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HomeMy WebLinkAbout09-4655NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 518 TOWNSHIP LINE ROAD, SUITE 300 ATTORNEYS FOR PLAINTIFFS BLUE BELL, PA 19422 (215) 358-5122 DANIEL E. BIER and STEPHANIE M. BIER, h/w 16 Watson Drive Carlisle, PA 17105 Plaintiff(s) V. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION NO: Qq _ q(o55 01vi 1e-M ELECTROLUX HOME CARE PRODUCTS, INC. 20455 Emerald Parkway SW Suite 250 Cleveland, OH 44135 Defend ARBITRATION MATTER 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 (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 claimed or any other claim or relief requested by the plaintiff. You may lose money or property 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: PENNSYLVANIA BAR ASSOCIATIONS LAWYER REFERRAL SERVICE (800) 692-7375 (PA Only) or (717) 238-6715 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5122 DANIEL E. BIER and STEPHANIE M. BIER, h/w 16 Watson Drive Carlisle, PA 17105 Plaintiff(s) V. ELECTROLUX HOME CARE PRODUCTS, INC. 20455 Emerald Parkway SW Suite 250 Cleveland, OH 44135 s COMPLAINT ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 4 - Y 65 S CL;?J 7-? x ARBITRATION MATTER Plaintiffs, Daniel E. Bier and Stephanie M. Bier, by and through their undersigned counsel, hereby demand judgment against Defendant, and complain against it as follows: 1. Plaintiffs, Daniel E. Bier and Stephanie M. Bier, are adult individuals who, at all times relevant hereto, owned and resided at the home located at 16 Watson Drive, Carlisle, PA 17105 (hereinafter "the premises") 2. At all times relevant hereto, Defendant, Electrolux Home Care Products, Inc. (hereinafter "Electrolux") was, upon information and belief, a Delaware corporation and was regularly conducting business in the Commonwealth of Pennsylvania, County of Cumberland. 2 3. Defendant, Electrolux, at all times relevant hereto, was in the business of, inter alia, manufacturing, selling, designing, distributing, and marketing home appliances, including the dryer at issue in this case. 4. On or about May 16, 2008, a fire erupted at the subject premises causing extensive damage to plaintiffs' real and personal property, as well as the imposition of additional expenses and hardship besides, which was directly and proximately caused by Defendant and is further and more fully described below. COUNT I - NEGLIGENCE PLAINTIFFS v. ELECTROLUX 5. Plaintiffs repeat the allegations set forth in the prior paragraphs of this Complaint as though they were set forth at length herein. 6. The aforementioned damages were the direct and proximate result of the negligence and carelessness of Defendant, Electrolux, by and through their employees, agents, technicians, vendors, subcontractors and/or servants, more specifically described as follows: a. failing to exercise reasonable care in the following manner: i. failing to manufacture, assemble, sell, design, transport, distribute, test and/or market a properly functioning product; ii. failing to properly inspect and/or test the product and/or its component parts; iii. failing to properly determine and ensure that the subject product was in compliance with applicable industry standards; iv. failing to provide safe and adequate warnings or instructions with the product; and /or v. manufacturing, marketing, distributing and/or selling the product when the Defendant knew or should have known that the product and/or its component parts would be inadequate for the reasons for which purchased. b. failing to adequately instruct, supervise and/or train servants, employees and agents as to the proper ways to perform the tasks set forth in subparagraph (a); C. failing to adequately warn consumers and others of the dangers and hazardous conditions resulting from the conduct set forth in subparagraph (a) above; d. failing to provide, establish, and/or follow proper and adequate controls so as to ensure the proper performance of the tasks set forth in subparagraph (a) above; e. failing to retain competent, qualified and/or able agents, employees or servants to perform the tasks set forth in subparagraph (a) above; and f. failing to perform the tasks set forth in subparagraph (a) above in conformity with the prevailing industry and governmental specifications, laws, and standards. 7. As a direct and proximate result of the negligence and carelessness of Electrolux, Plaintiffs sustained and incurred damage to their real and personal property, as well as the imposition of additional expenses and hardships, in an amount in excess of $10,000.00. WHEREFORE, Plaintiffs respectfully request judgment against Defendant, Electrolux Home Care Products, Inc., in an amount in excess of $10,000.00, plus costs incident to this suit, delay damages, damages for interference with enjoyment of real property, and attorney fees, and for such other relief as this Honorable Court shall deem appropriate under the circumstances. COUNT II - STRICT LIABIILTY PLAINTIFFS v. ELECTROLUX 8. Plaintiffs repeat the allegations set forth in the prior paragraphs of this Complaint as though they were set forth at length herein. 4 9. The defendant, at all times relevant hereto, was engaged in the business of, inter alia, designing, assembling, manufacturing, testing, selling and/or distributing, inter alia, dyers, and, specifically did so with the product at issue in this case. 10. Electrolux designed, manufactured, distributed, tested and/or sold the subject product in a defective condition, unreasonably dangerous to consumers. 11. Electrolux knew or should have known that the subject product would, and did, reach the subject property without substantial change from the condition in which originally distributed and sold. 12. The aforementioned defects consisted o£ (a) design defects; (b) manufacturing defects; (c) component defects; (d) a failure to warn of the design, manufacturing, and/or component defects, and/or properly provide warning and/or safe use instructions. 13. As a direct and proximate result of such defects, Plaintiffs sustained and incurred damage to their real and personal property, as well as the imposition of additional expenses and hardship, in an amount in excess of $10,000.00. 14. For these reasons, the defendant is strictly liable to plaintiffs for the damages stated herein under Section 402A of the Restatement (2d) of Torts, the Restatement (3d) of Torts, and the applicable case law of the Commonwealth of Pennsylvania. WHEREFORE, Plaintiffs respectfully request judgment against Defendant, Electrolux Home Care Products, Inc., in an amount in excess of $10,000.00, plus costs incident to this suit, delay damages, damages for interference with enjoyment of real property, and attorney fees, and for such other relief as this Honorable Court shall deem appropriate under the circumstances. COUNT III-BREACH OF EXPRESS AND IMPLIED WARRANTIES PLAINTIFFS vs. ELECTROLUX 15. Plaintiffs repeat the allegations set forth in the prior paragraphs of this Complaint as though they were set forth at length herein. 16. At the time of the sale and/or distribution of the subject product, the defendant had reason to know the particular purpose to which the subject product would be used (i.e. residential application) and they were being relied upon to furnish a suitable product. Thus, the defendant breached the implied warranty of fitness for a particular purpose as set out in the Uniform Commercial Code (hereinafter "UCC") at 13 Pa. C.S.A. § 2-315 in that the subject product was not fit for the particular purpose for which such products are required as it was prone to overheating, failure and ignition under normal operation. IT In addition, the defendant breached its implied warranty of merchantability as set out in 13 Pa. C.S.A. § 2-314 (c) in that the subject product was not fit for the ordinary uses for which the subject product was used. 18. In addition, the defendant breached any and all express warranties made or relating to the subject product that became part of the basis of the bargain for sale of the product in derogation of 13 Pa. C.S.A. § 2-313. (The defendant has better access to said warranties and, therefore, is not prejudiced by them not being attached hereto). 19. Plaintiffs' damages as set forth above occurred as a direct and proximate result of the breach by the defendant of its implied warranties of fitness for a particular purpose and 6 merchantability as set out in 13 Pa. C.S.A. § 2-315 and § 2-314 (c) and as a result of the breach of its expressed warrantees in derogation of 13 Pa. C.S.A. § 2-313. 20. Plaintiffs have met any and all conditions precedent to recovery for such breaches. WHEREFORE, Plaintiffs respectfully request judgment against Defendant, Electrolux Home Care Products, Inc., in an amount in excess of $10,000.00, plus costs incident to this suit, delay damages, damages for interference with enjoyment of real property, and attorney fees, and for such other relief as this Honorable Court shall deem appropriate under the circumstances. COUNT IV - INTERFERENCE with PLAINTIFFS' RIGHT of PEACEFUL ENJOYMENT of THEIR REAL PROPERTY PLAINTIFFS vs. ELECTROLUX 21. Plaintiffs repeat the allegations set forth in the prior paragraphs of this Complaint as though they were set forth at length herein. 22. As a direct and proximate result of the unlawful acts described in the preceding facts, averments, and Counts, Plaintiffs were forced to vacate their residence premises for an extended period of time, and were left without the unique comforts and benefits they otherwise would have enjoyed had they not been forced to do so. 23. This caused Plaintiffs substantial inconvenience and discomfort, and they thereby suffered damages. 24. Plaintiffs suffered "inconvenience and discomfort" as a result of the loss, and in the wake of their being suddenly and completely put out of their house. 25. The law in Pennsylvania has long recognized that where injury is sustained to real property as a result of another, the property owner is entitled to damages for the inconvenience 7 and discomfort caused thereby. 26. Moreover, Pennsylvania has adopted Section 822 of the Restatement, Torts, which provides that an actor is liable in an action for damages for a nontrespassory invasion of another's interest in the private use and enjoyment of land if, (a) the other has property rights and privileges in respect to the use or enjoyment interfered with; and (b) the invasion is substantial; and (c) the actor's conduct is a legal cause of the invasion; and (d) the invasion is either (i) intentional and unreasonable; or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct. 27. Thus, the harms that Defendant caused Plaintiffs are clearly actionable above and beyond the damages caused to their real and personal property, as well as other harms besides; and defendant is therefore liable for Plaintiffs having suffered interference with their peaceful enjoyment of their real property. 28. As a direct and proximate result of the above-described actions, Plaintiffs sustained and incurred damages as described herein in an amount in excess of $10,000.00. WHEREFORE, Plaintiffs respectfully request judgment against Defendant, Electrolux Home Care Products, Inc., in an amount in excess of $10,000.00, plus costs incident to this suit, delay damages, damages for interference with enjoyment of real property, and attorney fees, and for such other relief as this Honorable Court shall deem appropriate under the circumstances. NELSON LEVINE de LUCA & HORST, LLC ? Dated: 7 ! < 1L04 B IC A J. B , JR.., ESQUIRE ATTORNEYS FOR PLAINTIFFS 8 VERIFICATION I, Francis Guillemette do hereby state that I am a representative for Erie Insurance Group in the within action, and as such do hereby verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Dated: FRANCIS GUILLEMET E 0 OF THE , i 1 1 2u9 .? ! 1 3 J I $118.5o PO ATN GL? 3083(0 p. aa'19 t4 r a Daniel E. Bier and Stephanie M. Bier, Plaintiffs V. Electrolux Home Care Products, Inc., Defendant. TO THE PROTHONOTARY: COURT OF COMMON PLEAS CUMBERLAND CTY., PENNSYLVANIA No. 09-4655 CIVIL ACTION - LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE Kindly enter the appearance of the undersigned as counsel on behalf of the Defendant, Electrolux Home Care Products, Inc., with respect to the above-referenced matter. Respectfully submitted, DATE:1 I G-_` 1 0? MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: A(- '_?- TIMOtHV'J. ON, ESQUIRE I.D. No. 52918 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant Electrolux 05/515304.0 0 A CERTIFICATE OF SERVICE I, Cindy Sowers, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this -A day of July, 2009, I served a copy of the foregoing Entry of Appearance via First Class United States mail, postage prepaid, as follows: Richard J. Boyd, Jr., Esquire Nelson Levine deLuca & Horst 518 Township Line Road Suite 300 Blue Bell, PA 19422 Attorney for Plaintiffs r Cindy ?wers Fil F&- vl 'lC£ OF -)TAPY 2009 JU 3 1 PI-14 ! : 1 G NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5122 DANIEL E. BIER and STEPHANIE M. BIER, h/w Plaintiff(s) V. ELECTROLUX HOME CARE PRODUCTS, INC. Defendant(s) ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION NO: 09-4655 ARBITRATION MATTER AFFIDAVIT OF SERVICE TO THE PROTHONOTARY: Richard J. Boyd, Jr., Esquire, being duly sworn according to law, deposes and says that he is the attorney for Plaintiffs in the above captioned matter and in such capacity did have Defendant, Electrolux Home Care Products, Inc., served with a true and correct copy of the Complaint by way of certified mail, return receipt number 7008 1830 0001 0307 0963. The Complaint was acknowledged by Defendant as being received on July 17, 2009 as evidenced by the executed return receipt card, a copy of which is attached hereto as Exhibit "A". NELSON LEVINE de LUCA & HORST, LLC BY: a"4'? CHARD J. B YD, JR., ESQUIRE ATTORNEYS FOR PLAINTIFFS Dated: July 29, 2009 a«. A. Signaeure//a X t B. Received b/(fWgted? D. Is del' If YE deJr ilk 17 ? Agent ? Addressee e? C. Date of Delivery from item 17 O Yes ? No ?below, ? 3. F.r_ Retum ?r Merchandise ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Artici@N4'tuber 7008 1830 0001 0307 0963 (Trar?setfioln servtcQ fabF1J_ PS Forth 3811, February 2004 Domestic Return Receipt 102595-02-M-1W ¦ Com to items 1, 2, and 3. Also c omPlete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1`. Article Addressed to'. 205" End First-Class Mail Postage & Fees Paid LISPS Permit No. G-10 • Sender: Please Print your name, address, and ZIP+4 in this box • AMID NELSON LEVINE DE LUCA & HORST 518 TOWNSHIP LINE RD SUITE 300 BLUE BELL, PA 19422 UNITED STATES POSTAL SERVICE I 11titatt,toitllfitI111111111111011111411111JI 1 l112,111t 1110 EXHIBIT "A" C E 1`i F? i' Daniel E. Bier and Stephanie M. Bier, COURT OF COMMON PLEAS Plaintiffs CUMBERLAND CTY., PENNSYLVANIA V. No. 09-4655 Electrolux Home Care Products, Inc., CIVIL ACTION - LAW Defendant. JURY TRIAL DEMANDED STIPULATION TO AMEND PLAINTIFFS' COMPLAINT The parties, through their respective counsel as indicated below, hereby stipulate that Plaintiffs' Complaint is amended and that Plaintiffs withdraw Count IV from their Complaint. ?Riclfard J. Boyd, Y. Esquire NELSON LEVINE deLUCA & HORST 518 Township Line Road Suite 300 Blue Bell, PA 19422 Attorney for Plaintiffs Timothy). McMabbn, E#uire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road Harrisburg, PA 17112 Attorney for Defendant 05/515309.0 ff ((r OF THE P-17,7- O IARY 2009 AUG 24 PM 3: 42 Daniel E. Bier and Stephanie M. Bier, Plaintiffs V. Electrolux Home Care Products, Inc., Defendant. COURT OF COMMON PLEAS CUMBERLAND CTY., PENNSYLVANIA No. 09-4655 CIVIL ACTION - LAW JURY TRIAL DEMANDED r ANSWER WITH NEW MATTER OF DEFENDANT, ELECTROLUX HOME PRODUCTS, INC. (INCORRECLTY CAPTIONED AS ELECTROLUX HOME CARE PRODUCTS, INC.) 1. Admitted in part; denied in part. It is admitted only that Plaintiffs are who they say they are. All remaining allegations set forth in this paragraph are denied. 2. It is admitted that Defendant Electrolux Home Products, Inc. (hereinafter "Electrolux" is a Delaware corporation which conducts business in the Commonwealth of Pennsylvania, including in Cumberland County, Pennsylvania as alleged. All remaining allegations set forth in this paragraph are denied. 3. Denied. After reasonable investigation and inquiry, Defendant Electrolux is unable to make a determination of whether it manufactured, sold, designed, distributed and/or marketed the dryer at issue in this case, and accordingly these allegations are denied. By way of further answer, Defendant Electrolux acknowledges that it is in the business of manufacturing, selling, designing, distributing and marketing certain home appliances, including dryers, generally. 4. Denied. After reasonable investigation and inquiry, Defendant Electrolux lacks information sufficient to form a belief as to the truth of the allegations set forth in this paragraph, and accordingly these allegations are denied in accordance with Pa. R.C.P. 1029 and proof thereof is demanded, to the extent relevant. 05/515329.v1 COUNT I - NEGLIGENCE PLAINTIFFS V. ELECTROLUX 5. Defendant Electrolux incorporates by reference its responses to paragraphs 1 through 4 above as if set forth at length herein. 6. Admitted in part; denied in part. It is admitted only that Defendant Electrolux, as a corporation acts through employees, agents and/or servants acting within the course and scope of their employment. All remaining allegations set forth in this paragraph, including its subparagraphs (a) through (f) are denied as conclusions of law within the meaning of Pa. R.C.P. 1029, and accordingly proof thereof is demanded, to the extent relevant. 7. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning of Pa. R.C.P. 1029 and accordingly these allegations are denied, and proof thereof is demanded, to the extent relevant. WHEREFORE, Defendant Electrolux Home Products, Inc. demands judgment in its favor and against Plaintiffs, together with such other relief as this Court shall deem appropriate. COUNT II - STRICT LIABILITY PLAINTIFFS V. ELECTROLUX 8. Defendant Electrolux incorporates by reference its responses to paragraphs 1 through 7 above as if set forth at length herein. 9. Denied. After reasonable investigation and inquiry, Defendant Electrolux is unable to make a determination of whether it manufactured, sold, designed, distributed and/or marketed the dryer at issue in this case, and accordingly these allegations are denied. By way of further answer, Defendant Electrolux acknowledges that it is in the business of manufacturing, selling, designing, distributing and marketing certain home appliances, including dryers, generally. 10. Denied. It is specifically denied that Defendant Electrolux designed, manufactured, distributed, tested and/or sold the subject dryer in a defective condition, unreasonably dangerous 2 to consumers. By way of further answer, the allegations set forth in this paragraph constitute conclusions of law within the meaning of Pa. R.C.P. 1029, and accordingly these allegations are denied and proof thereof is demanded, to the extent relevant. 11. Denied. It is specifically denied that Defendant Electrolux knew or should have known that the subject product would, and did, reach the subject property without substantial change from the condition in which it originally distributed and/or sold. By way of further answer, the allegations set forth in this paragraph constitute conclusions of law within the meaning of Pa. R.C.P. 1029, and accordingly these allegations are denied and proof thereof is demanded, to the extent relevant. 12. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning of Pa. R.C.P. 1029, and accordingly these allegations are denied and proof thereof is demanded, to the extent relevant. 13. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning of Pa. R.C.P. 1029, and accordingly these allegations are denied and proof thereof is demanded, to the extent relevant. 14. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning of Pa. R.C.P. 1029, and accordingly these allegations are denied and proof thereof is demanded, to the extent relevant. WHEREFORE, Defendant Electrolux Home Care Products, Inc. demands judgment in its favor and against Plaintiffs, together with such other relief as this Court shall deem appropriate. COUNT III - BREACH OF EXPRESS AND IMPLIED WARRANTIES PLAINTIFFS V. ELECTROLUX 15. Defendant Electrolux incorporates by reference its responses to paragraphs 1 through 14 above as if set forth at length herein. 3 16. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning of Pa. R.C.P. 1029, and accordingly these allegations are denied and proof thereof is demanded, to the extent relevant. 17. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning of Pa. R.C.P. 1029, and accordingly these allegations are denied and proof thereof is demanded, to the extent relevant. 18. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning of Pa. R.C.P. 1029, and accordingly these allegations are denied and proof thereof is demanded, to the extent relevant. 19. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning of Pa. R.C.P. 1029, and accordingly these allegations are denied and proof thereof is demanded, to the extent relevant. 20. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning of Pa. R.C.P. 1029, and accordingly these allegations are denied and proof thereof is demanded, to the extent relevant. WHEREFORE, Defendant Electrolux Home Products, Inc. demands judgment in its favor and against Plaintiffs, together with such other relief as this Court shall deem appropriate. COUNT IV - INTERFERENCE WITH PLAINTIFFS' RIGHT OF PEACEFUL ENJOYMENT OF THEIR REAL PROPERTY PLAINTIFFS V. ELECTROLUX 21. through 28. The allegations set forth in these paragraphs have been withdrawn from Plaintiffs' Complaint pursuant to a Stipulation of the parties, and accordingly no further responsive pleading is required. 4 NEW MATTER DIRECTED TO PLAINTIFFS 29. Plaintiffs' Complaint fails to state a cause of action as against Defendant Electrolux upon which relief may be granted as a matter of law. 30. Pending further discovery in this matter, and in order to preserve potentially waivable defenses, Defendant Electrolux avers that it did not design, manufacture, supply and/or sell the dryer at issue, and accordingly is not responsible for any alleged damages allegedly resulting from its design, construction, manufacture and/or use as a matter of law. 31. The damages described by Plaintiffs in their Complaint, all such damages being expressly denied, were caused in whole or in part by persons and/or entities over whom Defendant Electrolux had neither control nor right of control as a matter of law, and concerning which Defendant Electrolux has no legal responsibility as a matter of law. 32. To the extent that evidence may show that other persons and/or entities caused or contributed to damages claimed by Plaintiffs as described in their Complaint, all such damages being expressly denied, no act or omission or any other liability producing conduct on the part of Defendant was either the legal and/or factual cause of any such damages as a matter of law. 33. To the extent that evidence may show that other persons and/or legal entities misused, abused and/or otherwise failed to follow directions concerning the dryer at issue in this action which Plaintiffs allege caused and/or contributed to Plaintiffs' claimed damages, all such damages being expressly denied, then no act or omission and/or any other liability producing conduct on the part of Defendant Electrolux was either the legal or factual cause of Plaintiffs' claimed damages as a matter of law. 34. Defendant Electrolux reserves its right to raise one or more of those defenses set forth at Pa. R.C.P. 1030. 5 35. To the extent that it is proven that Defendant Electrolux designed, manufactured, sold and/or supplied the dryer described in Plaintiffs' Complaint, all such allegations being expressly denied, then it is further averred that at the time the appliance was allegedly designed, manufactured, sold and/or supplied by Defendant Electrolux, the product was not defective as a matter of law. 36. No product designed, manufactured, sold and/or supplied by Defendant Electrolux caused and/or contributed in whole or in part to Plaintiffs' claimed damages, all such damages being expressly denied. 37. Any damages sustained by Plaintiffs as a result of the fire described in Plaintiffs' Complaint were the sole, proximate and direct result of intervening and/or superseding causes which were not within the control of Defendant Electrolux as a matter of law. 38. To the extent that subsequent discovery so discloses, Defendant Electrolux will assert the defense that the dryer relevant to this litigation was misused, abnormally used and/or abused. 39. Plaintiffs are barred from recovery, or in the alternative, their recovery is reduced, by their own comparative fault. 40. Negligent conduct on the part of Plaintiffs was the factual and/or legal cause of Plaintiffs' alleged damages. 41. Defendant Electrolux breached no warranties, either express or implied, concerning the dryer at issue in this litigation. WHEREFORE, Defendant Electrolux Home Products, Inc. demands judgment in its favor and against Plaintiffs, together with such other relief as this Court shall deem appropriate. 6 Respectfully submitted, DATE: MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: TIMO HY J. 10c611HON, ESQUIRE I.D. No. 52918 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant Electrolux 7 CERTIFICATE OF SERVICE I, Cindy Sowers, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this 15' day of October, 2009, I served a copy of the foregoing Answer with New Matter via First Class United States mail, postage prepaid, as follows: Richard J. Boyd, Jr., Esquire Nelson Levine deLuca & Horst 518 Township Line Road Suite 300 Blue Bell, PA 19422 Attorney for Plaintiffs Cindy S trs 'PCEIVEO ?FP 2 5 1009 VERIFICATION I hereby affirm that the following facts are correct: Electrolux Home Products, Inc., improperly sued as Electrolux Home Care Products, Inc., is a named Defendant in the foregoing action and I am authorized to execute this Verification on their behalf. The attached Answer with New Matter is based upon information which has been gathered by my Counsel in the defense of this lawsuit. The language of the Answer with New Matter is that of Counsel and not of me. I have read the Answer with New Matter and to the extent that the responses are based upon information which I have given to my Counsel, they are true and correct to the best of my knowledge, information and belief. To the extent that the contents of the responses are that of Counsel, I have relied upon Counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid responses are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. ELECTROLUX HOME PRODUCTS, INC. DATE:/ 21 /01 BY: Title: 1-2m /U t Sit by jy? ?L, {EO068282.1 10515 1 5348.v 1 ACED-t}fr; CE OF THE FrKTHMTARY 2009 OCT -2 PM 12= .15) 8 CUP,?L: "i 1 r,!-;, h'7Y 06,44SYLVANA NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5122 DANIEL E. BIER AND STEPHANIE M. BIER, H/W Plaintiff(s) V. ELECTROLUX HOME CARE PRODUCTS, INC. ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 09-4655 PLAINTIFFS' ANSWER TO NEW MATTER OF DEFENDANT, ELECTROLUX HOME PRODUCTS, INC. 84-89. In accordance with Pa. R.Civ. P. 1029(c), all averments of the aforementioned defendant are denied as conclusions of law, or as irrelevancies inappropriately raised as New Matter. Alternatively, if any of defendant's New Matter averments are deemed not to be conclusions of law or irrelevancies, in accordance with Pa.R.Civ.P 1029(e), the answering plaintiffs are, after reasonable investigation, without knowledge or information to form a belief as to the truth of the defendant's averments and thus said averments are deemed denied. WHEREFORE, answering plaintiffs demand that judgment be entered in their favor in accordance with their complaint. NELSON LEVINE de LUCA & HORST, LLC BY: 44-exJ ? Al/ ICHARD J. YD, JR., ESQUIRE ATTORNEYS FOR PLAINTIFFS Dated: October 6, 2009 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5122 DANIEL E. BIER AND STEPHANIE M. BIER, H/W Plaintiff(s) V. ELECTROLUX HOME CARE PRODUCTS, INC. ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 09-4655 CERTIFICATE OF SERVICE I, Richard J. Boyd, Jr., Esquire, hereby certify that a true and correct copy of Plaintiffs' Answer to New Matter of Defendant Electrolux Home Products, Inc. was served on October 6, 2009, upon counsel listed below by United States Mail, postage prepaid. Timothy J. McMahon, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, Pennsylvania 17112 NELSON LEVINE de LUCA & HORST, LLC BY: 4 1-),?V4 ,RICHARD J. D, J ., ESQUIRE ATTORNE F"OR PLAINTIFFS Dated: October 6, 2009 RLED-O, ICE OF THE P nTPP ,N!OTARY 2004 OC i -8 PM 2: 26 ?L?d ,,. J•4 Z Y ,r Daniel E. Bier and Stephanie M. Bier, Plaintiffs v. COURT OF COMMON PLEAS CUMBERLAND CTY., PENNSYLVANIA No. 09-4655 Electrolux Home Care Products, Inc., CIVIL ACTION -LAW Defendant. JURY TRIAL DEMANDED PRAECIPE TO SETTLE. DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-referenced matter as SETTLED, DISCONTINUED and ENDED with Prejudice. NELSON LEVINE DELUCA & HORST BY: ,~, ichard J. Bo d, r., Esq ire ~. ~ '~. 18 Township ine Roa n ~ ~ =r _.,., Suite 300 ~ ? =~= `~'' _~ ,- Blue Bell, PA 19422 ~~- ~_~ ~ _'' c,. Attorney for Plaintiffs `~ ~- ~~' "-~' Dated: (y~~ ~(/(~j mac: ~ r~ ",: ~. ~! .c- -ra ~ ~; v, CERTIFICATE OF SERVICE I, Lisa J. Wallace, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on t ' ~ day of June, 2010, I served a copy of the foregoing Praecipe to Settle, Discontinue and End via First Class United States mail, postage prepaid, as follows: Richard J. Boyd, Jr., Esquire Nelson Levine deLuca & Horst 518 Township Line Road Suite 300 Blue Bell, PA 19422 Attorney for Plaintiffs