=igent in any way. 44. Denied. Plaintiff did not assume any risk. 45. Denied. Plaintiff has taken all reasonable steps to mitigate his damages. WHEREFORE, Plaintiffs requests judgment as demanded in the original Complaint. KESSLER, COHEN & ROTH A Professional Corporation BY: WILLIAM D. MARVIN, ESQUIRE Attorney for Plaintiffs Dated: Z- VERIFICATION WILLIAM D. MARVIN, ESQUIRE, hereby states that he is the attorney for the Plaintiffs in the within action, that he is authorized to present this Verification and verifies that the statements made in the foregoing Plaintiffs' Reply to New Matter of Defendant Interstate Scales is true and correct to the best of his knowledge, information and belief, and that he understands that the statements therein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. WILLIAM 1J. MARVIN, ESQUIRE DATED: ° .`- r 177 m? }'? `? rrl C:: N - O i' G JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER, h/w, Plaintiffs V. CIVIL ACTION- LAW ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-6220 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWAL AND ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of Edward E. Knauss, IV, Esquire, on behalf of the Defendant All American Plazas, Inc., and enter the appearance of Andrew W. Norfleet, Esquire on behalf of Defendant All American Plazas, Inc. Respectfully submitted, METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By Edward E. Knauss, IV, Esquire Attorney I.D. No. 19199 P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 (717) )'19-R197 By Dated: ` 7-0 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for the Defendant 320921-1 P.O. Box 5300 CERTIFICATE OF SERVICE AND NOW, this day ofjangary, 2005, I, Andrew W. Norfleet, Esquire, of Metzger, Wickersham, Knauss & Erb, P.C., attorney for Defendant, All American Plazas, Inc., hereby certify that I served the foregoing Defendant, All American Plazas, Inc.'s Praecipe for Withdrawal and Entry of Appearance this day by postage paid United States mail, addressed to: J. B. Dilsheimer, Esquire Kessler, Cohen & Roth Two Penn Center Plaza, Suite 1705 Philadelphia, PA 19102 Donald M. Desseyn, Esquire 499 Louise Drive, Suite 103 Mechanicsburg, PA 17055 Andrew W. Norfleet, Esquire 320922-! " ? ('y ? X9 ? _? . 1?1?-= _ -.:i '_ t ,i (u t ?. 9..' _ _ - _ ?, c C,i i f-? ... ?; , ORIGINAL JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER Plaintiffs V. ALL AMERICAN PLAZAS, INC. and INTERSTATE SCALES Defendants ATTORNEY FOR DEFENDANT Interstate Scales : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW : NO. 03-6220 : JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 400911 PLEASE TAKE NOTICE that Interstate Scales, Inc., Defendant, intends to serve subpoenas DONALD M. DESSEYN, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 identical to the ones that are attached to this notice. You have twenty (20) days from the date listed below in which to file of records and serve upon the undersigned an objection to the subpoena(s). If no objection is made the subpoena(s) may be served Date: . -4© 7 By: Do sseyn, squire Attorney for Defendants _.If JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER Plaintiffs V. ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 03 - 1.2-246 : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: American Interstate Insurance Company, P.O. Box 1099, Mechanicsburg, PA 17055 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any information pertaining to John Dunkleberger Worker's Compensation claim from injury occurring on or about January 10, 2002 and any and all information with regard to matter to The Rossmoyne Corporate Center, ATTN: Donald M. Desseyn, Esquire, 4999 Louise Drive, Suite 103, Mechanicsburg„ PA 17055. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Donald M. Desseyn, Esquire, Rossmoyne Corporate Center, 4999 Louise Drive, Suite 103, Mechanicsburg, PA 17055, (717) 791-0400, Attorney I.D. 69179 (Attorney Name, Address, Telephone Number and Identification Number) DATE: My"_ sa2007 Seal of the Court BY THE COURT: Pr thonot By: Deputy t JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES Defendants NO. 63 - 1. A6 : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Evangelical Community Hospital, Attn: Health Information Department, 100 Hospital Drive, Lewisburg, PA 17837 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: your file from June 2004 to Present, including all medical records, notes, reports, correspondences, memorandums, x-rays/film reports, progress reports etc. pertaining to John Dunkleberger, DOB 8-27-61; SSN: 189-56-0187 and any and all information with regard to matter to The Rossmoyne Comorate Center, ATTN: Donald M. Desseyn Esquire 4999 Louise Drive, Suite 103, Mechanicsburg, PA 17055. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Donald M. Desseyn, Esquire, Rossmoyne Corporate Center, 4999 Louise Drive, Suite 103, Mechanicsburg, PA 17055, (717) 791-0400, Attorney I.D. 69179 (Attorney Name, Address, Telephone Number and Identification Number) DATE: 2707 Seal of the Court By: BY THE COURT: Pr6thonot Deputy CERTIFICATE OF SERVICE AND NOW, this --To day of 2007, I, Donald M. Desseyn, Esquire, Attorney for Defendant, Interstate Scales, hereby certify that I served a copy of the within Notice of Intent to Serve a Subpoena on this date by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Andrew W. Norfleet, Esquire Metzger, Wickersham, Knauss & Erb, P.C. 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 William D. Marvin, Esquire Kessler, Cohen & Roth Suite 1705 Two Penn Center Plaza Philadelphia, PA 19102 By: Donal uire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 `? ?? r --cti??-'. ??? ? ? _?yc ?? - ? ? cu ? ? ," ? t '`-' - s- ? ` v `'' c?" :? ? ..c. :? ? 00R-161NAL DONALD M. DESSEYN, Esquire ATTORNEY FOR DEFENDANT 4999 Louise Drive, Suite 103 Interstate Scales Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 JOHN DUNKLEBERGER and CONNIE IN THE COURT OF COMMON PLEAS DUNKLEBERGER OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. CIVIL ACTION - LAW NO. 03-6220 ALL AMERICAN PLAZAS, INC. and INTERSTATE SCALES Defendants : JURY TRIAL DEMANDED CERTIFICATE - PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO Pa.R.C.P. 4009.22 As a prerequisite to service of a Subpoena for Documents and Things pursuant to Rule 4009.22, of the Pennsylvania Rules of Civil Procedure, Defendant, Glimcher Realty certifies that: 1. A Notice of Intent to serve the Subpoena with a copy of the Subpoenas attached thereto was mailed on March 30, 2007, which is prior to the date the Subpoena is sought to be served, to William D. Marvin, Esq., Counsel for Plaintiff; 2. A copy of the Notice of Intent, including the proposed Subpoenas, is attached to this Certificate as Exhibit "A"; 3. No objection to the Subpoena had been received by April 20, 2007 and the moving Defendant shall serve the Subpoenas; 4. The Subpoenas which will be served is identical to the Subpoena which is attached to the Notice of Intent to serve the Subpoena. Date: WW/Z?? Z" By: Donald esseyn, Esquire Attorney for Defendant ?x kid; f Ff ATTORNEY FOR DE Esquire DONALD M. DESSEYN, 4999 Louise Drive, Suite 103 Interstate Scales Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 JOHN DUNKLEBERGER and CONNIE IN THE COURT OF COMMON PLEAS DUNKLEBERGER OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW NO. 03-6220 ALL AMERICAN PLAZAS, INC. and INTERSTATE SCALES - t = ? JURY TRIAL DEMANDED Defendants =} -" NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 400911 PLEASE TAKE NOTICE that Interstate Scales, Inc., Defendant, intends to serve subpoenas identical to the ones that are attached to this notice. You have twenty (20) days from the date listed below in which to file of records and serve upon the undersigned an objection to the subpoena(s). If no objection is made the subpoena(s) may be served. Date: ,ze By:- .. Do eyn, squire Attorney for Defendants JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER Plaintiffs V. ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03 - JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: American Interstate Insurance Company P.O. Box 1099, Mechanicsburg PA 17055 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any information pertaining to John Dunkleberger Worker's Compensation claim from iniury occurring on or about January 10, 2002 and any and all information with regard to matter to The Rossmoyne Corporate Center ATTN• Donald M Desseyn, Esquire, 4999 Louise Drive, uite 103, Mechanicsburg PA 17055 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Donald M. Dessevn Esquire Rossmo ipe Corporate Center, 4999 Louise Drive Suite 103, Mechanicsburg, PA 17055, (717) 791-0400 Attorney I D 69179 (Attorney Name, Address, Telephone Number and Identification Number) DATE: n c(?.27E, 2-0o7 Seal of the Court By: BY THE COURT:. r Prihonotary. 6` r Deputy JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER Plaintiffs V, ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03 - 4., : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR . DISCOVERY PURSUANT TO RULE 4009.22 TO: Evangelical Community Hospital, Attn: Health Information Department, 100 Hospital Drive, Lewisburg, PA 17837 . Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: your file from June 2004 to Present, including all medical records notes reports correspondences memorandums x-rays/film reports, progress reports etc pertaining to John Dunkleberger DOB 8-27-61; SSN: 189-56-0187 and any and all information with regard to matter to The Rossmope Corporate Center, ATTN: Donald M. Desseyn Esquire 4999 Louise Drive Suite 103, Mechanicsburg PA 17055. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Donald M. Dessexn Esquire Rossmoyne Corporate Center, 4999 Louise Drive, Suite 103, Mechanicsburg PA 17055, (717) 791-0400, Attorney I.D. 69179 (Attorney Name, Address, Telephone Number and Identification Number) DATE: 279 ,200,7 Seal of the Court By: BY THE COURT: Prothonotary.... Deputy CER'T'IFICATE OF SERVICE AND NOW, this -51o PIA -day of , 2007, I, Donald M. Desseyn, Esquire, Attorney for Defendant, Interstate Scales, hereby certify that I served a copy of the within Notice of Intent to Serve a Subpoena on this date by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Andrew W. Norfleet, Esquire Metzger, Wickersham, Knauss & Erb, P.C. 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 William D. Marvin, Esquire Kessler, Cohen & Roth Suite 1705 Two Penn Center Plaza Philadelphia, PA 19102 By: Donal quire 4999 Louise Drive, Suite 103 Mechanicsburg, PA. 17055 (717) 791-0400 Attorney I.D. # 69179 CERTIFICATE OF SERVICE AND NOW, this day of , 2007, I, Donald M. Desseyn, Esquire, Attorney for Defendant, Interstate Scales, hereby certify that I served a copy of the within Certificate Prerequisite to Serve a Subpoena on this date by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Andrew W. Norfleet, Esquire Metzger, Wickersham, Knauss & Erb, P.C. 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 William D. Marvin, Esquire Kessler, Cohen & Roth Suite 1705 Two Penn Center Plaza Philadelphia, PA 19102 By: Donald M. Desseyn, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 ? n ?y 70 ? r-a T t!.. C' r i UO W r Y JOHN DUNKLEBERGER and CONNIE DUNKLEBERGER, h/w, Plaintiffs V. ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-6220 CIVIL TERM JURY TRIAL DEMANDED JOINT STIPULATION OF COUNSEL FOR DEFENDANTS TO DISMISS CROSS-CLAIMS AND NOW, comes counsel for All American Plazas, Inc., and Interstate Scales, Defendants in the above referenced action and respectfully requests this Honorable Court grant the requested relief contained herein. In support thereof, the following is respectfully averred: 1. On March 28, 2008, all parties participated in voluntary mediation in an attempt to reach an amicable resolution to this matter. 2. On March 28, 2008, the parties were able to reach an amicable resolution to this matter and the matter is settled. 3. Upon receipt of the settlement drafts from both Defendants, Plaintiffs have agreed to execute a Praecipe to Settle, Discontinue and End this matter. 4. Counsel for Defendants have agreed to dismiss any and all cross claims between All American Plazas, Inc. and Interstate Scales. 396053-1 t 5. With the concurrence and agreement of both Defendants, it is respectfully requested that this Honorable Court approve the attached stipulation and dismiss any and all Cross-Claims between All American Plazas, Inc. and Interstate Scales. Respectfully submitted: METZGER, WICKFRti Dated: Dated: r9®? By KNAUSS & ERB, P.C Andrew W. No_;rfl " t, Esqiw Attorney I.D. No. 83894 P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for the Defendant, All American Scales, Inc. By -? Don . Des eyn, Esquire Attorney for the Defendant, Interstate Scales 396053-1 C`? d Z- c:o rnm N 06/20/2008 13:34 FAX 7172349478 MWK&E HGB PA Z002 JOHN DUNKLEBERGER and CONNIE DUNKLEBERGM h/w, Plaintiffs V. ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES, Defendants NO. 03-6220 CIVIL TFRM JURY TRIAL DEMANDED AMENDED JOINT STIPULATION OF COUNSEL FOR DEFENDANTS TO DISMISS CROSS-CLAIMS AND NOW, comes counsel for All American Plazas, Inc., and Interstate Scales, Defendants in the above referenced action and respectfully requests this Honorable Court grant the requested relief contained herein. respectfully averred: In support thereof, the following is 1. On March 28, 2008, all parties participated in voluntary mediation in an attempt to reach an amicable resolution, to this matter. 2. On March 28, 2008, the parties were able to reach an amicable resolution to this matter and the matter is settled. 3_ Upon receipt of the settlement drafts from both Defendants, Plaintiffs have agreed to execute a Praecipe to Settle, Discontinue and End this matter. 4. Counsel for Defendants have agreed to dismiss any and all cross claims between All American Plazas, Inc_ and Interstate Scales. S. With the concurrence and agreement of both Defendants, it is respectfully requested that this Honorable Court approve the attached stipulation and dismiss any and all Cross-Claims between All American Plazas, Inc. and Interstate Scales. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA, CIVIL ACTION - LAW 396053-1 06/20/2008 13:34 FAX 7172349478 MWK&E HGB PA Z003 r 6. Pursuant to the Cumberland County Local Rules of Court, Counsel for all interested parties concur with said Joint Stipulation of Counsel for Defendants to Dismiss Cross Claims. 7_ Pursuant to the Cumberland County Local Rules of Court, it is noted that, on April 22, 2004, The Honorable George E. Hoffer ruled on preliminary objections of Defendant Interstate Scales in this matter. Respectfully submitted: METZCrER, WICKERSHAlV1, K ?NT*USS & ERB, P.C. By: Dated: Dated: -M461e Andrew'W. Norfleet, Esq`i? Attorney I.D. No. 83 894 P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for the Defendant, All American Scales, Inc. By: Do M. Desseyn, Esquire Attorney for the Defendant, Interstate Scales 396053-1 rn co ?!!N MOP JOHN DUNKLEBERGER and IN THE COURT OF COMMON PLEAS CONNIE DUNKLEBERGER, h/w, CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. ALL AMERICAN PLAZAS, INC., and INTERSTATE SCALES, Defendants CIVIL ACTION - LAW NO. 03-6220 CIVIL TERM JURY TRIAL DEMANDED ORDER AND NOW, this Z7 " day of 2008, upon consideration of the Joint Stipulation of Counsel for Defendant All American Plazas, Inc., and Defendant Interstate Scales, it is hereby ORDERED that any and all cross claims between All American Plazas, Inc. and Interstate Scales are hereby DISMISSED WITH PREJUDICE. distribution: ? Andrew W. Norfleet, Esquire, P.O. Box 5300, Harrisburg, PA 17110-0300 Donald M. Desseyn, Esquire, 499 Louise Drive, Suite 103, Mechanicsburg, PA 17055 v??a?o8 397837-1 BY THE COURT: r F _= LLI by l._s..i C) COHEN, PLACITELLA & ROTH A Professional Corporation By: STEWART L. COHEN, ESQUIRE WILLIAM D. MARVIN, ESQUIRE Identification Nos.: 25448; 34265 Two Commerce Square, Suite 2900 2001 Market St. Philadelphia, PA 19103 (215) 567-3500 JOHN DUNKLEBERGER AND CONNIE DUNKLEBERGER, H/W V. ALL AMERICAN PLAZAS, INC. and INTERSTATE SCALES ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW NO.: 03-6220 CIVIL TERM ORDER TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-captioned matter SETTLED, DISCONTINUED and ENDED upon payment of your costs only. DATE: By: WILLIAM D. MARVIN, ESQUIRE co ?`j'sr .,. t 1S V CIO