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HomeMy WebLinkAbout04-1418 Benjamin D. Andreozzi, Esquire Goldberg, Katzm'Ul & Shipm,Ul, r.c PO Box 1268 Harrisburg, r A 17108.1268 717-234-4161 Attomeys for Plaintiff Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, P A : NO, 01./ - 1'-111' C ;uL I~ ERIE INSURANCE EXCHANGE as Subrogee of BARRY .J. HANNAHOE, v. GENERAL MOTORS CORPORATION, Defendant : CIVIL ACTION - LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following paged, 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 ftling 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 ahrainst you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief recluested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE Y()U CAN GET LEGAL HELP. Cumberland County Lawyer Referral Service Cumberland County Bar Association Carlisle, I' A 17013 (717) 232-7536 NOTICIA Le has demandado a usted en la corte, Si usted quiere defenderse de estas demandas expuestas en las paginas siguintes, useted tiene viente (20) dias de plaza al partir de las fecha de la demanda y la notificacion, Usted debe pres ental' una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus de fens as () sus objectiones alas demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso 0 notificacion y por cualquier quja 0 puede perder dinero 0 sus propiendades 0 otros derechos importantes para usted. LLEVEESTADEMANDAA UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUGICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OPICINA CUYA DIRECCI90N SE ENCUENTRA ESCRITA ABA]O PARA A VERI GUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL, Cumberland County Lawyer Referral Service Cumberland County Bar Association Carlisle, P A 17013 (717) 232-7536 Benjamin D. Andreozzi, Esquire Goldberg, Katzman & Shipman, P.c. PO Box 1268 Harrisburg, PA 17108.1268 717-234-4161 AttoOleys for Plaintiff Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, P A :NO. 04- 141~ Ci'-'lt-T~ ERIE INSURANCE EXCHANGE as Subrogee of BARRY J. HANNAHOE, v. GENERAL MOTORS CORPORATION, Defendant : CIVIL ACTION - LAW COMPLAINT AND NOW, comes defendant, Erie Insurance Exchange, by their counsel, Goldberg, Katzman & Shipman, p,c. who state: 1. Plaintiff Erie Insurance Exchange (hereinafter "Erie") is a corporation licensed to issue insurance policies in the state of Pennsylvania, and has a business location of 4901 Louise Drive, P,O, Box 2013, Mechanicsburg, Cumberland County, Pennsylvania, 17055-0710. 2. Defendant is a corporation with a business address of 1 515 Market Street, Suite 1210, Philadelphia, Pennsylvania, 19102. 3. On October 29,2002, Barry}. Hannahoe was the rightful owner of a 1997 Chevrolet Cavalier/RS, vehicle identification number 1 G 1.1 C1248VM135 172 Q1ereinafter "Cavalier:), 4. Plaintiff provided automobile insurance coverage for the Cavalier, 5. At all times relevant hereto, Barry Hannahoe, was an insured driver under the automobile insurance policy issued by Erie, 6, On October 29, 2002, Hannahoe attempted to operate the Cavalier by turning the key in the ignition. After noticing a small amount of smoke coming from the steering column, Hannahoe left the car and called a friend for a ride, 7, Approximately 15 minutes later, Hannahoe drove by the Cavalier which appeared to be in a safe condition, 8, When Hannahoe later retumed to the Cavalier, the fire company was on the scene and the car was in flames. 9, The fire resulted from a defect in the vehicle's ignition system, 10, The defecf in the ignition system caused an electrical short to the Cavalier, which resulted in a fire and ultimately the total loss of the Cavalier, 11. Plaintiff was forced to reimburse Barry]. Hannahoe for this total loss, although the fault for this loss should be borne by Defendant, COUNT I STRICT LIABILITY 12. The averments of paragraphs 1 through 11 are incorporated herein by reference as though fully set forth at length herein, 13, Upon information and belief, the incident of October 28, 2002 wherein plaintiffs insured's vehicle caught fire, was caused by the defective nature of the ignition system in plaintiffs insured's vehicle, which defect existed at the time the vehicle left defendant's care, custody, and control, and rendered plaintiffs insured's vehicle unreasonably dangerous for it's intended use. 14, As a result of the defective nature of the ignition, defendant is strictly liable to plaintiff pursuant to ~402(a) of the Restatement (Second of Torts) for the following reasons: (a) failing fo properly and adequately design the ignition system; (b) failing to properly and adequately manufacture the ignition sysfem; (c) failing to warn plaintiffs insured of the dangerous nature of the ignition system; and (d) other defects as may become evident through the course of discovery or trial. 15, As a direct result of the defects in the if,'nition system as described above, plaintiff was forced to reimburse plaintiffs insured for the total value of the Cavalier. WHEREFORE, plaintiff respectfully reguests that this Honorable Court enter judgment in its favor in an amount that would subject this matter to compulsory arbitration, COUNT II NEGLIGENCE 16, The averments of paragraphs 1 through 15 are incorporated herein by reference as though fully set forth at length herein. 17. The negligence of defendant consisted of: (a) failing to discover the defect in the ignition system when defendant knew or should have known that such a defect existed; (b) failing to take steps necessary to repair the ignition system; (c) failing to properly test the ignition system; and (d) such other negligence which may be discovered at a later date. 18. As a direct result of defendant's negligence, plaintiff suffered damages as more fully described above. WHEREFORE, plaintiff respectfully requests that this Honorable Court enter judgment in its favor in an amount that would subject this matter to compulsory arbitration, COUNT III BREACH OF WARRANTY 19, The averments of paragraphs 1 through 18 are incorporated herein by reference as though fully set forth at length herein, 20, At the time defendant sold the vehicle, defendant warranted, both expressly and impliedly, that the vehicle was free from defects, and was safe and suitable for the uses for which it was intended, 21. Defendant breached the aforesaid warranties, both expressed and implied, by providing plaintiffs insured with a vehicle which was defective as more fully described above, and which was neither adequate nor suitable for the uses for which it was intended, 22. As the direct result of defendant's breach of its expressed and implied warranties, plaintiff suffered damages as more fully described above, WHEREFORE, plaintiff respectfully requests that this Honorable Court enter judgment in its favor in an amount that would subject this matter to compulsory arbitration, GOLDBERG, KATZMAN &SHIPMAN,P.C. ~I ("7 r if) " By: I' <- /": Benjamin D. An9feoz i, Esquire Attorney ID m(927 PO Box 126 Harrisburg, 717-234-4161 Attorneys for Plaintiff Date: March 31, 2004 VERIFICATION I, Benjamin D. Andreozzi, hereby acknowledge that Erie Insurance Exchange is the Plaintiff in this action and that I am authorized to make this verification on its behalf; that I have read the foregoing Complaint, that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa,C.S, ~ 4904, relating to unsworn falsification to authorities. Date: March 23, 2004 107758,1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, addressed to the following General Motors Corporation c/o CT Corporation System Commercial Registered Office Provider 1515 Market Street, Suite 1210 Philadelphia, P A 19102 GOLDBERG, KATZMAN & SHIPMAN, P.c. By /() S Rffij",,;n D. Anr;' E"Jill" Date: M".:ch 31, 2004 ~\1\ \ ~~~ _ U1 ~ ~ ~J ~~r- ~ '----Z ......,."l ~,; l~i,0"',l=J '"r) - r'~ ,----' .LJ ) , ...- c; ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION ERIE INSURANCE EXCHANGE as Subrogee of BARRY J, HANNAHOE, Plaintiff, No, C>I./- II.{IP Gc...LL <:.y-~ vs, PRAECIPE FOR APPEARANCE GENERAL MOTORS CORPORATION, Defendant. Filed on Behalf of General Motors Corporation Counsel of Record for this Party Daniel B, McLane Pa. LD, No. 77019 Eri n L. Lorenz Pa, LD, No. 86539 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44th FI. Pittsburgh, PA 15219 Firm No, 075 (412) 566-6000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION ERllimSURANCEEXCHANGE as Subrogee of BARRY J, HANNAHOE, No. Plaintiff, vs. GENERAL MOTORS CORPORATION, Defendant. PRAECIPE FOR APPEARANCE TO: Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Kindly enter the appearance of Daniel B. McLane and Erin L. Lorenz, Eckert Seamans Cherin & Mellott, LLC on behalf of General Motors Corporation in the above-captioned matter. Respectfully submitted, Daniel B, McLane -------. Pa, LD, No, 77019 Erin L. Lorenz Pa, LD, No, 86539 Eckert Seamans Chcrin & Mellott, LLC 600 Grant Street, 44th FI. Pittsburgh, PA 15219 (4I2) 566-6000 Attorneys for General Motors Corporation Dated: April 6, 2004 CERTIFICATE OF SERVICI~ I hereby certify that a true and correct copy of the foregoing PRAECIPE FOR APPEARANCE has been served upon the following counsel of record by u.S, first class mail, postage prepaid, this 6th day of April 2004: Benjamin D, Andreozzi Goldberg Katzman & Shipman, PC 320 Market Street, Strawberry Square 1',0, Box I268 ~;;;~U8 Daniel B. McLane ;.- . 0 t-.> () C;:;::J c:; ~ -n :):.'~ --1 -':J :r: .....n ;:u rnp [T'; , CJ CD (:, ,~ j'j -::J '" (-5 , , " . '- N ::~-j -< '-" rN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNrY, PENNSYLVANIA CIVIL DIVISION ERIE rNSURANCE EXCHANGE as Subrogee of BARRY J, HANNAHOE, Plaintiff, No.. Ot.j- I~ If' C/c..>iL 'T-~ vs. GENERAL MOTORS CORPORATION, Defendant. GENERAL MOTORS CORPORATION'S F'RELlMINARY OBJECTIONS PURSUANT TO PA.R.CIV.P. 1028 General Motors Corporation ("General Motors") by its attorneys, Eckert Seamans Cherin and Mellott, LLC, respectfully submits these Preliminary Objections to plaintiff Insurance Exchange as Subrogee of Barry J. Hannahoe's (collectively "Erie") Complaint pursuant to Pa,R.Civ.P. 1028. I. PRELIMINARY OBJECTIONS 1. Erie filed its Complaint against General Motors on or about March 24, 2004, 2. The Complaint claims that Hannahoe's 1997 Chevrolet Cavalier sustained total fire damage during an October 29, 2002 fire that allegedly started in the ignition system. Complaint at '1[6-10, The Complaint asserts causes of action against General Motors for strict liability (Count I), negligence (Count II) and breach of warranty (Count III). 3. The Complaint seeks a recovery against General Motors for the economic loss of the vehicle only and does not allege any claim for personal injury nor does it allege any damage to property other than the vehicle, 4, Under Pennsylvania law, Erie's strict liability and negligence claims are barred by the economic loss rule. Under the economic loss rule, Erie cannot recover under strict liability or negligence tort claims when the only damage is to the product itself, 5. Accordingly, General Motors asserts preliminary objections to Erie's Complaint pursuant to Pa,R.Civ,P, 1028 (a)(4) and respectfully requests the Court to enter an Order striking Counts I and II of the Complaint. In support of these preliminary objections, General Motors respectfully incorporates the argument and authority more fully set forth in the accompanying Memorandum of Law in Support of General Motors Corporation's Preliminary Objections Pursuant to Pa,R.Civ,P, 1028, WHEREFORE, General Motors respectfully requests the Court to strike Counts I and II of Erie's Complaint. ~ Daniel B. McLane Pa. LD, No. 77019 Eri n L. Lorenz Pa, LD, No, 86539 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44th Fl. Pittsburgh, PA I5219 (412) 566-6000 Attorneys for General Motors Corporation Dated: April 6, 2004 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CNIL DIVISION ERffiINSURANCEEXCHANGE as Subrogee of BARRY J, HANNAHOE, No. Plaintiff, Ys. GENERAL MOTORS CORPORATION, Defendant. ORDER OF COURT AND NOW, this day of , 2004, upon review of General Motors Corporation's Preliminary Objections Pursuant to Pa.R.Civ,P, 1028, it is hereby ADJUDGED, DECREED, and ORDERED that the Preliminary Objections ar,e sustained and Counts I and II of Plaintiff's Complaint are hereby stricken. ,], CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing PRELIMINARY OBJECTIONS PURSUANT TO PA.R.CIV.P. 1028 has been served upon the following counsel of record by U.S, first class mail, postage prepaid, this 6th day of April 2004: Benjamin D, Andreozzi Goldberg Katzman & Shipman, PC 320 Market Street, Strawberry Square P,O, Box 1268 Harrisburg, PA I7108-I268 ';Ntc Daniel B, McLane ~ ,...., c-::J c.;.:? J'" -~'" -:'.',) -;;.,') I CO j -, -ry C) ->> ..... -:L~ (~il -r"';; -r: 'en -'.10 ~.~~j~; "~~5 ~~, r;-? <n - ~ PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY; ---------------------------------------------------------------------------..----------------------------------------- Please list the within matter for the next Argument Court, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION ERIE INSURANCE EXCHANGE as Subrogee of BARRY J. HANNAHOE, Plaintiff, No,04-I4I8 Civil Term Ys. GENERAL MOTORS CORPORATION, Defendant. 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc,): General Motors Corporation's Preliminary Objections Pursuant to Pa,R.Civ,P, 1028 2. Identify counsel who will argue case: (a) for plaintiff: Benjamin D. Andreozzi Goldberg Katzman & Shipman, PC 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PAl 7108-1268 (b) for defendant: Daniel B, McLane Erin L. Lorenz Eckert Seamans Cherin & Mellott, LLC U,S, Steel Building 600 Grant St., 44th Floor Pittsburgh, PA 15219 3, I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: June 9, 2004 ~ ' I e Attorney for General Motors Corporations Dated: May I7, 2004 CERTIFICA TE OF SERVICE I hereby certify that a true and correct copy of the foregoing PRAECIPE FOR LISTING CASE FOR ARGUMENT has been served upon the following counsel of record by D,S, first class mail, postage prepaid, this 17th day of May 2004: Benjamin D, Andreozzi Goldberg Katzman & Shipman, PC 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg,PA 17108-1268 ~.~ Daniel B. McLane - Benjamin D, Andreozzi, Esquire Goldberg,Katzman,P ,c. PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for Plaintiff ERIE INSURANCE EXCHANGE as Subrogee of BARRY ]. HANNAHOE, : IN THE COURT OF COMMON PLEAS :CUMBERLANDCOUNTY,PA Plaintiff : NO, 04-1418 v. GENERAL MOTORS CORPORATION, Defendant : CIVIL ACTION - LAW NOTICE YOU HAVE BEEN SUED IN COURT, If you wish to defend against the claims set forth in the following paged, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a writtl~n appearance personally or by attorney and ftIing in writing with the Court your defensl~s or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or of her rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Cumberland County Lawyer Referral Service Cumberland County Bar Association Carlisle, P A 17013 (717) 232-7536 NOTICIA Le has demandado a usted en la corte, Si usted quiere defenderse de estas demandas expuestas en las paginas siguintes, useted tiene viente (20) dias de plaza al partir de las fecha de la demanda y la notificacion, Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objectiones alas demand as en contra de su persona, Sea adisado que si usted no se defiende, la sin previo aviso 0 notificacion y por cualquil:r quja 0 puede perder dinero 0 sus propiendades 0 otros derechos importantes para us ted, LLEVEESTADEMANDAA UN ABOGADOIMMEDIATAMENTE, SINO TIENE ABOGADO 0 sr NO TIENE EL DINERO SUGICIENTE DE P AGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OPICINA CUYA DIRECCI90N SE ENCUENTRA. ESCRITA ABA]O PARA A VERIGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL, Cumberland County Lawyer Referral Service Cumberland County Bar Association Carlisle, P A 17013 (717) 232-7536 Benjamin D. Andreozzi, Esquire Goldberg Katzman, P.c. PO Box 1268 Harrisburg, P A 17108-1268 717-234-4161 Attorneys for Plaintiff ERIE INSURANCE EXCHANGE as Subrogee of BARRY ]. HANNAHOE, : IN THE COURT OF COMMON PLEAS ; CUMBERLAJ:\fD COUNTY, P A Plaintiff : NO. 04-1418 v, GENERAL MOTORS CORPORATION, Defendant : CIVIL ACTION - LAW AMENDED COMPLAINT AND NOW, comes defendant, Erie Insurance Exchange, by their counsel, Goldberg Katzman, p,c. who state: 1, Plaintiff Erie Insurance Exchange (hereinafter "Erie") is a corporation licensed to issue insurance policies in the state of Pennsylvania, and has a business location of 4901 Louise Drive, P,O. Box 2013, Mechanicsburg, Cumberland County, Pennsylvania, 17055-0710, 2. Defendant is a corporation with a business address of 1515 Market Street, Suite 1210, Philadelphia, Pennsylvania, 19102, 3. On October 29,2002, Barry J, Hannahoe was the rightful owner of a 1997 Chevrolet Cavalier/RS, vehicle identification number 1 G 1 J C1248VM135172 (hereinafter "Cavalier"). 4. Plaintiff provided automobile insurance coverage for the Cavalier. 5, At all times relevant hereto, Barry Hannahoe, was an insured driver under the automobile insurance policy issued by Erie. 6, On October 29, 2002, Hannahoe attempted to operate the Cavalier by turning the key in the ignition, Affer nOficing a small amount of smoke coming from the steering column, Hannahoe left the car and called a frit:nd for a ride. 7, Approximately 15 minutes later, Hannahoe drove by the Cavalier which appeared to be in a safe condition, 8, When Hannahoe later returned to the Cavalier, the fire company was on the scene and the car was in flames. 9, The fire resulted from a defect in the vehicile's ignition system. 10. The defect in the ignition system caused an electrical short to the Cavalier, which resulted in a fire and ultimately the total loss of th,~ Cavalier, 11. Plaintiff was forced to reimburse Barry ]. Hannahoe for this total loss, although the fault for this loss should be bome by Defendant. COUNT I BREACH OF WARRANTY 12, The averments of paragraphs 1 through 111 are incorporated herein by reference as though fully set forth at length herein, 13, At the time defendant sold or manufilctured the vehicle, defendant warranted, both expressly and impliedly, that the vehicle was free from defects, and was safe and suitable for the uses for which it was intended 14. Defendant breached the aforesaid warranties, both expressed and implied, by providing plaintiffs insured with a vehicle which was defective as more fully described above, and which was neither adequate nor suitable for the uses for which it was intended, 15. The vehicle's defects stem from an improperly and inadequately designed and manufactured ignition system, 16, As the direct result of defendant's breach of its expressed and implied warranties, plaintiff suffered damages as more fully described above. COUNT II VIOLATION OF THE PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 17, Plaintiff incorporated the averments of paragraphs 1 through 16 as though fully set forth at length herein. 18, The vehicle purchased by plaintiffs insured constituted a good for purposes of the Unfair Trade Practices and Consumer Protection Law. 19. The vehicle was used for everyday transportation. 20, Defendant made representations to the plaintiffs insured regarding standard, quality or grade of the vehicle in question. 21. The vehicle was not of the standard, quality or grade represented. 22. Defendant failed to comply with the terms of a written guarantee or warranty given to plaintiff's insured after the contract DJr the vehicle was made. 23, In fact, the vehicle manufactured by defendant was produced with a faulty ignition system which was the subject of a recall. 24, Furthermore, the vehicle manufactured by defendant and placed into the stream of commerce was defective and otherwise prone to malfunction. WHEREFORE, plaintiff respectfully requests th:at this Honorable Court award three (3) times the actual damages sustained by plaintiff as well as an award of attorney's fees for being forced to commence this action due to defendant's violation of this Act. COUNT III VIOLATION OF THE MAGNUSON-MOSS WARRANTY IMPROVEMENT ACT 25, The averments of paragraphs 1 through 24 are incorporated herein by reference as though fully set forth at length herein 26, The express and implied warranties provided by Defendant were breached when Defendant manufactured a defective automobile, as described above, and when plaintiff's insured suffered damages as a result of the defect. 27. The aforementioned warranties require Defendant to repair or pay for the repair of the plaintiff's insured's vehicle, 28, Defendant has failed to comply with the oblligations set forth in the implied and express warranties. 29. Failure to comply with express and implit:d warranties described above is a violation of the Magnuson-Moss Warranty Improvement Act found at 15 U.S.c. ~ 231O(d)(1). WlfEREFORE, plaintiff respectfully requests that this Honorable Coutt award compensation for the damages sustained by plaintiff as well as an award of attorney's fees for being forced to commence this action due to defendant's violation of this Act. GOLDBERG KATZMAN, p,c. / ~ By: Benjam~in D, reozzi, Esquire Attomey ID 89271 PO B 68 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for Plaintiff Date: September 28, 2004 VERIFICATION I, Benjamin D. Andreozzi, hereby acknowledge that Erie Insurance Exchange is the Plaintiff in this action and that I am authorized to make this verification on its behalf; that I have read the foregoing Complaint, that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa,C.S. ~ 4904, relating to unsworn falsification to authorities. GOLDBERG KATZMAN, p,c. By: c~ '\ , ~" Benjamin )2:/ Anlifeozzi, Esquire ~ Date: September 28, 2004 107758.1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, addressed to the following: Erin Lorenz, Esquire Eckert, Seamans, Cherin & Mellott, LLC 600 Grant Street, 44th Floor Pittsburgh, PA 15219 Date: September 28, 2004 GOLDBERG I):.ATZMAN, P.c. /<}' L---~/ By B4~ ~,;, Eo",,", / / / ./ Cl c. ~, "":1 ,< r-,' C~ C:::::~ ~- (/) r"I-'! ~-u (.,) c:> o '1'1 :;1." rl1p -orn :pl? ~~'~C) ~,L -'1 ()::d ".0 c5rn ~--"l ~> -oJ :< -0 -:;;.. w (,-, 0) " 0, IN THE COURT OF COMMON PIJEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE EXCHANGE as subrogee of BARRY J. HANNAHOE, Plaintiff, v. CIVIL ACTION-LAW DOCKET NO. 04-1418 GENERAL MOTORS CORPORATION, Defendant. NOTICE TO PLEAD To: Benjamin D. Andreozzi, Esq. Goldberg Katzman, P. C. P. O. Box 1268 Harrisburg, P A 17108-1268 You are hereby notified to plead to the within New Mattl;:r within twenty (20) days after service hereof, or a judgment may be entered against you. Dated: November 17,2004 {L0287179.1 } Jeffre 600 Grant Street, 44th Pittsburgh, P A 15219 412-566-6000 Ursula R. Siverling, Esq., No. 87690 213 Market Street, 8th Floor Harrisburg, PAl 71 0 1 717-237-6000 Attorneys for General Motors Corporation IN THE COURT OF COMMON PI,EAS OF CUMBERLAND COUNTY, PENNSYL VANIA ERIE INSURANCE EXCHANGE as subrogee of BARRY J. HANNAHOE, Plaintiff, CIVIL ACTION-LAW DOCKET NO. 04-1418 v. GENERAL MOTORS CORPORATION, Defendant. ANSWER AND NEW MA TTI:R TO PLAINTIFF'S AMENDED COMPLAINT General Motors Corporation ("General Motors"), by and through its attorneys, Eckert Seamans Cherin & Mellott, LLC, files the following Answer and New Matter to Plaintiffs Amended Complaint. ANSWER 1. The allegations contained in paragraph 1 of the Amended Complaint are denied in that, after reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth ofthe allegations contained therein, and strict proof of the same is demanded at the time of trial. 2. The allegations contained in paragraph 2 of the Amended Complaint are denied as stated. General Motors is a Delaware corporation with a principal place of business located at 100 Renaissance Center, Detroit, Michigan. 3. The allegations contained in paragraph 3 of the Amended Complaint are denied in that, after reasonable investigation, General Motors is without knowledge or information {L0287!86.! } sufficient to form a belief as to the truth of the allegations contained therein, and strict proof of the same is demanded at the time of trial. 4. The allegations contained in paragraph 4 of the Amended Complaint are denied in that, after reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein, and strict proof of the same is demanded at the time of trial. 5. The allegations contained in paragraph 5 of the Amended Complaint are denied in that, after reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein, and strict proof of the same is demanded at the time of trial. 6. The allegations contained in paragraph 6 of the Amended Complaint are denied in that, after reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein, and strict proof of the same is demanded at the time of trial. 7. The allegations contained in paragraph 7 of the Amended Complaint are denied in that, after reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein, and strict proof of the same is demanded at the time of trial. 8. The allegations contained in paragraph 8 of the Amended Complaint are denied in that, after reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth ofthe allegations contained therein, and strict proof of the same is demanded at the time of trial. 9. The allegations contained in paragraph 9 of the Amended Complaint are denied. {L0287186.1 } 2 10. The allegations contained in paragraph 10 of the Amended Complaint are denied. 11. The allegations contained in paragraph 11 of the Amended Complaint are denied in that, after reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein, and strict proof of the same is demanded at the time of trial. By way of further answer, it is denied that General Motors should bear the fault for any alleged loss incurred by Plaintiff s insured. COUNT I BREACH OF WARRANTY 12. The answers to paragraph 1 through 11 are incorporated herein by reference as though fully set forth at length herein. 13. The allegations contained in paragraph 13 of the Amended Complaint constitute conclusions of law to which no response is required on the part of General Motors. However, to the extent a response is required, the allegations are denied, and strict proof is demanded at the time of trial. 14. The allegations contained in paragraph 14 of the Amended Complaint constitute conclusions oflaw to which no response is required on the part of General Motors. However, to the extent a response is required, the allegations are denied, and strict proof is demanded at the time of trial. 15. The allegations contained in paragraph 15 of the Amended Complaint are denied. 16. The allegations contained in paragraph 16 of the Amended Complaint are denied. COUNT II VIOLATION OF THE PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 17. The answers to paragraphs 1 though 16 are incorporated herein by reference as though fully set forth at length herein. {L0287186.1} 3 18. The allegations contained in paragraph 18 of the Amended Complaint constitute conclusions oflaw to which no response is required on the part of General Motors. However, to the extent a response is required, the allegations are denied, and strict proof is demanded at the time of trial. 19. The allegations contained in paragraph 19 of the Amended Complaint are denied in that, after reasonable investigation, General Motors is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein, and strict proof of the same is demanded at the time of trial. 20. The allegations contained in paragraph 20 ofthe Amended Complaint are denied. 21. The allegations contained in paragraph 21 of the Amended Complaint are denied. 22. The allegations contained in paragraph 22 of the Amended Complaint refer to a written document that speaks for itself and any characterizations thereof that contradict the express language of the written document are denied. The remaining allegations contained in paragraph 22 of the Amended Complaint are denied. 23. The allegations contained in paragraph 23 of the Amended Complaint are denied. 24. The allegations contained in paragraph 24 of the Amended Complaint are denied. By way of further answer, it is denied that Plaintiff is entitled to any damages under the Pennsylvania Unfair Trade Practices and Consumer Protection Law. COUNT III VIOLATION OF THE MAGNUSON-MOSS WARRANTY IMPROVEMENT ACT 25. The answers to paragraph 1 through 24 are incorporated herein by reference as though fully set forth at length herein. 26. The allegations contained in paragraph 26 of the Amended Complaint constitute conclusions of law to which no response is required on the part of General Motors. However, to {L0287186,1 } 4 the extent a response is required, the allegations are denied, and strict proof is demanded at the time of trial. 27. The allegations contained in paragraph 27 of the Amended Complaint constitute conclusions of law to which no response is required on the part of General Motors. However, to the extent a response is required, the allegations are denied, and strict proof is demanded at the time of trial. 28. The allegations contained in paragraph 28 of the Amended Complaint constitute conclusions oflaw to which no response is required on the part of General Motors. However, to the extent a response is required, the allegations are denied, and strict proof is demanded at the time of trial. 29. The allegations contained in paragraph 29 of the Amended Complaint constitute conclusions of law to which no response is required on the part of General Motors. However, to the extent a response is required, the allegations are denied, and strict proof is demanded at the time of trial. By way of further answer, it is denied that Plaintiff is entitled to any damages under the Magnuson-Moss Warranty Improvement Act. NEW MATTER By way of further answer to the allegations contained within the Amended Complaint, General Motors sets forth the following New Matter. 30. Plaintiffs Amended Complaint, read in its entirety, fails to state a claim or cause of action upon which relief may be granted. 31. Count I of Plaintiff s Amended Complaint, read in its entirety, fails to state a claim or cause of action against General Motors upon which reli(:f may be granted. {L0287186.1} 5 32. Count II of Plaintiffs Amended Complaint, read in its entirety, fails to state a claim or cause of action against General Motors upon which relief may be granted. 33. Count III of Plaintiffs Amended Complaint, read in its entirety, fails to state a claim or cause of action against General Motors upon which relief may be granted. 34. Some or all of Plaintiffs claims may be barred by the expiration of the applicable statutes of limitations for such actions. Therefore, Plaintiff is not entitled to recover from General Motors. 35. General Motors raises, as a complete defense to some or all of Plaintiff's claims for damages, Plaintiff's assumption of a known risk. 36. There exists no proximate cause between any of Plaintiffs alleged damages and any alleged act or omission on the part of General Motors. Therefore, Plaintiff is not entitled to recover from General Motors. 37. The acts and/or omissions of other individuals or entities over which General Motors exercised no control constitute intervening or superseding causes for the damages allegedly sustained by Plaintiff. 38. Plaintiffs alleged damages were solely the result of acts, omissions and/or tortuous conduct of other persons or entities over which General Motors exercised no control, including Plaintiffs or others' negligent maintenance of the vehicle prior to and at the time of the alleged incident. 39. General Motors believes and, therefore, avers that any of the damages alleged by Plaintiff are directly or proximately caused by Plaintiffs own contributory negligence and are, therefore, barred, in whole or in part, by the applicable provisions of the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. ~ 7102. {L02871861 } 6 40. To the extent that the "1997 Chevrolet Cavalier/RS" was, in fact, designed, manufactured in part, and distributed by General Motors, the vehicle complied with all applicable Federal Motor Vehicle Safety Standards which existed at the time the vehicle was originally designed, manufactured in part, and distributed by G{:neral Motors. Therefore, Plaintiff is not entitled to recover against General Motors in this action. 41. The damages complained of may have been the direct and proximate result of Plaintiffs failure to take all reasonable steps to reduce and/or mitigate the potential for damage. Therefore, Plaintiff is not entitled to recover against General Motors. 42. General Motors believes and, therefore, avers tha.t the damages alleged by Plaintiff in the Amended Complaint are the direct and proximat(~ result of misuse and/or abuse of the vehicle by Plaintiff and/or others prior to and/or at the time of the incident. 43. General Motors believes and, therefore, avers that the damages alleged by Plaintiff in the Amended Complaint are the direct and proximate: result of Plaintiffs or others' failure to properly maintain and/or repair the subject vehicle prior to and/or at the time of the incident. 44. General Motors believes and, therefore, avers that the damages alleged by Plaintiff in the Amended Complaint are the direct and proximate result of modifications made to the vehicle by Plaintiff or others prior to and/or at the time of the: incident. 45. General Motors is entitled to a set-off from any recovery against them to the extent of any and all benefits paid or payable to or on behalf of Plaintiff from any and all collateral sources to the extent such a set-off is permissible under the law applicable to this case. 46. To the extent that the "1997 Chevrolet Cavalier/RS" was, in fact, designed, manufactured in part, and distributed by General Motors, Plaintiffs vehicle complied with the {L0287186.1 } 7 state of the art at the time it was designed, manufactured in part, and distributed by General Motors. The methods, standards and techniques utilized by General Motors were in conformity with the generally recognized state of knowledge in the automotive field at the time of the manufacture of the subject vehicle. 47. The express warranties contained in the New Vehicle Warranty Booklet that would have been provided with the vehicle at the time ofthe original sale are exclusive and were given in lieu of the other warranties, express or implied. Further, General Motors complied with the terms and conditions of any and all warranties applicable to this claim. 48. Plaintiffs claims are barred in whole or in party by the economic loss doctrine. 49. Plaintiff has failed to join all necessary and indispensable parties to this action. 50. General Motors reserves the right to amend this New Matter to raise additional affirmative defenses which may be disclosed during the investigation ofthis case or through the discovery process. WHEREFORE, General Motors demands judgment in its favor, dismissing with prejudice Plaintiffs Amended Complaint and awarding all its costs and expenses of suit, including attorneys' fees, together with such other and further relief as the Court deems appropriate. {L0287186.1} 8 Dated: November 17, 2004 {L0287186.l} Respectfully submitted, ECKERT SEAMANS C~ MELLOIT, LLC Jeffrey ed, Esq., . 7489 600 Grant Street, 44th Floor Pittsburgh, PA 15219 412-566-6000 Ursula R. Siverling, Esq., No. 87690 213 Market Street, 8th Floor Harrisburg, PA 17101 717-237-6000 Attorneys for General Motors Corporation 9 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Answer and New Matter to Plaintiff's Amended Complaint was served upon the following I;;OunSel of record by U. S. first- class mail, postage prepaid, this 17th day of November 2004: Benjamin D. Andreozzi, Esq. Goldberg Katzman, P. C. P. O. Box 1268 Harrisburg, P A 17108-1268 \~/ Ursula R!Siverling, Es'<f, {L0287186.1} ATTORNEY VERIFICATION I, Ursula R. Siverling, Esquire, do hereby verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that all statements contained herein are made subject to the penalties of 18 Pa. C.S. 94904, relating to unsworn falSificatiOll~rOrities. DATED: November 17, 2004 Ur la R. Siv {L0282730,1} .....:1'. , c -' ( ~r.~- -( r,,) 1':;. 1"-., j::.~:;t s~ r: , :.--/ ~.J . ni,. _1 1"1 r~, ~i ,.-,' ( , -,.', - ".; , j I I 'j ..,.1 Benjamin D. Andreozzi, Esquire Goldberg Katzman, P. C. PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for Plaintiff ERIE INSURANCE EXCHANGE as Subrogee of BARRY J. HANNAHOE, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUN1Y, PA Plaintiff : NO. 04-1418 v. GENERAL MOTORS CORPORATION, Defendant : CIVIL ACTION - LAW PLAINTIFF'S RESPONSE TO DEFENDjANT'S NEW MATTER AND NOW, comes Defendant, Erie Insurance Exchange, by their counsel, Goldberg Katzman, P.e. who responds as follows: 31-50. Denied. The allegations in paragraphs 31 through 50 constitute conclusions of law to which no response is required. WHEREFORE, Plaintiff respectfully requests that this Honorable Court strike Defendant's New Matter and enter judgment in its favor. GOLDBERG KATZMAN, P.e. Date: November 30, 2004 VERIFICATION I, Benjamin D. Andreozzi, hereby acknowledge that Erie Insurance Exchange is the Plaintiff in this action and that I am authorized to make this verification on its behalf; that I have read the foregoing Complaint, that the facts stated therein are true and correct to the best of my knowledge, information and belief I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. ~ 4904, relating to unsworn falsification to authorities. By: Date: November 30,2004 116316.1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, addressed to the following: Ursula Siverling, Esquire Eckert, Seamans, Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 GOLDBERG KATZMAN, P.e. b a~\VIt~/ k, Legal Assitant By Date: November 30, 2004 ,"-;, ,,~ , .' <::.::;) (I C.. ~2 -11 CJ ::::! p, iii :::g C) III , I '? \, ..k) \~ . r~~Li .; C'J ". "jn"j ~ .. ~ " --.-, ~,- C) tYI'~ /~/~ cW VERIFICATION STATE OF MICHIGAN) ) SS. COUNTYOFWAYNE ) Lauren P. King says that she is authorized by General Motors Corporation under applicable law and rules to verify and does verify ANSWER AND NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT on behalf of General Motors Corporation. Sworn to and subscribed before me this 1 ih day of November, 2004 Notary Public . - >/ w.~t~. ~~~~~'r >','_,':~ " !1"0'?:~~:,~,;~~\;:~~'<~':'.: \';;~, jii" ';11 0:;\ ..~(l-" .."" ;.>'"" ~ -" ~~~ q ".:> c-"';:> C"-:;) ..l;- c::; 1''' n ~ / i , -..l ~ _' I (" ;E 4.:- c~'> 0) o 'I :-;::1 1':"7 ~:r, "~I ili ,;,-C) . /"r; ". - Thomas E. Brenner, Esquire Goldberg Katzman, P.c. PO Box 1268 Harrisburg, PA 17108.1268 717.234-4161 Attorneys for Plaintiff ERIE INSURANCE EXCHANGE as Subrogee of BARRY J. HANNAHOE, : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff : NO, 04-1418 v. GENERAL MOTORS CORPORA.TION, Defendant : CIVIL ACTION - LAW PRAECIPE Please mark this action discontinued and ended. GOLDBERG KATZMAN, p,c. \"'."7 Bl/' ~J"l1 1~'I'M__ '~-homas'E~Brenner, Esquire Attorney ID #32085 PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for Plaintiff Date: February 7, 2006 - CERTIFICATE OF SERVICE I hereby certify that on this day a true and correct copy of the foregoing document was served upon the following by depositing same into the United States Mail, fIrst class mail, postage pre-paid to: Ursula Siverling, Esquire Eckert, Seamans, Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, P A 17101 Shannon p, Bartlett, Esquire Jenner & Block, LLP One IBM Plaza Chicago, IL 60611 BY: GOLDBERG KATZMAN, P.c. . ') ) \\/ l :'/l:.~~ jl)lC<_ Thomas E. Brenner, Esquire Date: February 7, 2006 '"";1 -.~, f~" (,;) .._J I C) -", f'j C"