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HomeMy WebLinkAbout08-0466F: \FILES\Clients\Donegal3050\Cutrent\443\3050.443. Coniplaint.wpd\tde Created: 1/30/04 10:10AM Revised: 1/21/08 1:50PM Daniel K. Deardorff, Esquire I.D. No. 17837 Trudy E. Fehlinger, Esquire I.D. No. 202753 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs MITCHELL AND WENDY DIVINEY, IN THE COURT OF COMMON PLEAS OF Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO.496T= c«- CIVIL ACTION MAYTAG CORPORATION, JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Daniel K. Deardorff, Esquire I.D. No. 17837 Trudy E. Fehlinger, Esquire I.D. No. 202753 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs MITCHELL AND WENDY DIVINEY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MAYTAG CORPORATION, NO. 2007- CIVIL ACTION JURY TRIAL DEMANDED AVISO PARA DEFENDER USTED HA SIDO DEMANDADO/A EN LA CORTE. Si usted desea defender conta la demanda puestas en las siguientes paginas, usted tienen que tomar accion dentro veinte (20) dias despu6s que esta Demanda y Aviso es servido, con entrando por escrito una aparencia personalmente o por un abodgado y archivanco por escrito con la Corte sus defenses o objeciones a las demandas puestas en esta contra usted. Usted es advertido que si falla de hacerlo el case puede proceder sin usted y un jazgamiento puede ser entrado contra usted por la Corte sin mas aviso por cualquier dinero reclamado en la Demanda o por cualquier otro reclamo o alivio solicitado por Demandante. Usted puede perder dinero o propiedad o otros derechos importante para usted. USTED DEBE LLEVAR ESTE PAPEL A SU ABOGADO ENSEGUIDA. SI USTED NO TIENE UN ABOGADO, VAYA O LLAME POR TELEFONO LA OFICINA FIJADA AQUi ABAJO. ESTA OFICINA PUEDE PROVEERE CON INFORMACION DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGARLE A UN ABOGADO, ESTA OFICINA PUEDE PROVEERE INFORMACION ACERCA AGENCIAS QUE PUEDAN OFRECER SERVICIOS LEGAL A PERSONAS ELIGIBLE AQ UN HONORARIO REDUCIDO O GRATIS. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 TELEFONO: (717) 249-3166 Daniel K. Deardorff, Esquire I.D. No. 17837 Trudy E. Fehlinger, Esquire I.D. No. 202753 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs MITCHELL AND WENDY DIVINEY, IN THE COURT OF COMMON PLEAS OF Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 200-7-- 60 CIVIL ACTION MAYTAG CORPORATION, JURY TRIAL DEMANDED COMPLAINT 1. Plaintiffs, Mitchell and Wendy Diviney, husband and wife, are adult individuals residing at 219 Carlisle Street, New Oxford, Adams County, Pennsylvania 17350. 2. Defendant, Maytag Corporation, has a place of business at 240 Edwards Street SE, Cleveland, Tennessee 37311. 3. Defendant Maytag Corporation (hereinafter referred to as "Maytag") is in the business of manufacturing household and commercial appliances and does business in Cumberland County, Pennsylvania. 4. Between the years of 1988 and 1991, Plaintiffs' purchased and had installed a used dryer that was manufactured by Defendant Maytag, Model Number DE 750, Serial Number 756780 MO. 5. On or about May 24, 2006, Plaintiffs' Maytag dryer caught fire and caused significant damage to Plaintiffs' residence and their personal belongings located at 219 Carlisle Street, New Oxford, Adams County, Pennsylvania. 6. As a result of the fire, Plaintiffs' incurred damages in the amount of $89,551.09. COUNTI NEGLIGENCE 7. Paragraphs 1 through 6 are incorporated by reference as if fully set forth herein. 8. It is believed, and therefore averred, that the dryer's blower housing and drying drum failed to rotate properly due to the absence of a broken belt switch in the original design of the dryer, thereby allowing for an intense concentration of heat in the blower housing and drying drum, which ignited nearby combustible materials. 9. The aforementioned fire was caused as a result of the defective condition of the dryer in that Defendant Maytag Corporation, among other things: a. Failed to manufacture the dryer so that it would not malfunction; b. Failed to manufacture the dryer so that it would not cause a fire; C. Failed to properly design the dryer as to prevent it from malfunctioning and damaging Plaintiffs' property; d. Failed to provide adequate warnings that the dryer could cause fire; e. Manufactured a defective product and sold it; f. Negligently manufactured and placed the dryer in the stream of commerce; and, g. Failed to include a broken belt switch in the design and manufacture of said dryer. 10. The dryer malfunctioned in the absence of any abnormal use. 11. Defendant Maytag's defective dryer was the direct and proximate cause of the damage to Plaintiffs' property. 12. The dryer was manufactured by Defendant Maytag Corporation. 13. The dryer was designed by Defendant Maytag Corporation. 14. The dryer was sold by Defendant Maytag Corporation. 15. It was expected that the dryer would reach consumers such as Plaintiffs. 16. The dryer reached Plaintiffs without substantial change in the condition in which it was sold. 17. But for the defective condition, design, and manufacturing of the dryer, it would not have failed to regulate the concentration of heat in the blower housing and drying drum, which subsequently caused a fire to occur in Plaintiffs' home. WHEREFORE, Plaintiffs demand judgment against Defendant Maytag Corporation in the amount of $89,551.09, plus costs, interest, and any other relief that the court deems appropriate. COUNT II BREACH OF EXPRESS WARRANTY 18. Paragraphs 1 through 17 are incorporated by reference as if fully set forth herein. 19. Defendant Maytag Corporation expressly warranted that their dryer would be safe and function properly. 20. Defendant Maytag Corporation breached its express warranty by failing to manufacture and design a dryer that would function properly and prevent an intense concentration of heat in the blower housing and drying drum. WHEREFORE, Plaintiffs demand judgment against Defendant Maytag Corporation in the amount of $89,551.09, plus costs, interest, and any other relief that the court deems appropriate. COUNT III BREACH OF IMPLIED WARRANTY 21. Paragraphs 1 through 20 are incorporated by reference as if fully set forth herein. 22. Defendant Maytag Corporation impliedly warranted that they manufactured and designed a dryer that would function properly and be safe. 23. Defendant Maytag Corporation breached its implied warranty by failing to manufacture and design a dryer that would function properly and prevent an intense concentration of heat in the blower housing and drying drum. WHEREFORE, Plaintiffs demand judgment against Defendant Maytag Corporation in the amount of $89,551.09, plus costs, interest, and any other relief that the court deems appropriate. MARTSON LAW OFFICES By: 914 v Daniel K. Deardorff, Esquir I.D. No. 17837 Trudy E. Fehlinger, Esquire I.D. No. 202753 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: January 22, 2008 Attorneys for Plaintiffs VERIFICATION The foregoing Complaint is based upon information which has been gathered by our counsel in the preparation of the lawsuit. The language of the document is that of counsel and not our own. We have read the document and to the extent that it is based upon information which we have given to counsel, it is true and correct to the best of our knowledge, information and belief. To the extent that the content of the document is that of counsel, we have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if we make knowingly false averments, we may be subject to criminal penalties. Mitchell Diviney Wendy Diviney F: \FILES\Clients\Donega13050\Cwrent\4430050.443.CoW laint.wpd Ql? j A A.. 0 F . SHERIFF'S RETURN - U.S. CERTIFIED MAIL CASE NO: 2008-00466 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DIVINEY MITCHELL ET AL VS. MAYTAG CORPORATION R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT MAYTAG CORPORATION _, by United States Certified Mail postage prepaid, on the 23rd day of January ,2008 at 1000:00 HOURS, at 240 EDWARDS STREET SE CLEVELAND, TN 37311 and attested copy of the attached COMPLAINT & NOTICE a true Together with The returned receipt card was signed by SIGNATURE ILLEGIBLE on 01/28/2008 Additional Comments: Sheriff's Costs: So answers: Docketing 18.00 -4` Service 5.96 R. Thomas=Xline Affidavit 00 Sheriff,'of Cumberland County Surcharge 10.00 33.96 V 210-110k Paid by MARTSON LAW OFFICES on 01/31/2008 Sworn and Subscribed to before me this day of A.D. %Kn 4 N R6d4ftdQ*WWY Y elndf, O Agerd ¦ P*ftyourn ?ara## dwMSS4int rrtafMrarf ?f so that we ostf retim'the ewd to you. ? C. Atb m h this and !o the bWk of the r> Woiom or on the f oW B op ma ponW& 1. Ar" Add Smmd tw. MaY?I a?i?MMras dbfar t ?orrr W YM edil obaiy ati has below D No Maytag Corporation 240 Edwards Str-t SE Cleland, TN 37311 I& I iNr`'l iob MIMIC Md Q t',I l UN ? R?gi " a C] Retard Rsov" for Mo dwKfse 0 kmxod and ? c.o.o. 4. RWAdabd L1eRvaryl (FX88 Fee) ? Yes 7005 2570 OUGO 3803 3102 08-466 civil PS Form 3811, F t3cMr»ara R?af+ Raatlpt 102595-024A-1540 01( `Y Timothy J. Nieman Pa. I.D. No. 66024 Jillian M. Petrosky Pa. I.D. No. 206510 Rhoads & Sinon LLP One South Market Square, 12th Flr. Harrisburg, PA 17108-1146 (717) 233-5731 Counsel for Defendant, Maytag Corporation MITCHELL and WENDY DIVINEY, Plaintiffs VS. MAYTAG CORPORATION Defendant To: Cumberland County Prothonotary } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA } CIVIL NO. 2008-466 NOTICE COMES NOW Maytag Corporation, Defendant in the case of "Mitchell and Wendy Diviney v. Maytag Corporation," Case No. 2008-466 Civil, pursuant to the provisions of 28 U.S.C. Section 1446(e), and files a copy of the Notice of Removal (attached hereto as Exhibit "A"), which Notice was been filed in the United States District Court for the Middle District of Pennsylvania, and docketed at 1:08-CV-312, on the 20th day of February, 2008. Dated: February 21, 2008 Respectfully submitted, RHOADS & SINON LLP By: ` k Ti othy J. Nieman P I.D. No. 66024 Jillian M. Petrosky Pa. I.D. No. 206510 One South Market Square Harrisburg, PA 17108-1146 (717) 233-5731 tnieman@rhoads-sinon.com jpetrosky@rhoads-sinon.com 680168.1 Tracey D. Knox David R. Pruitt Barnes & Thornburg LLP 600 First Source Bank Center 100 North Michigan Street South Bend, IN 46601 (574) 233-1171 -2- CERTIFICATE OF SERVICE I hereby certify that on this 21st day of February, 2008, a true and correct copy of the foregoing document was served by means of United States mail, first class, postage prepaid, upon the following: Daniel K. Deardorff, Esquire Trudy E. Fehlinger, Esquire Martson Deardorff Williams Otto Gilroy & Faller 10 East High Street Carlisle, PA 17013 11 K M. Petrosky EXHIBIT A 549937.1 X1544 (Rev. 12/07) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or otherpapers as required bylaw, except as provided by local rules of count. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) 1. (a) PLAINTIFFS Mitchell and Wendy Diviney (b) County of Residence of First Listed Plaintiff -Adams County, PA (EXCEPT IN U.S. PLAINTIFF CASES) (C) Attorney's (Finn Name, Address, and Telephone Number) Daniel K. Deardorff, Martson Law Offices, 10 East High Street, Carlisle, PA 17013; 717 243-3341 DEFENDANTS Maytag Corporation County of Residence of First Listed Defendant Bradley County, TN (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LANDINVOLVED. Attorneys (If Known) Timothy J. Nieman, Rhoads & Sinon LLP, One South Market II. BASIS OF JURISDICTION (Place an "x' in one Box only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Piace an "X" in One Box for Plaintiff O 1 U.S. Goverment O 3 Federal Question Plaintiff (U.S. Goverment Not a Party) 0 2 U.S. Goverment 19 4 Diversity Defendant (Indicate Citizenship of Parties in item III) O 110 lusutance O 120 Marine O 130 Miller Act O 140 Negotiable Instrument 0 150 Recovery of Overpayment & Enforcement ofJudgmen 0 151 Medicare Act O 152 Recovery of Defaulted Student Loans (Excl. Veterans) O 153 Recovery ofOvetpayment of Veteran's Benefits 0 160 Stockholders' Suits 0 190 Other Contract D 195 Contract Product Liability D 196 Franchise PERSONAL INJURY 0 310 Airplane 0 315 Airplane Product Liability 0 320 Assault, Libel & Slander 0 330 Federal Employers' Liability O 340 Marine 0 345 Marine Product Liability 0 350 Motor Vehicle 0 355 Motor Vehicle Product Liability 7 360 Other Personal (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF Citizen of This State 91 O 1 Incorporated or Principal Place O 4 04 of Business In This State Citizen of Another State D 2 O 2 Incorporated and Principal Place O 5 a 5 of Business In Another State Citizen or Subject of a O 3 0 3 Foreign Nation O 6 O 6 PERSONAL INJURY 0 362 Personal Injury - Med. Malpractice D 365 Personal Injury - Product Liability 0 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 0 370 Other Fraud 0 371 Truth in Lending 0 380 Other Personal Property Damage X 385 Property Damage Product Liability 0 210 Land Condemnation 0 220 Foreclosure O 230 Rent Lease & Ejectment 0 240 Torts to Land 0 245 Tort Product Liability 0 290 All Otter Real Property 0 441 Voting 0 442 Employment D 443 Housing/ Accommodations 0 444 Welfare 0 445 Amer. w/Disabtilities - Employment 0 446 Amer. w/Disabilities - Other 0 440 Other Civil Rights . 610 Agriculture 620 Other Food & Drug 625 Drug Related Seizure of Property 21 USC 881 630 Liquor Laws 640 R.R. & Truck 650 Airline Regs. 660 Occupational Safety/Health 690 Other Act D 720 Labor/Mgmt. Relations 0 730 Labor/Mgmt.Reportutg & Disclosure Act 0 740 Railway Labor Act 0 790 Other Labor Litigation 0 791 Empl. Ret. Inc. Security Act 0 463 Habeas Corpus - Alien Detainee 0 465 Other Immigration Actions 422 Appeal 29 USC 158 423 Withdrawal 28 USC 157 820 Copyrights 830 Patent 840 Trademark 861 HIA (139511) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI NORM) 870 Taxes (U.S. Plaintiff or Defendant) 871 IRS-Third Party 26 USC 7609 0 400 State Reapportionment 0 410 Antitrust 0 430 Banks and Banking 0 450 Commerce 0 460 Deportation 0 470 Racketeer Influenced and Corrupt Organizations 0 480 Consumer Credit 0 490 Cable/Sat TV 0 810 Selective Service 0 850 Securities/Comnioditmes/ Exchange 0 875 Customer Challenge 12 USC 3410 0 890 Other Statutory Actions 0 891 Agricultural Acts 0 892 Economic Stabilization Act 0 893 Environmeutal Matters 0 894 Energy Allocation Act 0 895 Freedom of Information Act 0 900Appeal of Fee Determination Under Equal Access to Justice 0 950 Constitutionality of State Statutes V. ORIGIN (Place an "X" in One Box Only) Appeal to District I Original 0 2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict 0 7 Judge from Proceeding State Court Appellate Court Reopened another district Litigation Magistrate (specify) Judgment VI. CAUSE OF ACTION VII. REQUESTED IN COMPLAINT: S Ci jl S I C ern, t p are 8f. T t cite jurisdictional statutes unless diversity): 510 Motions to Vacate Sentence Habeas Corpus: 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Condition amage/product liability CHECK IF THIS 1S A CLASS ACTION DEMANDS UNDER F.R.C.P. 23 89,551.09 CHECK YES only if demanded in complaint: JURY DEMAND: i g Yes O No VIII. RELATED CASE(S) IF ANY (See instructions): JUDGE DOCKET NUMBER DATE , SIGNATURE OF ATTORNEY OF RECORD /!t 2 - Z o - Oe p AMOUNT v APPLYI E MAG. JUDGE C! UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA MITCHELL and WENDY DIVINEY,) Plaintiffs ) vs. ) CIVIL NO. MAYTAG CORPORATION ) Defendant ) NOTICE OF REMOVAL Defendant Maytag Corporation ("Maytag") by and through its counsel Rhoads & Sinon LLP files this Notice of Removal of the civil action "Mitchell and Wendy Diviney vs. Maytag Corporation," to the United States District Court for the Middle District of Pennsylvania. In support, Maytag shows the Court: 1. Maytag is the defendant and Mitchell and Wendy Diviney ("Plaintiffs") are the plaintiffs in a lawsuit currently pending in the Court of Common Pleas, Cumberland County, Pennsylvania, Cause Number 2008-466 Civil ("the Lawsuit"). 2. This Notice is being filed within thirty days of Maytag's initial receipt of the Complaint filed by the Plaintiffs, in accordance with 28 U.S.C. § 1446. (A 680167.1 copy of the Plaintiffs' Complaint is attached hereto as Exhibit "A"). A copy of the initial pleading setting forth the claim for relief was first received by Maytag, by Sheriff, on January 30, 2008. The time for filing this Notice under the statutes of the United States does not expire until after February 29, 2008. 3. The Lawsuit is a civil action in which the Plaintiffs seeks monetary damages allegedly caused by a product manufactured by Maytag. 4. Maytag is a Delaware corporation with its principal place of business in Benton Harbor, Michigan. Therefore, Maytag is not a citizen of Pennsylvania. 5. Plaintiffs are citizens of Pennsylvania. 6. The Plaintiffs have alleged damages in excess of $75,000. 7. Under these circumstances, the Lawsuit could have been brought originally before this Court under 28 U.S.C. § 1332, by reason of the complete diversity of citizenship between the Plaintiffs and the Defendant and the amount in controversy. Further, pursuant to 28 U.S.C. § 1441(b), the Defendant is not a citizen of Pennsylvania, where the action was brought. The Lawsuit is therefore properly removed to this Court pursuant to 28 U.S.C. § 1441. 8. This Notice is accompanied by copies of all state-court process, pleadings, and orders served on, or filed by, Maytag in the Lawsuit. -2- 9. Shortly after this removal is docketed with the Court, Maytag will notify the State Court of the removal and file copies of this Notice with the State Court. 10. This Notice is signed in compliance with Rule 11 of the Federal Rules of Civil Procedure. WHEREFORE, Maytag notifies the court of the removal of this action from the Court of Common Pleas, Cumberland County, Pennsylvania. Respectfully submitted, RHOADS & SINON LLP By: /s/ Timothy J. Nieman Timothy J. Nieman Pa. I.D. No. 66024 Jillian M. Petrosky Pa. I.D. No. 206510 One South Market Square Harrisburg, PA 17108-1146 (717) 233-5731 tnieman@rhoads-sinon.com jpetrosky@rhoads-sinon.com Tracey D. Knox David R. Pruitt Barnes & Thornburg LLP 600 First Source Bank Center 100 North Michigan Street South Bend, IN 46601 (574) 233-1171 -3- CERTIFICATE OF SERVICE I hereby certify that on this 20th day of February, 2008, a true and correct copy of the foregoing document was served by means of United States mail, first class, postage prepaid, upon the following: Daniel K. Deardorff, Esquire Trudy E. Fehlinger, Esquire Martson Deardorff Williams Otto Gilroy & Faller 10 East High Street Carlisle, PA 17013 /s/ Jillian M. Petrosky Jillian M. Petrosky EXHIBIT A 549937.1 Jan 30 2008 10:02AM HP LASERJE7 FAX DATE MIMED JAN 3 0 2008 { LAW DEPARTMENT bmwit 1,.MW t0.10AM1 kmwd. Ir1." t:70PW Daniel K. Deardorff; Esquire I.D. No. 17837 Trudy E. Fehlinger, Esquire -C, I.D. No. 202753 .:. a-- RIM MARTSON DEARDORFF WILLIAMS O TTO GILROY & FALLER a ` N E3 MARTSON LAW OFFICES no (r 20 East High Street " r Carlisle, PA 17013 L. CZ) rh (717) 243-3341 N Attorneys for Plaintiffs MITCHELL AND WENDY DIVINEY, : IN THE COURT OF COMMON PI,,EAS OF „ Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA V. . No. 2W d DO g - yG 6 G!-Jt : CIVIL ACTION MAYTAG CORPORATION, JURY TRIAL DEMANDED 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 ifyou fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street ? Carlisle, PA 17013 < ::k?.. rt•?J (717) 249-3166 '0 YC5t1lOflV 'i3":i'. !3k lih 1'+k f i:?: EXHIBIT Q Jan 30 2008 10:02RM HP LRSERJET FRX Daniel K. Deardorff, Esquire I.D. No. 17837 Trudy E. Fehlinger, Esquire I.D. No. 202753 MARTSON DEARDORFF WI .LIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs p.3 MITCHELL AND WENDY DMNEY, Plaintiffs V. MAYTAG CORPORATION, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0.288:7- '1W?-- ? G4 c 1, _ CIVIL ACTION : JURY TRIAL DEMANDED VISO PARA DEFENDER • USTED HA SIDO DEMANDADO/A EN LA CORTE. Si usted desea defender conta la demanda puestas an las siguientes piginas, usted tienen qua tomar accibn dentro veinte (20) dias despuds qua esta Demanda y Aviso as servido,.con entrando por escrito una aparencia personalmente o por un abodgado y archivanco por escrito con la Corte sus defenses o objeciones a las demandas puestas en esta contra ustaL Usted as advertido qua si falls, de hacerlo el case puede proceder sin usted y un jazgamiento puede ser entrado contra usted por la Corte sin mas aviso por cualquier dinero reclamado en la Demanda o por cualqui er otro reclamo o alivio solicitado por Dernandante. Usted puede perder dinero o prapiedad o otros derechos irnportante para usted. USTEDDEBELLEVARESTEPAPELASUABOGADOENSEGUIDA. SIUSTEDNO TIENE UN ABOGADO, VAYA 0 LLAME POR TELEFONO LA OFICINA FITADA AQUf ABAJO. ESTAOFICINAPUEDEPROVEERECONINFORMACIONDECOMOCONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGARLE A UN ABOGADO, ASTA OFICINA PUEDE PROVEERA INFORMACI6N ACERCA AGENCIAS QUE PUEDAN OFRECER SERVICIOS LEGAL A PERSONAS ELIGIBLE AQ UN HONORARIO REDUCIDO O GRATIS. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 TELAFONO: (717) 249-3166 Jan 30 2008 10:02RM HP LRSERJET FRX Daniel K. Deardorff, Esquire I.D. No. 17837 Trudy F? Fehlinger, Esquire I.D. No. 202753 MARTSON DEARDORFF WILLIAMS OTTO GMROY & FALLER MARTSON LAW OFFICES 10 East Frigh Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs MITCHELL AND WENDY DIVINEY, : IN THE COURT OF COMMON PLEAS OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA V. NO.2w. Aw i' - 1-1G6 c-v% 1 4v-r- CML ACTION MAYTAG CORPORATION, JURY TRIAL DEMANDED COMPLAINT 1. Plaintiffs, Mitchell and Wendy Diviney, husband and wife, are adult individuals residing at 219 Carlisle Street, Now Oxford, Adams County, Pennsylvania 17350. 2. Defendant, Maytag Corporation, has a place of business at 240 Edwards Street SE, Cleveland, Tennessee 37311. 3. Defendant MaytagCorporation(hereinafterref=rdtoas'lyiaytag'Iisinthebusiness of manufacturing household and commercial appliances and does business in Cumberland County, Pennsylvania. 4. Between the years of 1988 and 1991, Plaintiffs' purchased and had installed a used dryer that was manufactured by Defendant Maytag, Model Number DE 750, Serial Number 756780 MO. 5. On or about May 24, 2006, Plaintiffs' Maytag dryer caught fire and caused significant damage to Plaintiffs' residence and their personal belongings located at 219 Carlisle Street, New Oxford, Adams County, Pennsylvania. 6. As a result of the fire, Plaintiffs' incurred damages in the amount of 589,551.09. Jan 30 2008 10:02AM HP LRSERJET FAX NEGLIGENCE COUNT I 7. Paragraphs 1 through 6 are incorporated by reference as if fully set forth herein. 8. It is believed, and therefore averred, that the dryer's blower housing and drying drum failed to rotate properly due to the absence of a broken belt switch in the original design of the dryer, thereby allowing for an intense concentration of heat in the blower housing and drying drum, which ignited nearby combustible materials. 9. The aforementioned fim was caused as a result ofthe defective condition ofthe dryer in that Defendant Maytag Corporation, among other things: a. Failed to manufacture the dryer so that it would not malfunction; b. Failed to manufacture the dryer so that it would not cause a fire; C. Failed to properly design the dryer as to prevent it from malfunctioning and damaging Plaintiff's' property; d. Failed to provide adequate warnings that the dryer could cause fire; e. Manufactured a defective product and sold it; f. Negligently manufactured and placed the dryer in the stream of commerce; and, r g. Failed to include a broken belt switch in the design and manufacture 'of said dryer. 10. The dryer malfunctioned in the absence of any abnormal use. 11. Defendant Maytag's defective dryer was the direct and proximate cause ofthe damage to PIainiffs' property. 12. The dryer was manufactured by Defendant Maytag Corporation. 13. The dryer was designed by Defendant Maytag Corporation. 14. The dryer was sold by Defendant Maytag Corporation. 15. It was expected that the dryer would reach consumers such as Plaintiffs. 16. The dryer reached Plaintiffs without substantial change in the condition in which it was sold. 17. But for the defective condition, design, and manufacturing of the dryer, it would not have failed to regulate the concentration of heat in the blower housing and drying drum, which subsequently caused a fire to occur in Plaintiffs' home. Jan 30 2008 10:03RM HP LRSERJET FRX p.6 WHEREFORE, Plaintiffs demand judgment against Defendant Maytag Corporation in the amount of $89,551.09, plus costs, interest, and any other relief that the court deems appropriate. COUNT BREACH OF EXPRESS WARRANTY 18. Paragraphs 1 through 17 are incorporated by reference as if fully set forth herein. 19. Defendant Maytag Corporation expresslywarranted thattheirdryerwouldbe safe and function properly. 20. Defendant Maytag Corporation breached its express warranty by failing to manufacture and design a dryer that would function properly and prevent an intens a concentration of heat in the blower housing and drying drum. WHEREFORE, Plaintiffs demand judgment against Defendant Maytag Corporation in the amount of $89,551.09, plus costs, interest, and any other relief that the court deems appropriate. COUNT III BREACH OF IMPLIED WARRANTY 21. Paragraphs 1 through 20 are incorporated by reference as if fully set forth herein. 22. Defendant Maytag Corporation impliedly wan-anted that they manufactured and designed a dryer that would function properly and be safe. 23. Defendant Maytag Corporation breached its implied warranty by failing to manufacture and design a dryer that would function properly and prevent an intense concentration of heat in the blower housing and drying drum. WHEREFORE, Plaintiffs dernand judgment against Defendant Maytag Corporation in the amount of $89,551.09, plus costs, interest, and any other relief that the court deems appropriate. MARTSON LAW OFFICES Y? Daniel K. Deardorff, Esquii I.D. No. 17837 Trudy E. Fehlinger, Esquire I.D. No. 202753 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: January 22, 2008 Attorneys for Plaintiff's Jan 30 2008 10:04RM HP LRSERJET FRX p.7 L"` The foregoing Complaint is based upon information which has been gathered by our counsel in the preparation of the lawsuit. The language of the document is that of counsel and not our own We have read the document and to the extent that it is based upon information which we have given to counsel, it is true and correct to the best of our knowledge, information and belief. To the extent that the content of the document is that of coumsel, we have relied upon counsel in making this verification: This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities, which provides that if we make knowingly false averments, we may be subject to criminal penalties. f J Mitchell Diviney Wendy Diviney ~p ^T"I