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HomeMy WebLinkAbout08-6423h? COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONEGAL MUTUAL INSURANCE CO. a/s/oVanessa Schantz nn 1195 River Road CIVIL ACTION NO. dd ' ??3 Marietta, PA 17547 Plaintiffs V. JURY TRIAL DEMAND ELECTROLUX NORTH AMERICA 250 Bobby Jones Expressway Martinez, GA 30907 ; NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WIII-IIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN VMMG WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO 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 DONEGAL MUTUAL INSURANCE CO. a/s/oVanessa Schantz 1195 River Road Marietta, PA 17547 Plaintiffs V. ELECTROLUX NORTH AMERICA 250 Bobby Jones Expressway Martinez, GA 30907 CIVIL ACTION NO. Q ?' y 3 JURY TRIAL DEMAND COMPLAINT 1. Plaintiff, Donegal Mutual Insurance Co., a/s/o Vanessa Schantz (hereinafter "Donegal"), is a corporation organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania, having its principal place of business located at 1195 River Road, Marietta, Pennsylvania 17547. 2. At all times relevant hereto, the Plaintiff was duly authorized to issue policies of insurance in the Commonwealth of Pennsylvania. 3. At all times relevant and material hereto, pursuant to Policy No. G1110705 RY, the Plaintiff provided a homeowner's policy covering real and personal property with respect to a property located at 5035 Wallace Road, Murrysville, Pennsylvania (hereinafter "Property"). 4. Defendant, Electrolux, North America (hereinafter `Electrolux"), is a corporation organized and existing under and by virtue of the laws of the state of Delaware with its principal place of business located at 250 Bobby Jones Expressway, Martinez, GA 30907. 1 5. Defendant, Electrolux, at all times material hereto regularly conducted business in the Commonwealth of Pennsylvania by selling and distributing consumer products in the Commonwealth of Pennsylvania, and specifically selling the electric dryers through retail outlets in the Commonwealth. 6. Prior to November 12, 2006, Keith and Vanessa Schantz purchased the electric dryer for use in their home. 7. On or about November 12, 2006, a fire occurred at the Property and caused extensive damage to the property and its contents. 8. The fire of November 12, 2006 at the Property was caused to occur as a direct and proximate result of a defective and dangerous condition within an electric dryer designed, manufactured, imported, distributed and sold in the Commonwealth of Pennsylvania by the defendant. WHEREFORE, Plaintiff demands judgment against defendant in an amount in excess of $140,000.00 together with costs or suit, counsel fees, and other further relief as this Honorable Court deems just and proper under the circumstances. COUNTI NEGLIGENCE 9. Plaintiff hereby incorporates all preceding paragraphs of this Complaint the same as if set forth fully hereinafter. 10. Prior to November 12, 2006, plaintiffs insured purchased an electric dryer designed, manufactured, imported, distributed, and sold by the defendant (hereinafter "Dryer") for use inside the property. 2 11. On or about November 12, 2006, a fire originated inside the Dryer during its ordinary and intended use. 12. The fire subsequently spread from the Dryer to other areas of the Property thereby causing extensive damage to the Property and its contents. 13. As a direct and proximate result of the fire originating within the Dryer, plaintiff, Donegal, had made payments in an amount in excess of $140,000.00 to, or on behalf of its insureds, in accordance with the terms and conditions of its insurance agreement with its insureds. 14. The fire of November 12, 2006 was the direct and proximate result of the negligence and lack of ordinary care of the defendant, including: a. failing to exercise reasonable care in designing the Dryer so to avoid the risk of fire; b. failing to adequately test the dryer so as to discover unsafe conditions; C. failing to utilize components and materials of sufficient quality and durability so as to tolerate normal wear and tear and remain safe; d. utilizing and, manufacturing material that was not suitable for containing fire within the dryer; e. failing to notify the United States Consumer Products Safety Commission and plaintiff's insured of the unsafe condition of the dryer and the propensity of the dryer to cause fire; f. failing warn plaintiff or plaintiff's insured and other foreseeable users of the dangerous condition of the dryer and how to avoid hazards posed by the dryer; 3 g. providing instructions and warnings with the dryer that did not adequately advise consumers that the normal, foreseeable and intended use of the dryer created a risk of fire and that related dryer fires had been reported to the defendant; and h. failing to adhere to industry standards regarding the safe design and manufacture of the dryer. 15. As a direct and proximate result of the negligence and lack of ordinary care of the defendant, as aforesaid, the plaintiff was caused to suffer the losses and damages set forth above. WHEREFORE, Plaintiff demands judgment against defendant in an amount in excess of $140,000.00 together with costs or suit, counsel fees, and other further relief as this Honorable Court deems just and proper under the circumstances. COUNT II STRICT LIABILITY FOR DEFECTIVE PRODUCTS 16. Plaintiff hereby incorporates by reference all preceding paragraphs of this Complaint the same as if fully set forth hereinafter. 17. At all times material hereto, the defendant was regularly in the business of selling consumer products including electric dryers of the same type and model as the Dryer that caused the fire at the Property. 18. The Dryer that caused the fire of November 12, 2006 was defective and unsafe for its ordinary and intended use by reason that the dryer had the propensity to cause fires during its ordinary and intended use. 4 19. The Dryer was in such defective and unsafe condition at the time it left the possession and control of the defendant and remained in such unsafe and defective condition, substantially unchanged, until the time of the fire. 20. As a direct and proximate result of the defective and unsafe condition of the Dryer, the fire of November 12, 2006 at the Property was caused to occur. 21. As a direct and proximate result of the defective and unsafe condition of the Dryer, Plaintiff was caused to suffer the damages and losses referred to above. WHEREFORE, Plaintiff demands judgment against defendant, in an amount in excess of $140,000.00 together with costs of suit, counsel fees, and other further relief as this Honorable Court deems just and proper under the circumstances. COUNT III WARRANTY/BREACH OF CONTRACT 22. Plaintiff incorporates by reference all preceding paragraphs of this Complaint, the same as if set forth fully hereinafter. 23. At the time the defendants, designed, manufactured, marketed, distributed and sold the dryer, defendants knew of the use for which the Dryer was intended and impliedly warranted that the Dryer was of merchantable quality and safe for its intended use. 24. Plaintiff relied upon the implied warranty and representations of defendants that the dryer was safe for its ordinary and intended use when the plaintiff purchased and operated the dryer. 25. Defendant breached the above implied warranties and breached the contract of sale with plaintiff's insured by supplying a dryer which was unsafe for its ordinary and intended use. 5 26. Defendant also breached the above implied warranties by failing to warn the Plaintiff's insured that the dryer had a propensity to catch fire during its ordinary and intended use. 27. As a natural and foreseeable consequence of the defendant's breach of warranties and breach of contract, the fire of November 12, 2006 at the property was caused to occur. 28. As a natural and foreseeable consequence of the breaches of warranty and breaches of contract by the defendant, Plaintiff was caused to suffer general, special and consequential damages referred to in the preceding paragraphs. WHEREFORE, Plaintiff demands judgment against defendant, in an amount in excess of $140,000.00 together with costs of suit, counsel fees, and other further relief as this Honorable Court deems just and proper under the circumstances. LAW OFFICES 017/1?013EAT A. STt)TMAN, P.C. By '?W'LI Y Attorney I.D. 501 Office Center Drive, Suite 300 Ft. Washington, PA 19034 Counsel for DONEGAL INSURANCE GROUP a/s/o Keith and Vanessa Schantz DATED: 10 1 08 6 VERIFICATION I, THOMAS J. KOVACH, CCLA, CSRP, CASA, I am an employee with Donegal Mutual Insurance Company, and am authorized to make this Affidavit on behalf of Plaintiff. I verify that the facts contained in the Plaintiff s Complaint (Donegal Mutual Insurance Company a/s/o Vanessa Schantz v. Electrolux North America) are true and correct to the best of my knowledge, information and belief; and that this statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsifications to authorities. The information set forth in Plaintiff's Complaint was obtained from Plaintiff's insured and through the course of investigations conducted after the incident that gives rise to this action. Date: ?- THOMAS J. KO A , CCLA, CSRP, CASA cza COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONEGAL MUTUAL INSURANCE CO. a/s/oVanessa Schantz Plaintiffs : V. ELECTROLUX NORTH AMERICA CIVIL ACTION NO. 08-6423 CIVIL TERM JURY TRIAL DEMAND CERTIFICATE OF SERVICE I, MICHAEL J. HOPKINS, hereby certifies that a true and correct copy of the Affidavit of Service was forwarded by US Mail/postage prepaid to: Electrolux North America 250 Bobby Jones Expressway Martinez, GA 30907 J i LA By DATED: I j -- ? -6,5 C. ' a ... . te ' 1 - 'r f A t t , Michael J Hopkins hopkinsnta-sttumanlaw corn November 4, 2008 S TUT?IA" N CERTIFIED MAIL RETURN RECEIPT REQUESTED Electrolux North America 250 Bobby Jones Expressway Martinez, GA 30907 Re: Donegal Insurance Group Insured: Schantz, Keith and Vanessa CCP, Cumberland County, PA, No. 08-6423 Date of Loss: November 12, 2006 Loss Location: 5035 Wallace Road, Murrysville, PA Dear Sir/Madam: Enclosed, please find the Complaint in the above matter. We also enclose Plaintiff's I% addressed to Electrolux North America, as well as a Request for Production of Documents. These documents are to be responded to within thirty (30) days according to the • Pennsylvania Rules of Civil Procedure. Thank you. Vt M • MJH:cas Enc. M - -- _ U C3 = Return Receipt Fee Postmark • O (Endorsemerd Required) Here r C3 Restricted beihrery Fee • O (Endorsement Required) co r0 Total Postage & Few / ru t C c77eQ u x C3 S28116, P+4 E'L ?4 d Law Offices of Robert A. Stutman. P.C. Sol office Center Drive, Suite 300. Fort Washington. PA 19034 Phone (215) 283-1177 • Fax (215) 283.1188 -Toll Free (889) 579-1144 www.stutmantaw.com ¦ Corr00 Raw 2, ' 3: AMD i MVM itern 4 If Is deWred. ¦ Print your rrame a pd addrm on the rev m so that we cart raathm the card to you. ¦ Attach this Cwd fb the back of the m0place or on the front ff space pefmits. 1. Article Addressed to: 0250 ?3os?3 f ?i?S x ` Q ? Agent ? Addressee & Recehaed by ( Printer/ /Name) C. Date of Delivery '-viW00 a AN? O D. Is d *My address different from item 1? ? Yes If YES, enter daiivery address below: ? No R`Certftied Mail ? Express MW ? R"Werod ? Rehwn Receipt tar Merchandise ? Insured Mail ? C.O.D. 67" 4. Restricted Delivery? (Fxrra Fee) ? Yes 2. Article Number (n 7DD7 2680 DDD3 1864 8297 an?sliarfhamisar?4L4e? PS Fort 3811, Fsbrtrlr ytm Dantar t Rslurn RseW4at tcaa -M-1 s4o 1 F COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONEGAL MUTUAL INSURANCE CO. a/s/oVanessa Schantz CIVIL ACTION NO. 08-6423 CIVIL TERM Plaintiffs V. ELECTROLUX NORTH AMERICA JURY TRIAL DEMAND AFFIDAVIT OF SERVICE Plaintiffs, Donegal Mutual Insurance Co. a/s/o Vanessa Schantz hereby files Proof of Service showing that the Defendant Electrolux North America was served the Complaint in reference to the above-captioned matter. LAW OFFICES OF ROBERT A. By 501 Office Center Drive, Suite 300 Ft. Washington, PA 19034 , P.C. Counsel for DONEGAL INSURANCE GROUP a/s/o Keith and Vanessa Schantz DATED: J -12 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA DONEGAL MUTUAL INSURANCE CO. CIVIL ACTION NO. O$ 6493 a/s/o Vanessa Schantz Plaintiff V. : JURY TRIAL DEMANDED ELECTROLUX NORTH AMERICA Defendant NOTICE OF REMOVAL The Petitioner, Electrolux Home Products, Inc., improperly identified as Electrolux North America, respectfully states to this Court: 1. An action was commenced and is currently pending in the Court of Common Pleas of Cumberland County, Pennsylvania, Civil Action No. 08-6423 in which Donegal Mutual Insurance Co. a/s/o Vanessa Schantz is named as Plaintiff and the Petitioner, Electrolux Home Products, Inc., improperly identified as Electrolux North America, is named as Defendant. 2. This action was instituted by Plaintiff to recover money allegedly paid to its insured, Vanessa Schantz, under her contract of insurance for damages allegedly caused as a result of a fire. 3. Plaintiffs' Complaint seeks damages in excess of $140,000.00, which exceeds the amount in controversy necessary, exclusive of interest and costs. See Plaintiff's Complaint, attached hereto as Exhibit "A" and incorporated herein by reference. 4. In the interest of judicial economy and the fair adjudication of claims brought before the court, Petitioner seeks removal to this Court. 5. Upon information and belief, Petitioner states that diversity of citizenship exists between the parties in controversy as follows: (a) The Plaintiff, Donegal Mutual Insurance Co., is now and was at the time of the commencement of this action a corporation organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania and with a principal place of business located at 1195 River Road, Marietta, Pennsylvania 17547; (b) The Defendant, Electrolux Home Products, Inc., improperly identified as Electrolux North America, is now and was at the time of the commencement of the action a Delaware corporation, with a principal place of business at 250 Bobby Jones Expressway in Augusta, Georgia; (c) This incident giving rise to this litigation allegedly occurred in Murrysville, Pennsylvania. 6. This Court has original jurisdiction over the action between the Plaintiff and the Defendant pursuant to the provisions of 28 U.S.C. §1332 and as a result, Petitioner may remove this action to this Court pursuant to the provisions of 28 U.S.C. §1441. 7. This Notice is filed with the Court within the time for removal set forth in 28 U.S.C. §1446(b) in that Plaintiff commenced this matter on or about October 30, 2008, with proper service made on Defendant on November 7, 2008. See Plaintiffs' Affidavit of Service attached hereto as Exhibit "B". 8. The written notice of the filing of this Notice of Removal has been given to all parties by 28 U.S.C. §1446(d). 9. A true and correct copy of this Notice of Removal has been filed with the Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania, as provided by 28 U.S.C. §1446(d). WHEREFORE, Petitioner respectfully requests removal of this action from the Court of Common Pleas of Cumberland County, Pennsylvania to the United States District Court for the Middle District of Pennsylvania. NICOLSON ASSOCIATES LLC BY: CHERYL M. NICOLS , ESQUIRE MELISSA L. YEMMA, SQUIRE Attorney I.D. No. 57422/92194 Rose Tree Corporate Center II 1400 N. Providence Road, Suite 6050 Media, PA 19063 (610) 891-0300 nicolson(@nicolsonassoc.com yemmana nicolsonassoc.com Attorneys for Defendant, Electrolux Home Products, Inc. DATE: December 1. 2008 EXHIBIT "A" COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONEGAL MUTUAL INSURANCE CO. a/s/oVanessa Schantz 1195 River Road CIVIL, ACTION NO. #' 11*3 Marietta, PA 17547 Plaintiffs V. ELECTROLUX NORTH AMERICA 250 Bobby Jones Expressway Martinez, GA 30907 JURY TRIAL DEMAND NOTICE TO DEFEND 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 AF M 11M 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 JUDGNIENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO 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 DONEGAL; MUTUAL INSURANCE CO. a/s/oVanessa Schantz 1195 River Road CIVIL ACTION NO. 10 Marietta, PA 17547 Plaintiffs V. JURY TRIAL DEMAND ELECTROLUX NORTH AMERICA 250 Bobby Jones Expressway Martinez, GA 30907 COMPLAINT Plaintiff, Donegal Mutual Insurance Co., a/s/o Vanessa Schantz (hereinafter "Donegal"), is a corporation organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania, having its principal place of business located at 1195 River Road, Marietta, Pennsylvania 17547. 2. At all times relevant hereto, the Plaintiff was duly authorized to issue policies of insurance in the Commonwealth of Pennsylvania 3. At all times relevant and material hereto, pim u ant to Policy No. G1110705 RY, the PlaintifT provided a homeowner's policy covering real and personal property with respect to a property located at 5035 Wallace Road, Murrysville, Pennsylvania (hereinafter "Property"). 4. Defendant, Electrolux, North America (hereinafter "Electrolux"), is a corporation organized and existing under and by virtue of the laws of the state of Delaware with its principal place of business located at 250 Bobby Jones Expressway, Martinez, GA 30907. 5. Defendant, Electrolux, at all times material hereto regularly conducted business in the Commonwealth of Pennsylvania by selling and distributing consumer products in the Commonwealth of Pennsylvania, and specifically selling the electric dryers through retail outlets in the Commonwealth. 6. Prior to November 12, 2006, Keith and Vanessa Schantz purchased the electric dryer for use in their home. 7. On or about November 12, 2006, a fire occurred at the Property and caused extensive damage to the property and its contents. 8. The fire of November 12, 2006 at the Property was caused to occur as a direct and proximate result of a defective and dangerous condition within, an electric dryer designed, manufactured, imported, distributed and sold in the Commonwealth of Pennsylvania by the defendant. WHEREFORE, Plaintiff demands judgment against defendant in an amount in excess of $140,000.00 together with costs or suit, counsel fees, and other further relief as this Honorable Court deems just and proper under the circumstances. COUNTI NEGLIGENCE 9. Plaintiff hereby incorporates all preceding paragraphs of this Complaint the same as if set forth fully hereinafter. 10. Prior to November 12, 2006, plaintiff's insured purchased an electric dryer designed, manufactured, imported, distributed, and sold by the defendant (hereinafter "Dryer) for use inside the property. 2 11. On or about November 12, 2006, a fire originated inside the Dryer during its ordinary and intended use. 12. The fire subsequently spread from the Dryer to other areas of the Property thereby causing extensive damage to the Property and its contents. 13. As a direct and proximate result of the fire originating within the Dryer, plaintiff, Donegal, had made payments in an amount in excess of $140,000.00 to, or on behalf of its insureds, in accordance with the terms and conditions of its insurance agreement with its insureds. 14. The fire of November 12, 2006 was the direct and proximate result of the negligence and lack of ordinary care of the defendant, including: a. failing to exercise reasonable care in designing the Dryer so to avoid the risk of fire; b. failing to adequately test the dryer so as to discover unsafe conditions; c. failing to utilize components and materials of" sufficient quality and durability so as to tolerate normal wear and tear and remain safe; d. utilizing and. manufacturing material that was not suitable for containing fire within the dryer; e. failing to notify the United States Consumer Products Safety Commission and plaintiff's insured of the unsafe condition of the dryer and the propensity of the dryer to cause fire; f. failing warn plaintiff or plaintiff's insured and other foreseeable users of the dangerous condition of the dryer and how to avoid hazards posed by the dryer; 3 g. providing instructions and warnings with the dryer that did not adequately advise consumers that the normal, foreseeable and intended use of the dryer created a risk of fire and that related dryer fires had been reported to the defendant; and h. failing to adhere to industry standards regarding the safe design and manufacture of the dryer. 15. As a direct and proximate result of the negligence and lack of ordinary care of the defendant, as aforesaid, the plaintiff was caused to suffer the losses and damages set forth above. WHEREFORE, Plaintiff demands judgment against defendant in an amount in excess of $140,000.00 together with costs or suit, counsel fees, and other further relief as this Honorable Court deems just and proper under the circumstances. COUNT II STRICT LIABILITY FOR DEFECTIVE PRODUCTS 16. Plaintiff hereby incorporates by reference all preceding paragraphs of this Complaint the same as if fully set forth hereinafter. 17. At all times material hereto, the defendant was regularly in the business of selling consumer products including electric dryers of the same type and model as the Dryer that caused the fire at the Property. 18. The Dryer that caused the fire of November 12, 2006 was defective and unsafe for its ordinary and intended use by reason that the dryer had the propensity to cause fires during its ordinary and intended use. 4 19. The Dryer was in such defective and unsafe condition at the time it left the possession and control of the defendant and remained in such unsafe and defective condition, substantially unchanged, until the time of the fire. 20. As a direct and proximate result of the defective and unsafe condition of the Dryer, the fire of November 12, 2006 at the Property was caused to occur. 21. As a direct and proximate result of the defective and unsafe condition of the Dryer, Plaintiff was caused to suffer the damages and losses referred to above. WHEREFORE, Plaintiff demands judgment against defendant, in an amount in excess of $140,000.00 together with costs of suit, counsel fees, and other further relief as this Honorable Court deems just and proper under the circumstances. COUNT III WARRANTY/BREACH OF CONTRACT 22. Plaintiff incorporates by reference all preceding paragraphs of this Complaint, the same as if set forth fully hereinafter. 23. At the time the defendants, designed, manufactured, marketed, distributed and sold the dryer, defendants knew of the use for which the Dryer was intended and impliedly warranted that the Dryer was of merchantable quality and safe for its intended use. 24. Plaintiff'relied upon the implied warranty and representations of defendants that the dryer was safe for its ordinary and intended use when the plaintiff purchased and operated the dryer. 25. Defendant breached the above implied warranties and breached the contract of sale with plaintiff's insured by supplying a dryer which was unsafe for its ordinary and intended use. 5 26. Defendant also breached the above implied warranties by failing to warn the Plaintiff's insured that the dryer had a propensity to catch fire during its ordinary and intended use. 27. As a natural and foreseeable consequence of the defendant's breach of warranties and breach of contract, the fire of November 12, 2006 at the property was caused to occur. 28. As a natural and foreseeable consequence of the breaches of warranty and breaches of contract by the defendant, Plaintiff was caused to suffer general, special and consequential damages referred to in the preceding paragraphs. WHEREFO' Plaintiff demands judgment against defendant, in an amount in excess of $140,000.00 together with costs of suit, counsel fees, and other further relief as this Honorable Court deems just and proper under the circumstances. LAW OFFICES OF/ItOBE?ZT A. ST )TMAN, P.C. By LIVV?A MICHAEL. H KIN<l Attorney I.D. No 88080 501 Office Center Drive, Suite 300 Ft. Washington, PA 19034 Counsel for DONEGAL INSURANCE GROUP aiVo Keith and Vanessa Schantz DATED: t0?Z8 O8 6 VERIFICATION I, THOMAS J. KOVACH, CCLA, CSRP, CASA, I am an employee with Donegal Mutual Insurance Company, and am authorized to make this Affidavit on behalf of Plaintiff. I verify that the facts contained in the Plaintiffs Complaint (Donegal Mutual Insurance Company a/s/o Vanessa Schantz v. Electrolux North America) are true and correct to the best of my knowledge, information and belief, and that this statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsifications to authorities. The information set forth in Plaintiffs Complaint was obtained from Plaintiff's insured and through the course of investigations conducted after the incident that gives rise to this action. Date: THOMAS J. KU A H, CCLA, CSRP, CASA n N O r? 1 '? ..rte. ?•1 1 EXHIBIT "B" sTUTU A N Michael J Hopkins h*insm@stutmanlaw.com November 11, 2008 Prothonotary COURT OF COMMON PLEAS CUMBERLAND COUNTY 1: Courthouse Square Carlisle, PA 17013 Re: Donegal'Insurance Group".Insured: Schantz, Keith and Vanessa Donegal Insurance Group: Claim -NO.-. G-PA-01-0"055747 Date of Loss: November 12, 2006 Loss Location: 5035 Wallace Road, Murrysville, PA Dear Sir/Madam: Enclosed, please find an original and one (1) copy of the Affidavit of Service with reference to the above matter. 'Please file the original and return a time-stamped copy to me in the envelope provided.. Should' you have any.questions regarding the above, please do not hesitate to contact me. Thank you for your courtesies in this regard. Very truly yours, Ivhchael J. o MJH:cas Enc. Cc: Electrolux North America i Law Offices of Robert A. Stutman; P.C. 501 Office Center Drive, Suitc 300, Fort Washington. PA 19034 Phone '(215) 283-1177 '. Fax (21 Sy 283-1188 • Toll Free (888) 579-1 144 W W WatutmanlaW.cwn COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 'DONEGAL MUTUAL INSURANCE CO. a/s/oVanessa Schantz CIVIL ACTION NO. 08-6423 CIVIL TERM Plaintiffs V. JURY TRIAL DEMAND ELECTROLUX NORTH AMERICA AFFIDAVIT OF SERVICE Plaintiffs, Donegal Mutual Insurance Co. a/s/o Vanessa Schantz hereby files Proof of Service showing that the Defendant Electrolux North Americamas sewed. the Complaint. in 'reference to the above-captioned matter. LAW OFFICES OF ROBERT A. STUTMAN, P.C. By xkroiYAVY 501 Office Center Drive, Suite 300 Ft. Washington, PA 19034 Counsel for DONEGAL INSURANCE GROUP a/slo Keith and Vanessa Schantz ?? a ?. • i L X AL f Michael J Hopkins hopkinsav3suantanlaw con, November 4, 2008 CERTIFIED MAIL RETURN RECEIPT REQUESTED Electrolux North America 250 Bobby Jones Expressway Martinez, GA 30907 ---° ----- - Nanessa AgOnt f 1 ?Aitdressea close Plaintiff's 4 equest for Production of 0) days according to the t $ ??- t for N?erct)arlise y" . j •b 1. w+.. }j'l/,?'Z • ' t cerMed' Fee D Gveryrt (Extra Fee)': ? Ye , P os rk @ r r e __ - - r l Aeceipt F b Fs , Here (Endotsart>r1t Aeq(dwdj t.. ` 1864 0.29-7 Aestilol?d:Dellvery Fee.. ' (EndorsAtitieM"Aequlrod)'r. -----"---'? i 10259.kr••.-t+ht Total Postage a Fees.. $ Sort TO &P6 Law Offices of Robert A. Stutman. P.C. 501 Office Cenrer Drive, Suitc 300. Fort Washinstun. PA 19033 Phune 1215) 233-1177, Fax (2151 383-ft)M -Toll Free t889) 579-11-14 www.stutmantew.com Certified Fee Q ' m O <• Retun Receipt Fee ' Poshnark O. (End°rsement RegWredj Hero ° ReWded.Delivery Fee Q '(Endorsement Required) .11 Twat Postage a Fees. $ ' /.• ! 1711 ? UyG _ °ieC ?C77e6 0 n r-. 70. I or.POBorNc. 'n'ZSD } f i 13 AgpM ?`• o . t f ?•y w r' ©,Addres?ee.: [C?CleDel+rery . y „ F) r d .. r ' aye 163 r ' 'a1Kt r1t frorrf ftetWI 'Yes . _ItYESr?etfterdei'prery`address bewv;r G7 No // ?, 'Y { ° r Gert+ffed• Mal 0 Fxpress Mail 7n?' ?6 1 R?fred i O Retum Receipt for Mercftanclise j ' Mat D C. D. b .Vd . 4. Restricted Delivery? !Extra Fee) • ? Yes 2. Art'cf rnb i i (Tralisier>ce?a?ieq 7007 2680 0003 1864 8297 MFortri'•3811,February2004 DomesticRetumReceipt 1025ss.ozttt$ao i i i COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONEGAL MUTUAL INSURANCE CO. a/s/oVanessa Schantz CIVIL ACTIONNO. 08-6423 CIVIL TERM` Plaintiffs JURY TRIAL DEMAND ELECTROLUX NORTH AMERICA CERTIFICATE OF SERVICE I, MICHAEL J. HOPKINS, hereby certifies that a true and. correct copy of the Affidavit of Service' was forwarded by US Mail/postage prepaid to: Electrolux North America 250 Bobby Jones Expressway Martinez, GA 30907 LAW OF S STUTMAN, P.C. By TB MICHAEL r1KrS DATED: - r2 -0?4 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA DONEGAL MUTUAL INSURANCE CO. CIVIL ACTION NO. a/s/o Vanessa Schantz Plaintiff : V. JURY TRIAL DEMANDED ELECTROLUX NORTH AMERICA Defendant CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing Notice of Removal was served by United States first class mail, postage pre-paid, on the date stated below, upon the following: Michael J. Hopkins, Esquire Law Offices of Robert A. Stutman, P.C. 501 Office Center Drive, Suite 300 Fort Washington, PA 19034 NICOLSON ASSOCIATES LLC BY: CHERYL M. ICO ON, ESQUIRE MELISSA L. YEM A, ESQUIRE Attorney I.D. No. 57422/92194 Rose Tree Corporate Center II 1400 N. Providence Road, Suite 6050 Media, PA 19063 (610) 891-0300 .,nicolsonassoc.com nicolson(@ - ey mma c_r nicolsonassoc.com Attorneys for Defendant, Electrolux Home Products, Inc. DATE: December 1, 2008 r%JS 44 (Rev. 12/07) CIVIL COVER SHEET The IS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings or other papers as regwired bylaw, except as provided by local rules of court. 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 Donegal Mutual Insurance Co. a/s/o Vanessa Schantz (b) County of Residence of First Listed Plaintiff Lancaster, PA (EXCEPT IN U.S. PLAINTIFF CASES) (C) Attorney's (Firm Name, Address, and Telephone Number) Michael J. Hopkins, Esq., 501 Office Center Dr., Suite 300, Ft. Washin ton, PA 19034, 215 283-1177 II. BASIS OF JURISDICTION (Place an "X" in One Box Only) O 1 U.S. Government O 3 Federal Question Plaintiff (U.S. Government Not a Party) Ili CITIZENSHIP OF PRINCIPAL PARTIES(Place an °X^ in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF Citizen of This State O 1 O 1 Incorporated or Principal Place 4 04 of Business In This State O 2 U.S. Government llll 4 Diversity Citizen of Another State O 2 O 2 Incorporated and Principal Place O 5 X 5 of Business In Another State Defendant (Indicate Citizenship of Parties in Item 111) Citizen or Subject of a El 3 C) 3 Foreign Nation O 6 O 6 Foreign Count IV. NATURE OF SUIT (Place an "X" in One Box Only) r v..can nr ?a ranrrr O 110 Insurance PERSONAL INJURY O 120 Marine O 310 Airplane O 130 Miller Act O 315 Airplane Product O 140 Negotiable Instrument Liability O 150 Recovery of0verpayment O 320 Assault, Libel & & Enforcement ofJudgment Slander O 151 Medicare Act O 330 Federal Employers' O 152 Recovery of Defaulted Liability Student Loans O 340 Marine (Excl. Veterans) O 345 Marine Product O 153 Recovery of Overpayment Liability of Veteran's Benefits O 350 Motor Vehicle O 160 Stockholders' Suits O 355 Motor Vehicle O 190 Other Contract Product Liability D 195 Contract Product Liability O 360 Other Personal O 196 Franchise Injury O 210 Land Condemnation O 220 Foreclosure O 230 Rent Lease & Ejectment O 240 Torts to Land O 245 Tort Product Liability O 290 All Other Real Property O 441 Voting O 442 Employment O 443 Housing/ Accommodations O 444 Welfare fJ 445 Amer, w/Disabilities - Employment O 446 Airier. w/Disabilities - Other O 440 Other Civil Rights TS PERSONAL INJURY O 362 Personal Injury - Med. Malpractice 0 365 Personal Injury - Product Liability O 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY O 370 Other Fraud O 371 Truth in Lending O 380 Other Personal Property Damage X 385 Property Damage Product Liability 510 Motions to Vacate Sentence Habeas Corpus: 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Condition D 610 Agriculture O 620 Other Food & Drug O 625 Drug Related Seizure of Property 21 USC 881 O 630 Liquor Laws O 640 R.R. & Truck O 650 Airline Regs. O 660 Occupational Safety/Health O 6e90 Other 710 Fair Labor Standards Act 720 Labor/Mbmtt. Relations 730 Labor/Mgmt.Reporting & Disclosure Act 740 Railway Labor Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act O 463 Habeas Corpus - Alien Detainee O 465 Other Immigration Actions 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157 O 820 Copyrights O 830 Patent O 840 Trademark 861 HIA (1395ff) 862 Black Lung (923) 863 DI W C/DI W W (405(8)) 864 SSID Title XVI 865 RSI(405(u)) or Defendant) 871 IRS--Third Parry 26 USC 7609 O 400 State Reapportionment O 410 Antitrust O 430 Banks and Banking O 450 Commerce O 460 Deportation O 470 Racketeer Influenced and Corrupt Organizations O 480 Consumer Credit O 490 Cable/Sat TV O 810 Selective Service O 850 Securities/Commodities/ Exchange O 875 Customer Challenge 12 USC 3410 O 890 Other Statutory Actions O 891 Agricultural Acts a 892 Economic Stabilization Act O 893 Environmental Matters O 894 Energy Allocation Act O 895 Freedom of Infomtation Act O 900Appeal of Fee Determination Under Equal Access to Justice O 950 Constitutionality of State Statutes V. ORIGIN (Place an "X" in One Box Only) Transferred from 0 1 Original 0 2 Removed from ? 3 Remanded from ? 4 Reinstated or ? 5 another district ? 6 Multidistrict ? 7 Proceeding State Court Appellate Court Reopened (specify) Litigation CjIC,t?i (e -S`Civ§iJ $Stgye under which you are filing (Do not cite jurisdictional statutes unless diversity): VI. CAUSE OF ACTION DEFENDANTS Electrolux Home Products, Inc. County of Residence of First Listed Defendant Columbia, GA (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE. THE LOCATION OF THE LAND INVOLVED. Attorneys (If Known) Cheryl M. Nicolson, Esq., 1400 N. Providence Rd., Suite 6050, Media, PA 19063, (610) 891-0300 1 cause: recovery of money allegedly to District to its insured, Vanessa Schantz, as the result of a tire. VII. REQUESTED IN ? CHECK IF THIS IS A CLASS ACTION DEMANDS CHECK YES only it aemanaea in complaint: COMPLAINT: UNDER F.R.C.P. 23 JURY DEMAND: 62f Yes O No VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE DOCKET NUMBER 12/01/2008 RECEIPTN AMOUNT APPLYING IFP JUDGE MAG. JUDGE ` ?' ? ? ' ' i n ?rr ?.1., ? ?. imp •?" .._, z 1"4 a ...G ?J