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HomeMy WebLinkAbout08-5118COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE EXCHANGE a/s/o Thomas Dunleavy 4901 Louise Drive Mechanicsburg, PA 17055 CIVIL ACTION Plaintiff, No. V. JURY TRIAL DEMANDED FLUIDMASTER, INC. : 30800 Rancho Viejo Road San Juan Capistrano, CA 92675 Defendant. PRAECIPE FOR A WRIT OF SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Please issue summons in the above case. X Writ of Summons shall be issued and forwarded to the Attorney. Respectfully sub ed LAW OFF S F gy r A MICPYAEL J.`HpPI Attorney I.D. If. Date: August , 2008 Counsel for Erie Insurance Company a/s/o Thomas Dunleavy 501 Office Center Drive, Suite 300 Ft. Washington, PA 19034 Tel: (215) 283-1177 Fax: (215) 283-1188 Email: hopkinsm@stutmanlaw.com C= vt ? L..: Q C'f'7 r COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ERIE INSURANCE EXCHANGE a/s/o Thomas Dunleavy 4901 Louise Drive Mechanicsburg, PA 17055 Plaintiff, V. ; FLUIDMASTER, INC. 30800 Rancho Viejo Road San Juan Capistrano, CA 92675 Defendant. CIVIL ACTION No. jB -T11 B l.'cuc.C-7l JURY TRIAL DEMANDED WRIT OF SUMMONS TO: FLUIDMASTER, INC. 30800 RANCHO VIEJO ROAD SAN JUAN CAPISTRANO, CA 92675 You are hereby notified that ERIE INSURANCE EXCHANGE a/s/o THOMAS DUNLEAVY, the Plaintiff has commenced an action against you. Date: August ?, 2008 I'l-11.1it?1Z Pro onotary COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE EXCHANGE a/s/o Thomas Dunleavy 100 Erie Insurance Place, Erie, PA 16530-0001 Plaintiff, No. 08-5118 Civil Term V. JURY TRIAL DEMANDED FLUIDMASTER, INC. 30800 Rancho Viejo Road San Juan Capistrano, CA 92675 Defendant. PRAECIPE TO REISSUE WRIT OF SUMMONS TO THE PROTHONOTARY: Please re-instate the attached WRIT in the above matter. LAW OFFICE$ Of, ROBERT A. 5TUTMAN, P.C. By: Attorney Dated: October / , 2008 n ? P ?' D N °m c? j^T'k COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA ERIE INSURANCE EXCHANGE a/s/o Thomas Dunleavy 4901 Louise Drive Mechanicsburg. PA 17055 CIVIL ACTION Plaintiff. No. ?8 tr l v?? ` V. JURY TRIAL DEMANDED FLUIDMASTER, INC. 30800 Rancho Viejo Road San Juan Capistrano, CA 92675 Defendant. PRAECIPE FOR A WRIT OF SUMMONS ;T- - "I TO THE PROTHONOTARY/CLERK OF SAID COURT: Please issue summons in the above case. X Writ of Summons shall be issued and forwarded to the Attorney. Respectfully submt;tted. ' LAW' OFFI FS OF CABER A - ??ft? N PC MICWA5L J.' H PKIN?/ Attornev I.D. NA. 880810 Counsel fir Erie Insurance Compan.v as o Thomas Dunlearv 501 Office Center Drive. Suite 300 Ft. W'ashinaton. PA 19034 Tel: (315)283-1177 Fax: (215)283-1188 Email: hopkinsm u: stutmanlaw.com Date: AuW_ust .21008 I . % COMMONw'EALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ERIE INSURANCE EXCHANGE a's.'o Thomas Dunleavy 4901 Louise Drive Mechanicsburz. PA lMi CIVIL ACTION Plaintiff: No. p -sS"?? L."t v ?C,?j'?? V. JURY TRIAL. DEMANDED FLUIDMASTER. INC. 30800 Rancho Viejo Road San Juan Capistrano. CA 91-675 Defendant. WRIT OF SUNIMONS TO: FLUID-IASTER, INC. 30800 RANCHO VIEJO ROAD SAN JUAN CAPISTRANO, CA 92675 You are hereby notified that ERIE INSURANCE EXCHANGE a/sio THOMAS DI;NLEAVY. the Plaintiff has commenced an action against N•ou. Date: Auk=ust 2L,2_. 2008 Prot onotari , ` COURT OF COMMON PLEAS, • CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE EXCHANGE a/s/o Thomas Dunleavy 100 Erie Insurance Place, Erie, PA 16530-0001 Plaintiff, No. 08-5118 Civil Term V. FLUIDMASTER, INC. 30800 Rancho Viejo Road San Juan Capistrano, CA 92675 Defendant. JURY TRIAL DEMANDED 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 AN 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 CLAA ED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IlOORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE EXCHANGE a/s/o Thomas Dunleavy 100 Erie Insurance Place, Erie, PA 16530-0001 Plaintiff, No. 08-5118 Civil Term V. FLUIDMASTER, INC. 30800 Rancho Viejo Road San Juan Capistrano, CA 92675 Defendant. JURY TRIAL DEMANDED CIVIL ACTION COMPLAINT The Plaintiff, Erie Insurance Exchange a/s/o Thomas Dunleavy, by and through their counsel, LAW OFFICES OF ROBERT A. STUTMAN, P.C., hereby allege as follows: Plaintiff, Erie Insurance Company a/s/o Thomas Dunleavy, is a corporation organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania with its principal place of business at 100 Erie Insurance Place, Erie, Pennsylvania, 16530-0001. 2. Defendant, Fluidmaster, Inc., is a corporation organized and existing under and by virtue of the laws of the state of California with its principal place of business located at 3080 Rancho Viejo Road, San Juan Capistrano, California 92675. 3. Prior to October 24, 2006, a ballcock valve assembly, Model 400A, manufactured by defendant, Fluidmaster, Inc., was installed at the home of Thomas Dunleavy at 1700 Kathryn Street, New Cumberland, Pennsylvania, 17070-1167. 4. Ballcock valve assemblies are toilet valves found inside the toilet tank which control the flow of water. 5. Ballcock valve assembles such as the one installed in the Dunleavy home are typically constructed of plastic. 6. On or before October 24, 2006, the ballcock valve assembly failed causing water damage to the real and personal property of Thomas Dunleavy. 7. At all times relevant hereto, Plaintiff, Erie Insurance Company, (hereinafter referred to as "Erie") engaged in the business, among other areas, of underwriting property and casualty insurance, and was authorized to conduct business within the Commonwealth of Pennsylvania. 8. At all times relevant hereto, Erie issued a policy of insurance to Thomas Dunleavy that covered the real and personal property located at 1700 Kathryn Street, New Cumberland, Pennsylvania 17070. 9. As a result of the water damage to Mr. Dunleavy's real and personal property, plaintiff, Erie, has made certain payments to Mr. Dunleavy in accordance with its homeowner's policy with its insured. 10. By virtue of the aforesaid obligations, Erie is equitably and contractually subrogated to the rights of its insured to the extent of payments made, or that will be made. 2 COUNTI STRICT LIABILITY (PLAINTIFF v. FLUIDMASTER, INC.) 11. Plaintiff incorporates by reference all preceding paragraphs of this Complaint the same as if fully set forth hereinafter. 12. Plaintiff avers that defendant, Fluidmaster, Inc., by and through its agents, servants, workers, contractors, designers, assemblers, manufacturers, sellers, suppliers, and distributors is strictly liable under § 402 A of the Restatement of the Law of Torts (Second) because: (a) Defendant is engaged in the business of designing, manufacturing, assembling, distributing, selling and/or supplying ballcock valve assemblies; (b) The ballcock valve assembly involved in Mr. Dunleavy's loss was marketed and placed in the general stream of commerce by the defendant; (c) Said ballcock valve assembly was expected to and did reach users, including Mr. Dunleavy in the condition in which it was designed, manufactured, assembled, distributed, and/or sold; and (d) Said ballcock valve assembly was designed, marketed, manufactured, assembled, distributed and/or sold in a defective condition for the reasons set forth in the paragraph below. 13. Plaintiff, Erie avers that defendant, Fluidmaster, Inc., by and through its agents, servants, workers, contractors, designers, assemblers, manufacturers, sellers, suppliers, and distributors is strictly liable under § 402 A of the Restatement of Law of Torts (Second) by: (a) designing, assembling, manufacturing, selling, supplying and distributing a product in a defective condition; (b) designing, assembling, manufacturing, selling, supplying and distributing a product that was unreasonably dangerous to its intended and foreseeable users; (c) designing, assembling, manufacturing, selling, supplying and distributing a product that was not safe for all of its intended and representative purposes; (d) failing to have adequate warnings on the product; (e) failing to provide adequate warnings to the ultimate user of the product; (f) failing to have proper instructions with the product; (g) failing to provide adequate instructions to the ultimate user of the product; (h) designing, assembling, manufacturing, selling, supplying and distributing a product that lacked all the necessary safety features to protect users of said product; (i) failing to either know of prior accidents and property damage with respect to the product and/or failing to correct and prevent the same and/or substantially similar accidents from the reoccurring; 0) designing, assembling, manufacturing, selling, supplying and distributing a product that was prone to failure; (k) failing to adequately and properly test the product after its design and/or assembly; (1) failing to investigate, retain and analyze prior accident information; (m) failing to insure that the ultimate users were advised of the dangers and limitations of said product and how to use the product safely to avoid property damage; 4 (n) designing, assembling, manufacturing, selling, supplying and distributing a ballcock valve assembly which was prone to degradation when exposed to chlorine; (o) failing to warn the ultimate users of the ballcock valve assembly that the product was prone to degradation when exposed to chlorine; (p) failing to consider that the ballcock valve assembly was prone to degradation when exposed to chlorine; (q) failing to consider the fact that chlorine is a common additive to municipal water supplies; (r) failing to warn the ultimate users of the product that the product could not be used safely if the municipal water supply in the area in which the product was used was chlorinated; and (s) by conducting themselves aforesaid, defendant's actions and/or inactions were substantial factors and/or the proximate cause of damage to the plaintiff. 14. By reason of the breach of the duties pursuant to § 402 A of the Restatement of The Law of Torts (Second) of defendant, Fluidmaster, by and through its agents, servants, workmen, contractors, distributors, and/or employees as aforesaid, Plaintiff, Erie, sustained damages in the amount of $154,549.07. WHEREFORE, Plaintiff, Erie, claim of defendant, Fluidmaster, a sum in excess of $150,000.00 in damages, exclusive of interest, costs, damages for delay, pursuant to Pa. R.C.P. 238, and attorneys' fees and brings this action to recover the same. 5 COUNT II NEGLIGENCE (PLAINTIFF v. FLUIDMASTER, INC.) 15. Plaintiff incorporates herein by reference all preceding paragraphs of this Complaint, the same as if fully set forth hereinafter. 16. Plaintiff avers that defendant, Fluidmaster, by and through its agents, servants, workmen, contractors, designers, assemblers, manufacturers, sellers, suppliers and distributors was careless and negligent by: (a) designing, assembling, manufacturing, selling, supplying and distributing a product in a defective condition; (b) designing, assembling, manufacturing, selling, supplying and distributing a product that was unreasonably dangerous to its intended and foreseeable users; (c) designing, assembling, manufacturing, selling, supplying and distributing a product that was not safe for all of its intended and representative purposes; (d) failing to have adequate warnings on the product; (e) failing to provide adequate warnings to the ultimate user of the product; (f) failing to have proper instructions with the product; (g) failing to provide adequate instructions to the ultimate user of the product; (h) designing, assembling, manufacturing, selling, supplying and distributing a product that lacked all the necessary safety features to protect users of said product; (i) failing to either know of prior accidents and property damage with respect to the product and/or failing to correct and prevent the same and/or substantially similar accidents from the reoccurring; 6 0) designing, assembling, manufacturing, selling, supplying and distributing a product that was prone to failure; (k) failing to adequately and properly test the product after its design and/or assembly; (1) failing to investigate, retain and analyze prior accident information; (m) failing to insure that the ultimate users were advised of the dangers and limitations of said product and how to use the product safely to avoid property damage; (n) designing, assembling, manufacturing, selling, supplying and distributing a ballcock valve assembly which was prone to degradation when exposed to chlorine; (o) failing to warn the ultimate users of the ballcock valve assembly that the product was prone to degradation when exposed to chlorine; (p) failing to consider that the ballcock valve assembly was prone to degradation when exposed to chlorine; (q) failing to consider the fact that chlorine is a common, additive to municipal water supplies; (r) failing to warn the ultimate users of the product that the product could not used safely if the municipal water supply in the area in which the product was used was chlorinated; and (s) by conducting themselves aforesaid, defendant's actions and/or inactions were substantial factors and/or the proximate cause of damage to the plaintiff. 17. By reason of the carelessness and negligence of defendant, Fluidmaster, Inc., as aforesaid, plaintiff, Erie, suffered the damages previously set forth in this Complaint. 7 WHEREFORE, Plaintiff, Erie, claims of defendant, Fluidmaster, a sum in excess of $150,000.00 in damages, exclusive of interest, costs, damages for delay, pursuant to Pa. R.C.P. 238, and attorneys' fees and brings this action to recover the same. COUNT III BREACH OF WARRANTY (PLAINTIFF v. FLUIDMASTER, INC.) 18. Plaintiff incorporates herein by reference all preceding paragraphs of this Complaint, the same as if fully set forth hereinafter. 19. With the provision of the ballcock valve assembly to customers and end users such as Mr. Dunleavy, the defendant, Fluidmaster, has impliedly warranted that the valve is appropriate for controlling water flow to the toilet. 20. Mr. Dunleavy relied upon the skilled judgment of defendant, Fluidmaster, to supply a suitable ballcock valve assembly for that purpose. 21. The defendant placed into the stream of commerce, and otherwise furnished the ballcock valve assembly defective in design and/or manufacture, and without appropriate warnings and instructions breaching the implied warranty of merchantability, and the implied warranty of fitness for a particular purpose. 22. With the provision of ballcock valve assembly, the defendant also makes certain express warranties that the product would be safe for its intended use, including controlling water flow to the toilet to prevent water damage to real and personal property residents. 23. By furnishing the ballcock valve assembly, defective in design and/or manufacture, and lacking any appropriate instructions and warnings, the defendant also breached this expressed warranty. 8 24. As a direct and proximate result of the defendant's breach of the aforesaid warranties, the plaintiff sustained the damages previously set forth in this Complaint. WHEREFORE, Plaintiff, Erie Insurance Company, claim of defendant, Fluidmaster, a sum in excess of $150,000.00 in damages, exclusive of interest, costs, damages for delay, pursuant to Pa. R.C.P. 238 and attorneys' fees and brings this action to recover the same. Respectfully submitted, LAW OFFICES OF ROBERT 4[. STUTMAN, PC By AttomeyY.D. Nd. 88080 Counsel for Erie Insurance Company a/s/o Thomas Dunleavy 501 Office Center Drive, Suite 300 Ft. Washington, PA 19034 Tel: (215) 283-1177 Fax: (215) 283-1188 Email: hopkinsm@stutmanlaw.com 9 olol 7 o Y, ?yo ?/ Defendant. VERIFICATION FRANCES M. GUILLEMETTE, a representative of ERIE INSURANCE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE EXCHANGE a/s/o Thomas Dunleavy 4901 Louise Drive Mechanicsburg, PA 17055 CIVIL ACTION V. Plaintiff, No. 08-5118 Civil Term JURY TRIAL DEMANDED FLUIDMASTER, INC. 30800 Rancho Viejo Road San Juan Capistrano, CA 92675 GROUP, is acquainted with the facts set forth in the foregoing Complaint-Civil Action; that the same are true and correct to the best of his knowledge, information and belief, and that this statement is made subject to the penalties of 18 Pa. C.S.§4904 relating to unsworn falsification to authorities. FRANCIS M. GUILLEMETTE Date: ?=?Op C.3 i 5 - n , RECEIVED SEP 2 9 710A COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE EXCHANGE a/s/o Thomas Dunleavy CIVIL ACTION Plaintiff, No. 08-5118 Civil Term V. JURY TRIAL DEMANDED FLUIDMASTER, INC. Defendant. AFFIDAVIT OF SERVICE Attached hereto is the Acceptance of Service of the Writ of Summons signed by Jeffrey M. Thomen, Esquire, in the above-captioned matter on behalf of Defendant, Fluidmaster, Inc. LAW OFFICES OF R,QBERT A. SY(JTMAN, P.C. By Date: October 76 , 2008 N UCHAEL O'P 9-r- Attorney I. o. 8 80 Counsel for Erie Insurance Company a/s/o Thomas Dunleavy 501 Office Center Drive, Suite 300 Ft. Washington, PA 19034 Tel: (215) 283-1177 Fax: (215) 283-1188 Email: hopkinsm@stutmanlaw.com P COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE EXCHANGE a/s/o Thomas Dunleavy 4901 Louise Drive Mechanicsburg, PA 17055 CIVIL ACTION Plaintiff, No. 08-5118 Civil Term V. FLUIDMASTER, INC. 30800 Rancho Viejo Road San Juan Capistrano, CA 92675 Defendant. JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I accept service of the Writ of Summons on behalf of Defendant, Fluidmaster, Inc. and certify that I am authorized to do so. Dated: IvI2410i By: Je y M. Thomen, Esquire On behalf of Defendant, Fluidmaster, Inc. ', c.? c?c ??,,? °,, S ? ??.? _ . wY , r COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE EXCHANGE a/s/o Thomas Dunleavy CIVIL ACTION Plaintiff, No. 08-5118 Civil Term V. JURY TRIAL DEMANDED FLUIDMASTER, INC. Defendant. CERTIFICATE OF SERVICE I, MICHAEL J. HOPKINS, ESQUIRE, hereby CERTIFIES, that the AFFIDAVIT OF SERVICE was filed with the Court and forwarded by US Mail/Postage Prepaid to counsel below: Jeffrey M. Thomen, Esquire McCarter & English LLP City Place 1 185 Asylum Street Hartford, CT 06103 LAW By ROBEF,'VA.,$TUTMAN, P.C. . HOPKINS DATED: October 750 , 2008 r d.: - `1 co ? To Plaintiff: You are hereby noted to plead to the enclosed New Matter within twenty (20) days of service thereof or a default judgment may be entered against you. Barbara K. Gotthelf McCARTER & ENGLISH, LLP By: Barbara K. Gotthelf Kari B. Samuels Identification Nos. 53832, 88512 Mellon Bank Center 1735 Market Street Suite 700 Philadelphia, PA 19103 215-979-3800 ERIE INSURANCE EXCHANGE A/S/O THOMAS DUNLEAVY vs. Plaintiffs FLUIDMASTER, INC. Defendants Attorneys for Defendant, Fluidmaster, Inc. CUMBERLAND COUNTY COURT OF COMMON PLEAS Civil Term No. 08-5118 DEFENDANT FLUIDMASTER, INC.'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT Defendant Fluidmaster, Inc., ("Fluidmaster") by and through its counsel, answers the Plaintiff's Complaint (the "Complaint") as follows: PARTIES Paragraph 1 of the Complaint contains allegations regarding a party other than Defendant to which no response is required. To the extent that a response is required, Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in this paragraph, and they are therefore deemed denied. 1 ME1 788096]v.1 2. Admitted. 3. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in this paragraph, and they are therefore deemed denied. Strict proof is demanded. 4. Defendant admits ballcock valve assemblies are mechanisms used for filling water tanks, such as those found in flush toilets. As to the remaining allegations of this paragraph, defendant lacks sufficient knowledge or information to form a belief, and they are therefore denied. 5. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations regarding the construction of any alleged ballcock valve assembly in the Dunleavy home, and they are therefore deemed denied. 6. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in this paragraph, and they are therefore deemed denied. Strict proof is demanded. 7. Paragraph 7 of the Complaint contains allegations regarding a party other than Defendant to which no response is required. To the extent that a response is required, Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in this paragraph, and they are therefore deemed denied. 8. Paragraph 8 of the Complaint contains allegations regarding a party other than Defendant to which no response is required. To the extent that a response is required, Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in this paragraph, and they are therefore deemed denied. 2 ME] 7880961v.1 9. Paragraph 9 of the Complaint contains allegations regarding a party other than Defendant to which no response is required. To the extent that a response is required, Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in this paragraph, and they are therefore deemed denied. 10. The allegations in this paragraph constitute conclusions of law, and no answer is required. To the extent an answer is required, Defendant denies the allegations. COUNT I: STRICT LIABILITY 11. Defendant incorporates by reference its responses in all preceding paragraphs. 12. (a) - (d) The allegations in this paragraph constitute conclusions of law, and no answer is required. To the extent an answer is required, Defendant admits only that it is engaged in the business of designing, manufacturing, assembling, distributing, selling and/or supplying ballcock valve assemblies. The remaining allegations of this paragraph are denied. 13. (a) - (s) The allegations in this paragraph constitute conclusions of law, and no answer is required. To the extent an answer is required, Defendant denies the allegations. 14. The allegations in this paragraph constitute conclusions of law, and no answer is required. To the extent an answer is required, Defendant denies the allegations. WHEREFORE, Defendant Fluidmaster, Inc. demands judgment in its favor and against Plaintiff. ME] 7880961v.1 COUNT II: NEGLIGENCE 15. Defendant incorporates by reference its responses in all preceding paragraphs. 16. (a) - (s) The allegations in this paragraph constitute conclusions of law, and no answer is required. To the extent an answer is required, Defendant denies the allegations. IT The allegations in this paragraph constitute conclusions of law, and no answer is required. To the extent an answer is required, Defendant denies the allegations. WHEREFORE, Defendant Fluidmaster, Inc. demands judgment in its favor and against Plaintiff. COUNT III: BREACH OF WARRANTY 18. Defendant incorporates by reference its responses in all preceding paragraphs. 19. The allegations in this paragraph constitute conclusions of law, and no answer is required. To the extent an answer is required, Defendant denies the allegations. 20. Denied. 21. The allegations in this paragraph constitute conclusions of law, and no answer is required. To the extent an answer is required, Defendant denies the allegations. 22. The allegations in this paragraph constitute conclusions of law, and no answer is required. To the extent an answer is required, Defendant denies the allegations as Plaintiff fails to attach or set forth the language of the alleged express warranties. 23. The allegations in this paragraph constitute conclusions of law, and no answer is required. To the extent an answer is required, Defendant denies the allegations. 4 ME 1 7880961v.1 24. The allegations in this paragraph constitute conclusions of law, and no answer is required. To the extent an answer is required, Defendant denies the allegations. WHEREFORE, Defendant Fluidmaster, Inc. demands judgment in its favor and against Plaintiff. NEW MATTER The Complaint, in whole or part, fails to state a claim or cause of action against Defendant upon which relief can be granted. 2. The doctrine of spoliation and the failure to properly preserve evidence necessary to the determination of the alleged claims bar Plaintiff s claims against Defendant in whole or in part. Applicable statutes of limitations, statute of repose, and the doctrine of laches bar Plaintiff's claims in whole or in part. 4. The misuse or abnormal use of the product or failure to follow instructions by Plaintiff, its insured or their agents bars Plaintiff s claims in whole or in part. 5. If Plaintiff used a product sold by Defendant, then Plaintiff's claims are barred, in whole or in part, because Plaintiff assumed the risks disclosed by the product labeling or by other persons or entities. 6. Any alleged negligent or culpable conduct of Defendant, none being admitted, was so insubstantial as to be insufficient to be a proximate or substantial contributing cause of Plaintiff's alleged damages. 7. Plaintiff's claims are barred, in whole or in part, because the products at issue were designed, manufactured, marketed and labeled with proper warnings, 5 ME] 7880961v.1 information, cautions and instructions, in accordance with the state of the art and the state of scientific and technological knowledge. 8. Plaintiffs claims are barred, in whole or in part, because Plaintiff's damages, if any, were the result of conduct of Plaintiff, independent third parties and/or events that were extraordinary under the circumstances, not foreseeable in the normal course of events and/or independent, intervening and superseding causes of the alleged damages. 9. If Plaintiff suffered damages as alleged, which is denied, such damages resulted from acts or omissions of persons or entities for which Defendant is neither liable nor responsible or resulted from causes that are not related or connected with any product sold, distributed, or manufactured by Defendant. Such acts or omissions on the part of other persons or entities and/or such causes constitute an independent, intervening and sole proximate causes of Plaintiff's alleged damages. 10. If Plaintiff sustained any damages, which is specifically denied, such damages or injuries were caused by the acts, omissions or fault of Plaintiff or others, for whose conduct Defendant is not responsible; accordingly, Defendant is entitled to an assessment of the relative degree of fault for all such other persons and entities. 11. Plaintiff failed to mitigate damages, which limits Plaintiff's recovery, if any, in whole or in part. 12. Defendant made no warranties of any kind, express or implied, or any representations of any nature whatsoever to Plaintiff. If any such warranties were made, whether express or implied, which Defendant specifically denies, then Plaintiff failed to 6 ME1 7880961v.1 give notice of any breach thereof. Plaintiff also failed to attach any express warranty to the Complaint as required under the Pennsylvania Rules of Civil Procedure. 13. Plaintiff s recovery, if any, shall be reduced by those payments that Plaintiff received from collateral sources. 14. If Plaintiff used a product sold by Defendant, at the time the product left Defendant's custody and control, there was no defect in said product that either caused or contributed to Plaintiff's damages, if any. 15. The applicable state law bars Plaintiff's alleged claims for attorneys' fees. 16. Defendant hereby gives notice that it intends to rely upon such other defenses as may become available or apparent during the course of discovery and thus reserve their right to amend this Answer to assert such defenses. WHEREFORE, Defendant Fluidmaster, Inc. demands judgment in its favor and against Plaintiff, dismissing Plaintiffs Complaint with prejudice, together with the costs of suit and such other relief as the Court deems equitable and just. Dated: November 12, 2008 Respectfully submitted, MCCARTER & ENGLISH, UP L?? -4t 1 Barbara K. Gotthelf, I.D. No. A32 Kari B. Samuels, I.D. No. 88512 McCarter & English, LLP Mellon Bank Center 1735 Market Street, 7th Floor Philadelphia, PA 19103 Tel.: (215) 979-3836 Fax: (215) 988-4308 ATTORNEYS FOR DEFENDANT FLUIDMASTER, INC. 7 ME1 7880961v.1 VERIFICATION I, Barbara K. Gotthelf, attorney for defendant Fluidmaster, Inc., verify on its behalf that the statements made in Defendant Fluidmaster, Inc.'s Answer with New Matter to Plaintiff's Complaint are true and correct to the best of my knowledge, information and belief. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Barbara K. Gott elf r- DATED: November 12, 2008 ME] 7880961 v.1 8 CERTIFICATE OF SERVICE I hereby certify that on November 12, 2008, a copy of Defendant Fluidmaster, Inc.'s Answer with New Matter to Plaintiff s Complaint has been served upon the following by regular mail: Michael J. Hopkins, Esquire LAW OFFICES OF ROBERT A. STUTMAN, P.C. 501 Office Center Drive, Suite 300 Ft. Washington, PA 19034 BY: Bar ara K. Gotthelf ME1 7880961 v.1 9 T W n' -:, vlr'cr I McCARTER & ENGLISH, LLP By: Barbara K. Gotthelf Kari B. Samuels Identification Nos. 53832, 88512 Mellon Bank Center 1735 Market Street Suite 700 Philadelphia, PA 19103 215-979-3800 ERIE INSURANCE EXCHANGE A/S/O THOMAS DUNLEAVY vs. Plaintiffs FLUIDMASTER, INC. Defendants Attorneys for Defendant, Fluidmaster, Inc. CUMBERLAND COUNTY COURT OF COMMON PLEAS Civil Term No. 08-5118 ENTRIES OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearances of Barbara K. Gotthelf and Kari B. Samuels as counsel for Defendant, Fluidmaster, Inc., in the above-captioned matter. WCARTER & ENGLISH, LLP Attorneys for Defendant, Fluidmaster, Inc. Dated: November 12, 2008 By: `4Ja-c c"2u.? X?lt.c Barbara K. Gotthelf, Attorney I.Do No. 53832 t .+ tel.-l -> Kari B. Samuels, Attorney I.D. No. 88512 ME 1 7874448v. I CERTIFICATE OF SERVICE I, Barbara K. Gotthelf, hereby certify that on this date a true and correct copy of the attached Entries of Appearance of Barbara K. Gotthelf and Kari B. Samuels was served via first class mail on: Michael J. Hopkins, Esq. Law Offices of Robert A. Stutman, P.C. 501 Office Center Drive, Suite 300 Ft. Washington, PA 19034 Barbara K. Gotthef Dated: November 12, 2008 MEl 7874448v.1 ?, ?? ? i? ?` _, a , tj'i ?` r? ' ? ?7 ? °a' ; ?_ _i ?- i.... ?.e ' 4_..?? i' -•c: 'WI COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE EXCHANGE a/s/o Thomas Dunleavy Plaintiff, No. 08-5118 Civil Term V. FLUIDMASTER, INC. Defendant. JURY TRIAL DEMANDED PLAINTIFF, ERIE INSURANCE EXCHANGE a/s/o THOMAS DUNLEAVY'S REPLY TO NEW MATTER OF DEFENDANT FLUIDMASTER, INC. Plaintiff, Erie Insurance Exchange a/s/o Thomas Dunleavy, by and through its attorneys, Law Offices of Robert A. Stutman, P.C., hereby replies to the New Matter of Defendant Fluidmaster, Inc., as follows: 1 - 16. These paragraphs constitute conclusions of law and not assertions of fact to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. If any of these paragraphs are deemed factual, they are denied and strict proof is demanded at the time of trial. WHEREFORE, Plaintiff Erie Insurance Exchange a/s/o Thomas Dunleavy respectfully request that the New Matter of Defendant be stricken and judgment be entered in Plaintiff's favor. LAW OFY S O/F ROBERT A. STUTMAN, P.C. By ?"MIC AEL J" HOPKINS A mey I.D. No. 88080 Counsel or Erie Insurance Company a/s/o Thomas Dunleavy 501 Office Center Drive, Suite 300 Ft. Washington, PA 19034 Tel: (215) 283-1177 Fax: (215) 283-1188 Email: hopkinsm@stutmanlaw.com Dated: 11 11 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE EXCHANGE a/s/o Thomas Dunleavy Plaintiff, V. FLUIDMASTER, INC. Defendant. CIVIL ACTION No. 08-5118 Civil Term JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, MICHAEL J. HOPKINS, ESQUIRE, hereby CERTIFIES, that PLAINTIFF ERIE INSURANCE EXCHANGE a/s/o THOMAS DUNLEAVY'S REPLY TO NEW MATTER OF DEFENDANT FLUIDMASTER, INC. was filed with the Court and forwarded by US Mail/Postage Prepaid to counsel below: Barbara K. Gotthelf, Esquire Kari B. Samuels, Esquire McCarter & English, LLP 1735 Market Street, Suite 700 Philadelphia, PA 19103 LAW OFFICES OF ROBERT A. STUTMAN, P.C. By eAx? ICHAEL J. HOPKINS DATED: November , 2008 T s j h>7 e i COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE EXCHANGE a/s/o Thomas Dunleavy Plaintiff, No. 08-5118 Civil Term V. FLUIDMASTER, INC. Defendant. JURY TRIAL DEMANDED PRAECIPE TO SETTLE. DISCONTINUE AND END TO THE PROTHONOTARY: Kindly MARK the above-captioned matter SETTLED, DISCONTINUED and ENDED as to all Defendants. Date: November 18, 2010 LAW OFFICES OF ROBERT A. STUTMAN, P.C. By: Midhael J. H ns' (§8084} 501 Office C ter Drive, Suite 300 Ft. Washington, PA 19034 215-283-1177 Fax: 215-283-1188 Email: hopkinsm gstutmanlaw.com Attorney for Plaintiff C: cz, C) Erie Insurance Exchange a/slo -v= o - Thomas Dunleavy ?rn D rq-'n ., c N o <C-- xs c: 'r! CD-n 7 0 CERTIFICATE OF SERVICE I, MICHAEL J. HOPKINS, ESQUIRE, hereby certifies that the Praecipe to Settle, Discontinue and End was forwarded on November 18, 2010 by US Mail/Postage Prepaid to counsel below: Barbara K. Gotthelf, Esquire Kari B. Samuels, Esquire McCarter & English, LLP 1735 Market Street, Suite 700 Philadelphia, PA 19103 LAW OFFICES OF R90E,9T A?STUTMAN, P.C. By