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HomeMy WebLinkAbout09-8723JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky I.D. No. 78000 By: Sarah E. Hoffman I.D. No. 307612 301 Market Street - P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 ERIE INSURANCE EXCHANGE a/s/o AZAM ARSHIAN and ALI ARSHIAN, and AZAM ARSHIAN and ALI ARSHIAN, as individuals, Plaintiffs Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LA(W?? NO. 87013 Ul% I i l em V. SEARS, ROEBUCK, & CO., Defendant JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by 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 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. 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. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717-249-3166 Toll Free: 800-990-9106 AV/SO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mfis adelante en las siguientes pdginas, debe tomar accion dentro de los prbximos veinte (20) dfas despues de la notificacibn de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aquf en contra suya. Se le advierte de que si usted falla de tomar accion Como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacibn o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mds aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI LISTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717-249-3166 Toll Free: 800-990-9106 JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky I.D. No. 78000 By: Sarah E. Hoffman I.D. No. 307612 301 Market Street - P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 ERIE INSURANCE EXCHANGE a/s/o AZAM ARSHIAN and ALI ARSHIAN, and AZAM ARSHIAN and ALI ARSHIAN, as individuals, Plaintiffs V. SEARS, ROEBUCK, & CO., Defendant Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. JURY TRIAL DEMANDED COMPLAINT AND NOW, come the Plaintiffs by and through their attorneys, Johnson, Duffie, Stewart & Weidner, and respectfully submit the following: 1. Plaintiff Erie Insurance Group (Erie) is a Pennsylvania insurance company with 'a place of business located at 4901 Louise Drive, Rossmoyne Business Center, Mechanicsburg, Pennsylvania 17055. 2. Plaintiffs Azam and Ali Arshian (the Arshians) are adult individuals who reside at 510 Jacob Lane, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Defendant, Sears, Roebuck & Co. (Sears), is a foreign corporation licensed to do business in Pennsylvania, with a registered address of 1515 Market Street, Suite 1210, Philadelphia, Philadelphia County, Pennsylvania 19102. 4. At all relevant times, the Arshians' home was insured by Erie. 5. In 2002, the Arshians purchased a Kitchen Aid refrigerator at Sears. 6. The refrigerator contains a water filter that is changed periodically according to an indicator light on the refrigerator. 7. The Arshians purchased a replacement Kenmore water filter at Sears, labeled "Sears Roebuck and Co.," to install in their refrigerator. 8. Kenmore is an exclusive proprietary brand of Defendant Sears. 9. After installing the Kenmore filter, the light on the refrigerator turned green, indicating that the water filter was installed and did not need to be changed. 10. The indicator light was green on January 11, 2008. 11. On January 11, 2008, Azam Arshian arrived home after work and noticed that the floor in front of the refrigerator was wet. 12. Azam Arshian turned off the water to the refrigerator and cleaned up the water. 13. Azam Arshian called Marshall Appliance Services who came to the home to repair the leak and determined that the source of the leak was the Kenmore water filter. 14. Further testing by experts at Diversified Product Inspections, Inc. (DPI) revealed a circumferential fracture in the Kenmore filter caused by fatigue. 15. DPI experts opined that "[t]his was a product failure that caused an uncontrolled release of water." See DPI Expert Report, attached as Exhibit A. 2 16. The fracture in the defective Kenmore water filter was the source of the water leak that caused water to accumulate on the Arshian's floor. 17. The water that leaked from the Kenmore filter onto the floor caused the wood floor to swell requiring the floor's removal and replacement. 18. As the Arshians' insurer, Erie paid insurance claims in the amount of $20,956.07. 19. The Arshians were required to pay a $500 deductible. COUNTI STRICT LIABILITY - § 402A RESTATEMENT 2d OF TORTS 20. Paragraphs 1 - 19 of Plaintiff's Complaint are incorporated by reference herein as if set forth in full. 21. Defendant Sears is engaged in selling Kenmore water filters. 22. Defendant Sears sold the defective Kenmore water filter in question to the Arshians. 23. Defendant Sears sold the Kenmore water filter in a defective and unreasonably dangerous condition. 24. The Sears water filter was defective and unreasonably dangerous because it fractured due to fatigue and there is no evidence of misuse or improper installation. 3 25. Further, the Sears water filter was expected to and did reach the Arshians without substantial change in the condition in which it was sold, as there is no evidence of misuse or improper installation. 26. The fracture of the defective filter was the proximate and factual cause of the water leakage and subsequent damage to the Arshians' home. 27. Based upon the foregoing, Defendant Sears is strictly liable to the Plaintiffs under the principles of the Restatement (2nd) of Torts, § 402A. WHEREFORE, Plaintiff demands judgment against Defendant Sears in the amount of $21,456.07 together with interest and costs. COUNT II BREACH OF IMPLIED WARRANTY OF MERCHANTIBILITY 28. Paragraphs 1 - 27 of Plaintiffs Complaint are incorporated by reference herein as if set forth in full. 29. Sears, as manufacturer and/or seller of water filters and the particular water filter purchased by the Arshians, impliedly warranted the merchantability of the defective water filter. 30. Sears knew or should have known, and in fact intended, that the ordinary use of the defective water filter would be to filter water in a refrigerator in a manner in which it was being used in the Arshians' residence. 4 31. Sears breached the implied warranty of merchantability in that the defective water filter was unfit for the ordinary purpose for which it was to be used, as it fractured and discharged water with ordinary use. 32. The discharge of water from the defective filter caused damage to the wood floors in the Arshians' home, requiring the floor's removal and replacement. 33. As a result of the foregoing, Sears is liable to the Plaintiffs for breach of implied warranty of merchantability, because the product was not fit for ordinary use, under common law and 13 Pa.C.S. §2314. WHEREFORE, Plaintiff demands judgment against Defendant Sears in the amount of $21,456.07 together with interest and costs. Respectfully submitted, TE/WART & WEIDNER JOHNSO DUFFIE, SL&OIA By: J n R. Ninosky, Esquire Attorney I.D. No. 78000 Sarah E. Hoffman, Esquire Attorney I.D. No. 307612 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiffs Date: December 17, 2009 :382963 5 DI 1CD tlODtl PRODIC Diversified Product Inspections, Inc. QP Forensic Investigations & Product Failure Analysis LEVEL 1 INVESTIGATION REPORT Claim No. 010170959363 DPI File No. 2008-05-64467 Type of product examined by laboratory investigation: From the Residence of. Manufacturer, Distributor or Retailer of Product: Phone: Fax: Report prepared for: Water Filter Cartridge/Canister AZAM B. & ALI ARSHIAN 510 JACOB LANE MECHANICSBURG, PA 17050 SEARS NATIONAL CUSTOMERS RELATIONS ATTN: PRODUCT LIABILITY 3333 BEVERLY ROAD HOFFMAN ESTATES IL, 60179 800-349-4358 VICKI PHILLIPS - ERIE ERIE INSURANCE 4901 LOUISE DR. MECHANICSBURG PA 17055 To the best of DPI's knowledge, the manufacturer/distributor information provided herein is correct concerning the product inspected. It is the responsibility of our clients and/or their representatives to ascertain ownership/acquisition status as DPI cannot file for a motion of discovery or render legal services. - Please read the full report. 1059 E Tri•County 81%d 800.865.6220 giver Springs, TN 37840 665.482.8480 www4pHnc.com 665.462.6477 Fax Diversified Product Inspections, Inc. PLAINTIFF'S EXHIBIT - -A ALL•87ATEs INTERNATIONM Claim No. 010170959363 I?IVKASJ DPI File No. 2008-05-64467 V-I HISTORY: The information provided by the adjuster stated, "The water line in freezer/refrigerator broke causing damage to wood floor in front of refrigerator." The evidenced filter was removed from a Kenmore refrigerator. The date of loss was 01/11/2008. VISUAL EXAMINATION: • A white polymeric water filter was received as evidence for inspection. • The filter was approximately 10" in length. • The filter label was marked "Sears Roebuck and Co.", "Model WF-NLC240V using Replacement Cartridge NLC240V" and "Filter Model WF-LC400V using Replacement Cartridge LC400V". • The filter label was also marked "Part No. 469010". • The filter label was also marked, "For best results, replace every 6 months or as indicated by filter reminder light." The date code marked on the filter was C04N215-1, indicating that the filter was manufactured in 2004. • The inlet/outlet port was undamaged, and the O-ring seals were pliable. A circumferential fracture was noted in the top of the filter shoulder just, below the:manufactured seam. • The fracture was approximately 1/z" in length. • The physical characteristics of the fracture were typical of fatigue loading. • No evidence of misuse or improper installation was observed on the water filter. TESTING PROCEDURE & RESULTS: • The water filter was tested with 32 psi of water pressure. • When water pressure was applied to the filter, water sprayed from the fracture. • No further testing was performed on the water filter. ENCLOSURES: Photos 01-13 & Attachment • 01: DPI's evidence tag • 02: Water filter in "as-received" condition • 03-06: Markings on water filter • 07-08: Inlet/outlet port • 09: Fracture in shoulder • 10: Test setup • 11-13: Water spraying from water filter 1059 E Td County BIW 800.885.6220 COW springs, TN 37840 885.482.8480 www.dpiinr_=n 885.482.8477 Fax Diversified Product Inspections, Inc. Page 2 of 3 • Attachment: Description of Molded Part Cracking/Fatigue Failure CONCLUSION: A white polymeric water filter was received as evidence for inspection. No information was provided on the claim form regarding the age of the filter cartridge. A circumferential fracture was noted in the top of the filter's shoulder just below the manufactured seam. The fracture was approximately 1/2" in length. The physical characteristics of the fracture were typical of fatigue loading. No evidence of misuse or improper installation was noted on the water filter. The water filter was tested with 32 psi of water pressure. When tested, water leakage was noted from the fracture in the shoulder. The circumferential fracture was caused by fatigue. This is a known failure in these types of water filter. Fatigue loading is a repetitive cycling of a load on a part or component. The general characteristic is that a crack will begin at a defect, such as a small hole or notch, and will progress when the loading is in the right direction and of sufficient magnitude to allow the crack to advance. This results in a fracture with a surface that has steps to mark the progression of the crack with time. When the section is reduced sufficiently for the stress to exceed the tensile strength, the remainder of the section will abruptly fail by overstressing. Please see the attachment for more information on molded part cracking and fatigue failure. No evidence of an improper installation that would have caused this fracture was observed. This was aproduct failure that caused an uncontrolled release of water. Please refer to the first page of this report for information concerning the manufacturer and/or distributor. If you have any questions regarding this claim, please contact the Customer Service Department at (865) 482-8480, extensions 105, 116 or 117. Inspector: John Davis Investigator: Rick Bright Date: 5/19/2008 Date: 5/19/2008 1059 E TO-County Bhd 800.865.6220 Oliver Springs, TN 37840 865.482.8480 www.dpi4moom 665.482.8477 Fax Diversified Product Inspections, Inc. Page 3 of 3 Diversified Product Inspections, Inc. nrµsi h is • Forensic Investigations & Product Failure Analysis Pictures of evidence involved in DPI File number: 2008-05-64467 Claim number: 010170959363 1059 E Tri-County Bled 800.865.6220 Oliver Springs, TN 37840 865.482.8480 www.dpi4nc.com 865.482.8477 Fax Diversified Product Inspections, Inc. Page 1 of 7 t? d7b Diversified Product Inspections, Inc. Forensic Investigations & Product Failure Analysis 1059 E Tri-County Blvd 600.665.6220 Oliver Springs, TN 37840 665.482.8480 www.dpi-inc.com 865.482.8477 Fax Diversified Product Inspections, Inc. Page 2 of 7 Pictures of evidence involved in DPI File number: 2008-05-64467 Claim number: 010170959363 i .? Diversified Product Inspections, Inc. Forensic Investigations & Product Failure Analysis 1059 E Tri-County Blvd 800.885.6220 Oliver Springs, TN 37840 865.4a2 848o www.dpiAnc.com 865.482.8477 Fax Diversified Product Inspections, Inc. Page 3 of 7 Pictures of evidence involved in DPI File number; 2008-05-64467 Claim number: 010170959363 Diversified Product Inspections, Inc. Forensic Investigations & Product Failure Analysis 1059 E Tri-County Bhd 800.865.6220 Oliver Springs, TN 37840 865.482.8480 www.dpi-inc.com 865.482.8477 Fax Diversified Product Inspections, Inc. Page 4 of 7 Pictures of evidence involved in DPI File number: 2008-05-64467 Claim number: 010170959363 Diversified Product Inspections, Inc. Forensic Investigations & Product Failure Analysis 1059 E Tri-County Blvd 600.865.6220 Olner Springs, TN 37840 665.482.8480 wwwApHric.oom 865.482.8477 Fax Diversified Product Inspections, Inc. Page 5 of 7 Pictures of evidence involved in DPI File number: 2008-05-64467 Claim number: 010170959363 ,lLuru-'t Diversified Product Inspections, Inc. Forensic Investigations & Product Failure Analysis 1059 E TO-County Blvd 800.865.6220 Cliver Springs, TN 37840 865.482.8480 www.do4nc.com 665.482.8477 Fax Diversified Product Inspections, Inc. Page 6 of 7 Pictures of evidence involved in DPI File number; 2008-05-64467 Claim number: 010170959363 Diversified Product Inspections, Inc. Forensic Investigations & Product Failure Analysis 1059 E Td-County Blvd 800.865.6220 giver Spings, TN 3784o 865.482.8480 www.dpi-inc.com 665.462.6477 Fax Diversified Product Inspections, Inc. Page 7 of 7 Pictures of evidence involved in DPI File number: 2008-05-64467 Claim number: 010170959363 ABS.Trouble Shooting - Molded Part Cracking / Fatigue failure 1B WAG RBS.Lta. 7ROtNU HOME> Solutions> `l:ro Molded Part Cracking Chemical stress Fatigue failure Plated part cracking In Molding !!erects Silver streaks :Short shbr letGnfz Flow marks Gr?1or sneaks Weld lines Flash Delaminatiost Strirtgines Sink marks Warping or twisting 23 Weathering. 1'b'nt#Pgl?ctccts Ainltvtc Cracks" Sinking C:rawtin sealing defects Pagel of 2 ......... . deal Pan Cracking ....... .......... . .................. Molded Part Crurkitt Fatrane FRitnrr I. 1)evccriPtiion of Cracks and the Mechanism .ofCracking Components and Locations Where Vatigue Failure; Occurs 3, Measures for lmnrovetnent of Fatigue Durability 4. Fa0guo Testing 1. LOwrtitwo of Cmcks and the i lumism of Creaking If a molded cwnronent or tttmterial is S1,Neeted t©.a reP:twvcbad in a cal-,usage envtrd;nmcn? Whim (Le, muldn4 Win take place tier a certain number-of cycles at a load much lower than its star :yield stress. ibis PhonomeWn is"t Cw to as material fatiguc; and the correspo m9 fijlure, as ftttigue failure. Surfaces resulting ft m fatigue failure cam be idenlif cd by the-clamshell triat3cin tvltieh is +dislttts [tvt: itr this phenomenon. Shear- 'is,tde Main tA* of stress that 4. iQacly s ffads iht?i , anal a & xesult br, this, alt : bet?er? s?,ions of the unaterial; fi?.,? , b* #=wcurs `Ibzm n this 111 A(1131Iti clam sholl,pu sl S'ttted:. , ... ......... .... 2 CAmponeiiisand Locations Wheae Fatigue Faihu+c occuis • Mastic spring stxtians lcexW-d txrmPgnems or oPmation- l switches • bsaachsbie amp fits • "Pnessurizca8 water coittali rs-fbr water flltcring and compt+ Sir c ustcia s. All othtr types pfeOmptmeat;Which SM subi to cepelitive ..,. 3, Measures for improvement, of 1at• . .. . ....... ......... ............ ......... ..,,...... ive Durability • Wbcn designing, ftlestic springsr ?P ?, ewd the ltkp, sutl?cIetzt+itleraiiiera t slronki ? ?;i n • spring spa* force) and tkit ability, hen ? the given material this atg,afu?ty is'&paridtatt on the cuing ilress ttalue, and for this rmson the otsoarriitg this low bd lowe* h redtt«ng the load orby itnplstnenting design fbct? which tlisttx`l.. i • .in arderio prevent Ate,?enerstion ofceneks Which r;axtstitute the start poimfor liatiguc Ralure: - use a design which avoids stress n atbn by, for example, stitoc attlx ; making site Yhet eomer radii are Increase the level of smoothness on molded ; a !found off The edges of rib tips and voter locations with high stress levels. • 'Contact o is, g , an4 arty 96W dm kw agates that attack plastic basta.significant detrimcritat effect on fetiBitt tuabiltf{yw and this should therefore be avoidcr! . • Welded 3PWOUs troa<llly Slue nine to the start of fatigue failure,-and for this ftson, measures should be implancitted to provem repetitive at such sections • Plastics with su it>!¢tag Pcnor fWguc dtrcttbiTity should be used. 4. Fatigue Testing r 'testing standards andcpnditions Standard: ASTM D67-1-63TB (cantilever bending, fixed load method} Conditions: The test piece is to be as shown on http://Www.umgabs.co jp/en/solution/trouble/t 13.htm 5/8/2008 VERIFICATION I, Francis Guillemette, an authorized representative of Erie Insurance have read the foregoing Complaint and hereby affirm that it is true and correct to the best of my personal knowledge, or information and belief. This Verification and statement is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities; I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa. C.S. §4804. By ??- Francis Guillemette Subrogation Specialist II Erie Insurance Date: 385010 0 I .' ; 'F-IC E {.JW. t .J I,. F 4G_ 2H9 DEC 13 I : 24 jga.oo po NOW e?* 3aasa P.?' a3?a37' .. ~ I~-~,.r i ~. iii/ ~, ~: ~ ;~- , r r'~iai~'~~iL ~+`ti,W JOHNSON, DUFFIE, STEWART 8c WEIDNER By: John R. Ninosky I.D. No. 78000 By: Sarah E. Hoffman I.D. No. 307612 301 Market Street - P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 ERIE INSURANCE EXCHANGE a/s/o AZAM ARSHIAN and ALI ARSHIAN, and AZAM ARSHIAN and ALI ARSHIAN, as individuals, Plaintiffs CIVIL ACTION -LAW NO. 09-8723 v. SEARS, ROEBUCK, & CO., Defendant JURY TRIAL DEMANDED REPLY TO NEW MATTER OF DEFENDANT SEARS ROEBUCK. AND CO. AND NOW, come the Plaintiffs by and through their attorneys, Johnson, Duffie, Stewart & Weidner, and respectfully submit the following: 34. Denied. The averments contained in Paragraph 34 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. By way of further answer, the Plaintiff has stated a claim for Strict Liability and Breach of Implied Warranty of Merchantability. Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 35. Denied. The averments contained in Paragraph 35 are conclusions of law and fact to which no response is required. If a response is deemed to be required, it is specifically denied that the Plaintiff's claims are barred by the statute of limitations. 36. Denied. The averments contained in Paragraph 36 are conclusions of law and fact to which no response is required. If a response is deemed to be required, it is specifically denied that venue is improper. 37. Denied. The averments contained in Paragraph 37 are conclusions of law and fact to which no response is required. If a response is deemed to be required, it is specifically denied that this Honorable court lacks subject matter jurisdiction. 38. Denied. The averments contained in Paragraph 38 are conclusions of law and fact to which no response is required. If a response is deemed to be required, it is specifically denied that Plaintiffs claims are barred by the doctrine of res judicata. 39. Denied. The averments contained in Paragraph 39 are conclusions of law and fact to which no response is required. If a response is deemed to be required, it is specifically denied that Plaintiffs claims are barred by the doctrine of collateral estoppel. 40. Denied. The averments contained in Paragraph 40 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 41. Denied. The averments contained in Paragraph 41 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 42. Denied. The averments contained in Paragraph 42 are conclusions of law and fact to which no response is required. If a response is deemed to be required, it is specifically denied that abuse and/or misuse of the water filter constitutes the sole and exclusive cause of the damages referenced in Plaintiff's Complaint. 43. Denied. The averments contained in Paragraph 43 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 44. Denied. The averments contained in Paragraph 44 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 45. Denied. The averments contained in Paragraph 45 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 46. Denied. The averments contained in Paragraph 46 are conclusions of law and fact to which no response is required. If a response is deemed to be required, it is specifically denied that the water filter was substantially altered or modified after it left the possession and/or control of Sears. 47. Denied. The averments contained in Paragraph 47 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 48. Denied. After reasonable investigation the Plaintiff is without sufficient knowledge or information to form a belief as to the truth of the averments contained in Paragraph 48 and the same are therefore denied. 49. Denied. The averments contained in Paragraph 49 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 50. Denied. The averments contained in Paragraph 50 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 51. Denied. The averments contained in Paragraph 51 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. By way of further answer, Sears may only file such additional defenses, counterclaims, cross claims and/or third-party complaints as permitted by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiff respectfully requests that the New Matter of Defendant Sears, Roebuck, and Co. be dismissed and that judgment be entered against Defendant Sears in the amount of $21,456.07 together with interest and costs. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky, E re Attorney I.D. No. 78000 Sarah E. Hoffman, Esquire Attorney I.D. No. 307612 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiffs Date: July (p , 2010 :405928 VERIFICATION PURSUANT TO PA. R.C.P. NO. 1024(cl Sarah E. Hoffman, Esquire, states that she is the attorney for the party filing the foregoing document; that she makes this verification as an attorney, because the party she represents lacks sufficient knowledge or information upon which to make a verification and/or because she has greater personal knowledge of the information and belief than that of the party for whom she makes this affidavit; and that she has sufficient knowledge or information and belief, based upon her investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Sarah E. Hoffman Date: July 6, 2010 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on July 6, 2010: Basil A. DiSipio, Esquire Lavin, O'Neil, Ricci, Cedrone & Disipio Suite 500 190 North Independence Mall West 6th and Race Streets Philadelphia, PA 19106 JOHNSON, DUFFIE, STEWART & WEIDNER By: Sarah E. Ho man