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HomeMy WebLinkAbout09-4974NELSON 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 DEWAYNE McCARDELL and KRISTEN McCARDELL, h/w 27 Pine Street Carlisle, PA 17013-3137 Plaintiff(s) V. WHIRLPOOL CORPORATION 211 Hilltop Road, MD 2113 Saint Joseph, MI 49085 Defend ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION NO: Dq _ 4q 7y 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: LAWYER REFERRAL SERVICE, Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717)249-3166 or 1-800-990-9108 (PA only) ONVil-Tem 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 DEWAYNE McCARDELL and KRISTEN McCARDELL, h/w 27 Pine Street Carlisle, PA 17013-3137 Plaintiff(s) V. WHIRLPOOL CORPORATION 211 Hilltop Road, MD 2113 Saint Joseph, MI 49085 s COMPLAINT ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION NO: 0 9 - y-P 7 Y Ct;?4 7L- ARBITRATION MATTER Plaintiffs, Dewayne McCardell and Kristen McCardell, by and through their undersigned counsel, hereby demand judgment against Defendant, and complain against it as follows: 1. Plaintiffs, Dewayne McCardell and Kristen McCardell, are adult individuals who, at all times relevant hereto, owned and resided at the home located at 27 Pine Street, Carlisle, PA 17013 (hereinafter "the premises"). 2. At all times relevant hereto, Defendant, Whirlpool Corporation (hereinafter "Whirlpool") was, upon information and belief, a Delaware corporation and was regularly conducting business in the Commonwealth of Pennsylvania, County of Cumberland. 3. Defendant, Whirlpool, at all times relevant hereto, was in the business of, inter alia, manufacturing, selling, designing, distributing, and marketing home appliances, including the dryer (hereinafter the "product") at issue in this case. 4. On or about January 27, 2009, 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. WHIRLPOOL 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, Whirlpool, by and through their employees, agents, technicians, vendors, subcontractors and/or servants, more specifically described as follows: 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 Whirlpool, Plaintiffs sustained and incurred damage to their real and personal property, as well as the imposition of additional expenses and hardships, in an amount not in excess of $50,000.00. WHEREFORE, Plaintiffs respectfully request judgment against Defendant, Whirlpool Corporation, in an amount not in excess of $50,000.00, 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. WHIRLPOOL 8. Plaintiffs repeat the allegations set forth in the prior paragraphs of this Complaint as though they were set forth at length herein. 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. Whirlpool designed, manufactured, distributed, tested and/or sold the subject product in a defective condition, unreasonably dangerous to consumers. 11. Whirlpool 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 of. (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 not in excess of $50,000.00. 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, Whirlpool Corporation, in an amount not in excess of $50,000.00, 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. WHIRLPOOL 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. 17. 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 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, Whirlpool Corporation, in an amount in not excess of $50,000.00, 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. WHIRLPOOL 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 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, Whirlpool Corporation, in an amount not in excess of $50,000.00, 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 LUC:A & HORST, LLC BY: '?v ?? CH RD J. BO , , ESQUIRE P TTORNEYS FOR PI INTIFFS Dated: Z dal 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: /I /gLQ2-- FRANCIS GUILLEM TTE ''?•.1 Y' OF THE I t v,'? 'L- „ m Ail 2009 JUL 22 P 2: - 0 UNTY pEm *em, 50 PD ATTY &,w 3o939 eaa s2s 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 DEWAYNE McCARDELL and KRISTEN McCARDELL, h/w Plaintiff(s) v. WHIRLPOOL CORPORATION Defendant(s) ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION NO: 09-4974 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 Plaintiff in the above captioned matter and in such capacity did have Defendant, Whirlpool Corporation, served with a true and correct copy of the Complaint by way of certified mail, return receipt number 7008 1830 0001 0307 0994. The Complaint was acknowledged by Defendant as being received on July 31, 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: ICHARD J. Y , J ., ESQUIRE ATTORNEYS FO~PL,AINTIFFS Dated: August 4, 2009 ^ Complete items 1, 2, and 3. Also complete Rem 4 if Restricted Delivery is desired ^ Print your name and address on the reverse so that we can. return the Bard to you. ^ Attach this card to the back of the mailpiece, or on the front ff space Permits •~ 1. Article Addressed to: w ~ 2~ Co,~P arl f h~l ;E~ Rol tit Q 2 ~ r3 A S( re X i B.'~~5e^~ SAY ~ Agent ^ Addressee d~f Delivery . D. Is delivery address efferent from item 1? ^ e: If YES; enter delivery address below: ^ No 3. Service Type _ ^ Certified Maii ^ Exprr:ss Mail ^ Registered ^ Retum Receipt for MercharWise ^ Insured Mail ^ C.O.D. 4. Restricted Deliveprt (Extra Feaj 2. Article Number ^ Yes (~,anste,r>ar,oam~' 7038 1833 o~Q1 ^3p7 H994 PS Form. 3811, February 2004 Domestic Return Receipt ' . ~o25s5-02-M-tsao . ........__. __ ,i UNITED STATES POSTAL y~~~,IC~ may: ~:..~¢.-~-.r: ~y i t • Sender: Please print your name, address, and ZIP+4 in this box • ~~~ NELSON LEViNE DE LUCA 8. HORST 518 TOWNSHIP UNE RD SUITE 300 BLUE BELL, PA 19422 tirl EXHIBIT "A" .4 r4 _ ,7f